Page:North Dakota Reports (vol. 1).pdf/109

 practice. Plaintiff's remedy is in equity. A trustee cannot be sued at law while the trust remains open, unless the exact amount due the cestui qui trust has been, in some manner liquidated, and no act remains to be performed except payment. For the error in refusing to try the case as an equity case, and in submitting it to a jury for a general verdict the judgment must be reversed, and a new trial ordered in accordance with this opinion. All concur.

, ex rel. and, as Assignee of , Plaintiff, v. , and , Constituting the Board of County Commissioners of Stutsman County, Dakota Territory, Defendants.

1. Mandamus; Granting of, to What Extent Discretionary.

The granting or withholding of the writ of mandamus rests in a measure in the discretion of the court, but that discretion may not be capriciously exercised. Where justice will be subserved by temporarily withholding the writ, and injustice might result from its immediate issue, the court will refuse to issue it until a different case can be presented. Judgment against a county having been affirmed by territorial supreme court, and an appeal having been taken to the federal supreme court, but no stay of execution procured, this court, in the exercise of its discretion in mandamus cases, will regard the policy of this jurisdiction, that an appeal to a state court by a municipal corporation shall operate as a stay without an undertaking, and in effect give the stay by withholding mandamus to compel the levy of a tax to pay the judgment until final decision in the federal supreme court.

PPLICATION for an original writ of mandamus.

The case was argued by W. E. Dodge, for relators, and by Jesse A. Frye, states attorney for Stutsman county, for defendants. In the supreme court of the territory of Dakota, briefs had. been filed by Dodge & Camp and John S. Watson, for relators, and by Roderick Rose, then district attorney, for the