The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-11-12
HE WAITED TOO LONG.
William Duxbury Must Stand An
ether Law Suit.

William Duxbury Must Stand An
ether Law Suit.
Justice Mitchell reverses the order
of the lower court in the case of Will
liam Duxbury, respondent, against VIII
lard Boice ct, al, defendants, Clayton
S. Boice, appellant
Duxbury was a trif1e too slow. He
secured a judgment against Willard
Boice, and sold some property under
execution to satisfy it. Then after
twelve years he instituted supplement
tary proceedings, attempting to have
a transfer of property made by VIII
lard Boice to Clayton S. Boice set aside
on the ground that it was fraudulent.
DuXbury won in the district court but
the supreme court calls up section 5156
laws of 1894, providing that actions Of
this kind must be brought within six
years of the time when fraud was dis
covered Duxbury, having waited
nearly twelve, the decision of the lower
court in his favor is reversed and the
case is remanded for new trial.
The syllabi of the decisions of yes
terday are:
W. r. Doxbury, respondent, VS. Willard
Boice, ct al, defendants; Clayton S. Boice,
appellant.
An action by a Judgment creditor to set
aside conveyance by his debtor on the
ground that it was executed with intent to
defTaud creditors, is one for relief on the
ground of fraud and the limitation of the
time within which such action must be
brought is that prescribed by Gen. ST. 1891,
Sec. $780, Subd 6, to-wit: Within six years
after the discovery by the aggrieved party
of the facts constituting the fraud"
When such action is brought more than
six years after the commission of the acts
constituting the fraud it is incumbent on the
plaintiff to allege and prove that he did not
discover the fraud until within six years be-
fore the commencement of the action.
This provision of the statute being Dor
rowed from equity must be construed In ac-
cordance with the equitable principle, which
required the defrauded party to be diligent,
and which deemed means of discovery as
equivalent to actual discovery. The facts
constituting the fraud are deemed to have
been discovered when, with reasonable dill
gence, they could and ought to have been
discovered.
Hence the burden is on the plaintiff to prove
not merely that he did not discover the
facts constituting the fraud until within six
years before the commencement of the ac-
ton, but also that his failure to- discover
them sooner was consistent with reasonable
diligence on his part and not the result of
his own negligence. Order reversed.
Mitchell, ].
Cordelia ingalls,, respondent, VS.. c. E. Oberg,
Held, that there was no error in the courts
refusing the defendant leave to amend his
answer when the plaintiff rested. The fol-
lowing rules applied:
First-In reversing the action of the trial
court in denying motion to dismiss on the
ground that the plaintiff has failed to estab-
l1Sh cause OF action, an appellate court
will consider all the evidence in the case
and affirm the action of the trail court if
sufficient evidence was admitted to sustain
verdict for the plaintiff, although not intro
duced until after the motion.
Second-A single general exception to the
court charge
propositions, one of which is erroneous is
insufficient.
Third-An assignment of error that the
court erred in granting a new trial, where
the motion was made on two or more grounds
is too general to be availing. Order affirmed.
Mitchell, j.
Henry Watts and August Bartholdi, respond
ents, VS.. Benjamin F. Howard appellant.
When question to witness in terms
calls for incompetent evidence and no objec-
ton is made to the question and the answer
is responsive to It, it is discretionary with
the court whether the answer shall be strick-
en- out
Every agency, whether general or special.
carries with it authority to do whatever is
usual and necessary to carry into effect the
principal power and the principal cannot re-
strict his liability for acts of his agent thus
within the apparent scope of his authority.
by private instructions not communicated to
those with whom he deals.
An agent with authority to purchase or
sell has authority to purchase or sell in the
usual and ordinary manner.
An agent with authority to buy logs has
authority to agree that the measurement of
the logs shall be ascertained by scale tn
be made in the usual and ordinary way and
that they shall be paid for according to that
scale.
An assignment of error to several different
parties of the charge of the court relating to
entirely different and distinct propositions is
not in compliance with rule of this court