The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-06-22
IT is A HOMESTEAD.
Supreme COU~+ C~cIdes the BAN
hOlZer Case


A decision of considerable Importance
10 the interests involved, although it's
pubic interest has been somewhat de-
preclated by the fact that the Iecis-
lature at its last session modified the
law on which the present decision hing
ed, was filed in the supreme court YES
terday in the case of the National Bank
OF the Republic of New York. against
William BanolZer. 1t involved the ones
ton whether the Banholzer property.
Wh1ch was five acres in extent, compris
ing beside the residence and actual
homestead a brewery and other valu-
able property, should be exempt from
execution. The supreme court holds
'Nat the property is exempt, although
uHuer the new law it would not be. The
syllabus of the decision is as follows:
Nauonal Bank of the Republic of New York.
appellant We. William Banholzer respon,
dent -o't0"
The judgment debtor claims as his home
steaa, exempt from execution, the whole of
the tve-acre tract on which he resides. II is
within the laid out and plated portion of
ST Paul. a city OF over 5000 inhabitants hut
mas rs never been, itself, plated.
Held, whether not the whole is exempt
as his homestead depends on whether it is
city. ->'--~~-o
Held, it does not conclusively appear that
1t is within the urban portion of the civ
and the order of the court below holding
the whole exempt is affirmed. -Canty, ].
The syEabi of the other decisions were.
II: j.. Partridge, assignee of Newton G.
Parks, appellant, VS.. G. H. JesSup and w
ID. Musser, respondents.
In action by an assignee in insoIvencv
to set aside a payment to a creditor or an
attachment Indebtedness, an unlawful
preference, and to recover back the amount
so paid,
Held, the finding of the court that at the
time Of such payment the creditor did not
nave reasonable cause to believe the as
slgnors tnsolvent, is sustained by the evil
dence. Judgment affirmed. -Canty. J.
Melville E. Bryant respondent, vs. American
surety Company COM of New York, appellant.
Section 513S, G. S. 1894 subsection / as
amended by L. 1895, chapter 80, providing
that the following actions. must be brought
within two years; Libel. SANDER, assault.
battery, false imprisonment, other tort
resulting in personal injury includes an
action for malicious prosecution. Order re-
Versed -Cantv I
Security Bank of FariDault, respondent,
VS.. Robert E. Lucas ct al, defendants:
Isaac Waite appellant.
=, Section 1886, G. S. 1894, construed, and held,
that a promlssory note payable to the order
OF the maker is, when negotiated by him
without Endorsement, the legal equivalent of
a note payable to bearer. Judgment affirm
Gu Start, c. ].
H. Rosenbaum, appellant, VS.. E. c. Howard
and Howard & Haynie, respondents
l. Parties will be held ,prima facie TO be
partners to creditors upon slighter urcnf
than is necessary to establish that reIat' on
among themselves. In such Cases. represen
tations conduct and circumstances naturally
calculated or likely to beget the belief that
the parties were partners alleged is suf-
hcient to make the question one for the jury
2. A member of copartnershp may testify
who constitute the firm.
g. Entries in the account books of firm
are not evidence against defendant to show
that he was member of the firm unless &C
companied by other evidence fairly tending
to show that he had knowledge of such en-
tries and assented expressly or implicitly
thereto.
4. Evidence considered and held that the
trial court erred in instructng the jury
that there was no evidence from which thew
could find that the defendant was in fact
a partner with his co-defendants herein
Order reversed. Start c. J.
Lucas Kells, as assignee Of N. P. Clarke. ETC..
respondents, VS.. Clarendon p Mcclure, ap-
pellant.
1. In an action by an assignee in Insolvency
to set aside transfer by his assignor on
the ground that it was in fact made to him
der, delay and defraud creditors 1t is COM
petent, for the purpose of showing the in
solvency of the assignor, to put in evidence
the books Of account and records duly veri-
fed, pertaining not only to the individual
business of the assignor, but also that of
co-partnership Of which he was a member
z Evidence considered and held that it
supports the findings Of the trial court to
the effect that the plaintiffs assignOr made
bill OF sale OF quantity of logs to the de-
PENDANT with the intent to delay and de-
fraud his creditors and that the defend ant
then had notice of such intent.
3. Held that the assignee did not rally
such transfer as to creditors By the mere
fact that some of the notes given for the
purchase price came into his hands as such
assignee and were retained by him until the
trial of this action.
4. Held that the trial court did not err m
refusing to modify It's conclusions Of law so
as to permit the defendant to paw the vaIJe
Of the logs instead Of surrendering the lcts
and lumber manufactured therefrom, nor in
refusing to provide for accounting as to
the cost of manufacturing such lumber Or
der affirmed. Start, C. J.
Gustave Banse respondent, VS.. Town of Clark
and Basil Smout, Fred Willie and John
Niebuhr, appellants.
1. Oral evidence is competent, in aid of a.
petition and order for the laying out of a
highway, to show that the petition was signed
by the necessary number of qualified pet1-
TONERS.
2. The fact that petition for highway
includes more than one proposed road does
not affect the Jurisdiction of the town su-
pervisors to act upon the petition and lay
out one of the proposed highways.
3. misrecital. in the order laying out
the road, of the description of the proposed
road, as contained in the petition, does not
affect the validity Of the order where the
road, as actually laid, is correctly described
therein.
4. The failure Of the town clerk to record
the surveyors plat Of the road with tie
road order, and its loss and non-production in
evidence on the trial of this case, did not