the petitioner was charged with a crime, was in no manner different in character.

These are all the cases cited by my associates to establish the proposition that appeals in habeas corpus cases are not permitted under general appeal laws. I submit that only in part do these cases support the proposition. In so far as they do support it, they are based upon statutes that permit appeals from final judgments only. Hurd, Hab. Corp. 573, states that, by the current of state authority, decisions in habeas corpus refusing a discharge are not final, but the party may apply to successive courts; and the reason that he assigns is that no appeal or writ of error lies from such decisions, and he cites the cases to support the position. When we turn to the cases that deny an appeal or writ of error, we find that the reason assigned is that the decision is not final, as the petitioner may renew his application. See Howe v. State, supra; Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89. Thus, the reasoning moves ever in a circle. It is not strange that legislatures and courts should break away from it. Again, under the old practice, as stated in Howe v. State, it might happen that a party would make his application to the supreme court of the state, and on the hearing be remanded, but upon a renewed application before a justice of the county court he might be discharged. The discharge would be final, and the supreme court would be effectually reversed by the county court. Enlightened judicature can hardly tolerate such a farce, even in the interests of the great personal liberty writ. As a result, the trend of legislation is to limit the applications for the writ so that it may not be abused, and at the same time give the right of appeal. Not only has this been done in New York, but also in federal legislation giving the absolute right of appeal in habeas corpus cases from the district to the circuit courts, and from the circuit to the supreme court; also, from territorial supreme courts to federal supreme court, and from supreme court, District of Columbia, to United States supreme court. See Rev. St. U. S. §§ 763, 764, 1909; also, Act March 3, 1885; also, Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; In re Sun Hung, 24 Fed. 723; Wildenhus' Case, 120 U. S. 1, 7 Sup. Ct. 385. The appeal is also given in Iowa. Code, $ 4101. In Vermont, habeas corpus proceedings are reviewed on exceptions under the general law. In re Cooper, 32 Vt. 253. In West Virginia, on writ of error under the general law. Ex parte Mooney, 26 W. Va. 32. In Washington, under the general appeal law. See annotations to section 732, 2 Hill's Code. In Indiana, under the general appeal law. State v. Banks, 25 Ind. 495.

It is conceded by the majority opinion that in Minnesota and South Dakota, under statutes identical with ours, appeals in habeas corpus are allowed under the general appeal law.

But the majority opinion proceeds to

In my

argue, with much ability and ingenuity, that those cases were improperly decided, under the statutes. From that view I dissent, and this brings us to a more specific examination of our statutes. Section 5156, Rev. Codes, reads, "An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offense." The next section reads, "Every other remedy is a special proceeding." It is not possible to misunderstand that language. Every remedy is either a civil action, a criminal action, or a special proceeding. A habeas corpus proceeding is a remedy. If it be a civil or criminal action, then, beyond question, it is appealable. If it be a special proceeding, then it comes directly within section 5626, Rev. Codes, which declares what orders are reviewable upon appeal, and the second subdivision of which reads, "A final order affecting a substantial right made in special proceedings." judgment, that exactly covers this case. But the majority opinion argues that it is not a special proceeding, because it is not placed in the Codes with certain other enumerated special proceedings of a purely civil nature, but, on the other hand, it is placed in the Code of Criminal Procedure. I find no force in the argument. The statute does not declare that special proceedings must be of a civil nature. It says, "Every other remedy is a special proceeding." I regard habeas corpus as more nearly of a civil than of a criminal character, yet, doubtless, the legislature, in placing it among the criminal procedure, regarded it as partaking of that character. As we have seen, it is so regarded in Wisconsin, and the same is true in Indiana. Milligan v. State, 97 Ind. 355. And in KanGleason v. Commissioners, 30 Kan. 53, 1 Pac. 384. And in Illinois. Angell v. Union Co., 8 Ill. App. 244. But the location of the habeas corpus act can in no manner alter its inherent character. It is urged that this court has held that there are remedies that are neither actions nor special proceedings. The first case cited is State v. Davis, 2 N. D. 461, 51 N. W. 942. There we simply held that the proceeding under review was not a remedy, and could not possibly, in that case, be used as a remedy, and hence was not a special proceeding, under the express definition in the statute. The second case is Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143. It was a proceeding to remove from office. The syllabus in that case, prepared by Chief Justice Wallin, after citing the section authorizing the proceeding, declares: "Said section creates a remedy, and authorizes a proceeding which is summary in its nature, and of a character peculiar to itself. The statute which creates the remedy also establishes the practice which governs the proceeding to obtain the remedy. The statute does not contemplate that the proceeding shall be delayed

sas.

by appeals from intermediate orders or rulings, and does not authorize any appeal before the entry of judgment." Certainly that case did not hold that the remedy was neither an action nor a special proceeding. The last case is In re Eaton, 7 N. D. 74 N. W. 870. The case supports the proposition of the majority to some extent. The case was disbarment of an attorney, and resulted in the exoneration of the accused. The decision was written upon his application for judgment for costs. A provision of law allowed costs in special proceedings. If costs were allowed in that case, they could be taxed only against certain attorneys, who formulated the charges and conducted the proceedings, not of their own volition, but by express appointment and order of the district court. To have mulcted them in costs would have been exceedingly inequitable and unjust. To avoid a result so deplorable, we considered the proceeding so far sui generis that we excluded it from the classification of special proceedings. But certainly it would be entirely subversive of the statute to extend the reasoning of that case to habeas corpus proceedings.

But my associates base their ruling largely upon our habeas corpus statute, which they assert authorizes an application to this court for the writ of habeas corpus after the writ has been issued by the district court, a hearing had, and the petitioner remanded; thus enabling the petitioner to obtain in a speedy manner and without the necessity of an appeal, with its delays, the judgment of this court upon the merits of his case. Here we diametrically differ. Section 8651, Rev. Codes, as amended by chapter 85, Laws 1897, reads: "The writ of habeas corpus must be granted, issued, and made returnable as hereinafter stated: (1) The writ must be granted by the supreme court or any judge thereof upon petition by or on behalf of any person restrained of his liberty within this state. When granted by the court it shall in all cases be issued out of and under the seal of the supreme court, and may be made returnable, either before the supreme court, or before the district court or any judge of the district court. (2) The writ may be granted, issued, and determined by the district courts and the judges thereof upon petition by or on behalf of any person restrained of his liberty in their respective districts. When application is made to the supreme court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the district court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district or has refused to grant such writ, or for some cause to be specially set forth is incapable of acting, and if such proof is not produced the application shall be denied." That this section is an innovation, and intended as an innovation, upon the old practice, is too clear for question. It strikes at

once at the matter of repeated applications to courts of equal authority. A district court, or the judge thereof, can only grant, issue, and determine the writ upon the petition of a party confined in that particular district. No other district court or judge has any jurisdiction. So much is conceded in the majority opinion. But neither can a party come to this court in the first instance as a matter of course. Certain facts must be shown. The judge of the district court of the district where the petitioner is confined must be absent, or must refuse to act, or, for some cause to be specially set forth, must be incapable of acting. What incapacitates a judge? Sickness, consanguinity, affinity, or such personal interest in the result as makes it improper for him to act. These have always been held to disqualify. But the majority would ingraft another disqualification. They say, in effect, that the petitioner must show to this court that the judge of the proper district court is absent, or has refused to act, or has acted. I humbly submit that the statute will bear no such construction. Its every word presupposes that there has been no action in the district court when the party comes to this court, and that there can be no action there. Let me accept the construction of the majority for a moment, and see where it will lead. Let us suppose that a party confined in the First district presents his petition for a writ of habeas corpus to the court in that district. and that the writ is granted, the matter heard, and the petitioner remanded. Now, under the holding of the majority, the petitioner can come to this court with his petition, and an affidavit showing that the judge of the First district is incapable of acting because he has acted, and this court must then issue another writ; and, as it may be made returnable before any district court in the state, this court will send it to the district court for the Second district. That court, in turn, remands the party. Upon the same showing he can come before us again, and obtain another writ, and continue the process until all the district courts are exhausted; and this in the teeth of the statute, which it is admitted was passed expressly to prevent repeated hearings in the district courts. I am entirely unwilling to pervert language from what seems to me its plain meaning, when it leads to such grotesque results. But it is said that, if there be an appeal for one party, there must be an appeal for both, and that an appeal by the state acts as a supersedeas, and would prevent the execution of the order of discharge, and that this cannot be true, because a section of the habeas corpus act makes it an offense to rearrest a party who has once been discharged on habeas corpus. This argument is based upon a misapprehension of conditions. If the party has been discharged, then the appeal by the state cannot supersede the order. No appeal and no bond can supersede an order or judgment

An appeal

that has been fully executed. cannot incarcerate a man who is free. It can only prevent a man who is incarcerated from going free. But it is urged that even this enables the state, by taking an appeal before the order of discharge is promulgated, to defeat the purposes of the writ, and hold a party in confinement during a tedious appeal. If this be true, it is a practical objection to my position. I freely admit it, but I do not admit that it is a legal objection. Men find themselves grievously injured by the delays of litigation every day. But I do not concede this to be true. In Iowa, under an express statute giving an appeal to both parties in habeas corpus proceedings, the supreme court holds that the order of discharge cannot be superseded. This is in line with the general provisions which will not allow an appeal by the state in criminal proceedings to supersede a release or an acquittal by a court or jury. Should such a case ever come before us, it might be our duty, in the interests of personal liberty, to hold that an appeal by the state did not supersede an order of discharge.

If it be claimed that my construction of the statute renders it unconstitutional, as unduly infringing upon the powers given to this court to issue writs of habeas corpus, I answer that, while it is entirely competent for the legislature to regulate and prescribe constitutional powers thus conferred, yet that question is not before us in this case, and cannot be.

We are concerned with the appeal statute, and with this only as it bears upon that. I simply contend that, under our statutes as they stand, a party who has been remanded upon habeas corpus proceedings has a right to appeal to this court.

1. The stockholders of a corporation executed to a bank a bond which recited that the obligors were interested in the company, and that for its success it needed to borrow money, and that the secretary was authorized to negotiate paper to a certain amount during the ensuing 12 months, and the obligors would become security therefor. Held to amount to a continuing guaranty, which could not be terminated by the obligors within the year, and hence was not affected by the death of one obligor within that time.

2. The surrender of a former similar bond securing loans then existing was a sufficient consideration to support it.

3. Where the parties all live in the same city, a failure for 21⁄2 years to demand payment on a demand note, or to notify the indorsers, releases them.

Appeal from circuit court, Wayne county; Willard M. Lillibridge, Judge.

Claim by the Home Savings Bank against Robert Hosie and Griffin D. H. Thurston, as executors of the will of J. Huff Jones, de77 N.W.-40

ceased. There was a judgment for claimant, and the executors appeal. Modified.

Walker & Spalding, for appellants. George W. Redford, for appellee.

LONG, J. This is an appeal from the action of the commissioners on claims in the estate of J. Huff Jones. The claim was allowed by the commissioners, and on appeal to the circuit court the claimant bank had judgment for $36,490.72 on the first claim, and upwards of $5,000 on the second claim. The cause was heard before the court without a jury, and findings of fact and law made by the trial court. It appears from the findings that the Detroit Motor Company is a corporation organized under the laws of this state; that during the period covered by the transactions in controversy, J. Huff Jones and five others were stockholders and directors of the company; that from the organization of the company until his death, J. Huff Jones was a stockholder, director, and vice president of the company; that prior to September 13, 1890, the company was a borrower at the Home Savings Bank upon notes of the company, indorsed by the directors, and that for the purpose of facilitating the business and avoiding getting each note and renewal thereof indorsed by the directors, upon a resolution offered by Mr. Jones, a bond was given to the bank, with certain of the directors as sureties (among whom was J. Huff Jones), under which the secretary was authorized to negotiate and discount paper at the Home Savings Bank for the company to the amount of $20,000 during the ensuing year; that on May 22, 1891, the amount of the bond was increased to $30,000. At the expiration of the first bond a second one was given for like purpose on September 13, 1891. A third one was given September 13, 1892. This last bond is in like form as the others, for $30,000, and, among other things, recites: "Whereas, for the successful and more advantageous management of the trade and business of the, said corporation, it is necessary from time to time to borrow money to an amount not exceeding $30.000; and whereas, for that purpose, Francis A. Blades, the secretary of said corporation, has, by resolution of the board of directors thereof, been, and is hereby, duly authorized and directed to make and indorse negotiable paper of or for such corporation for such loans from time to time during the next ensuing twelve months as he may find necessary to carry on the business of said corporation, not exceeding in the aggregate the amount of $30.000, upon the promissory notes of said corporation, or such commercial or business paper as said Francis A. Blades may discount at said Home Savings Bank upon the indorsement of said corporation or otherwise; and whereas, the above-bounden obligors have consented and do hereby consent to become security, jointly and severally, for the pay

ment of such indebtedness in accordance with the terms of the negotiable paper issued or to be issued and discounted as aforesaid, and that this, their bond, shall stand as security therefor in the hands of the obligee above named, for the benefit of the holders of any such paper: Now, therefore, the condition of this obligation is such that, if the Detroit Motor Company shall well and truly pay or cause to be paid and discharged all the indebtedness to be evidenced by the commercial paper which has been or may hereafter be issued and discounted, as above provided, then this obligation to be void; otherwise to remain in full force and virtue." This bond was signed by the directors of the company, including J. Huff Jones. After its execution and delivery, the Home Savings Bank renewed certain notes given under the former bonds, and discounted for the Detroit Motor Company certain promissory notes, which were secured by this last bond. J. Huff Jones died December 16, 1892. At this time the discounts amounted to $30,000. After his death, and after the bank had knowledge of it, a large part of the paper so held by the bank was renewed by it. The notes for which the renewals were taken were in each case surrendered by the bank at the time of the renewals; but no paper was renewed by the bank after September 13, 1893, the date at which the said bond was to expire according to its terms. None of these notes or the renewal notes have been paid, and they amount in the aggregate to $36,600.81.

"I

The court found further as follows: specially find that J. Huff Jones and the other sureties on said bonds were the principal stockholders, officers, and directors of the Detroit Motor Company at the time said bonds were given; that it was the intention that the bank should loan to said Detroit Motor Company the amount of money named in said last bond, not for the ordinary short time of banking paper, but for such indefinite period as might be required in the company's business, and that the same was intended as a permanent loan during the life of said bond; that the said bank had already so loaned large amounts during the two previous years under the first two bonds; that a large part of the indebtedness under the last bondthe one in question-had been incurred under the former bonds; that said former bonds had been for one year each, like the one in question in this case. Also that all the parties, the Home Savings Bank, the Detroit Motor Company, and the sureties on the last bond, the one in question,-contemplated that, although the loan of money by the bank would be, in form, upon the comparatively short-time paper customary to a bank, yet, in effect, the Detroit Motor Company and the sureties on the bond were bound for such renewals or extensions as might be required by the company's business, during the term of said bond. (7) That the Home Savings Bank never, in terms, agreed that it would

loan to the Detroit Motor Company the amount of $30,000 mentioned in the last bond set forth in finding 1, nor any other sum, and never, in terms, agreed that it would continue any of its loans beyond the period specified in the notes taken upon said loans, and made no agreement respecting said loans except that implied by the acceptance of the bond in question, and by the course of business under the previous bonds and the one in question, and gave no consideration for said bond other than that shown by the facts hereinbefore found.

"Based upon the foregoing, I find as conclusions of law: (1) That J. Huff Jones could not revoke his liability on said bond, during his lifetime; that at the time of his death on December 16, 1892, he was liable under said bond to the full amount thereof. (2) That the death of said J. Huff Jones did not operate as a revocation of his liability under said bond during the year for which the same was given. (3) That the taking of renewal paper by the Home Savings Bank after the death of J. Huff Jones, and notice thereof, and before the expiration of said bond on September 13, 1893, was not in law such a payment as released his estate from liability thereon under the terms and conditions of the bond, and the purpose the parties had in view in giving and renewing the bond. I also hold as a matter of law that it was not contemplated by the sureties that each renewal of the notes should constitute a fresh indebtedness, but, on the contrary, it was the intention of all the parties to continue the indebtedness indefinitely, which was not extinguished because of any change in the commercial paper held by the bank by the renewal or extension of notes. (4) That the Home Savings Bank is entitled, by reason of the foregoing facts, to recover from the estate of J. Huff Jones the entire amount due on said notes, Exhibits 2, and 4 to 24. both inclusive, as allowed by the commissioners on claims against said estate, which, with the interest to the date of their report, amounted to $30,600.81, and from which date interest should run thereon."

A certain note was also presented to the commissioners on claims for allowance against the estate. The court found upon that as follows: "(1) On or about January 15, 1891, the Home Savings Bank discounted for and placed the proceeds to the credit of the Detroit Motor Company a note, of which the following is a copy: $5,000.00. Detroit, January 15, 1891. On demand, after date, the Detroit Motor Company promises to pay J. Huff Jones, F. A. Blades, E. T. Hance, E. Van Derburg, Wm. C. Maybury, H. K. Jones, T. B. Rayl, Charles W. Casgrain, or order, five thousand dollars at the Home Savings Bank. Value received. with interest seven per cent. per annum. Detroit Motor Co., by F. A. Blades, Treas.' Indorsers on back: 'Wm. C. Maybury, Elwood T. Hance, J. Huff Jones, T. B. Rayl, L. Van Derburg, Henry K. Jones, F. A. Blades, and Charles W. Casgrain.' Interest indorsements:

* *

(Herein are enumerated various interest items.) * (2) The indorsers on said note, with the exception of L. Van Derburg and Henry K. Jones, were the same persons as the sureties on the bond hereinbefore set forth. (3) The interest was paid on said note quarterly from its date until January 15, 1893, during all of which time I find that said note was treated and intended as a permanent loan; that J. Huff Jones was a director and vice president of the Detroit Motor Company, and knew that this loan was made, and was familiar with the business of the Detroit Motor Company as set forth in the general findings herein. I further find that, owing to his official business relations to the Detroit Motor Company, he was not a mere accommodation indorser on said note, but that he signed said note for the purpose of procuring from the Home Savings Bank a permanent loan of the amount of said note to the Detroit Motor Company. (4) I further find that said note was duly presented at the Home Savings Bank, and demand made for payment of said note on July 24, 1893, and on failure of pay. ment upon such demand was duly protested on said day. (5) I also find that through the spring previous to said presentation, demand for payment, and protest of said note the cashier of the Home Savings Bank had a number of times spoken to F. A. Blades, secretary of the Detroit Motor Company, about said note, and requested him to come in and take care of the note; that during said time F. A. Blades was the secretary and principal financial manager of the Detroit Motor Company; that these requests were made at the bank. and that the note was then in the bank. (6) I also find that on or about June 16, 1893, certain letters were mailed by the Home Savings Bank, and received by the parties addressed, of which the following are copies: 'Detroit, Mich., June 16, 1893. F. A. Blades, CityDear Sir: Our board of directors require immediate payment of demand loan for $5,000 made January 15, 1891, by Detroit Motor Company, and indorsed by you. Respectfully yours, J. H. Haass, A. C.' 'Detroit, June 16, 1893. J. Huff Jones' Executors, City-Gentlemen: Our board of directors require immediate payment of Detroit Motor Company demand note, dated January 15, 1891, for $5,000, indorsed by Mr. J. Huff Jones. Very truly yours, J. H. Haass, A. C.' Also that similar letters were on the same day sent to and received by the Detroit Motor Company and the other indorsers of said note. (7) I also find that the conversations aforesaid between the cashier of the bank and the secretary of the Detroit Motor Company and the letters aforesaid were not, in my opinion, anything more than requests to arrange for payment of the note; that they did not, in law, amount to a formal demand for absolute payment, but that the intention of the bank was thereby to call the attention of the parties to the fact that the bank desired arrangements to be made for payment; and I consequently find that the

only time any actual presentation and demand for payment of the note was made was on the day of protest thereof.

"From the foregoing facts I find as conclusions of law: That the Home Savings Bank is entitled, by reason of the foregoing facts. to recover from the estate of J. Huff Jones the entire amount of said note, as allowed by the commissioners on claims, to wit, five thousand eight hundred eighty-nine and ninety-one hundredths dollars ($5,889.91), that being the amount due thereon at the date of filing the report of said commissioners on claims, from which date interest is to run thereon."

Certain amendments were asked to the findings, which were refused, and exceptions were taken, as well as exceptions to the findings of fact and law as made.

1. It is contended by counsel for defendants that the bond was nothing more than an offer to the bank to guaranty paper discounted by it within a year from date, and before revocation of the guaranty; that, as to discount of paper from time to time before revocation, the obligors became liable therefor, but that any obligor might at any time within the year notify the bank that he would not be liable for discounts made thereafter; that the death of Mr. Jones, and notice thereof to the bank, had the same effect as a notice that he would not be liable for future discounts given by him in life would have had; and that his estate could not be held upon paper thereafter discounted, whether loans or renewals. It is also contended that the fact that Mr. Jones and the other signers of the bond were stockholders and officers in the Detroit Motor Company, and that the paper was discounted for the company, could not affect the question as to whether the instrument at its delivery became an irrevocable guaranty for the full time and amount, thus making the liability of the parties thereto different from what it would be if they were not stockholders in the Detroit Motor Company. On the other hand, it is the contention of counsel for the claimant bank that the bond upon execution and delivery became an irrevocable guaranty of all paper to the amount of $30,000 that the bank might discount for the company during the year; that the right of the bank to discount such paper and hold the obligors thereon could not be affected by any notice of revocation, nor by the death of the obligors. After a careful examination of the authorities cited and other authorities found on the subject, we conclude that the safe rule, and the one supported by the best-reasoned cases, is that the instrument must have that effect which shall best accord with the intention of the parties as manifested by the terms of the guaranty, taken in connection with the subject-matter to which it relates. As was said in Mussey v. Rayner, 22 Pick. 227: "The next inquiry is, was this a continuing guaranty? The defendant insists that upon this point a strict rule of construction should prevail, and that it ought to appear unequivocally that it was the purpose of the de