led into doing that which he would not have done but for such silence. In other words, when the silence is of such character and under such circumstances that it would become a fraud upon the other party to permit the party who has kept silent to deny what his silence has induced the other to believe and act upon, it will act as an estoppel." 16 Cyc. 759. "The true test is whether or not the circumstances are such as to impose upon one in equity and good conscience the duty to speak. As to when this duty devolves, there is not and from the nature of the case cannot be any established or uniform rules. It depends to a great extent upon the circumstances attending each particular case, and it is rare that two are alike. Generally speaking, if a person is present at the time of a transaction, he must speak, or he will be estopped. If absent, his silence or other conduct must at least be of a nature to have an obvious and direct tendency to cause the omission or the step taken." 16 Cyc. 760. See, also, 10 R. C. L. 692. Applying these principles to the case at bar we have no hesitation in holding that the plea pleaded and the proffered proof would have shown an estoppel. The threshing, it is true, had not all been done, but no lien had been filed or recorded and the elevator had no record notice. It was merely conversant of the fact that if the threshing bill had not been paid or secured and the grain had not been released an inchoate right to a lien existed. Under these circumstances the holder of that alleged inchoate lien comes to the elevator with the owner of the grain. He says nothing about his lien. He stands by and allows the owner to receive the full price of the grain, and if there was a lien, to perpetrate a fraud upon the elevator company, in other words, to sell for its full price that which he knew was subject to a lien and not of that value, and perhaps of no value at all. This very bystander-this coconspirator, in short-now comes into a court of justice and seeks to assert his alleged lien. He was silent when conscience required him to speak, and he should now be debarred from speaking when conscience requires him to keep silent. The case is no different than one in which "one who owns or has an interest in personal property, with full knowledge of his rights, suffers another to deal with it as his own by selling or pledging or mortgaging, or otherwise disposing of it." In such a case there can be no doubt that an estoppel exists. 16 Cyc. 762, 764, and cases cited. We are not unaware of the case of Mitchell v. Elevator Co., 15 N. D. 495, 107 N. W. 1085, 11 Ann. Cas. 1001, which is cited by counsel for respondent and which quite liberally construes, and in favor of the lienor, the statute under consideration. The case, however, is not in point here, as no element of estoppel was involved. [3] The next point to be considered is defendant's contention that the court erred in admitting in evidence the plea of estoppel contained in the third paragraph of defendant's answer, and "as an admission proving the identity of the grain in question." He maintains that inconsistent pleas may be pleaded under the construction which has 156 N.W.-59 been given to our Code, and that this benefit is denied if an admission in one plea can be used to destroy the effect of another. The first paragraph of the complaint alleged that the defendant was a foreign corporation. The second alleged that the plaintiff had a special property and ownership in the grain and the right of immediate possession under a thresher's lien, that the threshing was done for one Charlie Chisman upon certain described premises, and that such Chisman was the owner of the grain. The answer admitted the first paragraph of the complaint, that is to say, that the defendant was a foreign corporation. It admitted that an alleged lien had been filed. It then proceeded as follows: "The defendant further alleges that prior to the filing of the alleged lien mentioned in the complaint, the plaintiff and one Charles Chisman, the legal owner of said grain, came together to the defendant's elevator, at Lisbon, North Dakota, to make settlement with the defendant for the grain described in the complaint; that the defendants then and there in and consent of the plaintiff settled with and the presence and with the silent acquiescence paid over to the said Charles Chisman $940, the proceeds of said grain and every part thereof; that the plaintiff did not then or at any time disclose to the defendant that he had any interest in or lien upon said grain, or any part of or parcel thereof, and thereby misled the defendant by his silence and conduct to his prejudice and loss, and thereby caused the defendant to believe that said grain was free from any claim or lien upon the same on behalf of the plaintiff, by reason of which silence, conduct, and behavior, the plaintiff ought to be estopped to assert any right, title, interest or lien in or upon said grain or any part thereof. Further answering, the defendant denies each and every allegation, matter, and thing in said complaint cifically and in words admitted." contained, except such as hereinbefore are spe It will be seen from the above that the answer contained a plea of waiver or estoppel and a qualified general denial. It is well established that a qualified general denial "must be taken for what it says and certainly cannot overcome positive and unequivocal admissions contained in other paragraphs of the answer." Kennedy v. Dennstadt, 154 N. W. 271. In the case at bar the admission in the plea of estoppel was binding upon the plaintiff in so far as the ownership in Chisman of the grain was concerned, as this fact was clearly admitted by the words of the plea. In passing upon this matter, however, the court wishes to outline what it believes to be the proper method of procedure in such a case. Much confusion arises from the practice of allowing the jury to take the pleadings into the jury room or of reading them aloud in the court room. Juries are not learned in the law, nor in legal verbiage, and will rarely center their attention on the particular point or paragraph involved. The practice, therefore, should be for the court in its charge to clearly define the issues and if a fact is admitted by the pleadings to instruct the jury that it is so admitted, rather than to allow the pleadings to be read aloud or the jury to take them into the jury room. Mount Terry Mining Co. v. White, 10 S. D. 620, 74 N. W. 1060. his control, unless accompanied by an immediate Appeal from District Court, Burke County; Leighton, Judge. Action by Ed Drinkwater, as trustee in bankruptcy, of Cornelius R. Pake, against Frances E. Pake and another. From judgment for plaintiff, defendants appeal. Affirmed. [4] As a new trial will probably result from this decision, it is necessary to pass up-creditors of the vendor, unless those claiming on yet another proposition, but this time adversely to the defendant and appellant. "The evidence," defendant asserts in his brief, "clearly establishes the fact that Chisman had but a small interest in the lands described in the thresher's lien; that he had a partner, Quall, in most of his farming transactions; that the thresher's lien refers only to Chisman as the owner and custodian; that the evidence in no way identifies the grain in controversy with the grain threshed on the quarter section in which Chisman alone had an interest, nor is the grain in controversy identified with the grain grown on the lands in which Chisman and Quall had a partnership interest. From these premises he argues that the notice of thresher's lien was not sufficiently definite. Counsel, however, is in error in this respect. The proof, as we read it, shows that the grain was grown either on the quarter section owned by Chisman alone or on that owned by him jointly with Quall, and that he had charge of the threshing operations on both pieces of land. This being the case, and under our recent holding in Dahlund v. Lorentzen, 30 N. D. 275, 152 N. W. 684, the notice of lien was sufficiently definite. For the errors previously mentioned, however, the judgment of the county court is reversed and a new trial is ordered. On Petition for Rehearing. A petition for a rehearing has been filed in which the subject of estoppel is somewhat technically discussed. It is, however, unnecessary for us to determine whether in the case at bar there was a technical estoppel or not. It is sufficient to say that there was a clear waiver of any lien or inchoate right to a lien and that this is sufficient to defeat plaintiff's claim. The petition for a rehearing is denied. Francis J. Murphy, of Bismarck, for appellants. George H. Gjertsen, of Minneapolis, Minn., E. R. Sinkler, of Minot, and Wolfe & Schneller, of Wahpeton, for respondent. CHRISTIANSON, J. The plaintiff, Ed Drinkwater, as trustee in bankruptcy of Cornelius R. Pake, bankrupt, brought this action to cancel a transfer of certain personal property from the defendant Cornelius R. Pake to his wife, the defendant Frances E. Pake, on the ground that such transfer was without consideration, not accompanied by a change of possession, and was made with intent to hinder, delay, and defraud the creditors of the bankrupt, and is therefore null and void as to such creditors. By consent of the parties a reference was ordered -the referee being empowered to try all issues, and make findings of fact and conclusions of law. A trial was had before such referee, at which both sides produced witnesses and offered evidence. The referee made findings of fact and conclusions of law in favor of the plaintiff, and subsequently, pursuant to notice, the referee's findings and conclusions were confirmed by the trial court, and judgment entered in favor of the plaintiff. The defendants appealed from this judgment and demanded a trial de novo in this court. [1] Appellant's principal contention is that the following finding of fact is not supported Feb. 23, by a preponderance of the evidence: DRINKWATER v. PAKE et al. (Supreme Court of North Dakota. 1916.) (Syllabus by the Court.) 1. APPEAL AND ERROR 266(1)-PRESENTATION BELOW-FINDINGS OF REFEREE. The findings of fact of a referee cannot be assailed for the first time in the appellate court. But the party dissatisfied with such findings must in the first instance present his objections thereto by proper exceptions in the court below. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1552, 1553, 1570; Dec. Dig. 266(1); Reference, Cent. Dig. § 213.] 2. FRAUDULENT CONVEYANCES 281-SALE OF PERSONALTY-CHANGE OF POSSESSION PRESUMPTION. Under the provisions of section 7221, Compiled Laws 1913, every sale made by a vendor of personal property in his possession or under "That said assignment and transfer of said property was made without a transfer of actual possession and without a manual delivery of * * That said transfer of said property. property was without consideration and was made with intent to hinder and delay and defraud the creditors of the said Cornelius R. Pake." As already stated, the trial of all issues in this action was had before a referee. The record shows that the referee's findings and conclusions were confirmed pursuant to notice, and that both plaintiff and defendant were represented at such hearing. No exceptions were taken to the referee's findings or conclusions, nor was any objection made to the confirmation of the referee's report For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes at the time of the hearing of the application | case, taken as a whole, sustains the findings to confirm such report. of fact made by the referee. Section 7654, Compiled Laws, provides: "All acts of and proceedings by a referee shall be deemed excepted to in the same manner and under the same conditions as though such proceedings had been before a district or county court, and in all trials before a referee in which such referee shall make findings of fact and con clusions of law, the prevailing party shall serve upon the other a copy of such findings and conclusions, after the same shall have been filed with the clerk of court, with a notice of the time of such filing, and either party may except to any such findings of fact or conclusions of law, by filing a written statement of such exceptions with the clerk within twenty days after the service of such copy of notice; and all such exceptions shall be incorporated in the statement of case which may thereafter be settled. When the findings of fact or conclusions of law of a referee are set aside or modified by the court, the action of the court in that regard shall be deemed excepted to." The judgment of the district court is af firmed. STARK COUNTY v. MISCHEL et al. (Supreme Court of North Dakota. (Syllabus by the Court.) 1. COUNTIES 101 (6)-DISTRICT AND PROSE- Action by Stark county to recover $4,794 of county commissioners and former state's attorney Murtha and bondsmen of said officials, for paying that amount to said state's attorney, who received it for obtaining and collecting a judgment for $9,589 against a former defaulting county auditor and his surety. Held: The complaint states a cause of action against the former officials, as principals, and against their sureties. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 157; Dec. Dig. 101(6); District and Prosecuting Attorneys, Dec. Dig. 12.] 2. OFFICERS 140 ACTION ON OFFICIAL BONDS-PARTIES-JOINDER. Principals and sureties may be joined in one action, as the liability of each and all sprung from the joint acts of the principals and against whose wrongful diversion of public money the sureties have contracted to indem CUTING ATTORNEYS 12-ACTION ON OF- The liability of all arose from the one transaction, alleged misappropriation of public funds. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 156; Dec. Dig. 101(5); District and Prosecuting Attorneys, Dec. Dig. 12.] This section clearly contemplates that a party who desires to assail a finding of fact or conclusion of law made by a referee must do so in the first instance by proper exceptions in the trial court. It is intended that the trial court should know what finding or conclusions (if any) are assailed, when passing upon the application to confirm the referee's report. If it is contended that the evidence is insufficient to support the findings, or any of them, this objection must be called to the trial court's consideration by prop-nify. er exception. See Illstad v. Anderson, 2 [Ed. Note.-For other cases, see Officers, N. D. 167, 49 N. W. 659; 34 Cyc. 858, 860, | Cent. Dig. §§ 243, 244; Dec. Dig. 140.] 866; 17 Enc. Pl. & Pr. 1065. As no excep- 3. COUNTIES 101 (5)-DISTRICT AND PROSEtions were made to any of the findings of fact or conclusions of law of the referee, they cannot be assailed for the first time in this court. To hold otherwise would be to disregard the plain provision of the statute. [2] We will add, however, that we have examined the evidence contained in the record, and in our opinion the finding of the referee which is assailed as unsupported by the evidence is sustained thereby. The property transferred consisted of horses, cattle, and machinery belonging to the defendant Cornelius R. Pake. Prior to, at, and subsequent to the time of the transfer, the two defendants were living together as husband and wife upon a farm in Burke county in this state. After the execution and delivery of the bill of sale, the defendant Cornelius R. Pake continued to use the property as before. It is true he claims that he did so as the agent for his wife, but, nevertheless, he was still permitted for all apparent purposes to possess and use the property as before. This condition rendered the sale pre-utes sumptively fraudulent, and placed upon defendants the burden of showing that the sale was made in good faith, and without intent to hinder, delay, or defraud the creditors of Cornelius R. Pake. Section 7221, Compiled Laws 1913. 4. ACTION 47-CAUSES OF ACTION-JOINDER-MISAPPROPRIATION OF PUBLIC FUNDS. Causes of action ex contractu and ex delicto may be joined under such circumstances. Dig. 88 469, 470, 472-489; Dec. Dig. 47.] [Ed. Note.-For other cases, see Action, Cent. 5. PLEADING 193(6) DEMURRER JOINDER. MIS A demurrer to a complaint does not reach a failure to separately state causes of action. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 434, 435; Dec. Dig. 193(6).] Bruce, J., dissenting. 6. (Additional Syllabus by Editorial Staff.) ACTION 48(2)-JOINDER OF CAUSES OF ACTION-TRANSACTION." The word "transaction," as used in statproviding for joinder of different causes of which has taken place whereby a cause of acaction in the same complaint, means something tion has arisen, and embraces not only contractual relations but also occurrences in the nature of tort. [Ed. Note.-For other cases, see Action, Cent. Dig. 88 491-498, 504, 505; Dec. Dig. 48(2). For other definitions, see Words and Phrases, We are satisfied that the evidence in the First and Second Series, Transaction.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from District Court, Stark County; | ant county commissioners then acting as and Crawford, Judge. Action by the County of Stark, a municipal corporation, against Adam F. Mischel and others. From an order overruling demurrer, defendants appeal. Affirmed. Engerud, Holt & Frame and Lawrence & Murphy, all of Fargo, for appellants. H. A. Burgeson, L. A. Simpson, W. F. Burnett, and Thos. H. Pugh, all of Dickinson, for respond ent. GOSS, J. This is an action brought against the former county commissioners and state's attorney of Stark county and their bondsmen. A demurrer for misjoinder of defendants and causes of action was overruled, and from which this appeal is taken. The complaint sets forth: The official capacity of the defendants, their qualification as such officials, and that certain defendants are sureties on the official bonds of said other defendants. That there existed in favor of the county a cause of action against one White, formerly county auditor, and the Northern Trust Company as surety on White's bond, and upon which cause of action suit had been brought and "in which said action judgment was then about to be entered in favor of the plaintiff and against said White and Northern Trust Company for $9,239.13, all of which said defendant officials (county commissioners and state's attorney) being the board of county commissioners of Stark county, ordered and directed that a warrant upon the county treasurer of said county for the sum of $4,794.71 be made in favor of defendant Murtha by the chairman of said board and by the auditor of said county delivered to defendant Murtha. That thereupon a pretended warrant for said sum was accordingly drawn, executed, and delivered to said Murtha." That "on September 9th, 1913, said warrant was by said Murtha presented to said county treasurer of plaintiff, indorsed by said defendant on the back thereof, and the said county treasurer refused payment thereof for want of funds and indorsed the fact thereon; and on September 11, 1913, the said warrant was paid by said county treasurer of plaintiff, and the sum named therein, $4,794.71 of the money of the plaintiff, was paid by said county treasurer to the said defendant. That the defendants have not repaid the same nor any part thereof to plaintiff." Seventeen different paragraphs of the complaint are taken up in charging the foregoing matters. A cause of action against such officials is, under Fox v. Walley, 13 N. D. 610, 102 N. W. 161, beyond question set forth in the foregoing allegations. The commissioners were devoid of power individually or as a board to legally make or bind the county by such a purported contract, and the state's attorney illegally obtained the money of the county. All said officials were jointly and severally responsible for the money so misappropriated. The complaint then alleges in the closing paragraph: said several bonds herein set forth, copies of "That by reason of the foregoing allegations which are hereto attached and marked Exhibit A, B, and C, have been and are breached in the conditions thereof, and there is due and owing to the plaintiff the sum of $4,794.71." then and there well knew." "That on the 18th day of February, 1913, the defendant commissioners, in violation of their several duties and trusts as public officers of the plaintiff, unlawfully engaged defendant Murtha (state's attorney) to collect said claim, and for his commission and services in that behalf unlawfully agreed to pay him onehalf of all such moneys so collected," and "acting as the board of county commissioners of Stark county adopted a resolution embodying the terms of said unlawful agreement therein." "That it was then and there the duty of said defendant Murtha, as the state's attorney of the plaintiff, to perform the work aforesaid without receiving therefor any additional compensation, all of which said defendants then and there well knew." That the next day, "February 19, 1913, upon trial of the action so instituted by the plaintiff herein as plaintiff against the said White and Northern Trust Company as defendants, the plaintiff recovered judgment against the said White and Northern Trust Company as defendants in the sum of $9,239.13, which judgment was duly entered and docketed." That the Northern Trust Company paid plaintiff $9,589.42, in satisfaction of said "Resolved, that T. F. Murtha, an attorney at law of Dickinson, N. D., be retained to atjudgment. That before said payment, and on tend to the defense of this county in the three September 8, 1913, "in furtherance of the al-cases now pending in the United States District leged pretended agreement hereinbefore set Court for the District of North Dakota, and forth and without any other or further con- he is to save this county harmless from all sideration, and in violation of their duty and receive for said services and such disburseexpense on account of said litigation and is to trust as officials of the plaintiff, the defend-ments a sum equal to one-half of the sum re And judgment is asked against the defendants for said amount, with interest. The complaint also contains a recitation that upon proceedings had the judge of the district court for Stark county appointed the attorneys appearing as respondent's counsel attorneys to prosecute this action. The bonds referred to are those of defendant Mischel, with defendants Wetzstein, Bran, Forster, and Kilzer, as sureties, and that of commissioner Hughes, with the National Surety Company, as surety, and the bond of state's attorney Murtha, with B. F. and J. P. Berringer, as sureties, thereon. Attached to the complaint, and made a part of it, is the following resolution of the board, of February 18th, 1913: covered actually paid into the county treasury | back to the point of union as the parent cause of this county from the Northern Trust Company on the bonds of former auditor White. If there is no recovery on said bonds, said at torney is to receive no compensation either for services or disbursements." The official bonds are in the usual form and amounts, and the sureties therein have been joined with principals as defendants. [1] While many matters are briefed, counsel on argument of the appeal stated that he abandoned all questions raised by the demurrer except that of improper joinder of causes of action. At the outset it should be observed that while the liabilities of the several defendants differ and those of the sureties are upon contract insuring against breach of official duty of their principals, yet all relate to a breach of statutory duty prescribed and exacted by law, and that any and all liabilities of any of said defendants to the plaintiff accrue because of, and were occasioned by, the joint wrongful misappropriation, by the principals acting as officials, of county money. As to the principals in the transaction, there can be no question of the right to join them in one action as defendants any more than the right to join coconspirators in an action to recover damages resulting from a conspiracy. To this point there is practical unanimity of authority. "The act of each tort-feasor is the act of all and each one is held for the acts of all." Phillips, Code Pleading, § 455. "Where several acts are done in pursuance of a single fraudulent scheme all persons may be joined who in any manner have participated in such scheme or received anything through it." 23 Cyc. 431. thereof they all arise out of one transaction and may be vindicated together regardless of the form of remedy requisite to each, provided they affect all the parties and do not require different places of trial. Causes of action arising out of the same transaction which may be joined under the rules above stated include legal and equitable causes; also causes ex contractu and ex delicto." 1 R. C. L. 363, under joinder of causes of action, citing, among others, the following cases: Mayberry v. N. P. Ry. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675, 10 Ann. Cas. 754; Aylesbury Merc. Co. v. Fitch, 22 Okl. 475, 99 Pac. 1089, 23 L. R. A. (N. S.) 573; Emerson V. Nash, 124 Wis. 369, 102 N. W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944; McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445, 33 L R. A. (N. S.) 264; Craft Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 Atl. 76, 25 L. R. A. 856; Butler v. Barnes, 60 Conn. 170, 21 Atl. 419, 12 L. R. A. 273; Bradley v. Aldrich, 40 N. Y. 504, 100 Am. Dec. 528; Volker-Scowcroft Lumber Co. v. Vance, 36 Utah, 348, 103 Pac. 970, 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124: Solomon v. Bates, 118 N. C. 311, 24 S. E. 478, 54 Am. St. Rep. 725. "Causes of action arising out of the same transaction or transactions connected with the same subject of action as the phrase is used in the Codes may be taken to mean as in substance declaring that when a right or certain connected rights between the same parties are brought into legal controversy all transactions between the parties bearing on the state of these rights may be included within the scope of the action, although such transactions considered as inde pendent controversies would in their nature call for different forms of legal procedure for the purpose of investigation, according to the practice that prevailed prior to the adoption of the Code. Barrett v. Watts, 13 S. C. 441; Suber v. Allen, 13 S. C. 317"-quoting from 23 Cyc. 430. "It has been held in many cases that actions may be brought on distinct indemnity bonds "The common law causes of action which are joining different sets of sureties where the of the same nature and require the same judg-bonds relate to the same matters and the rights and liabilities of each surety depend upon those ment may ordinarily be united in the same acof the others. A cause of action against the oftion." 1 R. C. L. 362. ficer on a breach of his official bond may be joined with a cause of action against the sure23 Cyc. 432. ty thereon for the same breach." To this point the right of joinder of these four defendants in one action is elementary. "Contrary to the common-law rule causes Nor is it really seriously questioned in ap-arising ex contractu may be joined with those pellant's brief. [2-4] But can the sureties be joined in this action against the principals? is the main question. True, it is the joinder of causes of action ex contractu and ex delicto, actions arising from contract with one sounding in tort. While often the line of demarcation may be drawn between joinder of such actions, such general rule can have no application here because the right of recovery springs from the same transaction, the joint act of the principals for whom the other codefendants are sureties against such very misconduct. "By virtue of statute in many, if not all, of the so-called Code states there may be a joinder in one complaint of two or more causes of action where they arise out of the same transaction; the word 'transaction,' as used in such statutes, meaning something which has taken place whereby a cause of action has arisen and embracing not only contractual relations_but occurrences in the nature of tort as well. It is no objection to the joinder of causes of action that they concern separate primary rights, for however numerous may be minor transactions each constituting a primary right enforceable by the proper remedy, so long as they all reach arising ex delicto if they have a common origin in one transaction or in transactions connected with the same subject of action." Phillips, Code Pleading, § 199. An examination of the authorities will convince that the modern trend is favoring convenience in litigation and toward obviating multiplicity of suits; and that the Code provisions as to joinder of causes of action and parties must be construed and applied, where possible without substantial prejudice to the rights of litigants, in the light of said principles of convenience and finality of decision. 30 Cyc. 127, 128; Fairfield v. Southport Nat. Bank, 77 Conn. 423-428, 59 Atl. 513. As to what is meant by the word "transaction" must be determined upon principle in each case. But one transaction gave origin to all primary rights involved in the case at bar. The liability of the principals to the county accrued because of their joint acts diverting the money. By that same wrongful diversion transaction they breached their official bonds as well, and brought into existence a liability of their sureties to respond for the result of |