La Moure county and was taken on appeal to supreme court of Dakota territory. Pending in that court when North Dakota was admitted, the case was transferred to this court.
Messrs. Thomas and Davis, for appellant, cited: First National Bank v. North, 41 N. W. Rep. 736; Dodge v. Childs, 16 Pac. Rep. 815; Vicksburg & M. R. Co. v. O’Brien, 119 U. 8. 99; Stone v. N. W. 8. Co., 36 N. W. Rep. 248; Tuthill 8. Co. v. Shaver W. Co., 35 Fed. Rep. 644
J. M. Bartholomew, (in whose place Messrs. Nickeus and Baldwin were substituted as attorneys for respondent,) in his brief filed in the territorial supreme court, cited: N.Y. & Col M. Syn. Co. vs. Rogers, 16 Pac. Rep. 719; Williamson v. Ry. Co. 10 N. E. Rep. 790; Armil v. Ry. Co., 30 N. W. Rep. 42; State v. Jones, 64 Iowa 349; American Fur Co. v. U. 8., 2 Pet. 358; Abbott’s Trial Evidence, 44; Bank v. Stewart, 114 U.S. 224; Bank v. Fields, 2 Hill 445; McGinnis v. Adriatic Mills, 116 Mass. 177.
Wallin, J. The plaintiff sues the defendant to recover the value of 49 bushels and 50 pounds of No. 1 hard wheat which he alleges was stolen from him by one Gregg McCann on the 15th day of November, 1883, and thereafter delivered to the defendant; that the defendant mixed said wheat with its own grain, and converted the same to its own use. The defendant’s answer was a general denial.
At the trial, William Short, the plaintiff, testified in his own behalf as follows: “A neighbor and myself went to my granary for a load of grain, and there saw wheat spilled on the ground, and that a good load had been taken out of the granary. We saw a wagon track, which we followed up, and traced into the town of La Moure. We tracked the wagon by the broken hoof of one of the horses. Gregg McCann owned the horse. We followed the track to McCann’s place, and thence into the town of La Moure—a distance of fifteen miles in all. Then, Mr. Lighthall, I ask him— Defendant’s Counsel. We object to anything that Mr. Lighthall said. Plaintiff's Counsel. Question: Who was Mr. Lighthall? Answer. The elevator man at La Moure. Q. You went to the elevator with this man you
