Page:North Dakota Reports (vol. 3).pdf/454

 in the case. As a matter of fact there was no statement contained in the account on file touching the locality or place where the defendant did the threshing; nor does the law require any statement in writing to be made, or any proof made as to the place where the work of the threshing is performed. This requirement of the statute has reference only to the tract upon which the grain in question is grown. The defendants having rested their case upon the testimony above set out, “the plaintiff testified that he raised no grain on the land described during the year 1890, and had no grain threshed on such land during the year 1890.” It will be noted that the plaintiff's testimony, as above recited, is in conflict to that given by the defendant Hawthorn as to where the threshing was done; but as has been seen, the place of doing the work is not all relevant to any issue in the case. The testimony of the plaintiff stands alone, and is not sought to be rebutted upon the material matter of where the grain was grown. The plaintiff swore positively that he “raised no grain on the land described.” Plaintiff's testimony, standing alone, as it does, conclusively shows that the statement made in the account filed as to the tract of land upon which the grain in question was grown was erroneous and untrue in fact; in other words, the defendant signally failed to prove a fact which is essential to be proven in all cases arising under the statute. Both sides having rested the case upon this testimony, plaintiff moved in the court below to strike out all evidence relating to the lien as immaterial and incompetent, “because no grain was raised on the land described in the lien.” This motion was overruled, and plaintiff preserved an exception to the ruling. We are clear that the ruling was erroneous. The evidence should have been striken out, and the refusal to do so was error to plaintiff's prejudice. It will be unnecessary to con- sider other assignments of error found in the record. A new trial will be ordered. All concur.

(57 N. W. Rep. 87.)