Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-11-24

measure of damages for conversion, to
prove the act of conversion.
6. While proof Of a demand and re-
fusal to deliver the property or thing
may establish conversion in connec-
ton with other facts, the demand and
refusal are only evidence OF CONVEX
sion when the defendant was in such
condition that it might have deliver
ed the property if it would, and con-
version does not lie against a com
mon carrier for meme nOn-feasance
nor for goods stolen from the carrier,
nor for negligence causing the loss,
nor for bare omission.
7. When goods in transit are taken
from the carrier by an officer under
writ of attachment against a third
party, it is encumbent on the car
rier, in an action for conversion, to
give immediate notice to the shipper,
and on failing to give such notice SO
as to enable the shipper to protect
| himself, the carrier assumes the bur-
den of establishing the legality OF
the proceedings on which the attach
ment was made, and the fact that the
writ was regular on its face does not
protect the carrier if such writ was
in law void.
8. A justice of the peace acquires
no jurisdiction to issue a writ OF at
tachment until the summons in the
action is issued, as attachment is a
provisional or dependent remedy
which has no existence until the COM
mencement of an action.
9. When delivery by a carrier to an
officer, under a valid writ OF attach
ment, constitutes conversion. proof OF
the value of the property Delivered,
as of the date delivered to the officer,
is competent proof of value to support
a recovery.
10. In the absence Of other exist
ing liens on property. mortgagor
may legally surrender the mortgageu
property to the mort gagee and author
ize it's sale and the application of
the proceeds to the mortgage debt,
though no default has occurred in the
terms of the mortgage.
II. A justice summons bore date
two days after the filing of the com
plaint, affidavit and undertaking for
H1HCuIlIelll anu VI Wv "A'~
of attachment. Held, that on the or
fer of such papers in evidence in an
attempt to show that they were sim
UNANIMOUSLY issued. it was not error
to exclude them from evidence.
-. Section $3.50, r. C. 1908, requires
Justice of the peace to keep docket
and enter therein a continuous order,
with the proper date, each act done
during the course of litigation and
section 1851 provides that the docket
so kept cannot be disputed in col
lateral proceeding: that it or duly
certified transcript thereof is compe-
tent evidence of the matters to which
it relates Held, that the sections re-
ferred to make such docket the best
evidence of the facts required to be
and which are entered therein by the
justices and that, In the absence OF
any offer of such docket or transcript
thereof as evidence, no attempt being
made to account for its absence, par0l
evidence is not admissible under the
facts disclosed to show that the sum-
mons was in fact issued simultaneous
with, the issuance of the writ OF at
tachment.
(Syllabus by the court.)
Appeal from district court Suits
man county, Burke, j.
Action by Lillian r. Taugher against
Northern Pacific Railway Co. and
others, for the conversion of flax
by plaintiff over defendants
railroad. The defendant, the North. !
ern Pacific Railway Co. appeals from
a Judgment in favor of plaintiff and /
an order denying new trial. +,
Reversed and a new trial granted.
Ball, Watson, Young & Lawrence
'or appellant.
Lee Combs for respondent.
Opinion of the court by Spalding, J.,
Ill concurring, except Ellsworth, j.,