mentioned either in the annual tax levy or annual appropriation bill for the fiscal year in question. These omissions of the city council are the essential facts upon which the action arose, and with reference to the question of laches the burden is upon the defense to show when these facts became known to the plaintiffs. Until known, time would not begin to run upon which laches could be predicated. Until these vital facts were made known, the plaintiffs, in common with all citizens within the city, would certainly be justified in assuming that any city improvement coming within their observation was one which the authorities had a lawful right to construct. Prima facie, at least, the actions of all public officers with respect to their official duties are supposed to be lawful, and are entitled to be so considered by all persons, until the contrary appears. It follows that plaintiffs are not shown to be at fault in their delay in bringing the action, and hence not shown to be guilty of laches.

The petitioners further contend that, while the illegality of the contracts in question might prevent a recovery in an action at law brought against the city by the contractors for their stipulated compensation for performing the work and furnishing the material for the plant, yet, nevertheless, in a case like this, where the city officers who are defendants are not resisting the payment of the contractors, but, on the contrary, are ready, willing, and anxious to pay them out of the public funds in the treasury of the city, that a court of equity ought not to enjoin such payment. We can conceive of nothing more detrimental to the public interests, and nothing more subversive of the established principles of law and justice, than the rule suggested; and we think no authority can be found to support any such rule. The logic of this contention is that in cases where city officers controlling the public funds have seen fit to enter into contracts in defiance of express charter provisions, and the contractors have performed the work, in whole or in part, it then should be left to the election of such officers to determine whether the public funds should or should not be unlawfully abstracted from the city treasury to pay such contractors, and that in such cases courts of equity should not be permitted to interfere with the plans of such officers by enjoining them from an unlawful disbursement of public money. But, accepting this as a proper exposition of the law applicable to such cases, what becomes of the restrictions which the legislature has seen fit to impose upon municipal officers by way of limiting their powers and regulating the manner of exercising such authority as has been conferred upon them by the legislature? Under the rule contended for, courts of equity must stand aside, and allow that which was unlawfully begun to be completed in defiance of the law. But, fortunately for the cause of law and good government the precise opposite is the settled practice of the courts. It is, and long has been, the conceded province of a court of equity to restrain the unlawful plans and

purposes of public officials in cases where the same threatened in large measure to dissipate the public funds. Such a case is clearly presented by the facts disclosed in the record before us.

The petition is denied. All concur.

(76 N. W. Rep. 292.)

JOSEPH TETRAULT vs. A. M. O'CONNOR.

Opinion filed June 20th, 1898.

Trial-Motion for Verdict-Waiver.

A motion for verdict made by defendant at the close of plaintiff's testimony in chief is waived unless renewed after the testimony in the case is closed.

Bona fide Purchaser of Personal Property.

A bona fide purchaser for value of personal property obtains a good title, notwithstanding the fact that his vendor's title may have been obtained by fraud.

Evidence-Opinion of Witness.

The answers to questions, directed to non-expert witness, calling for the opinion or conclusion of the witness, are properly excluded.

Improper Question.

Where a question is so framed that the answer cannot possibly aid the jury, the answer is properly excluded, although the witness was competent to testify on the general subject.

Appeal from District Court, Pembina County; Sauter, J. Action by Joseph Tetrault against A. M. O'Conner. Plaintiff had judgment, and defendant appeals.

Affirmed.

W. J. Kneeshaw, for appellant.

J. D. Stack, for respondent.

BARTHOLOMEW, J. Action of conversion against a sheriff for the value of a stock of goods seized and sold by the officer, but of which plaintiff claims to have been the owner. The officer justified under a writ against plaintiff's vendors. The only issues related to the ownership of the goods and their value. There was a verdict for plaintiff, a new trial was denied, judgment upon the verdict, and defendant appeals.

Plaintiff's vendors had been doing business as merchants. They made an assignment for the benefit of creditors. From that assignment they reserved goods valued at $1,500 as their exemptions under the statute. These goods had been separated from the general stock, but not removed from the building. The building and general stock were in the possession of the assignee. The assignors sold

the property claimed as exempt to plaintiff, by bill of sale, for the sum of $1,000, and plaintiff claims to have taken immediate and continued possession thereof. The defendant denied the bona fides of the sale; claimed that it was made to defraud the creditors of the vendors, and that there had been no change of possession as required by statute, and hence the sale was prima facie fraudulent as to existing creditors of the vendors; and claimed also that the debt upon which the writ against such vendors was based was incurred for property obtained under false pretenses and fraudulent

statements

The errors assigned relate to the rulings upon evidence, the refusal of the Court to direct a verdict at the close of plaintiff's testimony, and the order overruling the motion for a new trial. The motion for a directed verdict was waived by not being renewed after the testimony was all in. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. Rep. 1000; Colby v. McDermont, 6 N. D. 495, 71 N. W. Rep. 772. The ruling on the motion for a new trial will need no consideration after the discussion of the rulings upon the evidence, as it was practically based thereon.

The trial court excluded all evidence offered by defendant tending to show that the debt to satisfy which the property was seized was incurred by plaintiff's vendors for property obtained by fraud and false pretenses. It is urged that this is error, for two reasons: First, if the property was in fact exempt, there could be no fraud, as to creditors, based upon any transfer thereof. Hence it was material for defendant to show that it was not exempt, and as our statute does not allow general exemptions, as against a debt incurred by fraud or false pretenses, it was proper to allege and prove such fraud. This claim is based upon Taylor v. Rice, 1 N. D. 72, 44 N. W. Rep. 1017, where, in a somewhat similar case, we held that fraud might be shown to defeat exemptions. And, second, it is urged that among the goods so seized by the officer there were some of the specific goods purchased by plaintiff's vendors from the plaintiff in execution, and, as there was fraud in their purchase, no title passed to the purchaser, and he could give none, and as to such property, at least, the seizure was rightful. The Court instructed the jury that there was no question of exemption in this case, for the reason that plaintiff's vendors had not claimed their exemptions and had them set apart as required by law. It is therefore perfectly clear that there was no prejudicial error in refusing to permit defendant to show fraud in order to defeat exemptions, as the jury were plainly instructed that the property was not exempt in the hands of plaintiff's vendors. As to the second point, defendant seized the goods as the property of plaintiff's vendors. He sold it as their property, and applied the proceeds on their debt. He cannot be heard to say that they never had any title to the goods. But, further, defendant's legal proposition is unsound. If plaintiff was a good-faith purchaser, the title to the property vested in him, not

withstanding the fact that his vendors' title may have been obtained by fraud. Bigelow, Frauds, 403, and note. In defendant's view of the case, it was important to determine who was in possession of the goods at the time of the seizure by defendant. The Court at all times, on plaintiff's objection, excluded the answer to the direct question, "Who was in possession?" In this there was no error. That was one of the ultimate questions for the jury to determine under the instructions of the court. The circumstances and surroundings were such that different minds might have reached different conclusions. All the facts relative to the location and condition of the goods were shown, as well as all the facts concerning the building, its control, occupancy, and the control of the key. No errors are assigned upon the instructions. We do not know whether the jury found that plaintiff was in actual possession or not. If they did, they were warranted in so doing, under the evidence and the instructions. On the other hand, if they found that the transfer was presumptively fraudulent, under the statute, because of insufficient possession by plaintiff, yet they may have also found that the legal presumption of fraud was fully rebutted by the evidence and the good faith of the transfer established. There was evidence to support such a finding.

The remaining errors relate to the question of value. The evidence, as usual, took a wide range, running from $400 to $2,500. The jury placed it at $1,000. Plaintiff was a competent witness on the point. He was the owner of the goods. He had had some experience in that line. If his experience was shown to be limited, the jury would consider that fact in weighing his testimony. One Murphy was asked, "What, in your opinion was the value, per cent, on the dollar, the market value, of the goods in question in Neche at the time of the conversion?" He was not permitted to answer. There was no error. His answer could not have aided the jury. No basis was fixed upon which to calculate the per cent. Whether it was upon the price for which they were purchased, or the price at which they were marked for sale, does not appear. It does appear that the witness never saw the cost inventory, and did not know the selling mark. He was acquainted with the value of the goods, and, if he had been asked to state the value of the goods, his testimony would have been competent. In this case plaintiff's vendors selected from a stock valued at $3,500 what they supposed to be the full amount of their exemptions. The statute allowed them $1,500. They were in no manner restricted in their selections. The evidence shows that they took the most salable goods, and they were acquainted with the value of goods. They had sold $100 to other parties. Had they taken more than the statutory allowance, it would not, under the circumstances, have been surprising, but that they should have made a mistake of $400 against their own

N. D. R.-2

interest is unprecedented. We think the defendant should be well satisfied with the value as found by the jury. But in any event the record discloses no error, and the judgment is affirmed. All

concur.

(76 N. W. Rep. 225.)

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY US. CASS

COUNTY, et al.

Opinion filed June 20th, 1898.

Constitutional Questions Taxation of Railroads.

Under section 179 of the constitution of this state, which declares that "the franchise, roadway, roadbed, rails and rolling stock of all railroads operated in this state shall be assessed by the state board of equalization," etc., the word "roadway" includes, not only the strip of ground upon which the main line is located, but also all ground necessary for the construction of side tracks, turnouts, connecting tracks, station houses, freight houses, and all other accommodations reasonably necessary to accomplish the objects for which the railroad company was incorporated.

Questions Not Involved Not Decided.

Constitutional questions argued by counsel, but not involved in the case, will not be discussed.

Appeal from District Court, Cass County, Pollock, J.

Action by the Chicago, Milwaukee & St. Paul Railway Company against Cass County and others to set aside certain taxes. Plaintiff had judgment, and Cass County appeals.

Affirmed.

Fred B. Morrill, States Attorney, for appellant.

Ball, Watson & Maclay, for respondent.

BARTHOLOMEW, J. Section 179 of the Constitution of North Dakota reads as follows: "All property, except as hereinafter in this section provided, shall be assessed in the county, city, township, town, village or district in which it is situated, in the manner prescribed by law. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in this state shall be assessed by the state board of equalization at their actual value and such assessed valuation shall be apportioned to the counties, cities, towns, townships and districts in which said roads are located, as a basis for taxation of such property in proportion to the number of miles of railway laid in such counties, cities, towns, townships and districts." Pursuant to this provision, the state board of equalization, in the year 1896, assessed the plaintiff railroad at a certain sum per mile upon its track mileage in the state, and the assessment so made was duly certified as