The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-12-25


and might maintain an action in his own
name for its recovery. Order reversed.
Buck, J.
James D. Beckett, appellant, VS.. George F.
Gridley ct al, respondents.
General Statutes of 1894, section $3.50, pro-
vides that where the testimony OF witness
without the sta.e is taken by deposition it
shall, when completed, be carefully read over
to him by the officer taking the same, and
thereupon the officer taking such deposition
is required to make his return of certain mat
ters regarding such deposition and attach his
certificate thereto. which certificate, 1t is
provided shall, among other matters, state
substantially that such testimony was cor
rectly read over to the witness by the officer
before he signed the same.
Held, that the certificate of a notary public
to deposition taken and returned by him
that the testimony of the witness care
fully read over to him by the notary public
before it was signed by the witness was in
this respect a substantial and sufficient COM
pliance with the law.
Where a horse is sold with warranty that
such horse is capable of fulfilling certain
conditions, and which, If not fulfilled, the
vendor will replace the horse with another
of equal value or return The notes given for
said horse.
Held, that the burden of showing that the
conditions were not fulfilled rested upon the
vendee, and the vendor was entitled to notice
thereof, and an opportunity either to replace
the horse with another of equal value or to
return the notes given for the horse.
Order reversed and new trial granted.
Adane v. Tvedt, receiver, respondent, VS.
Alex. Mackel ct al. appellants
Although the general allegations in the
complaint state that order in supplement
tary proceedings was duly issued by the court
herein and after hearing was had in sup
Elementary proceedings and disclosure and
report of the referee, that the plaintiff herein
was on motion appointed receiver but 1t does
not appear that such supplemental proceed
ings were founded upon the judgment defend
ants creditor.
Held that the complaint is not sufficient
to show. that plaintiff occupies a status either
as creditor or as the representative of cred
itors which entitled him to assail convey
ances as fraudulent
Sawyer V. Harrison, 43 Mimi, 297 followed
Buck. j.
Almeric H. Page, as receiver, respondent
vs. Electrical Engineering Company, ap-
In an action where the controversy related
to the execution and acceptance of written
lease witness was permitted to testify
against objections as to the declarations of a
third person tending to establish the time Of
execution and acceptance of such lease, which
declarations were not part OF the res ges.ae
Held that the admission of such declaration as
testimony was error.
Order reversed Buck J.
Milton Gorton, appellant, vs. the Town of
Forest City ct al, respon dents.
The granting, refusing dissolving of a
temporary injunction pendente lite rests nee
essarily in judicial discretion, and unless
there has been an abuse of such discretion ap-
pellate courts will not interfere especially
where the prosecution of an enterprise of a
public nature is involved.
Order affirmed. Buck, J.
The Old Second National Bank of Aurora
appellant, VS.. The Town of Middletown, re-
spondent.
General statutes of 1894 sections 9S9 and
$50, provides that the supervisors constitute a
town board for the purpose of auditing all
accounts payable by said town. And section
6S7 of said statute provides that before any
account, claim or demand against any town
or county of this state, for any property or
| services for which such town or county shall
be liable, shall be audited or allowed by the
board authorized by law to audit and allow
the same the person in whose favor such ac-
count claim or demand shall be or his agent
shall reduce the same to writing in items and
shall verify the same to the effect that such
! account, claim or demand is just and true
that the money therein charged was actually
| paid for the purpose therein stated that the
| property therein charged was actually deliv-
cred or used for the purpose therein stated
and was of the value therein charged.
Held that the filing of an itemized and veri-
| fed claim against the town with the auditing
town board was condition precedent to COM
-mencing an original action therein against
such town.
| William w. Billson, plaintiff, appellant VS..
william +. Lardner, as assignee, defendant
appellant; Josiah Wolf ct al, respondents.
Kinley, IS N. w. R., 8, followed
The trial court made findings of fact and
an order thereon, and subsequently by agree
ment of the respective parties 1t made addi-
tional findings, and an order thereon and
filed the same.
Held, that the last order must be deemed
the final one in force, and that an appeal
might be taken therefrom within thirty DAYS
after written notice of the same.
State Of Minnesota, plaintiff, Vs. J. Jarvis
and P. Holdahl defendants.
| General Statute of 1894 section 2012 pro-
| vides, that all persons licensed to sell in
] toxincating liquors are hereby required to
close their places of business (hotels except
| ed at II O'Clock at night. j. and H. were
| indicted under the statute, charged with hay-
! Ing unlawfully kept. open after II O'Clock at
night their saloon, being a place wherein
! the sale of liquor was licensed, but the in
dictment contained no allegation that the
! place was not hotel
He'd that the facts stated in the indct-
ment did not constitute public offense in
asmuch as it did not negative the exception
Order reversed and case remanded
Buck, ].
William R. Murray respondent, vs. Ada B.
Chamberlain and William E. Chamberlain
appellants
Held, that there was no error in the trial
court denying the defendants application for
modification of the judgment in an action
toreelosing mortgage, directing the pay
ment of attorneys fees upon the ground that
| the was not authorized NV hn rIoad