St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-07-06

the forty. five tons he made prima
facie case for recovery of its value.
8. Held, further, that the evidence
was sufficient tojustiry the finding that
the defendants locomotive set the fire
which by itself or in connection With
another fire set about the same time,
destroyed plaintiffs property.
Leroy Coons. respondent VS.. John Lemieu
ct al. defendants, appellants. Judgment
ahrmeu. COLLINS, j.
Syllabus-1. An application that the
rule that on appeal to this court error
in the proceepings of trial court will
not be presumed, but must be made to
appear. 8sa Xs
h 9. A certain discrepancy In descrip-
/ ton of real property appearing In the
findings OF fact held TO be clerical
errorslmDly.s, IS
8. In an action brought by judy
ment creditor to annul, cancel and set
aside conyeyancrs Of real property made
with design to defraud, the plaintiff Is
entitled, IL successful In his actinn, to
have the relief demanded in so far as
the fraudulent conveyances obstruct
the collection of his Judgment, and this
Is the limit of his right. But the. judg-
ment must be read as whole In order
TO ascertain its force and effect.
Held, upon an examination OF the
Judgment in question, that 1t merely
rendered the property involved subject
to lien for the amount OF the original
Judgment against the debtor.
State of Minnesota. ex rel, Quirin Fuchs es
al. as supervisors of the Town of Zion, in
Stearns County VS. Angus haines respond
dent Appeal of Barbara Konig- Streeter.
State OF Minnesota, ex rel, Quirin Fuchs
tnl xyfesN~ ~F ek~<.f zNf
in Stearns County, petitioners, vs.. Angus
Halnes. respondent. Appeal Of Michael
+. Schultz. COLLINS. j.
On appeal to a justice of the peace
from an order OF town supervisors lay
Ing out a highway, the amount awarded
by jury as the damages sustained by
the land owner should not be Included
in the judgmentrendered by the justice.
Such amount is tn be provided for and
paid In the manner prescribed in G. l..
1878, CHI. Is, secs. 81 and 60.
Henry Downs appellant vs. Andrew J. Fin.
negan. respondent. Order affirmed.
COLLINS, j.
Syllabus-1. A mere naked trespass,
although creating a liability for dam
ages, cannot be the basis OF an action as
OIL applied assumpSit. Such an action
is not 10 recover damages for the tort,
the wrongdoer has appropriated to his
own use. the law implying promise to
pay its reasonable value.
2. The right to name a tort and to
recover as OH implied assumpSit has,
according to the modern decisions. been
extended 10 cases where there has been
wrongful conversion of property of
one person to the use of another.
whether sold or not by the latter. And
also to cases where trespasSer has
severed trees from land in possession of
the owner, or has quarried stone there
on, andhas afterward taken the trees
or stone away, converting the same to
his own use. SO that troyer or replevin
would lie
8. If, however, the series of acts in
which the severing of trees or the
quarrying Of the stone, the taking away
from the freehold, and .heir conversion
had occurred, are sufficient to create
adverse possession of the land in the
person performing the acts, assumpsit
for their value will not lie, for it is a
settled principle that title to land can
not be tried eX-divesto in transitory ac-
tionS.
4. Where an injured party may elect
between the TWO forms of action, his
demand may be counter-claimed against
plalatlft'S cause OF action arising out
of contract, or where itself set up by /,
plaintiff as arising in the implied con-
tract, 1t may be opposed by counter
claim arising out OF contract.
5. In this case the answer averred
that the observation-disclosures in
the counter-claim had been quarried
and removed under license from defend
ant. while the proof showed that plain
tiff was simply trespasser. Held, that
there was material variance between
the pleadings and the proof.