St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1896-01-25

visited the claimant during such disability.
His failure to do SO was caused either by
|. his own neglect Of duty or by the neglect of
the commander secretary to notify him of
| the claimants disability. Held, that in either
case the inability Of the medical council ex-
aminer to certify to the proof was the re-
suit Of the negligence or fault OF the defend
ants agent, and it cannot set up de-
Tense to the claimants right of recovery such
negligence or fault of its own agent. Lane VS..
st. Paul Fire and Marine Insurance Com
pany, 500 MINI. 227, distinguished. Order af
firmed. Buck, j.
The Pioneer Press Company, respondent, VS..
James NJ. Hutchinson ct al, appellants.
1. When lessees enter into and retain pos
session of the rented premises under COW
enant in the lease that the landlord will make
improvements, which he fails to do, the les
sees, when sued for the rent may recoup the
damages resulting from such breach of the
covenant or set up the resulting damages as
counterclafm. Such counterclaim arises
out of the contract sued upon as foundation
of the landlords claim and is connected with
the subject of the action. Gen. st. 1894 sec.
52S7.
q Certain allegations in the defendants an
swer construed as broad enough to permit
proof of damages arising from the landlords
failure to make improvements in accordance
with the covenants in the lease. Order
versed Buck, J.
Elemenia Larocque, appellant, VS.. Charles r.
Chapel, as sheriff, ETC., respondent.
SyIlaDuS-General statutes 1894, section 6O51,
provides that the party foreclosing a mort
gage shall make and file an affidavit of costs
and disbursements within ten days after
foreclosure"
Held, that the ten days begin to run, not
from the day the property is offered for sale
and struck off to the purchaser, but from the
time the foreclosure sale is completed, by the
execution and recording of the certificate of
sale.
But held also, that although the provision
OF General Statutes 1894, section 6O3S, that the
certificate of sale shall be executed and filed
within twenty days after sale may be merely
directory as to time, yet as the provision as
to filing the affidavit of costs and disburse-
ments Is mandatory, party cannot extend
the time for filing such affidavit by failing to
procure and file his certificate within twenty
days after sale.
Order affirmed. Mitchell J,
Ada L. Mayall, as trustee, etc. respondent,
VS.. Harry Hale Mayall ct AL. defendants;
Samuel Mayall and S. Mayall Bruner, by
their guardians ad Item, appellants.
Syllabus-For the purpose of preserving n
trust, court has power to order SALE mort
gage or lease Of the trust property although
the trust instrument contains no power or
authority for SO doing, ana to bind by it's
judgment parties not in being who may there
after become benefcaries of the trust.
A contingent interest in real estate is bound
by Judicial proceedings affecting the property
where the court has before it all the parties
that can be brought before it. and the court
acts upon the property according to the rights
that appear without fraud. These powers are
inherent in court of equity and rest upon
considerations of necessity and expediency.
The district court, ana not the probate court
has jurisdiction of such case although in
fants may have contingent interest In the
trust.
Judgment affirmed. Mitchell j.
William r. Wood and ]. P. Jordan co-part-
ners as Cumberland Packing Company re-
spondents, VS.. Charles Michaud ct al, ap-
pellants.
Evidence held sufficient to Justify the refor
nation of written contract on the ground of
a mutual mistake of the parties.
Also to justify findings that the contract be-
tween the parties was a sale by description
and not by sample; and that the goods deliv-
cred by the vendor conformed to the terms
OF the contract
In the case of contract for the sale of
goods, where the vendor has fully performed
ne may maintain action for the contract
price of the goods, although the vendee has
refused to accept them.
Order affirmed. Mitchell T
Rhoderick S. Dunn, respondent VS.. Orris
Hunt, appellant.
A tender Of the amount required to redeem
from mortgage foreclosure sale must he
Kept good in order to be etfectual as the basis
OF a subsequent action to compel redemp-
ton, brought after the time for REDEMPTION
has expired.
The mere refusal of the purchaser at a fore
closure sale to accept proper tender does
not divest his interest in the premises
distinction made between cases, where the
tender is made the foundation of the right of
action, and those where the plaintiffs right
to relief is not dependent on 1.-THE tender
only going to the question of interest and
costs. ~
Judgment reversed. Mitchell, T
charles A. Couch, respondent, vs. William f.
steele ct al, defendants; William E. Steele,
Concsding without decidipo tbo+ tbo ~,..
IN was not entitled, under General Statutes
1S94 section 1858, to examine the defendant
wait as If under cross examination for the
purpose of using his deposition as evidence
against the defendant Steele. still there was
no error in admitting the deposition, the only
objection being that some of the questions put
to the witness were leading.
permitting party to put leading ouostjops
TO MS own witness is largely within the dis
cTetlon OF the trial court, and is not ordinarily
a ground for new trial.
Other unfmportant assignments of error con-
sidered. - VI 'oii
Order affirmed Mitchell 7
H. 1s M; n WheelUek receiver, etc, respondent
Syllabus-S. having in his possession the
property OF W., consisting of several head of
horses, harness and several other articles
Oh OF. personal property, refused to deliver them
up on demand of w. Upon the horses and
one harness S. had a Zen for $1O.75, but none
upon the other property. w. commenced
s IN replevin in justice court for the re-
c"very OF the property free from the lien and
obtained Judgment therefor. After the com
mencement of the suit in justice court w ten
dered TO s. the amount of the lien and de-
t ma the property covered by it, and upon
the refusal of S. to deliver it up W. COM
menced a suit in district court for its recoy-
cry, ana s. pleaded the former Judgment In
justice court as bar.
Held that the plea was not tenabIe
Order affirmed. NR,,ol-
THEY ARE Eop u.sn