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the premises and took possession. He then verdict, for the record does not show that a had considerable property in the building, motion for a directed verdict was made at the which he has suffered to remain ever since. close of the testimony. Sayer v. Harris ProdThere is evidence of an attachment several uce Co., 84 Minn, 216, 87 N. W. 617. months after plaintiff took possession, and Order reversed, and a new trial granted. that a padlock was placed on the door of the building, but no testimony to the effect that the padlock was placed there at the instance of the lessors. No doubt, proof of construc- PICKERING V. GREAT NORTHERN RY. tive eviction would have been sufficiently es

CO. et al. (No. 19595 [191].) tablished, had plaintiff acted upon the notice (Supreme Court of Minnesota. Jan. 28, 1916.) of July 1st, and vacated, removing his prop

(Syllabus by the Court.) erty. But he did not. By retaining the key

1. NEGLIGENCE On 139_INSTRUCTIONS—WANand letting his property remain in the build

TON NEGLIGENCE. ing plaintiff kept possession. In Boreel v.

Under the common law of Wisconsin the Lawton, 90 N. Y. 293, 43 Am. Rep. 170, the term wanton or willful or gross negligence, such court says:

as justifies a recovery though the plaintiff is “But we know of no case sustaining the doc- himself negligent, imports a higher degree of trine that there can be a constructive eviction, delinquency than does such term under the law without a surrender of the possession." "The of Minnesota ; and a charge giving the Minnepropositions that there can be retention of de- sota law is erroneous when the Wisconsin law mised premises and an eviction are logically and is the governing law. legally contradictory.” Mortimer v. Brunner,

[Ed. Note.-For other cases, see Negligence, 6 Bosw. (N. Y.) 653.

Cent. Dig. 88 371-377; Dec. Dig. 139. In New State Brewing Ass'n v. Miller, 141 First and Second Series, Wanton Negligence.)

For other definitions, see Words and Phrases, Pac. 1175, it was held that the constructive

2. RAILROADS Om 398_PERSON ON TRACKeviction did not occur until the date upon WANTON NEGLIGENCE SUFFICIENCY OF which the tenant surrendered possession. EVIDENCE. McAdam, Landlord and Tenant, p. 1385,

Under the evidence, applying the Wiscon

sin law, the defendant was not wantonly neglistates:

gent so as to permit a recovery notwithstanding “But where the eviction is constructive mere- the negligence of the plaintiff's intestate. ly, it is no eviction in law unless followed by a complete abandonment of possession by the Cent. Dig. 88 1356, 1358–1363 Dec. Dig.

[Ed. Note.-For other cases, see Railroads, tenant."

398.] To the same effect are Cohen v. Conrad, 3. RAILROADS Om 400 — PERSON ON TRACK 110 Minn. 207, 124 N. W. 992; Crossthwaite CONTRIBUTORY NEGLIGENCE-QUESTION FOR v. Caldwell, 106 Ala. 295, 18 South. 47; Lei JURY. ferman v. Osten, 167 Ill. 93, 47 N. E. 203, 39 of the plaintiff's intestate under the Wisconsin

The question of the contributory negligence L. R. A. 156; Dennick v. Ekdahl, 102 Ill. law was for the jury. App. 199; De Witt v. Pierson, 112 Mass. 8, 17

[Ed. Note.-For other cases, see Railroads, Am. Rep. 58; International Trust Co. v. Cent. Dig. $8 1365–1381; Dec. Dig. Om 400.] Schumann, 158 Mass. 287, 33 N. E. 509. 4. APPEAL AND ERROR 171 REVIEW Plaintift, notwithstanding the notice, the re PLEADING. fusal to consent in writing to the assignment

The common law of Wisconsin as to wanof the lease, and the refusal to accept rent, ties having tried the case upon the theory that

ton negligence was not pleaded; but the pargave exhibitions for three or four days, and the question of liability was determinable by no actual interference was then, or ever, the Wisconsin law it is so considered on appeai. made by defendants. There was neither evic [Ed. Note.-For other cases, see Appeal and tion nor any such interference with plaintiff's Error; Cent. Dis. $ 1053-1063, 1066, 1067,

1161-1165; Dec. Dig. 171.] possession or use of the premises that an action for damages can be maintained against Appeal from District Court, Pine County ; defendants. Mere refusal to consent in writ. P. H. Stolberg, Judge. ing to the assignment of the lease was not Action by H. J. Pickering, as administrator, an interference with the beneficial use or en- against the Great Northern Railway Comjoyment thereof. Plaintiff entered into pos- pany and others. Verdict for plaintiff and session as defendants' tenant, and became from denial of alternative motion for judgsuch by defendants' waiver, as the juryment or new trial, the defendant Northern found, of the provision in the lease that no Pacific Railway Company appeals. Reversed. assignment could be made without their writ

C. W. Bunn and D. F. Lyons, both of St. ten consent. It cannot be claimed that written consent would have given plaintiff a bet- Paul, for appellant. Hurley & Hurley, of St. ter standing than he had through the waiver Paul, and W. P. Crawford, of Superior, Wis., found by the jury. There is no suggestion

for respondent. in the testimony that defendants agreed to waive the covenant in the lease as to any as DIBELL, C. Action by the plaintiff to resignment that plaintiff might desire to make. cover damages for the death of his intestate

This disposes of the appeal, and other er alleged to have been caused by the negligence rors assigned need not be considered. Judg- of the defendant. There was a verdict for ment cannot be ordered notwithstanding the I the plaintiff. The defendant appeals from

na For other cases 8ee same topic and KKY-NUMBER in all Key-Numbered Digests and Indexes

the order denying Its alternative motion for [2] 2. The next question is whether, apply. judgment or for a new trial.

ing the Wisconsin law, the evidence justifies [1] 1. It is a contention of the plaintiff a finding that the defendant was wantonly that the defendant was wantonly negligent negligent. and that there can be a recovery though the The important facts are few. The defendplaintiff's intestate was himself negligent. ant had two parallel tracks between Duluth Upon the question of wanton negligence the and Superior. The plaintiff's intestate was court gave two instructions. The first one walking on the westerly of the two tracks in was as follows:

Superior going northerly towards Duluth and "You are instructed that wanton negligence, towards his place of work for the Great whereby liability is incurred irrespective of Northern. An engine with its caboose was plaintiff's negligence, is a failure after discovering his peril to exercise ordinary care to prevent approaching on the same track from Duluth. the impending injury. In order for the jury to an engine with its caboose was coming from find wanton negligence in this case, it need not the south on the easterly track. The Dufind intentional or malicious injury, or the reck-luth train gave a warning signal and the less or wanton disregard of John Madden while in a position of peril."

plaintiff's intestate turned to the right be. It is conceded that the language of this in-tween the two tracks which were about eight struction is a correct statement of the law

feet apart. The trainmen on both trains of Minnesota. Anderson v. Minneapolis, etc., saw him. He was struck and killed by the Ry. Co., 103 Minn. 224, 114 N. W. 1123, and engine of the northbound train at or near cases cited; Gill v. Mpls., etc., Co., 129 Minn. the point where the two engines met. He 142, 151 N. W. 896. It is substantially that did not get on the easterly track and apparof Chief Justice Start in the Anderson Case. ently did not intend doing so.

The two enThe other instruction was as follows:

gineers were on the sides of their engines “Wanton negligence is something more than away from the intestate. Under the law of mere inadvertence. It is an absence of any care Minnesota it may have been a question for on the part of a person having a duty to per- the jury whether the trainmen were not willform to avoid inflicting injury to the personal fully negligent in that they saw the plainrights of another, by recklessly or wantonly acting or failing to act to avoid doing such in- tiff in a place of danger and failed to exer. jury, evincing such an utter disregard of conse- cise ordinary care to avoid injuring him; quences as to suggest some degree of intention that is, it may have been a question for the to cause such injury. It evinces such disrespect of consequences as to show little short of actual jury whether the situation was not such as intent."

to justify the jury in saying that the trainThis is a correct statement of the Wiscon- men, having seen the defendant as they did, sin law. It is substantially the language of should have anticipated that their engines Justice Marshall in Astin v. Chicago, etc., Co., would meet at about where the plaintiff was, 143 Wis. 477, 128 N. W. 265, 31 L R. A. (N. thereby putting him in a place of peculiar S.) 158. This case, with others, was in evi- danger, and whether ordinary care did not dence in proof of the Wisconsin law.

require them to exercise further precautions An examination of the Wisconsin cases in for his safety. Under the Wisconsin law, as evidence, including the one just cited, and defined and applied in the cases in evidence, a comparison of them with the Minnesota wanton negligence was not shown. cases, indicate to us a radical difference in [3] 3. The defendant contends that under the legal conception in the two states of the the Wisconsin law the plaintiff's intestate degree of negligence, whether termed wanton was guilty of contributory negligence as a or willful or gross, which permits a recovery matter of law. It relies upon the rule of law though the plaintiff is negligent. Expres- stated in White v. Mpls., etc., Ry. Co., 147 sions vary from case to case in Minnesota Wis. 141, 133 N. W. 148, which, with other as they do in Wisconsin; but the two typi- cases, is in evidence in proof of the Wisconcal instructions quoted do not define the sin law. This was a railway crossing case. same legal conception. The term wanton It is likely that the law of Wisconsin and or willful negligence, such as permits a re- that of Minnesota, relative to contributory covery by a plaintiff, himself negligent, im- negligence on the part of one about to cross ports in Wisconsin a higher degree of de- a railway track, differ. Here, however, the linquency than in Minnesota. In Minnesota situation was different. The intestate was it is sufficient to charge a defendant with not attempting to cross onto the easterly liability if it be found from the evidence track. He was walking in the space between that after seeing the plaintiff in a place of the two tracks which ordinarily would not be danger and peril, and having ability to avoid a place of great danger. It is quite likely injuring him, he failed to exercise ordinary that if the engines had not met at the parcare to avoid doing so. This is not a true ticular point where plaintiff was no injury statement of the Wisconsin law. The second would have occurred. It was a question for instruction would be erroneous if applied to the jury whether the deceased was negligent. a case in which the Minnesota law was the [4] 4. The defendant did not plead the comgoverning law; and it seems clear that the mon law of Wisconsin relative to wanton giving of the first one was erroneous in a negligence. The case was tried upon the thecase where the Wisconsin law was the govory that the law of Wisconsin relative to erning law.

wanton negligence was the governing law.

the premises and took possession. He then, verdict, for the record does not show that a had considerable property in the building, motion for a directed verdict was made at the which he has suffered to remain ever since. close of the testimony. Sayer v. Harris ProdThere is evidence of an attachment several uce Co., 84 Minn. 216, 87 N. W. 617. months after plaintiff took possession, and Order reversed, and a new trial granted. that a padlock was placed on the door of the building, but no testimony to the effect that the padlock was placed there at the instance of the lessors. No doubt, proof of construc- PICKERING V. GREAT NORTHERN RY. tive eviction would have been sufficiently es

CO. et al. (No. 19595 [191].) tablished, had plaintiff acted upon the notice (Supreme Court of Minnesota. Jan. 28, 1916.) of July 1st, and vacated, removing his prop

(Syllabus by the Court.) erty. But he did not. By retaining the key and letting his property remain in the build

1. NEGLIGENCE m139_INSTRUCTIONS—WAN

TON NEGLIGENCE. ing plaintiff kept possession. In Boreel v.

Under the common law of Wisconsin the Lawton, 90 N. Y. 293, 43 Am. Rep. 170, the term wanton or willful or gross negligence, such court says:

as justifies a recovery though the plaintiff is "But we know of no case sustaining the doc- himself negligent, imports a higher degree of trine that there can be a constructive eviction, delinquency than does such term under the law without a surrender of the possession.". "The of Minnesota; and a charge giving the Minnepropositions that there can be retention of de- sota law is erroneous when the Wisconsin law mised premises and an eviction are logically and is the governing law. legally contradictory.” Mortimer V. Brunner, [Ed. Note.-For other cases, see Negligence, 6 Bosw. (N. Y.) 653.

Cent. Dig. $8 371–377; Dec. Dig. 139. In New State Brewing Ass'n v. Miller, 141 First and Second Series, Wanton Negligence.]

For other definitions, see Words and Phrases, Pac. 1175, it was held that the constructive

2. RAILROADS O398—PERSON ON TRACKeviction did not occur until the date upon WANTON NEGLIGENCE SUFFICIENCY OF which the tenant surrendered possession. EVIDENCE. McAdam, Landlord and Tenant, p. 1385, Under the evidence, applying the Wiscon

sin law, the defendant was not wantonly neglistates: "But where the eviction is constructive mere- the negligence of the plaintiff's intestate.

gent so as to permit a recovery notwithstanding ly, it is no eviction in law unless followed by a complete abandonment of possession by the Cent. Dig. $g 1356, 1358-1363; Dec. Dig.

[Ed. Note. For other cases, see Railroads, tenant."

398.] To the same effect are Cohen v. Conrad, 3. RAILROADS Om 400 PERSON ON TRACK 110 Minn. 207, 124 N. W. 992; Crossthwaite CONTRIBUTORY NEGLIGENCE-QUESTION FOR v. Caldwell, 106 Ala. 295, 18 South. 47; Lei- JURY. ferman v. Osten, 167 Ill. 93, 47 N. E. 203, 39 of the plaintiff's intestate under the Wisconsin

The question of the contributory negligence L. R. A. 156; Dennick v. Ekdahl, 102 Ill. law was for the jury. App. 199; De Witt v. Pierson, 112 Mass. 8, 17

[Ed. Note.-For other cases, see Railroads, Am. Rep. 58; International Trust Co. v. Cent. Dig. 88 1365–1381; Dec. Dig. Om400.] Schumann, 158 Mass. 287, 33 N. E. 509. 4. APPEAL AND ERROR 171 REVIEW Plaintiff, notwithstanding the notice, the re- PLEADING. fusal to consent in writing to the assignment ton negligence was not pleaded; but the par

The common law of Wisconsin as to wanof the lease, and the refusal to accept rent, ties having tried the case upon the theory that gave exhibitions for three or four days, and the question of liability was determinable by no actual interference was then, or ever, the Wisconsin law it is so considered on appeai. made by defendants. There was neither evic- [Ed. Note.-For other cases, see Appeal and tion nor any such interference with plaintiff's Error, Cent. Dig. $$ 1053-1063, 1066, 1067,

1161-1165; Dec. Dig. 171.] possession or use of the premises that an action for damages can be maintained against Appeal from District Court, Pine County; defendants. Mere refusal to consent in writ- P. H. Stolberg, Judge. ing to the assignment of the lease was not Action by H. J. Pickering, as administrator, an interference with the beneficial use or en- against the Great Northern Railway Comjoyment thereof. Plaintiff entered into pos- pany and others. Verdict for plaintiff and session as defendants' tenant, and became from denial of alternative motion for judgsuch by defendants' waiver, as the jury ment or new trial, the defendant Northern found, of the provision in the lease that no Pacific Railway Company appeals. Reversed. assignment could be made without their writ

C. W. Bunn and D. F. Lyons, both of St. ten consent. It cannot be claimed that written consent would have given plaintiff a bet- Paul, for appellant. Hurley & Hurley, of St. ter standing than he had through the waiver Paul, and W. P. Crawford, of Superior, Wis., found by the jury. There is no suggestion

for respondent. in the testimony that defendants agreed to waive the covenant in the lease as to any as- DIBELL, C. Action by the plaintiff to resignment that plaintiff might desire to make. cover damages for the death of his intestate

This disposes of the appeal, and other er alleged to have been caused by the negligence rors assigned need not be considered. Judg- of the defendant. There was a verdict for ment cannot be ordered notwithstanding the the plaintiff. The defendant appeals from

For other cases see same topic and KOY-NUMBER in all Key-Numbered Digests and Indexes

the order denying its alternative motion for [2] 2. The next question is whether, applyjudgment or for a new trial.

ing the Wisconsin law, the evidence justifies [1] 1. It is a contention of the plaintiff a finding that the defendant was wantonly that the defendant was wantonly negligent negligent. and that there can be a recovery though the The important facts are few. The defendplaintiff's intestate was himself negligent. ant had two parallel tracks between Duluth Upon the question of wanton negligence the and Superior. The plaintiff's intestate was court gave two instructions. The first one walking on the westerly of the two tracks in was as follows:

Superior going northerly towards Duluth and "You are instructed that wanton negligence, towards his place of work for the Great whereby liability is incurred irrespective of Northern. An engine with its caboose was plaintiff's negligence, is a failure after discovering his peril to exercise ordinary care to prevent approaching on the same track from Duluth. the impending injury. In order for the jury to an engine with its caboose was coming from find wanton negligence in this case, it need not the south on the easterly track. The Dufind intentional or malicious injury, or the reck- luth train gave a warning signal and the less or wanton disregard of John Madden while in a position of peril."

plaintiff's intestate turned to the right beIt is conceded that the language of this in- tween the two tracks which were about eight struction is a correct statement of the law

feet apart. The trainmen on both trains of Minnesota. Anderson v. Minneapolis, etc., saw him. He was struck and killed by the Ry. Co., 103 Minn. 224, 114 N. W. 1123, and engine of the northbound train at or near cases cited; Gill v. Mpls., etc., Co., 129 Minn. the point where the two engines met. He 142, 151 N. W. 896. It is substantially that did not get on the easterly track and apparof Chief Justice Start in the Anderson Case. ently did not intend doing so. The two enThe other instruction was as follows:

gineers were on the sides of their engines "Wanton negligence is something more than away from the intestate. Under the law of mere inadvertence. It is an absence of any care Minnesota it may have been a question for on the part of a person having a duty to per- the jury whether the trainmen were not willform to avoid inflicting injury to the personal fully negligent in that they saw the plainrights of another, by recklessly or wantonly acting or failing to act to avoid doing such in- tiff in a place of danger and failed to exerjury, evincing such an utter disregard of conse- cise ordinary care to avoid injuring him; quences as to suggest some degree of intention that is, it may have been a question for the to cause such injury. It evinces such disrespect of consequences as to show little short of actual jury whether the situation was not such as intent."

to justify the jury in saying that the trainThis is a correct statement of the Wiscon- men, having seen the defendant as they did, sin law. It is substantially the language of should have anticipated that their engines Justice Marshall in Astin v. Chicago, etc., Co., would meet at about where the plaintiff was, 143 Wis. 477, 128 N. W. 265, 31 L, R. A. (N. thereby putting him in a place of peculiar S.) 158. This case, with others, was in evi- danger, and whether ordinary care did not dence in proof of the Wisconsin law.

require them to exercise further precautions An examination of the Wisconsin cases in for his safety. Under the Wisconsin law, as evidence, including the one just cited, and defined and applied in the cases in evidence, a comparison of them with the Minnesota wanton negligence was not shown. cases, indicate to us a radical difference in [3] 3. The defendant contends that under the legal conception in the two states of the the Wisconsin law the plaintiff's intestate degree of negligence, whether termed wanton was guilty of contributory negligence as a or willful or gross, which permits a recovery matter of law. It relies upon the rule of law though the plaintiff is negligent. Expres- stated in White v. Mpls., etc., Ry. Co., 147 sions vary from case to case in Minnesota Wis. 141, 133 N. W. 148, which, with other as they do in Wisconsin; but the two typi- cases, is in evidence in proof of the Wisconcal instructions quoted do not define the sin law. This was a railway crossing case. same legal conception. The term wanton It is likely that the law of Wisconsin and or willful negligence, such as permits a re- that of Minnesota, relative to contributory covery by a plaintiff, himself negligent, im- negligence on the part of one about to cross ports in Wisconsin a higher degree of de-a railway track, differ. Here, however, the linquency than in Minnesota. In Minnesota situation was different. The intestate was it is sufficient to charge a defendant with not attempting to cross onto the easterly liability if it be found from the evidence track. He was walking in the space between that after seeing the plaintiff in a place of the two tracks which ordinarily would not be danger and peril, and having ability to avoid a place of great danger. It is quite likely injuring him, he failed to exercise ordinary that if the engines had not met at the parcare to avoid doing so.

This is not true ticular point where plaintiff was no injury statement of the Wisconsin law. The second would have occurred. It was a question for instruction would be erroneous if applied to the jury whether the deceased was negligent. a case in which the Minnesota law was the [4] 4. The defendant did not plead the comgoverning law; and it seems clear that the mon law of Wisconsin relative to wanton giving of the first one was erroneous in a negligence. The case was tried upon the thecase where the Wisconsin law was the gov- ory that the law of Wisconsin relative to erning law,

wanton negligence was the governing law.

ed ;

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It cannot now be successfully objected that, tled and adjusted, it is hereby stipulated and there was not a sufficient pleading. 1 Dun- agreed that the said action be

dismissnell, Minn. Dig. $$ 405, 406.

that all property taken and held by the sheriff*

under

writ of There was some confusion at the trial ow- attachment in said action, shall be by said shering to the joinder of the Great Northern and iff returned to said defendants." the claim of its liability under the federal

This stipulation was filed with the clerk Employers' Liability Act-a claim clearly un- ' of the district court. Ten months later judgfounded and properly disposed of by the trial ment of dismissal was entered in favor of court's direction of a verdict. On a new trial, Downs & Sons, the defendants in that action. with similar evidence, the question will be a The judgment recited that it was entered simple one of the negligence of the defend

pursuant to the stipulation of the parties. ant and the contributory negligence of the The property was restored to Downs & Sons. plaintiff as the factors determinative of lia

They now contend that the property was bility.

damaged while under attachment, and they Order reversed.

bring this action against this defendant as

surety on the bond. Liability is claimed, DOWNS et al. v. AMERICAN SURETY CO. ment was set aside or vacated,” but on the

not on the ground that the writ of attachOF NEW YORK et al. (No. 19594 [217].)

ground that defendant in the attachment (Supreme Court of Minnesota. Jan. 28, 1916. suit "recovered judgment." The court inOn Motion for Rehearing, March 1, 1916.)

structed the jury that defendant Surety Com(Syllabus by the Court.)

pany was liable for all damages Downs & ATTACHMENT 331 JUDGMENT -518 Sons sustained by reason of the attachment. COLLATERAL ATTACK-ATTACHMENT BOND

The jury returned a verdict for plaintiff acLIABILITY.

No liability arises under an attachment cordingly. Defendant appeals. bond given pursuant to Gen. St. 1913, & 7847, We are of the opinion that defendant was from a judgment of dismissal, where the record entitled to judgment as a matter of law. shows that it was entered pursuant to a stipulation of the parties settling and adjusting all

First. The stipulation above mentioned matters in dispute between them. First, such a settling all matters in dispute between the stipulation releases the principal on the attach- parties operated to release the Enterprise ment bond, and by so doing releases the surety. Company from all liability on the attachSecond, the statute is part of the contract between the parties. The judgment contemplated ment bond. That company was the principal by the statute and the bond is a judgment de- on the bond, and defendant was surety. It termining that plaintiff had no cause of action is well settled that the release of a princiat the time the attachment was made,

The rule against collateral attack of judg- pal operates as a discharge of the surety. ments is not here involved.

Ames v. Wilkinson, 47 Minn. 148, 49 N. W. [Ed. Note. For other cases, see Attachment, 696; Finnegan v. Janeway, 85 Minn. 384, Cent. Dig. $8 1180-1185; Dec. Dig. Ow331; 89 N. W. 4; Bull v. Rich, 92 Minn. 475, 100 Judgment, Cent. Dig. 88 961, 962; Dec. Dig. N. W. 212, 101 N. W. 489; 1 Brandt, Surety18.)

ship (3d Ed.) 8 164. Appeal from District Court, Crow Wing

Second. This is a statutory bond, and the County; B. F. Wright, Judge. Action by J. W. Downs and others against parties. The requirement of the statute is

statute forms part of the contract of the the American Surety Company of New York that the bond shall be so conditioned as to and Fred J. Reid. Verdict for plaintiffs, and be operative "if judgment be given for the defendant American Surety Company of New York appeals. Reversed, and judgment or- this means the same as the language of the

defendant." G. S. 1913, $ 7847. Perhaps dered for defendant.

bond, "in case the defendants recover judgKerr, Fowler, Schmitt & Furber, of Minne- ment.” In any event the obligation of the apolis, for appellant. Alderman & Clark and surety under the bond must be construed as M. E. Ryan, all of Brainerd, for respondents. being coincident with the obligations im

HALLAM, J. The Enterprise Manufac- posed by the statute, unless such a constructuring Company sued plaintiffs in this ac

tion does violence to the language of the tion and attached certain of their property.

bond. Combs V. Jackson, 69 Minn. 336, 72 To procure the attachment the Enterprise N. W. 565; Fairmont Cement Stone Mfg. Company gave a bond with itself as princi- Co. v. Davison, 122 Minn. 504, 509, 142 N. W. pal, and defendant American Surety Com- 899, Ann. Cas. 1914D, 915; Fay v. Bankers' pany as surety, conditioned to pay all dam. Surety Co., 125 Minn. 211, 214, 146 N. W. ages sustained “in case the defendants re- 359, Ann. Cas. 1915C, 686. We think it does cover judgment or in case the writ shall be not in this case, and for purposes of conset aside or vacated.” No move was made to struction we take the language of the statset aside or vacate the attachment. After ute as being a somewhat clearer expression some lapse of time the parties to the at- of the same intent as the language of the tachment suit settled their differences and bond. The judgment obtained pursuant to stipulated as follows:

stipulation of the parties and by settlement "All matters in dispute between the respec- of the case was not a "judgment tive parties * * having this day been set- given for the defendant” as contemplated by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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