St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-01-19

afterward brought under chapter rs,
q. S. 1879, by a creditor Of said corpora
ton in favor of himself and all other
creditors, and against the corporation
Chen Insolvency and all its stockholders,
and for the appointment of receiver.
After the commencement OF the latter
action an order was made in the former
action under section %, chapter Is, or
| dering creditors to exhibit their claims
| and become parties to that action.
Held, that action was not proper one
IN which to make that order, but con-
cediHg that the order is irregular and
not void, and cannot be impeached col
laterally in the latter action, still the
| order does not relate back to the time or
| the commencement of the former action
| in which it was made, but takes effect
| only from the time it was made. which
was after the commencement OF the lat
| ter action. in which jurisdic lion was
! therefore first obtained for the purpose
| of that action, and being first obtained
can be maintained, notwithstanding the
change in the character of the former
action. Order affirmed. CAVITY, j.
Trust Company VS.. The Globe.
st. Paul Trust Company, as executor,
etc, of Norman Kittson, deceased, ct al,
| respondent, VS.. st. Paul GlOue Publish
| ing Company. Ell al, defendants, George
H. Morrill, ct al. appellants. Sylla-
| bus Ats the suit of a stOckk old
| er a Judgment was rendered setting
| aside a sale made by the board of di-
rectors of all the corporate property land
a receiver appointed to take charge OF it
! and convert it into money, The judg-
, ment provides that the receiver should
| issue and sell receivers certificates to
raise money with which to refund what
| the purchaser from the directors had
| paid on the pr Operty, and that such GER
| tificates should be a first lien upon the
property in the hands of the receiver
: and should be first paid out of the
| proceeds. No appeal was ever
taken from this decree. The
| court subsequently made All order reI
| curing creditors of the corporation to
,, appear in the action and exhibit their
claims. After the sale of the property
the court made an order directing the
receiver to distribute and apply the pro-
ceedS in accordance with the provisions
of the decree. Upon an appeal from
this order by creditor who had APP
peared and exhibited his claim against
the corporation. Held, first. that the
proviSiOn~of the decree for the issue Of
receivers certificates, and making them
a first lien on the property, was not void,
/ and that the creditor could not raise the
objection that the directors had used the
money received from the purchaser, and
to refund which the receivers certitl-
Gates were issued. in making prefer-
entail payments to certain creditors in
violation of the inSoiyent law. Order
affirmed. MITCHELL, j.
Can't E2e Fried Twice.
State of Minnesota. respondent, VS..
! Henry SOmmers, appellant. Syllabus
| The accused is put in jeopardy of pun
ishment' in the legal and constitutional
| sense when a jury is impaneled and
sworn to try his case upon valid In
! dIctment.
After jury is thus charged with
the prisoner" he is entitled to have the
trial proceed to verdict unless some
intervening necessity prevents.
| While the inability Of the jury to
agree is such necessity, yet in a prose-
cution for felony the defendant has a
right, unless he haS waived it, to be
present.
Hence. when in such case the jury
is thus discharged without the consent
of the defendant. and during his en-
forced absence, he being confined in
prison, he cannot be again tried for the
same 0tfenSe. Order reversed.
| MITCHELL, ].
Matter OF License.
u. J. Cameron, respondent, VS.. Chi
cago. Milwaukee q st. Paul Railway
Company, appellant. Syllabus-While
the tranfer of possession by mere
licensee 10 third party terminates the
license and gives the licensor the right,
If he so elects, to treat the transteree as
a trespaSser. yet the possession Of such
tranferee is not adverse so as 10 set
the statute Of limitation i'll motion I'M
less such adverse holding is declared
and brought TO the knowledge of the
licensor.
While presumption that the posses
sion of the transferee had become adj
verse may arise from the long acquieS>
cence Of the licenSof. after the termina-
ton of the license, without asserting his
legal rights. yet, under the facts of this
case, this court would not be justified
in holding as a matter of law that the
possession Of the transferee had become
adverse fifteen years before the COM
mencement of this action.
Held also that the plaintiff was not
estopped by his lacheS from asserting
his title against tranSferee of the
licenSee.
Also that, if plaintiff and defendant
were tenants in common of the prem
Uses, the acts of the defendant amounted
TO an custer of the plaintiff. Order
affirmed. MITCHELL, j.
Creditor and Debtor.
Peter Tykeson, respondent, VS.. Amos
B. Bowman, appellant. Syllabus-1.
There was dispute between creditor
| and debtor as to the amount of the
balance due, and the creditor threat
encd to make trouble for the debtor I'M
less he agreed to pay the amount
claimed by the. creditor as due and give
security therefor, which he refused to
do. Thereupon the creditor commenced
suit therefor and sued out and levied a
writ of attachment on the property of
the debtor. The attachment vas dis
solved. but thereafter the creditor had
verdict for less than he claimed, but
more than the debtor admitted to be
due, and judgment was entered thereon.
Held, in an action for malicious pros
ecution in suing out and levying the at
tachment, such judgment did not estop
the plaintiff from proving the amount
due for The purpose of showing the
malice or bad faith of the defendant.
2. The grounds for issuing the at
tachment were that the debtor had as
signed, secreted and disposed of part
of bis property with intent to delay and
defraud his creditors, and was about to