Page:North Dakota Reports (vol. 3).pdf/277

 that the property was pledged. Appellant presents the case in this court under three heads, which cover all his assignments of error: First, insufficiency of the evidence to justify the verdict, and herein error of the court in refusing to direct a verdict for appellant, and in refusing a new trial; second, error in refusing and giving instructions; third, error in admitting and excluding evidence.

From a mass of testimony we summarize the following facts as sufficient to render our rulings intelligible: Prior to June 2nd, 1891, one Holding recovered a judgment against the respondent, Taylor, and caused execution to issue thereon, under which-the sheriff of the proper county seized the horses and harness in question. Taylor claimed this property of the sheriff as exempt from sale on execution, but the sheriff refused to recognize this claim, and had advertised the property for sale on said June 2nd, 1891. Taylor desired to preserve this particular property, and also to preserve his right of action against the sheriff for selling exempt property. This he could properly do. See Northrup v. Cross, 2 N. Dak. 433, 51 N. W. Rep. 718. The day before the sale the respondent saw one David Jones, the brother and agent of appellant, and one Malloy, appellant's bookkeeper. Appellant was absent. Respondent desired David Jones and Mr. Malloy to go with him the next day to Forman, where the sale was to take place. The witnesses differ as to respondent's object in having David Jones and Malloy present at the sale. Respondent testifies that he desired them to help him to raise money in case the property should be bid up at the sale to a figure in excess of what money he had. David Jones and Malloy testify that he wanted them to attach the property on his debt to appellant, in order to head off certain other creditors, Appellant was notified by telegram to be present at Forman, but it was feared he could not get there before the sale. Early on the morning of June 2nd, David Jones and Mr. Malloy went with respondent to Forman. They immediately saw Mr. Ellsworth, an attorney, and, after consultation, an attachment action was commenced by said attorney in