The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-03

sumed in him and is immaterial on the
question of his good faith in the pur-
chase Of the negotiable instrument
sued for.
90 A defendant in an action of
claim and delivery may counterclaim
and on proof recover for damages oc-
casioned by the wrongful taking and
detention by the plaintiff of the per-
sonal property, taken by claim and
delivery proceedings pending the &C
ton, where the defendant on the mer-
it's %ecoVers judgment emitting him to
such property. In such an action the
property replevied is the subject mat
ter of the action and damages for
such wrongful taking and detention Of
the subject matter of the action are
connected with the subject Of the
action" within the meaning of the
first subdivision of section $3.50, r. c.
1905, and as also contemplated by
section 1886, r. G, 1905, concerning
the form Of verdict to be returned in
claim and delivery proceedings.
(9) Pending appeal and with the
record in this court attorney for ap-
pellant, in an endeavor to secure a
remand of the record to the district
court, that he might there move for
a new trial on the grounds of newly
discovered evidence tending to sub
stantiate his defense plead and sought
10 DC lnI6TpOS6u on TRIAL. lll5u IN IllS
court in support of the motion to re-
mand the affidavits of defendant, his
attorney of record and that of a third
party, the latter containing statements
~antagonistic and contrary to both the
claim of good faith purchase In due
course of plaintiff of the note, and al
so the defense of the defendant of a
want of consideration, and tending to
establish a payment by the bank of
S 1900, or $1,000 to defendant as a
consideration for the note. an amount
in excess of the value of the prop
erty involved in these r%epleVin pro-
ceedings, and which If taken las a
judicial admission by defendant would
destroy his defense of total want of
consideration. Upon hearing the mo-
ton to remand the record was sde-
MED. Subsequently the appeal was
argued and submitted for decision on
| the merits. Thereafter this court oil
it's own motion, without any consider
alton of the merits involved, sum
marily dismissed h appeal and af-
firmed the Judgment appealed from
| on the grounds that the affidavit of
| such third party constituted plain
tiff's judicial admission of want of
merit in his defense, and established
the. matters submitted on the appeal to
be sham and frivolous. On a rehear-
ing. then granted, at which full reargu-
ment was mad, 1t Is Salu.
(a) That this affidavit, taken with
all the affidavits filed for such pur-
pose, should not be held to consti-
tute the judicial admission of the de-
PENDANT Of an absence Of merit in his
appeal.
CD In determining the effect to be
given to an affidavit so filed by a
party it's contents should be taken in
connection with the other ~aftidaVlts
and the nature of the proceedings and
purposes for which the same was
filed; and when filed as here, after
judgment and pending an appeal, to
work a dismissal of the appeal there
should be no doubt of the intent of
the party filing the same to adopt the
statements therein made as his w
for all purposes of the case; and the
statements thus adopted must not be
susceptible of an explanation con
sistent with good faith in the appel
liant.
(c) In case of substantial doubt as
to whether such an affidavit should be
construed as a judicial admission of
want of merit, where an explanation
as to the circumstances of its filing
warranted the exercise of discretion
by the court. such affidavit should be
held not to amount to such a judicial
admission, as the holding of the court
should be toward relieving a party
from the inadvertant or unintentional
admissions of counsel where the same
If applied become a judicial admis-
sion and, as a matter of procedure
regardless of merit, abrogate the ap-
peal.
ID, With the explanation made of
the circumstances under which the
affidavit in question was obtained for