Page:North Dakota Reports (vol. 1).pdf/564

 charged the jury that certain propositions must be established by a clear preponderance of evidence, this court cannot say that the jury disregarded the charge of the court, simply because we might thin the preponderance of testimony was not in favor of such proposition. Halley v. Folsom, 325.

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When writ will be issued by supreme court in exercise of original jurisdiction. State v. Nelson Co., 88.

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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 ah 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. Territory v. Woodbury, 85.