The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-05-01

neapolis. Mayor City Council and City
In the absence of any express statutory or
| constitutional authority an action Will not
| lie in this state against munfcfpal corpora
| ton for consequential injuries to property
| caused by change of the legally established
grade where such grading is done in proper
| manner.
chapter 5, Is applicable to property situate IN
the city Of Minneapolis and authorizes the
assessment of damages in such case in the
manner therein provided.
2. When a statute gives right and Gre
ates liability which did not exist at CEN
mon law and the statute at the same time
provides a specific mode IN which such right
may be asserted and liability ascertained,
the injured party is confined to the statutory
remedy.
2. Where commissioners are appointed to
assess damages by reason Of change IN
the grade of a street under Special Laws OF
1885, chapter 5, they are authorized to view
the premises and l. ear the evidence enered q
may such evidence as guide and aid
and the presumption is that they proceeded
rightly and according to the statute Until
the contrary appears.
Held also that assuming without deciding
that the evidence In proceedings OF TINS
nature are properly before us, the AWARD was
justified by the evidence bearing upon the
question Of damages to the building wnicn,
under the terms of the statute, are the only
damages to which the relator was entitied.
Writ quashed. BUCK >.
The Northwestern Railroader, plaintiff The
Railroad Gazette, intervenor, appellant, VS..
Charles H. Prior ct al, defendants; horace
A. Towne respondent.
l. An insolvent corporation made an assign
ment for the benefit of it's creditors under
the insolvency law; while the proceedings
were pending, judgment creditor commenced
an action under chapter rs, General Statutes
1894 to enforce the stockholders Liability,
and thereafter another Judgment creditor, -
leave of the court, interviewed in this action
and filed a cross complaint, In which IL IS
I alleged that the corporation fraudulently ac-
/ cepted a certain amount of its capital stock
/ for certain grossly inadequate considera-
: tons and praying Judgment for the sum
equitably due the creditors by reason OF such
fraud on demurrer to the cross complaint
Held, two causes Of action are not I'M
properly united in the same action, but the
uniting of the same is authorized Dy Salu
chapter 76.
2. The cross complaint was demurred to
on two grounds; o. that several causes OF
action are improperly united, and W thae
it does not state cause of action; the court
enormously sustained the demurrer on the
first ground, but made no mention OF the
second ground.
Held Judgment sustaining the demurrer on
the first ground would be in abatement, while
judgment sustaining the demurrer on Cee
second ground would be on the mer-.s and
might be a bar to a second action, and even
though the demurrer should have been sus-
tanned on the second ground, this court can
not on appeal, for the purpose OF affirmance,
shift the ground on which the demurrer is
sustained. the court below failed to dispose
of one of the issues of law raised by the
demurrer and this court cannot pass on that
issue. Order reversed. -Canty, j.
| George N. Moran, appellant; 8. s. Small and
E. A. Hutchins, respondents.
Evidence considered and held sufficient to
justify the finding Of the trial court. Order
affirmed. BUCK. ).
R. H. Moore as receiver of the Merchants
Bank of Lake City, respondent VS.. Anna T..
Holmes. appellant.
General Statutes of 1884, section 5751, in part
reads as follows: Every written ms -ru ne 1T
purporting to have been signed or executed
by any person shall be proof that it was so
signed or executed until the person by whom
1t purports to have been signed or executed
shall deny the signature or execution of the
same by his oath or affidavit.
Held, following Mccormick Harvesting Ma
chine Co. VS. Douce-te, 81 Mimi, 4o, that ihls
is a rule of evidence and not of pleading.
Held further, that special denial in the
answer that the defendant signed the note
sued upon, which answer was verified upon
information and belief by the defendants at
torney is not such denial under oath OF
the signature or execution of the instrument
as is contemplated by the statute. so as to
put the plaintiff in the first instance to the
proof of the execution of such instrument.
Held also, following Tarbox v. German, 81
Mimi. 60, that the fact of the signing and exc
cution of note purporting TO be made by the
hand of an agent did not render 1t necessary
to prove the authority of the agent in order
to make prima facie case. Order affirmed.
James Bristol, as executor, ETC., appellant,
vs. Henry Schultz ct AL, respondents, and
Henry Schultz, respondent, vs. James Brls-
toll as executor. appellant
Held, the decision of the court below is sus-
tanned by the evidence and the court did not
abuse its discretion in denying motion for
a new trial on the grounds of surprise and
newly discovered evidence. Order affirmed.
-Canty, ].
J. Colfax Grant, assignee, appellant, VS.. Min
neapoiis Brewing Company, respondent.
j. Colfax Grant assignee, respondent, VS..
Minneapolis Brewing Company, appellant.
Syllabus. More than 80 days before max
ing an assignment under the insolvency law,
the insovent borrowed a sum of money and
agreed that if he did not repay 1t at GER
tain time, he would secure it by chattel
mortgage on certain personal property; 1t
does not appear that he was then insolvent;
thereafter, and within 80 days, he executed
such mortgage pusuant to said agreement;
he was then insOlvent, which he and the
lender then knew and the mortgage was given
and received for the purpose of giving the
lender preference over the insoyent's other
creditors; thereafter and before the assign
ment the insovent paid the mortgage.
He'd, such payment was an unlawful pref
erence and the assignee is entitled to recover
back the amount so paid.
solvent, said assignor sold certain property,
and the purchaser as part Of the purchase
price, agreed to pay another antecedent debt
due from the assignor to defendant, but has
not done so.
Held, the defendant cannot be required to
refund unlawful preference what he
has never received. Order affirmed on both
appeals.
John McCarvel, appellant, VS.. c. A. Wood
ct al, respondents.
Syllabus-Held the evidence is sufficient to
support finding that the property in Ques-
ton was transferred to plaintiff by the
judgment debtor with intent to defraud the
creditors Of the latter, that what was done
by the former including the purchase of new
goods, was done for the purpose of permitting
the latter to continue his business for his own
use and benefit in the name of the former,
and the verdict is sustained by the evidence.
Order Affirmed.
WILL NOT BE CAUGHT AGAIN.
ToU, nh, la RnInsasS n ION Ira loro