Page:North Dakota Reports (vol. 1).pdf/261

 whether a suitor has prosecuted his action with such reasonable diligence as entitles him to recove: the highest market value between the conversion and the verdict, and he must present a clear case to bring himself within the rule. Whenever the decision depends upon disputed facts, these facts must of course be submitted to a jury, under proper instructions. But what facts constitute this reasonable diligence the court will ordinarily determine, as a question of law; and the court will not aid the litigant in securing the benefit of this rule by indulging any presumption in his favor that he has either commenced or prosecuted his action with reasonable diligence. The burden is on him to establish the facts which, as a matter of law, show that he has exercised such diligence. The undisputed facts in the case are fatal to any pretense of reasonable diligence. The property was converted in November, 1887, and suit was not brought until October, 1888. The property converted was wheat, the value of which is subject to considerable fluctuation. Itis true that the statute does not, in so many words, require the plaintiff to institute as well as prosecute his action with reasonable diligence; but the commencement as well as the carrying out of the litigation is clearly within the spirit, and we think also with the letter, of the statute. The policy of the act could be practically defeated if the suitor could wait until nearly the expiration of the statutory time within which he must bring his action without being chargeable with a want of reasonable diligence in the prosecution of his action. In fact the prosecution of an action includes the commencement as well as the conducting of an action, and it was in this sense that the word was employed by the legislature. The action not having been prosecuted with reasonable diligence, the plaintiff was not entitled to recover the highest intermediate market value, and for error of the court in this respect the judgment is reversed, and a new trial ordered. All concur.