St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-04-24
A LAW IS TURNED DOWN.
CITY Of DULUTH DEFEATED IN ITS
TUNNEL CASE.
BEFORE TKsE SUPREME COURT

Her Suit to Compel Assignee
Of Seven Corners Bank to As
sumo Lease or the Building
Twenty-Five Decisions-LarGe
Number Of Reversals.
The supreme court yesterday handed
down twenty-five decisions. the lower
courts being reversed in many of them.
In the case of Mrs. Mary A. Forepaugh,
appellant. VS.. w. P. Westfali, assignee
OF the Seven Corners Bank, suit to
compel The assignee to continue the
lease of the building, it is held that AN
assignee does not accept leasehold by
merely accepting the trust. but under
our insolvency law he may, as an officer
OF the court, go upon the leased prem
ises and perform his trust under the
direction Of the court, without thereby
electlng to take the lease. especially if
no step is taken by the landlord or
asSignor to compel him to elect. Under
the circumstances in this case, it is held
that he might go OH the premises and
perform his trust without mourning the
liability of taking the lease. The
syllabus is as follows.
Mary A. Forepaugh. appellant VS.. William
r. Wes;fall assignee of Seven Corners
Bank OF ST. Paul Judgment affirmed.
CAVITY, j.
l. Held. an assignee for the benefit of
creditors does not accept leasebold in
terest and the burdens thereof by
merely accepting the trust.
2. Held that il such an assignee does
accept the lease he is liable for the rent
Willie he holds such leasehold interest.
3. But held the such all assignee un.
der our insolvency law. being an officer
OF the court. may go upon the leased
premises and there perform his trust by
selling the assigned goods or even COLI
tinulng the business short time under
the direction of the court without there
by electlng to take the lease. especially
II no step is taken by the landlord or
assignor to compel him to elect.
q. Under the circumstances of this
case it is held that he might so perform
his trust OH the leased premises for one
mouth without thereby mourning the
liability OF taking the lease.
An important reversal is that in
the case of E. p. Alexander. appellant,
VS.. The City of Duluth, respondent,
written by Judge Mitchell, in which the
court holds that the law passed by the
last legislature. authorizing the con-
structiOn of tunnels by cities in certain
cases. is in conflict with the 1892 amend
ment to the constitution prohibiting
special legislation. for the reason that
the second part Of the act adopts and
applies to the subject specia! legislation
contained in the charters of the various
cities. The syllabus of the decision is
as follows:
E; P. Alexander, appellant, VS.. City of Du-
luth, respondent Order reversed.
MITCHELL. j.
G. L. 1893. ch. 210, entitled IAN act to
authorize the construction of tunnels by
cities in certain cases." held to be in
conflict with sec. SO, art. of the con-
stltution, rs amended in 1892, prohibit
ing the passage of any local or special
law regulating the affairs of any county,
city. ETC., for the reason that the second
section of the act adopts and applies to
the subject existing special legislation
contained Ill the charters Of the various
cities.
Under the constitutional provision
any act regulating the affairs of city
must reduce all cities, or all cities of
the same class. to uniformity in respect
TO the particular with which the legis-
lation deals. as 10 the mode as well as
to the causes of the exercise OF the
granted power.
Any act which adopts and extends
existing special legislation is as ob.
noXlous to the constitution as if it ere
ated the special legislation which it
thus attempts to extend and perpetuate.
Following are the Syllabi in the other
decisions:
Mike Need, respondent, VS.. Charles r. San
ders, appellant. Judgment affirmed.
CAVITY, J..
whether after the commencement of
a trial in justice court before q Jury it
is error or abuse of discretion on the
part of the justice to adjourn court for
SIX days without the consent of appel
liant is not decided. Held, that i'm apy
event it was waived by the appellant
railing to except thereto, and by his
appearing and proceeding with the trial
at the time TO which it was adjourned.
The Village of West Duluth for the Use and
Benefit of the Pioneer Fireproof Construc-
ton Company, appellant, vs. James H.
Norton ct al, respondents. Order re-
versed. CAVITY 7
Where village organized under CHI.
146, u. l.. 1891, takes the bond of con-
tractor conditioned for the faithful per-
torrance Of the contract and that he
will pay for all labor and material fur
nished, as provided in sec. 4, sub. 9 of
said chapter, and such village brings an
action OIL such bond to recover the sum
due from the contractor to third narty
SO furnishing material, but claims moth
ing in its own right, held that such suit
is brought In representative capacity
and it is no defense to it that the
plaintiff has in its hands more than
sufficient funds withheld from the con.
tractor to pay all such claims.
The Pioneer Fuel Company. res pondent, vs.
+. d. Hager, appellant. Order reversed
CAVITY, J.
A complaint which alleges that the
defendant is indebted to the plaintiff in
sum named upon an account for goods
sold and delivered to him at his request.
but not stating by whom the goods were
sold, does hot state facts sufficient to
constitute cause of action.
Andrew Nelson and B. P Nelson, appel
lants vs. Anna Larson and Sven Svenson.
respondents. Judgment affirmed.
CAVITY, j.
In an action against the widow who
is the administrative of the estate of her
uCCCoSOu HuoOduus UlOuSub ~ recover
of her the amount of prOmiSSory note
made by him to plaintiffs, on the ground
that after his death she agreed to pay
the note and in consideration thereof
they agreed TO release his estate.
Held, that the plaintiffs having failed
to prove that they did so agree to re-
lease his estate. ner promise 10 pay the
de6t is without consideration, within
the statute of frauds and void.
Nettie Rogers, as Administrative of the estate
of William B. Rogers. deceased. respond
emit VS.. William H. Truesdale. as receiver
of the Minneapolis Il st. Lous Railway
Company, appellant. Order affirmed.
CAVITY, j.
The allegation ID pleading that an
act is ''negligently" done is an allega-
ton of fact and is generally sufficient
without stating the particular details
which go to make up the negligence
complained of.
Such general allegation of negligence
is not mere conclusion OF law unless