lapse of all these years, should be indulged. The party on whom rests the duty of payment always knows whether he has performed that duty or not. It is no hardship to cast upon him the burden of showing payment. But it would be impracticable, and probably impossible, for this defendant to show the state of the account between the plaintiff bank and Clarke, who, the evidence shows, was, at the time of the transactions out of which this action grew, an officer in the plaintiff bank. On the other hand, plaintiff knowns whether it has been paid or not. It could reveal the facts instantly, and, upon plain principles of common justice to the defendant, it was bound to do so. But it was silent. While the possession of the collateral may ordinarily be some evidence that the debt is not paid, because in the usual course of business collaterals are taken up when the debt is paid, yet in this instance no importance whatever can be attached to that circumstance. Whatever interest the pledgor had in those collaterals after he had pledged them had passed to the defendant by virtue of the execution sale. He had no interest in taking them up, and the defendant at all times denied plaintiff's right of possession, because no transfer had been made on their books. There was neither evidence nor circumstances raising a presumption of any existing indebtedness when this case was tried. It is true we have found no case holding squarely that it was incumbent upon plaintiff to establish an existing indebtedness, but, in all the cases where the record shows anything on the subject, the plaintiff introduced evidence for that purpose. In Case v. Bank, 100 U. S. 446, the trial Court instructed the jury that, in order to enable the plaintiff to recover, the jury must be satisfied from the evidence that the debt of the owners of the stock was still due and unpaid, and that if that had not been established the jury must find for the defendant. As the jury found for the pledgee, it was not necessary for the appellate Court to discuss the instruction. In Dayton Nat. Bank v. Merchants' Nat. Bank, 37 Ohio St. 208-216, the necessity for the ascertainment of the amount for which the stock is held as collateral is also announced. This must be true on general principles; otherwise a Court could never enter an intelligent judgment in plaintiff's favor, a judgment that would satisfy the great principle of compensation.

As plaintiff failed to show any existing indebtedness, it failed to show any present interest in the stock; hence it cannot ask a Court of equity to decree a transfer to it. The fact that plaintiff, knowing itself to be a pledgee only, brought this action as an absolute owner, trusting evidently to its assignment, and the further fact that, after the evidence showing that it held the stock as collateral only had been introduced in the case, it offered no word explanatory of the nature and extent of its holding, are very significant to our minds as to the merits of the claims of the respective parties. Possibly, on another trial, plaintiff might supply the missing

testimony, but we have no power to order a new trial in this case. We are required to order final judgment. The District Court will set aside its former judgment herein, and enter a judgment dismissing the complaint.

Reversed. All concur.

ON REHEARING.

After the foregoing opinion had been handed down, respondent, on notice, moved this Court for an order remanding the record for amendment. Subsequently, by stipulation, a certificate of the trial judge was filed in the case, to be treated as a part of the original record. From that certificate it appears that, while the testimony in the case was heard by the Court on January 30, 1897, and each party, after the testimony was closed, moved for judgment in its favor, yet the Court took the motions under advisement, and did not then decide the case. Subsequently the respondent was given the privilege of introducing further testimony. No such testimony was ever introduced or offered. Respondent did offer an amendment to its complaint, which the Court disallowed. But the findings of fact were not signed by the judge, or judgment entered, until October 7, 1897. Under this amended record, a rehearing was ordered, and respondent now asks that the former order entered by this Court be vacated, and an order entered directing a new trial in the Court below. Chapter 5, Laws 1897, amends section 5630, Rev. Codes, and confers upon this Court the power to order a new trial in cases tried by the Court where this Court deems such a course necessary to the accomplishment of justice. It may be conceded that this is a proper case for the exercise of that power if the case be covered by the statute. The last sentence of the section, as amended, reads: "This statute shall apply only to cases hereafter tried." The statute was approved on March 12, 1897, and went into effect on July 1st of that year. Was this case tried after that statute went into effect? Our statute (Rev. Codes, § 5419), declares: "A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact." But what constitutes a judicial examination of the issues of fact? In State v. Hazledahl, 2 N. D. 521, 52 N. W. Rep. 315, this Court, in construing a statute in the Code of Criminal Procedure, held that the "trial" began after the jury was sworn, and ended with the charge of the Court to the jury. But, as there stated, a broader signification is sometimes given to the word, and it is used to include all the steps taken in a case prior to final judgment. Jenks v. State, 39 Ind. 9. Again, a "trial" has been defined as "the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue." Anderson v. Pennie, 32 Cal. 267; Bullard v. Kuhl, 54 Wis. 544, 11 N. W. Rep. 801. We do not think that under any of these definitions this case was "tried" after July

I, 1897. We are not concerned in holding that the hearing before the competent tribunal constitutes the trial and the whole thereof. That may not be technically correct. But we do assert that it constitutes a part, and a very important part, of every trial. In common parlance, both to the layman and the lawyer, it includes the whole trial. We speak of a case as having been "tried to the jury," or "tried to the Court," meaning simply that the evidence was produced and the arguments made before the jury or the Court, as the case may be. In this case the only examination of the facts before the Court that was ever had occurred on January 30, 1897. The parties then introduced their testimony and submitted their case. True, the case was reopened to permit plaintiff to introduce further testimony, but no such testimony was ever offered. The parties were never again before the Court, so far as the record discloses. It is also true that the findings were not made and filed until in October following. But, under these circumstances, it cannot, with any propriety, be said that the trial of this case was "conducted"—and that is only another form of saying that the case was tried-after July 1, 1897. Such a holding would do unmistakable violence to the plain language of the statute. Our former order must stand.

YOUNG, J. concurs.

WALLIN, J., (dissenting). I find myself unable to agree with the construction given by my associates to the last sentence of the act of 1897, which reads: "This statute should apply only to cases hereafter tried." In my judgment, based upon the facts as stated in the majority opinion, the trial of this action was pending on July I, 1897, at which date the act became operative. True, there was no evidence actually offered after this date, nor were the pleadings amended, although a proposed amendment to the pleadings was offered by counsel, and thereafter disallowed by the Court. By an express order of the trial Court, the case was held open to permit counsel to offer evidence and submit proposed amendments to the pleadings. Nor did the trial Court render a decision, or file its findings of fact and conclusions of law, until after the law took effect, and not until October, 1897. These facts, from my point of view, make it entirely clear that at the time the act became a law the trial was progressing. Offering evidence and proposing amendments to pleadings are the ordinary incidents attending the trials of issues of fact, and while these proceedings are progressing or may lawfully take place it seems plain that the trial has not been concluded, whether it be pending before a Court alone or before a jury. This being so when the law took effect, the trial of this case was not a past event, i. e. the issues had not theretofore been tried. Moreover, in cases tried to the Court, it is a familiar rule of District-Court practice for the trial Court, after the evidence has been taken, in the exercise of judicial discretion, to reopen the case, and

receive further evidence, at any time prior to filing its decision. Under this method of trial, no cause tried in the District Court can be treated as concluded until the decision is filed. Hence, when the act of 1897 took effect, this case had not been tried, and this is true without reference to the express order of the Court holding the case open for the purpose of receiving further evidence and other purposes. By the construction of the act as made by my associates, it is made to read, in effect, as follows: "This act shall not apply to cases the trial of which was commenced prior to July 1, 1897." I cannot so read this statute. The act is amendatory of a statute which did not permit this Court, even in furtherance of the most obvious justice, to order a new trial in the Court below. The amendment of 1897, as its capital feature, removed this restriction, and it is therefore highly remedial in its nature, and as such should, under an established rule of construction, receive a very liberal interpretation, with a view of promoting the beneficent objects of statutes of this character. This amendment declares that the "Supreme Court may, if it deem such course necessary to the accomplishment of justice, order a new trial of the action.' This power, it will be noticed, is much broader than the power to grant a new trial for the correction of errors occurring at the trial, as may be done in jury cases. It is conceded in the majority opinion that the ends of justice would be promoted by a retrial of the action. This is also emphatically my view of the record. Nor do I think the statute, when liberally construed, stands in the way of directing a new trial. At most, the statute is obscure in meaning, or, perhaps I should say, silent in its terms, with respect to a class of cases wherein the trial was progressing when the act took effect and was tried in part thereafter. If I am correct in the view I have taken of the language of this statute, a familiar rule of construction should be applied to ascertain its meaning. It is an elementary rule that where a statute is obscure in meaning or ambiguous in its terms, reference should be made to the general scope and purposes of the enactment, and from these endeavor to gather the meaning of those parts of the statute which are obscure or ambiguous. Under this rule, I think a new trial should be granted, because by so doing the remedy of the act can be made effectual in the accomplishment of justice, and, from my standpoint, to direct a new trial would not be to violate any language contained in the statute.

(76 N. W. Rep. 504.)

ANDREW MURI VS. JOHN A. WHITE, et. al.

Appeal-Review.

Opinion filed October 8th, 1898.

The jury having rendered a verdict on testimony that substantially conflicts, such verdict cannot be disturbed.

Appeal from District Court, Steele County; Pollock, J. Action by Andrew Muri against John A. White and William U. White. Judgment for plaintiff, and defendants appeal. Affirmed.

Morrill & Engerud, for appellants.

George Murray, for respondent.

BARTHOLOMEW, C. J. On October 10, 1895, certain grain in stack belonging to plaintiff was destroyed by fire. Plaintiff brings this action to recover the value of the grain so destroyed, alleging that the fire which destroyed the grain was caused by the careless and negligent operation of a straw burner steam threshing engine, at the time owned and operated by the defendants. The answer denies all carelessness and negligence in the operation of said engine, and denies that the fire that destroyed plaintiff's grain was set by said engine. The trial resulted in a verdict for plaintiff, and defendants bring the case to this court on questions of fact only, and it is urged that the verdict is without support in the testimony. We have studied the evidence with care, and we reach a different conclusion. The witnesses were very numerous, and there is considerable conflict in their testimony. But they agree that it was an exceedingly windy day. It is undisputed that many other machines in that neighborhood stopped running, deeming it unsafe to continue in such a wind. It is not shown that any machine except that of defendants was kept running. This fact alone would warrant a finding that it was negligence on the part of defendants to keep their engine in operation. It is undisputed that live sparks will constantly escape from a straw-burning engine when running, whether the spark arrester be down or not. The wind was blowing from the northwest. The machine was set from northwest to southeast, the engine being northwest of the separator. The exact angle at which the wind would blow and at which the machine was set are matters upon which the witnesses differ. The fire started in or very near to the northeast side of the straw stack. According to some of the witnesses, the wind, assuming that it blew from one point of the compass without variation, would not carry the sparks from the engine so far north. According to other witnesses, it was entirely probable that the flying sparks would reach. that point. There was evidence tending to show that one man standing in a wagon near the point where the fire started had been