Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1882-10-13
THE COURTS.
Supreme Court.
before the Full Bench. I

Supreme Court.
Before the Full Bench.
Mary Miller, respondent, VS.. Charles j.
Sawbridge and William D, Lowry, appel
lants. Submitted on briefs.
! The Red River Mills, appellant, VS.. Car
RE A. Wright, administering of the estate
of Geo. B. Wright, deceased, respondent.
Argued and submitted.
Sallie Desnoyer, respondent, VS.. Mary
Jordan, ct. al, appellants. Argued and SUBJ
mitted.
Samuel D. Ford, appellant; VS.. Artemus
Gale. Order to show cause; discharged.
Adjourned.
DECISION.
Nels johnson, respondent, vs.. The Chi
cagO, Milwaukee & st. Paul Railway COM
pany, appellant.
Syllabus-It is settled in this state that
in actions against railroad companies for
negligence in failing to erect or maintain
fences, under the statute contributory neg
ligence on the part of the plaintiff is de-
tense.
The question is ordinarily one of mixed
law and fact, to be submitted to the jury,
and unless the fact of its existence con-
clusively applied, it must be so submitted.
Facts which may tend to establish such
contributory negligence considered.
In this case held, that evidence that the
plaintiff suffered the animal in question to
run at large in his pasture as usual after
previous notice that 1t had at several
times passed through the railroad fence
adjoining which was defective and INSULT
cient, and through which it finally escaped
upon the track and was killed, does not
alone establish such contributory negli-
gence in law.
Sec. S., Oh. 81, general statutes, which
provides an extra allowance Of $40, in JUS
tees court, and double costs in the district
court in case of recovery in this class of
actions Except in cases of previ-
Gus and sufficient tender by the defendant
corporation) is not unconstitutional, but is
a legitimate exercise of legislative discre-
ton. This legislation is not liable to the
objection that it is unequal or partial leg
islation, for the reason that it is applica-
BILE to all railroad corporations in the state,
and to all plaintiffs claiming damages for
cattle killed through their negligence.
The judgment affirmed on the merits,
and the order disallowing extra costs re-
versed. VANDERBURGH. J.
The state of Minnesota, ex. rel. John H.
Bryant. relator, vs.. W. G. Burr, Judge of
the municipal court of the city of st. Paul,
and Franklin Fairchild, clerk of said court,
respondent.
Opinion by the Court-This is manda-
mus to require the judge and clerk of the
municipal court Of st. Paul, to issue a writ
of restitution in an action under chapter
"a, general statutes 1873, as amended by
chapter 9, extra session of 1881, to recover
possession of premises leased by relator
to Edgar G. Varney and others. The lease
was in writing for term of five years
from May 1, 1882, with a covenant on the
part of the lessees not to sublet the pre-
misses OR any part of them, without the
written consent of the lessor, and with q
clause reserving the right of re-entry for
violation of any of the covenants.
The lessees having sublet the premises
without the consent of relator he COM
menced an action on that ground against
the lessees in the municipal court, to re-
cover possession, and that court ordered
Judgment of restitution.
The defendants took an appeal and filed
the proper bond. The relator rendered
the bond required by section IL, of the
chapter as amended by section of the act
of 1881, and demanded that writ;of resti-
tuition issue Immediately. The court re-
fused to comply with the demand.
Section II of chapter 81, as amended,
! after providing that in certain cases no
writ of restitution shall issue, nor shall the
writ issue for twenty -four hours after judg-
ment of the party against whom it is
rendered, or his attorney states to the JUS
tice that he intends to take an appeal pro-
vides; Provided, That if said action is
brought upon written lease executed by
both parties thereto against a tenant hold
ing over the. expiration of said lease, resti-
tuition of said premises shall be made
forthwith" etc.
It was under this clause that relator de-
manded the writ, he claiming that within
this clause the lease in question had ex-
PRED by reason Of the breach of the COW
enant not to sublet.
We do not think that the correct inter
probation of the statute. The phrase ''af-
ter the expiration of said lease" is, when
referring to the same case varied in section
IA, as amended, SO as to read ''after the
expiration of the time thereof and in
section Is, latter the expiration of the
time specified in said lease. The time
of this lease is five years, with provision
uAuof ~hich tne lease may perhaps De
sooner terminated. We think the phrase
means the expiration of the time expressed
in the lease as the time thereof After
that time the written lease could not af-
ford any pretext to the tenant for remain
ing in possession, while he might have a
good defense against claim by the land
lord based on an alleged breach of Gov
enants or conditions. And this we think is
a sufficient reason why the very summary
remedy provided in section IL should be
given in one case and not in the other.
Writ denied.
Ramsey County District Court.
T,,J,