serted therein; also that the mortgage and note secured thereby are void for usury. The jury found for the plaintiff on both these issues. The principal question argued bere is whether there was evidence sufficient to support the charge of usury. The plaintiff claims that the note and mortgage were given for a larger sum than was due to the defendant, and that thereby he secured to himself a greater compensation for the forbearance of the money actually due than is allowed by law. If such be the case, the effect of the transaction is to make the securities prima facie usurious, though it is open to explanation. The law raises a presumption of usury from the fact that the lender has reserved to himself greater compensation than the law allows. Fiedler v. Darrin, 50 N. Y. 443. And if the lender knowingly and voluntarily includes in the contract as framed by him and executed by the borrower a sum in excess of the amount of the loan, with the highest legal rate of interest, the law will condemn the act, though the borrower be deceived as to the amount actually due, and be ignorant of the fact that the contract is usurious. Bank v. Plankinton, 27 Wis. 177. We are of the opinion that there was sufficient evidence to support the verdict. The note was given for $1,000, at 10 per cent. interest. The plaintiff insists that the sum of $60 was wrongfully included, in addition to the amount actually due the defendant. This sum, with the items admitted to be due, makes up the amount for which the note was given. The defendant testifies that the amount thereof was made up of three items, viz., balance due on old note, $831.85; $108.15 indorsed by him on another note of plaintiff and transferred to this; and $60 for goods to be taken out of defendant's store. His testimony as to this item is not altogether consistent. In making up the amounts to be included on the new note in question he states in one part of his testimony that he figured up the interest, deducted payments, and charged up $60 store account, more than $40 of which, though not all, had already accrued for goods which the plaintiff had received out of the store. In another part of his evidence, in answer to the question, "How did it come that this $60 was put into the note?" he says, "Plaintiff wanted to trade so much through the summer, and he offered to give security on the crop," and that he "credited him then with $60" on his books, against which the plaintiff traded as he wanted. On the other hand, the plaintiff testified distinctly that he made no such arrangement with defendant, either as to goods received or to be received, and did not know that this item was included. He denies that defendant gave him any memorandum of the items entering into the note, and states that defendant simply figured up the amount, and said he "was owing him so much at that time," and that "it was right," and he thereupon signed the note and mortgage. It was a fair question for the jury whether the defendant included in the note, intentionally, a sum of money not due from the plaintiff, so that he might have and recover from the plaintiff 1. Partners being severally, as well as jointly, liable, the property of either may be levied on to satisfy a partnership debt, and the liability may be enforced against the property of each. 2. A lien by attachment, in a suit against non-resident partners, may be acquired on the individual property of one of the partners situated within the jurisdiction, and the judgment, rendered upon substituted service of the summons, though entered in form against all, may be enforced against the property so attached. (Syllabus by the Court.) Appeal from district court, Mower county; FARMER, Judge. D. F. Morgan, for appellant. Kingsley & Shepherd, for respondent. VANDERBURGH, J. The defendants are non-resident partners, and the action is brought upon a promissory note executed in the partnership name. The suit is against the defendants as individuals, jointly and severally liable for the debt. The service of the summons was made by publication, and the separate real property of the defendant Bradbury was levied or under a writ of attachment duly issued against the defendants, and judgment by default was thereafter entered against both defendants for the amount claimed. The defendant Edward L. Bradbury appeared specially, and moved to set aside the attachment and subsequent proceedings for want of jurisdiction to proceed against the separate property of one partner upon a partnership debt. The defendants are not sued by their joint or partnership name, and the property of either may therefore be levied on to satisfy the debt, because it is the debt of each, and may be enforced against the property of each. There is no doubt that a lien was acquired upon the property of the defendant served, and there is no one here to raise the question as to the relative rights of partnership and individual creditors. Meech v. Allen, 17 N. Y. 303; Stevens v. Perry, 113 Mass. 381. And the levy upon the property of Bradbury within the state gave the court jurisdiction to proceed to enter judgment upon constructive service, though no other property, joint or several, was found here. The suit was against both defendants in form, and the attachment was issued against both, and the defendant Bradbury cannot complain that the judgment follows the directions of the statute, and is entered against both. It must be construed in connection with the record. The different sections of the statute must be read together, and, for the purposes of this action, the publication of the summons was only effectual to give the court jurisdiction to proceed against the property attached, upon the formal entry of the judgment against the defend 1. The decision in Weeks v. Bridgman, 41 Minn. 353, 43 N. W. Rep. 81, reaffirmed. 2. The land in controversy is within the limits of the land grant of the St. P. & P. R. Co., which claims title under the act of March 3, 1857. It is included in a section of land which was improved and occupied by a mail contractor in 1855, who claimed to be entitled to enter the same by pre-emption under the act of March 3, 1855, and his application to enter the same, afterwards recognized and approved by the land de partment of the government, was made before the railroad company became entitled to the land under the provisions of the land-grant act. Held, that a pre-emption right had attached, within the meaning of the last named act, and that the section of land in controversy did not inure to the railway company as a part of its land grant. (Syllabus by the Court.) Appeal from district court, Stearns county; BAXTER, Judge. S. L. Campbell, (M. D. Grover, of counsel,) for appellant. Oscar Taylor, for respondent. VANDERBURGH, J. The principal questions involved in this appeal were upon full consideration determined when the case was here before. 41 Minn. 353, 43 N. W. Rep. 81. We do not deem it necessary to reconsider them. The material facts, and the acts of congress under which the parties assert their claims, are set forth in the opinion as reported. The record now before us presents substantially the same case as before. The defendant, however, relies upon a single additional finding of fact, which it is claimed shows that the pre-emption claim of Brodt, under whom defendant derives title, was a nullity, and that, therefore, the land in question passed to the railway company, under which plaintiff claims title by virtue of its land grant. Brodt was a mail contractor in 1855, having a contract to carry the United States mail from Minneapolis to St. Cloud, in the territory of Minnesota west of the Mississippi river, and as such settled upon and improved the section containing the lot in controversy some time. during that year. It is now found by the trial court as a fact that Brodt established his mail station on said section in 1855, and maintained the same during the term of his contract, but that he "was not a contractor engaged in carrying the mails" through any of the territories west of the Mississippi river, "except from Minneapolis to St. Cloud, in the territory of Minnesota;" nor did the route on which be carried the mail form part of a system or any part of a route extending across any territory west of the Mississippi river, but the same terminated at St. Cloud aforesaid." Under this finding, it is insisted that Brodt's entry was unauthorized by the act of March 3, 1855, and that he could acquire no pre-emption right, as mail contractor, to the land in controversy. His settlement and application were, however, prior in time to the claim of the railroad company under its grant, and were recognized by the land department of the government, which assumed jurisdiction of the case, and, through the secretary of the interior, ordered that Brodt be allowed to enter the land upon filing the proper proofs. This gave him a standing in that tribunal to prosecute his claim to the land under the act of 1855. The department had jurisdiction of that class of cases, to determine the facts in respect to his mail contract and route, and it was not so clear upon the face of his application that it was unauthorized and void that the department might not entertain the application, and determine its merits upon the case made before it. Quinby v. Conlan, 104 U. S. 426. Brodt's pre-emption right had then already attached, within the meaning of the land-grant act in question here, which is to be construed most strongly against the railway company, and all doubts whether the land passed to the latter must be resolved in favor of the government and its grantee. Leavenworth, etc., R. Co. v. U. S., 92 U.S. 733. Nor is it material that Brodt subsequently failed to establish his right to the land by proof before the landoffice. His prior settlement and claim, and the initiation of the proceedings in the land-office, were sufficient to segregate the land from the public domain, and take it out of the operation of the land-grant act. Railroad Co. v. Whitney, 132 U S. 362, 10 Sup. Ct. Rep. 112. It was not the intention of congress that the right of the railway company should also attach in such cases, and thus place the pre-emption claimant and the railway company in the position of contestants before the land department. Railroad Co. v. Dunmeyer, 113 U. S. 641, 5 Sup. Ct. Rep. 566. The decision of the secretary of the interior established the fact that Brodt's pre-emption claim had attached, within the meaning of the land-grant act, when the grant acquired precision, and therefore the right of the railway company did not attach. We do not deem the finding in question material, and see no reason for modifying our former decision. Judgment affirmed. COLLINS, J., did not sit. HOLCOMBE V. EHRMANTRAUT et al. (Supreme Court of Minnesota. June 30, 1891.) FRAUDULENT CONVEYANCES-KNOWLEDge of GRANTEES. 1. Where an insolvent engaged in business transferred his stock, fixtures, and the lease of his store to certain of his creditors in satisfaction of their claims, and they had notice that he was financially embarrassed, and received the transfer under such circumstances as to put them upon inquiry as to his solvency, held, that they are chargeable with notice of such facts touching his financial condition as reasonable inquiry and investigation would have disclosed to them. 2. Evidence held sufficient to justify the jury in finding that such creditors had reasonable cause to believe a debtor insolvent within the meaning of the insolvent law. (Syllabus by the Court.) Appeal from district court, Ramsey county; WILKIN, Judge. John B. Brisbin and John H. Ives, for appellants. Muun, Boyeson & Thygeson, for respondent. VANDERBURGH, J. In May, 1889, one A. H. Miller, the insolvent mentioned in these proceedings, was engaged in keeping a restaurant in the city of St. Paul, and defendants Lindeke and Ehrmantraut were creditors of his, also engaged in business in the same city. On the 22d day of that month the defendants procured of Miller a bill of sale and transfer of all his property except some accounts, including the lease of the building occupied by him and the goodwill of his business, in satisfaction of their claims against him. The transfer was not in the ordinary course of business, since neither of them required or desired the property for use in their own business or to continue the same business, but it was in the nature of an assignment for their special benefit, and the result was to secure to themselves a preference over other creditors of the insolvent. Proceedings in insolvency were thereupon taken by other creditors for the appointment of a receiver, and thereafter, upon the 2d day of Ju. ly, 1889, Miller was adjudged insolvent, and the plaintiff appointed receiver, and he brings this action to recover the value of the property received and appropriated by the defendants, on the ground that the transfer thereof secured to them an unlawful preference. That Miller was insolvent, and that he did intend to prefer these creditors contrary to the provisions of the insolvent act, must have been found by the jury, and their finding is sustained by the evidence. But the question chiefly contested is whether these creditors had reasonable cause to believe that he was insolvent when the transfer to them was made. The court charged the jury that by insolvency under the statute was meant the inability of the debtor to pay his debts in the ordinary course of business, and "that in order to make out a reasonable cause to believe that a debtor is insolvent there must be knowledge of some fact or facts calculated to produce a reasonable belief that the debtor is insolvent; but, if such facts are known to a creditor as are clearly sufficient to put a person of ordinary prudence upon inquiry, he is chargeable with the knowledge which such inquiry or investigation would have furnished him." This instruction was a correct statement of the rule applicable in such cases, and we think the evidence disclosed by the record was sufficient to put the defendants upon inquiry and charge them with notice. We do not therefore deem it necessary to consider the objections to the evidence of the knowledge of the general agent of Lindeke on the subject, for the result must have been the same upon the undisputed evidence in the case, independently of that item of testimony. The indebtedness of the insolv ent to the defendants was overdue, and they had been pressing him for payment without success. They knew that his sale to them was not in the ordinary course of business. His checks drawn in their favor had been dishonored. He was neglecting his business and running behind to their knowledge. They knew of other indebtedness, but did not know how much he might be involved. They knew he was in embarrassed circumstances, and one of them admits that he told him three days before the sale to them that if he could settle with them in this way he would take his old position in a railroad office, and get enough in two months to pay up his other indebtedness. It is not necessary to state in detail all the circumstances and indicia of insolvency which indicate sutticient knowledge on the part of the defendants of his financial condition, and induced them to make the arrangements which were entered into to secure their indebtedness. We think the evidence of such facts was clearly sufficient to charge them with notice. Order affirmed. HILLESTAD et al. v. HOSTETTER et al. (Supreme Court of Minnesota. June 30, 1891.) CONSTRUCTION OF CONTRACT-READINESS TO PERFORMANCE HARMLESS ERROR. 1. Evidence examined, and held sufficient to support a finding by the jury that certain goods sold to defendants were to be paid for in lumber. 2. The time of delivery and prices of the lumber not being particularly specified, it is suffcient that the defendants were ready and willing to furnish it at their lumber-yard, when called for by plaintiffs, at the current market rates. 3. Objectionable evidence, promptly or without unreasonable delay stricken out by the court on motion, held not prejudicial, under the circumstances of the case as appearing of record. (Syllabus by the Court.) Appeal from district court, Polk county; MILLS, Judge. A. C. Wilkinson, for appellants. H. Steenerson and W. H. Averill, for respondents. VANDERBURGH, J. The plaintiffs sue to recover for a bill of goods sold and delivered to the defendants and to Carver Bros., lumbermen, at the request and by the order of the defendants. The account, as rendered, is admitted by the pleadings to be correct, except as to an alleged excess of $9.25 in the account with Carver Bros. The only issue in the case litigated was whether the goods were furnished under an agreement that they were to be paid for by the defendants in lumber. The defendants allege that such was the agreement, and the plaintiffs deny it. The parties live in the same town, the plaintiffs being dealers in general merchandise, and the defendants engaged in selling lum. ber. The defendants' evidence tends to prove that in December, 1888, they and the Carvers were trading with another merchant, and that at the request of the plaintiffs he made an arrangement with them to deal with them, and "take goods for lumber," and "that, at plaintiffs' request, Carvers Bros., who were lumbering for defendants, were also induced to get their supplies of plaintiffs, to be paid for in the same way. There was no error in allowing the defendants to show that this change was made, and that the latter requested the Carvers to trade with plaintiffs on their account. This was an item of evidence confirmatory of the defendants' claim as to the nature of the agreement. One of the Carvers (O. F. Carver) sworn for the defendants testified that there was some trouble with plaintiffs about their orders, and that one of the plaintiffs explained to him that the reason was that the pass-book was not presented, but said "that it was all right," he "had made a trade with Hostetter," and "should need a considerable lumber in the spring." The witness also testified that he told him in the same conversation what Hostetter had said “that he had made a trade with him to get goods there, and that he was going to take lumber." O. P. Carver also testified that he changed his trade to plaintiff at Hostetter's request. He was then asked by defendants' counsel to state what that request was. This question the witness was allowed to answer, over the objection of plaintiffs' counsel, and in his answer he stated" that Hostetter wanted him to trade with plaintiffs, because he had arranged with them to take lumber, and he was to take groceries. We think it was error to allow the witness to testify as to the terms or particulars of the request. It was immaterial and hearsay. It was sufficient that be was in the employ of the defendants, and that he went there to trade at their request. At the close of this witness' evidence the plaintiffs' counsel moved to strike out all his evidence. The court announced that he would reserve his decisjon for the time, but soon after, and before plaintiffs introduced their testimony in rebuttal, stated that the objectionable testimony above referred to was stricken out. And subsequently, in its charge to the jury, the court expressly so advised the jury, distinctly calling their attention to the fact and withdrawing the evidence from their consideration. The objectionable portion of the answer was not strictly responsive to the question, and should have been stricken out immediate. ly, in which case there would have been no error to complain of. But we think the intervening delay was so short that the action of the court in striking it out, together with the charge on the subject, was sufficient to counteract any impres. sion which might have been made on the minds of the jury by this item of evidence, particularly in view of the rest of the defendants' evidence on the subject. After plaintiffs' account was rendered to the defendants, in the spring of 1889, the latter, on or about June 1st, by their attorney, sent them written notice that they were ready to deliver the lumber according to agreement, and awaited their order. This was objected to by the plaintiffs, but was received by the court for the purpose of showing that the defendants were ready and willing to perform the contract. We find no exception in the record to this ruling. The court instructed the jury that they could only consider it for the purpose v.49N.w.no.3--13 mentioned; and we think there was no error in submitting the evidence to the jury. The time for the delivery of the lumber and the prices are not specified in the agreement testified to by the defendants. It was sufficient that they were ready and willing to furnish it when called for. They had a lumber-yard amply stocked, and it was the plaintiffs' duty to apply for and select the lumber in pay ment of the amount of their claim; and they would be entitled toit at the current market rates. Bish. Cont. § 1436; Beede v. Proehl, 34 Minn. 498, 27 N. W Rep. 191. The court also, in the same connection, stated to the jury, in substance, that there was some dispute as to the effect of the letter in connection with defendants' testimony, but they might consider it for what it was worth, or "as far as it went, with the rest of the case." This does not appear to be error from anything disclosed by the record, and it is not specifically excepted to. The plaintiffs excepted gener ally to that portion of the charge "in regard to the way or manner in which they might consider the letter." This includes all that was said on the subject, and the exception is ineffectual if any part of the instruction excepted to is proper, which, as we have seen, is the case here. We have very carefully examined the entire record, and find no errors warranting a new trial. Order affirmed. BRADFORD v. NEIL. (Supreme Court of Minnesota. June 20, 1891.)1 SALE-WARRANTY-PAROL EVIDENCE. 1. Several assignments of error, of no general importance, disposed of. 2. Where there is a written warranty on a sale of personal property, no prior or contemporaneous oral warranty can be shown. (Syllabus by the Court.) Appeal from district court, Morrison county; BAXTER, Judge. Action in tort by John Bradford, plaintiff, against Richard Neil, defendant, to recover damages for the fraud and deceit of defendant. The evidence on the trial below disclosed the following facts: In December, 1887, defendant, being the owner of a certain real-estate mortgage and note, and plaintiff being the owner of a certain horse, they entered into a contract by which plaintiff sold defendant the horse in consideration of $14, and the note and mortgage, which were thereup on transferred to plaintiff. As an induce ment to plaintiff to sell, the defendant represented that the real estate had valuable improvements upon it, and was ample security for the mortgage. Plaintiff, in making the sale, relied upon these repre sentations, which were, in fact, false, and known to defendant to be false, when made. Plaintiff gave defendant a written bill of sale of the horse, containing a war ranty of title. On the trial defendant of fered evidence in support of a counter. claim for breach of an oral warranty of soundness, which was refused by the court. In the charge to the jury the court 1 Rehearing denied July 1, 1891. fixed the measure of damages at the purchase price of the horse, less the cash payment, with interest from date of sale. To this instruction defendant excepted generally. Plaintiff had a verdict for the sum named. From an order denying a new trial defendant appeals. CA. Lindbergh and E. P. Adams, for appellant. Taylor, Calhoun & Rhodes, for respondent. That GILFILLAN, C. J. The assignment of error, based on an instruction of the court below to the jury, is not well founded, because the exception was not such as to direct the attention of the court to that instruction. The defendant also asked the court to instruct the jury that, if the maker of the note and mortgage was solvent at the time of the trade and thereafter, the plaintiff cannot recover, and the court refused to so instruct. The false representations sued upon were not as to the solvency of the maker of the note, but as to the situation, condition, and sufficiency of the real estate mort. gaged as security for the note. The cause of action depended, not on the maker's solvency or insolvency, but on the truth or falsity of the representations as to the mortgaged property. There was evidence to justify a finding that the representations were made, that plaintiff relied on them, and that they were false. made a cause of action and the right to recover nominal damages at least. If the plaintiff could collect the note, or any part of it, from the maker, that would go to the measure of damages, but would not prevent a cause of action. A note against a solvent man is more valuable, for all the purposes which the holder may have occasion to make of it, by reason of being secured by mortgage on adequate real estate. The request, therefore, went too far, and was properly denied. As the case was one for the jury, we need refer to only one other of appellant's points. It is that the court erred in excluding evidence offered by him that there was an oral warranty of soundness of the horse he took in exchange for the note and mortgage. There was a written warranty in these words: "I have this day sold and delivered to Richard Neil, of Green Prairie, the bay horse King Bill, by King Bolt, dam Topsey, by Planet. I do warrant the title and pedigree of this horse to be the same as always represent ed by myself. Received payment. JOHN BRADFORD." The rule that, when parties reduce a contract to writing, it will be held to state the result of all previous negotiations on the subject, and excluding parol evidence thereof, applies, and this contract must be held to express all the warranty that was agreed upon. The case in no way differs from Thompson v. Libby, 34 Mina. 374, 26 N. W. Rep. 1. Order affirmed. ROGERS V. MANLEY et al. (Supreme Court of Minnesota. July 1, 1891.) PROOF OF DEED-DESCRIPTION OF GRANTOR. To prove a conveyance of land by one Charles Y. Rogers, the record of a deed was of fered in evidence, in which Charles Y. Rogers was named as grantor, and the certificate of acknowledgment showed that he acknowledged its execution, but the signature of the grantor as recorded was Charles F. Roggers. This evidence, in connection with proof that for many years subsequent to the date of the execution of such deed Rogers did not assert any claim to the land, held, with other evidence, sufficient to justify the conclusion that he executed that deed, notwithstanding his testimony to the contrary. (Syllabus by the Court.) Appeal from district court, Anoka county; LOCHREN, Judge. H.H. Hawkins and Berryhill & Davison, for appellant. Little & Nunn and Tilden R. Selmes, for respondents. DICKINSON, J. Prior to July 10, 1880, the title to the land which is the subject of this action was in Charles Y. Rogers. Both parties claim to have derived title by deed from him,-the defendants, under a deed executed July 10, 1880, and recorded in the following month; the plaintiff, by deed to him from the same grantor in 1887. The issue in the case is as to whether the deed of July, 1880, was executed by Charles Y. Rogers.or was a forgery. The court, trying the case without a jury, found in favor of the genuineness of that deed. It is now claimed that this was not justified by the evidence. We are of the opinion that the decision should be sustained. The proof of the deed in question was made by a certified copy of the record in the office of the register of deeds. In this deed, as it was recorded, Charles Y. Rogers, of Bayfield, Wis., was named as grantor, and Eliza Murphy, of Minneapolis, as grantee. The signature as recorded is Charles F. Roggers, but the certificate of acknowledgment names the grantor as Charles Y. Rogers, a person well known to the officer before whom the acknowledgment was made in the county of Hennepin. Charles Y. Rogers testified in behalf of the plaintiff to the effect that he was in Duluth at the time the deed purported to have been executed; that he never resided in Bayfield, never executed the deed to Mrs. Murphy, and did not know her or her husband. On the other hand, as against the misspelling of the name Rogers in the recorded signature, and the fact that the middle initial of the name as recorded is F instead of Y, much weight is to be given to the fact that the name was correctly written in the body of the deed, and in the certificate of acknowledgment by the officer, who certifies that he well knew Charles Y. Rogers to be the person dscribed in and who executed the deed, and that he acknowledged such execution. It is further to be observed that the testimony of Rogers was such as to justify a doubt, either as to the clearness of his memory or as to his truthfulness. For instance, he testified that he did not know Mrs. Murphy, the grantee named in the deed, and did not recollect her husband, and that he did not know that they were living on this land some years prior to the date of this deed; while other testimony, if credible, shows that they were so residing on the place while Rogers was personally engaged in cutting timber on |