nish material to Hall. The plaintiffs had obligated themselves, by the statutory bond, to Farber, for whom they were erecting the building, to pay for all labor and materials used in its construction; and had thus indirectly became liable to the men who worked for the subcontractor or furnished materials to him. The persons to whom Hall became indebted were his creditors primarily, but to them the plaintiffs were secondarily liable by virtue of the statute, and their bond executed thereunder. Obliged to pay because of their secondary liability, they stood in the position of a surety or guarantor, and, whether strictly or technically so, are entitled to subrogation, the same as a surety or guarantor. Marsh v. Pike, 10 Paige, 595. A surety is a person who, being liable to pay a debt, is entitled, if it be enforced against him, to be indemnified by some other person, who ought himself to have made payment before the surety was obliged to do so; and it is not material in what form the relation of principal and surety be established, or whether the creditor is or is not contracted with in two capacities, as is often the case where bonds are taken. The relation is fixed by the arrangement and equities between the debtors or obligors, and may be known or wholly unknown to the creditor. Smith v. Shelden, 35 Mich. 42. The plaintiffs having been compelled to pay the debt which defendants had obligated themselves to care for and liquidate, a cause of action accrued against the latter, because these plaintiffs stood in the position of sureties for the performance of the conditions found in defendants' bond, and which they failed to fulfill. Order refusing a new trial afaffirmed.

THOMAS et al. v. MILLER.

(Supreme Court of Minnesota. November 8, 1888.)

NEGOTIABLE INSTRUMENTS-CONSIDERATION-SERVICES OF LOAN AGENT-PRESUMPTION. A promissory note given for a sum agreed to be paid to the payee, in consideration for his services in securing a loan for the maker from a third party, and not shown or found to be unreasonable in amount, or a cover for usury, is presumptively valid.

(Syllabus by the Court.)

Appeal from district court, Douglas county; COLLINS, Judge.

Action by Thomas and others against Miller, to cancel a mortgage. Judgment for defendant, and plaintiffs appeal.

H. Jenkins, for appellants. Bruckart & Reynolds, for respondent.

VANDERBURGH, J. The plaintiffs seek the cancellation of the mortgage given by them to defendant, and set forth in the pleadings, on the ground that the same is usurious and void. The findings of the trial court do not support this charge. But the court finds that the defendant was employed by the: plaintiff Robert Thomas to negotiate and secure for him a loan for $500, for five years, and that the money was thereupon procured by him for plaintiff of one Grey, who was a non-resident, and the full amount was received by plain-tiff, who executed to Grey a mortgage for the same, at 8 per cent., running five years, and at the same time agreed to pay defendant the sum of $50 for his services and commissions, for which he executed the mortgage for that. amount, in question here. The evidence which supports these findings tended. to prove that defendant was engaged in the business of negotiating loans, and was applied to by plaintiff for such purpose, and that defendant notified him: in advance of the terms upon which loans were procured, and what his charges. and commissions were. Plaintiff thereupon signed an application for the loan, which the defendant forwarded to Grey, and thereafter, in about a month, secured the money. The two mortgages were accordingly executed, the oneas security for the loan, and the other to defendant for his commissions and services in obtaining it, which was an independent transaction between these parties, in which Grey had no interest. It might reasonably be expected that

the defendant, who was engaged in the business of negotiating loans, would charge reasonable fees and commissions for the responsibility assumed by him in recommending, and for his services in procuring, loans; and there is no proof or finding that the amount agreed on in this case was exorbitant, or a cover for usury. Judgment affirmed.

COLLINS, J., who heard the case, took no part in the determination of this case here.

GOOD et al. v. SINGLETON.

(Supreme Court of Minnesota. November 8, 1888.)

PAYMENT BY CHECK-RETURN OF CHECK.

Payment by check is not absolute, but conditional, unless expressly so agreed, and where a check is returned by the creditor, and used by the debtor, the debt remains.1

(Syllabus by the Court.)

Appeal from municipal court of St. Paul; CORY, Judge.

Action by Good and others against Singleton. Plea of payment, and judgment for defendant. Plaintiffs appeal.

E. R. Holcombe, for appellants. Chamberlain & Countryman, for respondent.

VANDERBURGH, J. Plaintiffs were entitled to judgment for the amount of their claim. The evidence fails to establish the defendant's plea of payment. He claims to have paid the amount due by certified check. But the check it appears was returned to him, received, indorsed by him, and collected of the bank. This is the fair inference to be derived from the evidence, in which there is no conflict. He, and not plaintiffs, then, has had the benefit of the check. If he relied upon the circumstance of the delivery of the check as payment, he should have retained and produced it on the trial for the use of the plaintiffs. But the giving of a check for the amount of the debt by the debtor to his creditor is not absolute payment, unless it is so agreed; and, where it is returned and used by the debtor, the debt remains. Judgment reversed and case remanded, with directions to render judgment for the plaintiffs

LEMONT . COUNTY COMMISSIONERS.

(Supreme Court of Minnesota. November 13, 1888.) CERTIORARI-WHEN LIES-COUNTIES-BOARDS-SCHOOL-DISTRICTS-ESTABLISHMENT. The action of the board of county commissioners, in forming a new school-district, being legislative, and not judicial, in its nature, cannot be reviewed on certiorari. (Syllabus by the Court.) 42 Ü. W.930.

Certiorari.

Petition by Edward Lemont to review the proceedings of the county commissioners of Dodge county in forming a new school-district.

C. B. Palmer, for petitioner. Samuel Lord, for respondent.

MITCHELL, J. It is sought by this writ to review the proceedings of the county commissioners of Dodge county in forming a new school-district. The action of the commissioners in the premises was purely legislative, and in no sense judicial, and therefore not reviewable by certiorari. In re Wilson, 32

1 The acceptance of a check for a precedent indebtedness operates only as a conditional payment, unless the check is afterwards actually paid to the acceptor. See Bauk v. Bornman, (Ill.) 10 N. E. Rep. 552, and note; Woodburn v. Woodburn, (Ill.) 5 N. E. Rep. 82, and note.

Minn. 145, 19 N. W. Rep. 723. Unless we are prepared to assume a general supervision over all municipal corporations, boards, commissions, and public officers in the state, this writ must be confined to its legitimate office, which is to review proceedings judicial in their nature, which affect the citizen in his rights of person or property. Writ quashed.

WAGNER V. WAGNER.

(Supreme Court of Minnesota. November 16, 1888.)

1. HUSBAND AND WIFE-DESERTION-PENDENCY OF ACTION FOR DIVORCE. If a wife, who has deserted her husband without just cause, thereafter so wrongfully conducts herself as to justify and induce her husband to sue for a divorce upon the ground of adultery, the pendency of such an action, although she be not in fact guilty, will not suspend the effect of her desertion; and, after the lapse of the statutory period, the husband may maintain an action for divorce for such desertion.

2. SAME.

A desertion does not cease to be such by reason of the pendency of actions prosecuted for a divorce by the deserting party, if the continuance of the separation is for reasons foreign to those for which such actions are prosecuted.

3. SAME-PROVISIONAL ALLOWANCE FOR SUPPORT.

A provisional allowance for the support of the deserting party, during the pendency of such actions, does not determine the question of desertion.

4. SAME

TRIAL-CONTEMPT OF PARTY FOR NON-OBEDIENCE OF ORDER.

A court may, in its discretion, allow a trial to proceed, although one of the parties may be in contempt for non-obedience of an order of court.

5. SAME-PROVISIONAL ALLOWANCE-DISCRETION OF COURT.

An application for a provisional allowance, in an action for divorce, is addressed to the discretion of the court.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; HICKS, Judge.

Action for divorce by Frank Wagner against Amelia Wagner. Judgment in favor of plaintiff, and defendant appeals.

C. H. Benton, for appellant. Robinson & Baker, for respondent.

DICKINSON, J. This is an action for a divorce upon the grounds of desertion and adultery. The action was commenced in August, 1887. The court, finding in favor of the plaintiff upon the issue of desertion alone, ordered a judgment for a divorce. The defendant appeals from an order refusing a new trial. In June, 1884, the wife, having left her husband's home, commenced an action for divorce on the ground of cruel and inhuman treatment. Upon trial of that action the relief sought was denied. In February, 1885, the husband sued for divorce on the ground of adultery. After a trial, relief was refused in that action also. In June, 1885, the wife sued for a limited divorce, on the ground of the husband's conduct being such as to render cohabitation unsafe and improper. This relief was also denied, and the wife appealed to this court. A new trial was granted. That action is still pending in the district court. During the pendency of these actions the court made allowances out of the property of the husband for the support of the wife, she living apart from him ever since June, 1884. The question is presented whether the finding by the court of willful desertion, continued during the period of three years, was justified, in view of the commencement and pendency, during a part of that time, of this plaintiff's action for divorce upon the alleged ground of adultery. It may be accepted, as a general proposition, that the desertion which will afford a ground for divorce must have been, in legal contemplation, continuous for the period named in the statute. The separation of the deserting party must have been unjustifiable. It may also be conceded that, upon an action being brought against a wife for a divorce upon the ground of her alleged adultery, she being in fact not guilty of the offense, she would be justified in leaving, or, if absent, in remaining away from, her husband

pending such an action; and in general, under such circumstances, the period of desertion would be interrupted. Ford v. Ford, 143 Mass. 577, 10 N. E. Rep. 474; Porritt v. Porritt, 18 Mich. 420. But from the existence of such a state of facts such a result does not necessarily follow. If a defendant, resisting an action founded upon her alleged desertion, relies upon such an intervening event as suspending or interrupting the effect of the desertion, and if it appear that her own wrongful conduct naturally caused the event relied upon in defense, such a defense cannot avail her. An unjustifiable desertion continues to be desertion, in legal contemplation and effect, none the less although it be attended by such wrongful conduct on the part of the deserting party as would naturally forbid his being received again, while unreformed, to matrimonial cohabitation. If the law were otherwise, while a bare desertion would entitle the innocent party to a divorce, yet, if to the desertion were added such offenses or conduct as would justify a refusal of cohabitation, the guilty party might avail himself of his own aggravated wrong in defense of such an action. The evidence in this case tended to show that for unjustifiable reasons the defendant deserted her husband intending never to return, and that the same reasons actuated her in her continued separation. The case was such as to justify the conclusion that it was by reason of her own fault that she was accused of adultery in the action based upon that ground; and that, as respects the question of desertion, her continued absence should be referred to other causes than the pendency of the action for adultery. We think that the finding of continued willful desertion was justified by the evidence, and by the law applicable to it. Neither, for reasons already referred to, did the pendency of the actions brought by this defendant for a divorce, and for a separation, necessarily interrupt the running of the period which would entitle this plaintiff to a divorce for desertion. In view of the evidence, and the finding of the court, the reasons for her desertion and for her continued absence are to be deemed to have been foreign to those assigned by her as the causes of such actions.

The provisional allowance for the support of the wife, made by the court during the progress of the several actions, did not determine the question of desertion. The merits of the action were not thus adjudicated. It was within the discretion of the court to allow the trial to proceed, although the plaintiff was in default in respect to the payment of a part of such allowance. Concerning the alleged error in excluding, when offered in evidence, the affidavit charging the defendant with the taking of the plaintiff's money, it is enough to say that the only fact to which this was properly relevant was afterwards shown by other evidence. The order refusing a new trial will be affirmed.

After the trial of this cause in the district court, a motion was made on the part of the defendant for an allowance for the expense of settling a case in that court, and of presenting a motion thereon for a new trial. This motion. being refused, the defendant appealed from the order. An allowance had previously been made for the defendant's support, and for the expense of defending in the action. This application was addressed to the discretion of the court, and its refusal was justified. This order is therefore aflirmed.

COLLINS, J., having tried the cause in the court below, did not participate in this decision.

1. APPEAL

BOSTON BLOCK Co. v. BUFFINGTON.

(Supreme Court of Minnesota. November 13, 1888.)

WHEN LIES-FROM MUNICIPAL COURTS-FORCIBLE ENTRY AND DETAINER. An appeal lies to this court from the municipal court of Minneapolis in actions of forcible entries and unlawful detainers.

2. LANDLORD AND TENANT-LEASES-ALTERATION-EVIDENCE-SUFFICIENCY.

Evidence considered, and held insufficient to justify a finding that there had been a material alteration of a lease after its execution.

8. SAME PREMISES UNTENANTABLE-TERMINATION OF LEASE-WAIVER.

If a building becomes untenantable during the term of a lease, under chapter 100, Gen. Laws 1883, the lease is, at most, merely terminable at the option of the lessee. He may continue the tenancy if he so elects. This he does by resuming the occupancy and the payment of rent under the lease when the building is repaired. (Syllabus by the Court.)

Appeal from municipal court of Minneapolis; MAHONEY, Judge.

Action of unlawful detainer by Leroy S. Buffington against the Boston Block Company. Judgment for defendant, and plaintiff appeals.

Hart & Brewer, for appellant. E. C. Chatfield, (D. A. Secombe, of counsel,) for respondent.

MITCHELL, J. Appeal from a judgment of the municipal court of Minneapolis in an action of unlawful detainer. The respondent moves to dismiss on the ground that an appeal will not lie from that court to the supreme court in this class of actions. The contention is that, as the statute (Gen. St. 1878, c. 64, § 121) giving the municipal court jurisdiction of actions of forcible entries and unlawful detainers provides that chapter 84 of the General Statute shall apply to that court, therefore an appeal will lie only to the district court, as provided in that chapter in case of an appeal from a justice of the peace. We are clearly of opinion, however, that, in making chapter 84 applicable to the municipal court, the legislature intended merely to adopt it, mutatis mutandis, as a code of practice to govern the proceedings in that class of actions in that court, and that the right of appeal from that court is governed by the previous provision of the same section, which gives a right of appeal directly to the supreme court in all cases. The motion to dismiss must therefore be

denied.

2. The defendant's defense was a right to hold the premises under a written lease from plaintiff's grantors, Whitten & Burdett. The plaintiff's claim was that this lease, which was in evidence, had been avoided by a material alteration made by defendant after its execution, and without the consent of the lessors. This was the principal question litigated, and, in view of the evidence, the court below must have found in favor of plaintiff's contention. Inasmuch as the lease was executed in duplicate by both parties, one being delivered to each, it may at least admit of doubt whether, admitting that the lessee altered his lease, both being originals, the good lease in the hands of the lessors would not be sufficient to support the estate granted. See Lewis v. Payn, 8 Cow. 71. But, waiving this question, we are of opinion that the evidence was not sufficient to justify the court in finding that defendant's lease had ever been altered as claimed. The charge made against defend-ant is virtually forgery. A party who claims that a writing has been thus altered must support his charge by clear and satisfactory evidence. The evidence in behalf of plaintiff on this question was that of Whitten, one of the lessors, and Chatfield, plaintiff's attorney. The testimony of Whitten amounts to really nothing. He merely states that, "to the best of his knowledge and belief," the lease had been altered in certain particulars since it was executed. This statement was made upon examination of a copy of an instrument which it appears he had not seen, and to which his attention had not been called, for four or five years. From the other evidence in the case it is clear his memory is utterly at fault as to many matters, and therefore is entirely unreliable as to all. The only evidence entitled to any serious consideration is that of Mr. Chatfield. He testifies that in January, 1888, which was after some dispute had arisen between the parties as to defendant's rights under the lease, he went to the office of defendant, who showed him the original lease, also a copy which he had made to send to plaintiffs, in Boston; that he read the lease