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Thursday, November 24, 1910.
a Cwiar Canape a la Russia Sliced Tomatoes Sliced Cucumbers Boiled Philadelphia Capon, Oyster Sauce Suoivtlake Potatoes Roast Prime Ribs of Beef ait jus Steamed Potatoes Cafe Noir CATARRH WILL GO Relief Comes in Two Minutes, Com plete Cure in Few Weeks. Don't go on hawking yourself sick plaintiff and respon every morning it's cruel, it's harmful, Honsinger, de and it's unnecessary. and appellant If after breathing HYOMEI, the] wonderful worker, you are not rid of vile catarrh, you can have your money, little hard rubber pocket inhaler a a 0 ?.n Sftm^. v- 'ft n1? nS i" S a life time. day, and in a few weeks you will be''rulings thereon, held, prejudicially er- entirely free from catarrh. Ironeous. I JSS'tit^2S ',7°VA an a a LIGNITE COAL Get Your Supply Now While the weather is open Is an excellent time to fill your bins with our best Grade Lig nite Coal, and be prepared when the bad weather and storms come. This Is especially true where there Is not room for an all win ter supply. Later, when severe storms are raging, you will not have to wait or bother with the fuel question. Best Grade. Guaranteed Weights. WASHBURNLIGNITE COAL COMPANY PHONE 453 15he Grand if to Hotel THANKSGIVING MEjSU Consomme Henry IV Sailed Almonds Young Turkey Stuffed, Cranberry Jelly Barbecued Suckling Pig Apple Puree Fruit Salad en Suprise Thanksgiving Pudding Hard and Brandy Sauce Green Apple Pie Pumpkin Pie Walnut fee Cream Saratoga Waters Smyrna Figs Ixiyer Raisins Pates American Prick ("ainentbert ('heese a ,. ,,, siders excessive, and to require the in this case it is unnecessary to de No stomach dosing—just take the a comes with each outfit, and pour in-1 „ofllBni ™rtnin T-P- thins owns all its products and ac to it a few drops of HYOMEI. Breathe! 2. The refusa to give certain re- establishes title to grain, it according to directions. In two min- instructions, held, not error. S utes it will relieve you of that stuffed 3. Objections to certain questions holding possession thereof af up feeling. Use it a few minutes every considered in the opinion and the Breathmg HYOMLI is a very pleas-: (Syllabus by the court.) been in possession of the land, «-K ™°ck-J- a /Hue Points on Half Shell Creme Argentuil Queen Olives Celery Hearts fillets of Lake Superior Trout a la Chambord (•rilled Jersey Squab en Croqtte White Mountain Fritters Ponet Canet Asparagus Tips tut /leurre Pommes Parisienue Veal S7ceel Breads supreme en Caisse Petit Pois Creme de Minthe Sorbet has authority in a a 0 a re(iuction of Candied Yarns Ciiliflnwer tfollandaise Saddle of Venison Hunters Style /•scalloped Sugar I orn Hot Mince Pie Fancy Assorted Cake /lints Water ackers XCJV Cider lJ t. Appeal from the district court, Cass but a review of the authorities dis- or 1 1 Opinion of the court by Carmody, J., all concurring except Morgan, C. 1 J., dissenting. respondent. Golden Valley Land & Cattle Co., I plaintiff and appellant, vs. John Johnstone, defendant and respond ent. 1. Without deciding whether section 5710, R. C. 1905, which makes one who wrongfully retains a thing an in voluntary trustee thereof for the ben efit of the owner, and section 5711, R. C. 1905, which provides that one who gains possession of a thing by fraud, accident or mistake, undue in fluence, the violation of a trust, or other wrongful act, is, unless he has crop was raised, after severance of such crop from the land. 3. Sections 7520 and 7534, R. C. 1905, define the nature of the recov ery which may be had by plaintiff in actions to determine adverse claims to real property and a plaintiff who has proceeded under the provisions of said chapter can only recover when het of of shows damage by waste or removal Property from the premises 4. It is held that under the facts cide whether Section 4752, R. C. 1905, a a a or ,:c0'fx fc sufferer. For sale by druggists every-1 Action by Fred W. Lohr against °JJhe iundee th grower of th where and by Lenhart Drug Co., who Willis T. Honsinger. guarantees it to cure catarrh, croup, From a judgment in favor of plain-' coughs, colds, sore throat and bron- tiff, and from an order denying de citis. After you once own a Hyomei fendant's motion for a new trial, de hardu rubbed inhalerb which comebs0 witehIt fendant appeals. Reversed and a new trial granted. HYOMEI liquid from Lenhart Drug Co. Tenneson & Cupler for ap for only 50 cents the inhaler lasts. a 0 Gf some other and better righj, thereto, plaintiff appeals an involuntary trustee of the thing gained, have any application to a crop raised on land and severed therefrom by one who retains possession there of after default by him in the terms of an executory contract of purchase and after the statutory notice has been served on him of the forfeiture and cancellation of such contract, it is held where the vendor has never been in possession of such land and two years before the crop in controversy was severed therefrom had commenc ed an action to determine adverse claims thereto, in which the only money judgment demanded was for the value of the use and occupation thereof, and he has remained silent until after the harvesting of the two crops, that he has thereby elected to stand upon his right to recover for the use and occupation and has waiv ed his right, if any, to recover the value of the crop so raised and sev ered by the vendee. 2. In an action to determine ad verse claims to real estate, under section 31, R. C. 1905, brought by the vendor on an executory contract for the sale of land, the plaintiff cannot recover both for the value of the crop the owner of a jt re of an executory contract of a in the vendor as against do has nev- SX^TS^SSlZ crop. 5. Thownership, vendor an executoryeI contract for the sale of land who is not and never has been in possession 1 thereof, under the facts disclosed in this case and set forth in the opin ion, has not a lien upon the crop rais ed and severed by the vendee in pos session as security for the value of the use and occupation. 6. It is held that the vendor, under the facts, circumstances and pleadings above referred to, cannot have a re ceiver take possession of and con serve the crop so raised after its severance, for the purpose of sub jecting it to his claim for the value of the use and occupation of the premises after forfeiture by the ven dee of his contract of purchase. (Syllabus by the court.) BISMARCK DAILY TRIBUNE defendant a preliminary hearing be fore a magistrate. 3. On an appeal taken from a judg ment convicting defendant of keep ing and maintaining a common nuis ance between two dates, the last of which is a date during the continu ance of the term of the district court of the proper cdunty, one of the er rors assigned is the overruling of a motion to set aside the information, such appeal bringing into this court none of the evidence, it must be as sumed that the proof showed a main tenance of the nuisance during the continuance of the term of the dis trict court at which the information was filed. 4. Where a complaint was filed be I fore a magistrate charging defendant I with the maintenance of a common nuisance, and he waived examination land was held to the district court, and during the next term of the dis trict court an information was filed charging the offense of keeping and maintaining a common nuisance both during the time included in the com plaint filed with the magistrate and a period subsequent to such time, in cluding that part of the term of the district court which had elapsed be fore the filing of the information, and no separate information was filed for the time covered by the complaint made before the committing magis trate, a motion cannot be sustained to set aside the information on the ground that no complaint had been tiled or preliminary hearing had re lating to and covering the time not included in the complaint on which the defendant was held. 5: Conviction for maintaining a nuisance on an information charging its maintenance during a long period of time prior to the commencement of a term of the court at which the information was filed, and during such term, is a bar to another conviction for the commission of the same of fense at any time between the dates charged. 6. Had the information above re ferred to been drawn to cover only the period subsequent to the prelim inary examination, it would not have barred another conviction for its maintenance prior to such examina tion. 7. An information charging that the defendant, between the 1st day of July, 1909, and continuously there from to and including the 2nd day of May, 1910, committed the crime of keeping and maintaining a common nuisance in a certain place and build ing in the city of Mandan. properly describing the place and building in which place intoxicating liquors were sold, etc., as a beverage, and in which said place persons were permitted to and did resort, etc., and in which said place intoxicating liquors were kept for sale, etc., contrary to the statute, etc., charges a public offense notwitk- lege in terms that, the defendant sold or permitted persons to resort to such place or kept intoxicating liq uors for sale thereat, the charge of keeping and maintaining being suffi cient to connect the defendant with the offense. (Syllabus by the court.) Appeal from district, court of Mor ton county, Crawford, J. Action by th-~ state North Da a -f against Joseph Winbauor charg ing him with the offense of keeping and maintaining a public nuisance. From a verdict and a judgment of conviction defendant appeals, assign ing as errors the overruling of his motion to set aside the information and his demurrer to the information. Affirmed. Shaw & Nuchols, attorneys for ap pellant. Andrew Miller, attorney general Alfred Zuger, ('. L. Young, assistant Opinion of the court by Spalding, J., all concurring. Lillian B. Taugher, plaintiff and re spondent, vs. Northern Pacific Rail way Co., a corporation, defendant and appellant, and Edwin P. Olson, Appeal from the dist rict court of he owned the grain. Held, that such Billings county, Crawford, J. questions were proper as going to the Action to determine adverse claims credibility of C. as a witnesss when to real property. From an order de-.offered for that purpose, and that it nying palintiff's application for the was reversible error of the trial court a receiver pendente Affirmed. Purcell & Divet, and McFarlane & Murtha, for appellant. Heffron & Baird and J. A. Miller for respondent. Opinion of the court by J., all concurring. Peter Kerner anu Edwin P. Olson, Daniel Preszler and Adam Bollin ger, defendants. 1. In an action for damages for conversion of grain by a common car rier, intrusted to it for transportation, one of the defenses relied upon by appellant was that the grain did not belong to the plaintiff consignor, but was the property of one C. In at tempting to make proof of such own ership after proper foundation laid and after had testified thjt the grain all belonged to the plaintiff, C. was interrogated as to whether he had made statements to the effect that: ultaneously to sustain objections to such ques tions. 2. On proof of delivery of property to a common carrier in sound con dition and of its failure to redeliver it, a sufficient case is made to sustain a recovery for loss in an action by the shipper on his contract, with cer- Spalding, tain exceptions which have no appli cation in this case, but other and dif Iference proof may be necessary in State of North Dakota, plaintiff and such case to sustain an action for con respondent, vs. Joseph Winbauer,. version against the carrier, defendant and appellant. 3. To constitute conversion there 1. The maintenance of a common' must be a positive tortious act, a nuisance continuously between two tortious detention of personal proper dates, may, in a criminal proceeding ty from the owner, or its destruction against the party charged, be treated or an exclusion or defiance of the as one continuing offense. 2. Under section 9791, R. C. 1905, the state may proceed by information against one charged with a criminal offense, and such information may be filed without first giving the defend- owner's right, or the witholding of possession under a claim of title in consistent with that of the owner. 4. The gist of the action on the contract in such case is the failure to deliver, which the gist of an action ant a preliminary hearing, when the in trover is the conversion, and the offense is committed during the con- mere showing of a breach of contract tinuance of a term of the district may not prove conversion. 5. If a shipper elects to sue for conversion and fails to establish the elements necessary to constitute con version, his action must fail unless court in and for the county or judi cial subdivision in which the offense is committed or tried. Held, that an information which charges the offense of maintaining a! bis complaint states facts necessary common nuisance between two dates to sustain a recovery on the contract raised after forfeiture of the contract some months apart when the last, or some other proper form of recov by the vendee, and for the use and 'date is within the term of such court,Jery, as the burden is on the shipper occupation of the land on which the may be filed without first giving the,when he 3eeks the benefit of the OAHL BUILDING, MAIN ST. tion with other facts, the demand and condition that it might have deliver standing the fact that it does not al- the property if it would, and con- version does not lie against a com mon carrier for a meme non-feasance nor for goods stolen from the carrier, nor for negligence causing the loss, nor for bare omission. 7. When good3 in transit are taken from the carrier by an officer under a writ, of attachment against a third party, it is encumbent on the car rier, in art action for conversion, to give immediate notice to the shipper. and on failing to giye such notice so as to enable the shipper to protect himself, the carrier assumes the bur den of establishing the legality of the proceedings on which the attach ment was made, and the fact that the writ was regular on its face does not protect the carrier if such writ was in law void. 8. A justice of the peace acquires no jurisdiction to issue a writ of at tachment until the summons in the action is issued, as attachment is a attorneys general, and J. M. Hanley, provisional or dependent remedy state's attorney, attorneys for respon dent. which has no existence until the com mencement, of an action. !). When delivery by a carrier to an officer, under a valid writ of attach ment, constitutes conversion proof of the value of the property delivered, as of the date delivered to the officer, is competent proof of value to support a recovery. 10. In the absence of other exist ing liens on property, a mortgagor may legally surrender the mortgaged property to the mortgagee and author ize its sale and the application of the proceeds to the mortgage debt, though no default has occurred in the terms of the mortgage. 11. A justice summons bore date two days after the filing of the com plaint, affidavit and undertaking for attachment and issuance of the writ of attachment. Held, that on the of fer of such papers in evidence in an attempt, to show that they were sim ssued. it was not error to exclude them from evidence. 12. Section 8530, R. C. 1905, requires a justice of the peace to keep a docket and enter therein a continuous order, with the proper date, each act done during the course of litigation and section 8531 provides that the docket so kept cannot be disputed in a col lateral proceeding that it or a duly certified transcript thereof is compe- I tent evidence of the matters to which it relates. Held, that, the sections re-1 ferred to make such docket the best evidence of the facts required to be and which are entered therein by the justices and that, In the absence of any offer of such docket or transcript thereof as evidence, no attempt being made to account for its absence, parol evidence is not admissible under the facts disclosed to show that the sum mons was in fact issued simultaneous with, the issuance of the writ of at tachment. (Syllabus by the court.) Appeal from district court Stuts man county, Burke, J. Action by Lillian B. Taugher against Northern Pacific Railway Co. and others, for the conversion of flax shipped by plaintiff over defendant's railroad. The defendant, the North ern Pacific Railway Co. appeals from a judgment in favor of plaintiff and an order denying a new trial. Reversed and a new trial granted. Ball, Watson, Young & Lawrence for appellant. Lee Combs for respondent. Opinion of the court by Spalding, J., all concurring, except Ellsworth, J., 8 0 I •Why not se= lect your suit or overcoat for the winter or for Xmas now. We can please youbecausewe have about 700 or 800 suits and nearly as many overcoats to choose from. Our stock is un= usually large ===too large, larger than we want it to be and because of that fact we have shaved down the prices to a scale that will isurely satisfy the most economical cash buyers. Because we buy well we are also able to sell well. The assortments include a large variety of color mix= tures and qualities, and prices range from about $6.00 to $30.00—Suits and Overcoats. C. M. measure of damages for conversion, to disqualified, and Morgan, C. J., prove the act of conversion. participating. 6. While proof of a demand and re fusal to deliver the property or thing Samuel Randall and Duncan Fergu may establish conversion in connec-1 A not plaintiffs and respondents, vs. 0 refusal arc only evidence of conver-1 pellant. sion when the defendant was in such I John3tone, defendant and ap- A or in Complain examined of parties will not be sustained unless it appears that the demurrant has an interest in having the omitted party made defendant, or is in some way 1 prejudiced by the omission. 2. The defendant demurred to the 1 complaint on the ground, among oth-.°" era, that several causes of action were improperly united in said com plaint. For reasons stated in the opinion, the demurrer was properly overruled. and,,(i a a held, .u flc|ent a a of a a (Syllabus by the court.) Appeal from district court, Billings county, Crawford, J. Action by Samuel Randall and Dun can Ferguson against John Johnstone, From an order overruling a demur rer to complaint, defendant appeals. Affirmed. Heffron & Baird and J. A. Miller for appellant. Purcell & Divet, McFarlane & Mur tha. and A. J. Denoyer for respond ents. Opinion of the court by Carmody, J., all concurring. Cattle Com- pany, plaintiff and respondent, vs. John Johnstone, defendant and ap pellant. 1. In an acti brought primarily for the purpose of determining ad verse claims to real property, a de murrer to the complaint, stating as Three MAIN STREET the only ground for demurrer that several causes of action are improp erly united, cannot be sustained when the facts stated in the complaint only constitute one cause of action, al though the demands for relief may be inconsistent, or applicable to different causes of action which could not be properly united. For the purpose of determining whether demurrer will lie in such case, the demands for re lief form no part of the cause of action. 2. The complaint was to x. .,demurred srouiidl only that improperlIy unitet' severa causes oit action. is contended in this court on appeal 1 from an order overruling such demur rer. that the complaint does not state ,a cause of action and that therefore, [the order overruling the demurrer should be reversed. Held, that this question is not be 1 fore this court. I (Syllabus by the court.) Appeal from district court of Bill lings county, Crawford, J. From an order overruling defend ant's demurrer to plaintiff's complaint defendant appeals. Affirmed. I Heffron & Baird and J. A. Miller for appellant. Purcell & Divet and McFarlane & Murtha for respondent. Opinion of the court by Spalding, J., all concurring. Automatic Heat Regulator SAVES MONEY:HEALTH If you are heating your house with Hot Air, Hot Water or Steam, you can save money on your fuel bill by installing a Minneapolis Heat Regulator. WHAT THE REGULATOR WILL DO heaters. It will keep the house at an even tempera- ture, save coal, prevent destruction of property by fire and prolong the life of a heater by al- ways closing the draft before the fire gains too much headway. It will relieve the mind entirely of the care of the draft dampers. The Regulator will dem- onstrate that no heating plant can be efficient or complete without it. The Regulator will control equally well on hot water, steam, hot air and combination Come in and let us show you. Bismarck Hdw. Co. PHONE 82 BISMARCK, N. O.