could be procured for that purpose.-I would be set aside.-Russell v. Rosenbaum, Marquis v. Lauretson, (Iowa,) 73. (Neb.) 287. Evidence made competent by that of adverse party. 22. In an action by an heir and distributee of an estate against the executor, another heir and distributee having testified concerning a bill of goods paid for by plaintiff for testator, it is not error to refuse to allow plaintiff to state the amount he paid, whether the testimony is competent in rebuttal of the statement of defendant's witness or not, there being nothing in the form of the question indicating that its purpose was that of rebuttal.-Harrow v. Brown, (Iowa.) 708. 26. Where the evidence, on the issue as to whether fixtures were sold to plaintiff or to defendant's assignor, shows that the bill of sale was made to plaintiff, and that he provided the money for fixing up a saloon in which the fixtures were placed; but that defendant's assignor leased the saloon, took out licenses, and carried on the business alone, listing the property for taxation as his own, and insuring it; and toried it as his own, it is error to direct a that, when he became insolvent, he invenverdict for plaintiff, and the question is for the jury.-Dailey v. Linnehan, (Minn.) 250. EXCEPTIONS, BILL OF. that the giving or refusal of instructions 1. Under Code Iowa, § 2787, providing may be excepted to without reasons stated, filed, and shall become part of the record, instructions given or refused need not be saved by bill of exceptions.-Allison v. Jack, (Iowa.) 811. and all instructions demanded must be Settlement and signing. 2. A party, who presents the bill of exceptions to the adverse party's attorneys for amendment within the time fixed by 23. In an action for personal injuries, defendant cannot assign as error the admission, on behalf of plaintiff, of evidence as to medical works and authorities, where he first introduced it, and has the benefit of it on the cross-examination of plaintiff's wit-law or the order of the court, is entitled to nesses, and also fails to call the attention of the trial court to the particular ground of incompetency.-Kreuziger v. Chicago & N. W. Ry. Co., (Wis.) 657. Proof of handwriting. have such bill examined, and amendments thereto proposed, if necessary; and if, instead of such proposed amendments, the bill is returned, on the alleged ground that the time in which to prepare the same had expired, it will be deemed a waiver of objections to the bill itself.-State v. Gaslin, (Neb.) 601. 24. Two experts, who have testified to the genuineness of defendant's signature to the note in suit from comparison, may, 3. Under Laws Nebraska, the party exto test the value of their evidence, be asked cepting has 15 days from the rising of the to make comparisons between two signa- court, within which to prepare and submit tures of a witness in the case,-one admit- to the adverse party his bill of exceptions, ted by him to be genuine, and the other and the court may extend the time, if declaimed by him to have been written by an- sired, not exceeding 80 days. The adverse other, but by his authority. Johnston Har-party has 10 days after the expiration of vester Co. v. Miller, (Mich.) 429. Weight and conclusiveness. - 25. In an action against a railroad company for rebates and overcharges, which the railroad company admitted to be due, a third person, by intervention, claimed the fund. On the trial, plaintiff, who sued as assignee of the claim, proved the contract between his assignor and the company, the shipment, and the amount due. There was no evidence to show that the intervenor was entitled to the money, his claim being based merely on the fact that the freight was consigned to him, and that he was in possession of the expense bills showing the amount due. Held, that a verdict for him the time fixed by statute, or order of court, Wrongful seizure, see Damages, 6, 7. 1. In selling lands taken in execution the sheriff may, after offering the parcels sep arately in vain, offer and sell them all in gross.-Lamb v. McConkey, (Iowa,) 77. Redemption. administrator d. b. n., and, by order of 4. An administrator who retains money of the estate in his hands long after the law requires its distribution is liable for it if stolen.-Black v. Hurlbut, (Wis.) 673. Allowance to widow. 2. Code Iowa, § 3112, provides that after nine months from execution sale creditors cannot redeem from each other. By section 3113 the creditor who last redeemed prior to the expiration of nine months holds absolutely, unless the debtor redeem within one year. By sections 3114, 3115, the claim of the creditor redeeming will be extinguished, unless he, within ten days after the nine months, enter on the sale-book 5. A widow having selected such perthe amount he is willing to credit on his sonal property of her deceased husband as claim. By section 3116 "any unsatisfied she was entitled to by statute, and having lien creditor, within ten days after the sold the same in consideration of support expiration of the time thus allowed to and the payment of her debts, and after make the entry required in the last section, her death the probate court having sancmay redeem" by paying the disbursements tioned her selection and "allowed" the of the last holder, and the amount thus entered on the sale-book. Held, that no cred-property to the widow's vendee, the latter itor can redeem after nine months unless Laroche, (Minn.) 156. was entitled to the property.-Benjamin v. Exemptions. the creditor last redeeming prior to the ex- 3. A judgment and an execution thereon are no defense to an action against the judgment creditors and their attorneys for seizure of goods under the execution, brought after the judgment and execution were set aside for irregularities.-Anderson v. Sloane, (Wis.) 214. EXECUTORS AND ADMIN- See, also, Descent and Distribution; Wills. Liability after discharge, see Trusts, 2. FACTORS AND BROKERS. Commissions, see Principal and Agent, 2. Right to commissions. 1. Plaintiff was to receive a fixed commission for finding a purchaser of defendant's land, even though defendant himself should close the transaction. In response to an advertisement inserted in a paper by plaintiff, at the instance and expense of defendant, a person called on plaintiff, and was referred by him to defendant, not, however, having offered to purchase on defendant's terms; but, as he wished to exchange a lot, the sale failed, and he so informed plaintiff. Afterwards, without any further effort by plaintiff, the same person land. Held, that plaintiff could not recover a commission.-Putnam v. How, (Minn.) 258. 1. By the laws of Iowa, exclusive juris-returned to defendant, and bought the diction of wills, and of the appointment of executors, etc., is vested in the circuit courts, and the clerk is authorized in vacation to appoint executors. Held, not necessary to sustain an appointment by the clerk to show affirmatively that it was done in vacation. Drake v. Sigafoos, (Minn.) 257. Action to compel renunciation. 2. Evidence that plaintiff procured for defendant a purchaser of land; that a contract was drawn up and earnest money paid; that defendant afterwards declared the contract canceled, and the purchaser released to him; and that the purchaser, cured his father to take the contract, the who was acting as agent for his sister, probrother and sister taking possession, and living on the land,-is sufficient to show a single transaction, and to entitle plaintiff to a commission for procuring the purchaser.-Burke v. Cogswell, (Minn.) 251. 3. Plaintiff procured a person to negoti3. Where, upon the removal of an ad- ate for defendant's land, and, after a writministrator, his sole bondsman is appointeding was drawn up for the purchase, the 2. An action will not lie by an heir to compel the person named as executor in the will to qualify or formally renounce the appointment, and to compel the filing of an inventory of decedent's property in his possession.-Cable v. Cable, (Iowa,) 700. Accounting. person refused to buy, on the ground that | sion on the $30,000 to make their shares the boundaries had been misrepresented. equal. Held, that the court wrongly reHe admitted that he was shown over the fused to charge that the undisputed eviland, but denied that the boundaries were dence was that the only commission to be pointed out. Defendant testified that the paid by defendant to either G. or plaintiff stakes marking the boundaries were shown was the $3,000.-Id. him, and evidence of his conduct in other respects indicated that he knew the boundHeld, that a judgment for defendant in an action for commission for procuring a purchaser would not be disturbed. -Sloman v. Bodwell, (Neb.) 321. Actions for commissions. 8. In an action for services rendered in obtaining a loan for defendant, plaintiff's testimony that he had secured the loan, supplemented by an original telegram from the person who was to furnish it, though in response to letters of which letter-press copies offered by plaintiff were rejected as not the best evidence, in the absence of impeaching testimony, is sufficient proof that plaintiff had performed the services.Bacon v. Rupert, (Minn.) 832. Felony. Fences. Obligation to maintain, see Railroad Com panies, 5. Fire Insurance. 4. Defendant placed certain lands in the hands of a broker, G., for sale at the price of $35,000, G. to receive 5 per cent. commission if he sold for this amount. Plaintiff, a broker at another point, corresponded with G., and, representing that he had a purchaser, obtained an agreement to See Indecent Assault, 2. divide the commission. When plaintiff and his purchaser arrived a new agreement was made by which defendant was to convey for $33,000, and, when that amount was received from the purchaser, $3,000 was to be paid by defendant as commission. The transaction being completed, defendant paid the $3,000 to G., who retained the whole of it. Plaintiff sued defendant for $2,250 as his share of the commission, al- See Insurance. leging that defendant agreed to pay that amount to him directly, which defendant denied, alleging that he was to pay the whole to G., in whose agreement with plaintiff he had no concern. Held that, as under defendant's theory G. was plaintiff's agent, and a payment to him was a payment to plaintiff, G., having admitted receiving the money, should have been allowed to state why he did not pay plaintiff his share. -O'Callaghan v. Boeing, (Mich.) 843. Fires. See Railroad Companies, 21–23. FIXTURES. Erection of house under license. 1. One who erects a building on anoth5. It was error to refuse to charge that if tion of the case be uninfluenced by laches er's land by his license, if the considerait was agreed that defendant should pay of the former, or other special circumstanthe commission of $3,000 over to G., heces, is regarded as the owner of the buildhad fully performed the agreement on his part by making such payment to G.-Id. 6. Plaintiff's counsel having assumed in his argument that G. had received the $3,000 as defendant's agent, to send $2,250 to plaintiff, this being an issue not presented by the pleadings or testimony, it was error to refuse to charge that there was no evidence to support the assumption.-Id. 7. G. having testified that the reason why he agreed to allow plaintiff $2,250 as his share was that plaintiff had represented that he had two other brokers to share with, and having denied that he expected any commission other than the $3,000, plaintiff's counsel, in his argument, stated that the theory that G. was to have no other commission was negatived by the fact that he agreed to allow plaintiff $2,250, evidently relying on his 5 per cent. commis ing, and entitled to remove it, if it be pracland.-Ingalls v. St. Paul, M. & M. Ry. Co., ticable, and works no serious injury to the (Minn.) 524. 2. In such case, on revocation of the license to occupy the land with the building, he is entitled to a reasonable opportunity to remove it.—Id. FORCIBLE ENTRY AND DE- When lies. 1. Where a party in possession of land has an interest in the land itself, which only a court of common-law jurisdiction can determine, forcible entry and detainer will not lie against him.-Malloy v. Malloy, (Neb.) 285. Appeal. of a contract to furnish him a certain num2. Gen. St. Minn. 1878, c. 64, § 121, giving ber of car-loads, as ordered during the seathe Minneapolis municipal court jurisdic- son, where the only evidence of a contract tion of actions of forcible entry, etc., and within the statute of frauds is a letter writmaking applicable to that court chapter ten by him in July, alleged to be in accept84, which governs proceedings in justices' ance of an oral offer, to which a reply was courts in such action, and gives an appeal sent, refusing to furnish the number of caronly to the district court, does not forbid loads of one variety ordered, and proposan appeal in such action from the Minne-ing a change as to the time of delivery, to apolis municipal court to the supreme court which he made no response until Decemof the state. Boston Block Co. v. Buthing-ber, after the balance of his order had been ton, (Minn.) 361. 2. In an action for fraudulent representations, the court stated: "The instructions asked to be given on the part of defendant are substantially as follows: That fraud will not be presumed under slight circumstances. Everything should be so clear and conclusive as to leave no rational doubt as to its existence. Now, gentlemen, the rule is that fraud must be clearly proven, not by lightly inferring it, and that the party affected by it must complain promptÎy when the facts come to his knowledge." Held misleading, as apt to convey the impression that the court adopted the language of the request in relation to the requisite degree of proof.-Sweeny v. Devens, (Mich.) 454. FRAUDS, STATUTE OF. Part performance, see Wills, 5. canceled by plaintiffs.-Delaware & H. C. Co. v. Roberts, (Mich.) 53. 2. A memorandum of a sale of goods must state the price.-Hanson v. Marsh, (Minn.) 841. Promise to pay debt of another. 3. Plaintiffs refused to furnish outfit and supplies to C., who had contracted to quarry stone for defendants, and who was known to be financially irresponsible, unless defendants would assume payment, which was agreed to by their superintendent, who suggested that plaintiffs take a writing from C., stating that the title to the outfit remained in them. The writing between plaintiffs and C. provided for the retention of title, and also that defendants should retain and pay to plaintiffs certain moneys, and that, before a final settement between C. and defendants, they should pay all bills of plaintiff against C. Under this agreement, orders drawn by C. in payment of monthly statements furnished by plaintiffs were paid. Held, that the promise of defendants was not within the statute of frauds, though the writing between plaintiffs and C. began "in consideration of obtaining credit," it not stating for whom the credit was obtained, and, though the goods were charged to C., plaintiffs testifying that that was for convenience, since defendants had another running account with them.-Benbow v. Sooysmith, (Iowa,) 693.* Agreements relating to the sale of goods. 4. An instrument setting forth that J. has sold to H. a certain threshing-machine and engine, and agrees to run with H. for a certain term at a certain wage, and not to buy, or have anything to do with running, another machine for two years, is essentially a contract for the sale of goods, and so within the statute, though there are other stipulations to which the statute does not apply.-Hanson v. Marsh, (Minn.) 841. FRAUDULENT CONVEY ANCES. What constitutes. 1. In an action for the price of coal de- 1. In the absence of an intent to defraud fendant cannot recoup damages for breach | creditors, an insolvent merchant may take a part or the whole of his stock of goods | Actions to set aside-Evidence. 6. Land was conveyed to a mother in trust for her children, and the entire family, including the father, who had left the family some years before, they supporting themselves in the mean time, moved upon it, and raised the crop which was claimed by creditors of the parents. Held, that it was competent to show by the acts and declarations of the persons interested, the purpose for which the land was conveyed, whether its occupancy by the family was members of the family, with the father and mother as the head, and the amount of labor contributed by the children and parents to the production of the property, as bearing on the question whether the parents attempted fraudulently to conceal the property from creditors.-Bener v. Edgington, (Iowa,) 117. 2. In a suit to set aside a deed as in fraud of creditors, there was undisputed evidence that defendant, who was the son of complainant, purchased, together with his father-in-law, a stock of groceries; that the latter then gave his interest therein to defendant's wife, who transferred it to defendant, in consideration of the convey-contemplated, whether the children were ance attacked; the interest in the stock being about the value of the land conveyed. The deed was not recorded until complainant had obtained a judgment against defendant, and a stay in the proceedings had been granted. During the interval the land conveyed was assessed to defendant, who, however, transacted his wife's business, and paid the taxes from the products of the 7. Refusal to allow a witness to testify, land. It did not appear that defendant was as bearing on such question, who paid him insolvent at the time of the execution of money borrowed by the father, is not prejuthe deed. Held, that the conveyance was dical to one seizing the property as belongvalid.Wooden v. Wooden, (Mich.) 460.*ing to the parents.-Id. 3. A conveyance to a wife in payment of a debt owing to her by her husband is not a voluntary conveyance, nor fraudulent with respect to his other creditors.-Meigs v. Dibble, (Mich.) 935.* Rights of purchaser. 4. The grantee in a fraudulent conveyance, who purchases judgments subsequently recovered, pending suits thereon in equity by the judgment creditors, acquires the lien created by the institution of the suits, whether the judgments themselves were liens or not; and such lien does not merge in the legal title of the grantee, but is paramount to a lien acquired by another creditor bringing a similar suit. REED, J., dissenting.-Fordyce v. Hicks, (Iowa,) 79. Actions to set aside. 5. Though a complaint by a judgment creditor to set aside fraudulent transfers fail to show that the debt arose before the transfers, yet allegations that the property transferred was all the property of the debtor, that the conveyances were made with the intent, on the part of both debtor and grantee, to defraud the former's creditors, including plaintiff; that the debtor has remained insolvent; that the transfers were made with the grantee's connivance in trust for the debtor, and with the understanding that the property should continue to be his, and the title be held for him by the grantee, coupled with the return of the plaintiff's execution unsatisfied, states a cause of action based on the actual bad faith of both parties. - Walsh v. Byrnes, (Minn.) 831.* 8. Statements made by the mother, not in the presence of the children, and not assented to by them, that she proposed to protect the property from creditors by pretending that it belonged to her oldest son, are not competent to bind or prejudice the children.-Id. GARNISHMENT. Persons and property subject to process. 1. Plaintiff recovered a judgment against N. Y., who was the only party to the suit, and garnished a person as a debtor of defendant, who was designated in the notice as N. Y., or N. S. Y. The last named was a brother of defendant, both having the same Christian name, and both were engaged in the transaction out of which the judgment arose. The evidence as to the liability of each for the debt was conflicting, but it appeared that N. S. Y. owed a part of it, at least. N. S. Y. and the garnishee denied that the latter owed N. Y., but alleged that he owed N. S. Y. Held that, N. S. Y. being no party to the judgment, his debtor could not be garnished, though N. S. Y. owed the debt for which the judgment was rendered.-Allison v. Chicago, B. & Q. R. Co., (Iowa,) 813. 2. Where the purchasers in a bill of sale agree to pay the amount of the consideration on certain debts of the seller, some of them in full, and others so far as the same will apply, and the balance on another debt, or otherwise, as the seller shall direct, and they pay all of the debts except those of which payment is refused by the creditors, |