Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1892-02-19
Two Important Decisions Handed
Down by the Supreme
Court.
III the Case of Jasper VS.. Hazen
the Order of the Lower Court
is Reversed.
The Second Was a Decision InvOly-
ing the Ownership of q Mort
gagged Horse.
A Couple of Important Decisions.

Two decisions were filed wednesday in
the office of the clerk of the supreme
court. One was Jasper VS.. Hazen, an
appeal from an order of Judge Mcconnell
refusing to sustain a demurrer inter-
posed to the complaint. The defendant.
Hazen, commended that several causes of
action had been improperly united
against him, viz: An action at law for
a conversion and one in equity for an &C.
counting of a trust relation existing be-
tween the parties. The case has been in
the courts for some time. In the first
suit Jasper recovered Judgment against
Hazen for a large amount. On appeal
to the state supreme court the Judgment
was reversed On the ground that it had
been Il case for the judge in his capacity
OF chancellor exclusively and not a ques-
ton of fact for n jury, as had been done.
On the action being renewed in the
W court the above demurrer wal in
terposed, and the same being overruled
is appealed and with the result that the
order OF the court below is reversed.
The second case was entitled Conrad
VS.. Smith, as sheriff of Cass county, and
Is also an appeal from Judge Mcconnell.
The subject matter IF the controversy is
the ownership of a valuable horse. The
plaintiff Conrad recovered a Judgment
in the court below against the sheriff for
the value of the property, the defendant
justifying bis possession by a warrant of
attachment issued against the person
from whom Conrad purchased the pro-
perty and claiming that the transfer of
the animal was fraudulent and void as
to creditors under the provisions of our
statute, being section 1867 of the COM
piled laws, which declares that "every
transfer of personal property i n
+ is conclusively presumed, if
made by a person having at the time the
possession or control Of property and
not accompanied by al immediate de-
livery and followed by an ACTUAL and
continued change of possession of the
things transferred, to be fraudulent
and therefore void against those who are
his creditors while he remains in pos
session, etc. AS the case is of general
interest and reaches home to all persons
who buy and sell chattels we will give
the facts as they appeared at the trial:
On October l, ] 1889, one Mckee sold
the animal in question to Conrad, the
plaintiff in the action, who paid him
$500 for the horse. The horse at this
time was in the livery barn of one Doyle,
in the city of Fargo. On that day Mckee
and Conrad went 10 the barn and the
former stated to Doyle in the presence
OF Conrad that the horse had been sold
by him (Mckee) to, Conrad. After the
sale Mckee continued to drive the
animal just as before the sale, aud an
parently controlled him in all respects
the same as before. The plaintiff.
Conrad, testified at the trial that when
he purchased the horse he did not take
him away, but left him at Do les barn,
and that Mckee paid the horses DO lrd
at Doyle's on the understanding that by
SO doing he (McKee) should nave the
free use of him. Doyle testified that
Mckee had the same charge and con-
troll over the horse after the time of sale
as before. From the Q facts the
court say that there was not an open and
notorious change of ownership that is
contemplated by the statute aud hence
the transaction comes under those inhi-
blted as fraudulent. That the statute
is harsh and unjust in many cases seems
TO be a fact. Chief Justice Corliss, who
wrote the opinion Of the court in the
case says: "We feel that the statute
works a wrong in this case, as it appears
to be conceded that the plaintiff paid a
fair price for the horse and bought it in
good faith and was governed by no bad
motive in leaving it in the possession of
Mckee. 1t is a matter for the serious
consideration of the Legislature whether
g statute under which a wrong like that
wrought in this case can be accom- |
slished ought not to be so modified as to
leave the question of good faith of the
transaction to a jury as a question of
fact. OF course purchasers can conform
to the requirements of the statute, but
they are seldom aware of the severe pen
allies which attach to such conduct as
characterized the plaintiff in making bis
purchase in this case"
The Judgment Of the trial court was
reversed. ;
Supposing a Case.
Fargo..Argns Feb. 14th: No wonder Bis
}marck is dead. A city whose citizens
spend their tins in Safeguarding each
t0Ihef cannot present any overwhelming
isirabie field for the Investment of CAPT
y TT is evident that the editor of tba