The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-08-13

prevent interruption of business or 9th
er serious inconvenience
i will now quote from the case OF
Weihenmayer VI. Bitner, found in this
same book As i. Al. r., at page 457. the
excerpt which has been used by coun-
sci In argument, and concerning which
a. good deal OF discussion was had,
Speaking of the statutory rightft to ex-
amin the books, the court makes this
statement: But the petitioners right
would not be forfeited by any sucn
cause. The right is given to him as
a stakeholder by statute, and is abso-
lutte, and not made to depend upon
any circumstances but the ownership
of the stock 1t would seem that the
Maryland court that far has followed
the California rule, but for the fact
that they go on to say: 1T is easy
to see that there might be good reas-
ons Tor refusing an application-for
instance, If it were made for some
evil. improper or unlawful purpose,
and If such purpose were alleged and
proved, the writ would be denied
This last clause has seemed to me to
be very reasonable; namely, that ii
there were a criminal conspiracy, such
as Is charged in this answer, notwith-
standing the apparently mandatory
.'verbiage of the statute, the courts
would be empowered, under the gen
eral powers of the court, to not permit
their processes to be used for an I'M
lawful purpose. 1t seems to me that
the legislature in passing the statute
must have had the common law con-
dltions in mind, and that the sense of
the rule is as stated In the Maryland
"a ga in thn 10 CT 5 cfo &o,onn4 - j,,rA .ool
However, whether right or wrong, that
is the rule of this case until it is re-
versed. "
ma brings us up to the next prop
osition. It is charged here that there
is a criminal conspiracy between the
Minneapolis Chamber Of Commerce
and these plaintiffs, for the purpose Of
destroying the Equity Cooperative
exchange.
i am first met with the question
OF how much proof should be neces-
sary. The plaintiffs contend that this
alleged conspiracy must be proved be-
yond a reasonable doubt, while the
defendants claim that the preponder-
ance rule should be adopted. / am
inclined to think thai the rule that
should be adopted, while possibly not
the same that should prevail and does
prevail in criminal cases, this being
a civil action, should be that which
the courts Of this state have adopted
in setting aside a written instrument,
namely, that the proofs should be so
clear and convincing as to leave the
mind of the court with no hesitation
or substantial doubt that the conspir-
acy a been entered into. 1t is not
the rule adopted In criminal cases,
but, as l said BEFORE it, is a rule which
has prevailed in this jurisdiction ever
since the foundation of the state In
matters OF setting aside written in
struments, and 1 believe it to be a
fair. rule. 'e
THE court is confronted with a
very peculiar proposition here in pass
ing upon this evidence. He is called
upon to say that there has been a
conspiracy either started or. engaged
in by parties who are not in court
at all. 1t would almost seem at first
blush that there ought to be at least
very careful consideration given to
this evidence before a court would
brand as criminal parties who are not
here in court at all. The presumption
or law, under our statute, is that prI-
vate transactions have been fair and
regular and that the ordinary course
of business has been followed, and
AIoAAJ TIC pA OSu1lpLiO1lS Ol law are all
in favor of the honesty Of a TRANSACT
ton rather than the dishonesty.
'"'The evidence in this case, without
any question. shows a very pronounce
ed hostility Of the Chamber of Com
merce to the Equity Cooperative ex-
change. The testimony is equally GER
tain that that same, spirit of. hostility
is returned in like and kind, and yet
this court would hardly want to say,
because of that, simply because per-
sons who have a controversy with one
or the other have gone to the enemy
OF the one, or the other, or to some
place where they thought that they
could secure the evidence to sub
stantiate their claims, that therefore
h courts should conclude as a matter
OF law that y conspiracy had been
formed. (,
Il am not here passing upon the
books of the Equity Cooperative exA
change. 1t is not for the court to say
whether they are right. or wrong.
From what evidence has been present.
ed, the plaintiffs do not claim, rs l UNI
derstand their contention here in
court, that there is necessarily any
thing absolutely wrong In these books
! mean by that is hat when
they are finally sifted and analysed
that anything will appear to be wrong
but they say that the object Of Sc
curing an examination OF, these books
is to satisfy themselves, as they claim
they have a right to know whether
there is anything wrong; If SO, Of what
character, how extensive. and the
source of the errors, if any; and If
there are not any, such examination
will disclose that fact.
II am really of the opinion, from
what | have seen. that possibly the
atmosphere of Europe got into this
case a little too quickly, and possibly
if there had been a little more consid-
GRAFTON upon both sides that this pro-
ceeding would not have occurred.
However that may be, I am satisfied,
without going further. that the evil
dence n5thiS case with reference to a.
conspiracy, and therefore this right
condition where a court can say that
he is satisfied that there is q substan-
tial doubt and that the mind of the
conspiracy, and therefore tkls right
which the statute gives in plain terms
to the plaintiffs should be taken away
from them by the court because of an
unlawful conspiracy
AS / said before, I am Just simply
deciding this one question. here, and
nothing more, and / do not want to be
quoted Dy ANYBODY, any place or any
where. as having settled the controv-
ersy that exists between tho Minneap-
oils Chamber of Commerce and the
Equity Cooperative exchange. So far
i know. the Equity Cooperative
exchange are doing the best that they
can and want to do the best they can
for the farmers of the state OF North
Dakota. but that is beside this cues
ton, / know a great many OF the men
that are engaged in and are members
The e tive avchanzn ThnnrA