here in question does not give an appeal from an ex parte or a preliminary or interlocutory order in proceedings supplementary to execution.

Appeal dismissed.

CHAPMAN-DRAKE COMPANY v. FRANK FABIAN MANUFACTURING COMPANY.1

Action to recover $60 as rent. Defense, that the plaintiff evicted the defendant before the expiration of the term for which rent was claimed, with counterclaim for damages therefor in the sum of $150. The findings of fact and conclusions of law were to the effect that the plaintiff did so evict the defendant, to his damage in the sum named, and that the plaintiff was not entitled to recover the $60, but the defendant was entitled to recover $150. Held, that the findings and decision are sustained by the evidence.

Action in the municipal court of St. Paul to recover $60 for rent. Defendant interposed a counterclaim for $150 damages caused by its wrongful eviction. The case was tried before Hanft, J., who found as conclusion of law that defendant was entitled to $150. From an order denying its motion for a new trial, plaintiff appealed. Affirmed. George P. Metcalf and Lightner & Young, for appellant. Schmidt & Newman, for respondent.

START, C. J.

Action in the municipal court of the city of St. Paul to recover $60 for rent of certain premises during the month of July, 1906. The defense was that the plaintiff evicted the defendant before the expiration of its term for which rent is claimed, with a counterclaim for damages therefor in the sum of $150. The cause was tried by the court without a jury, and findings of fact and conclusions of law were made to the effect that the plaintiff, on March 1, 1906, leased the premises to the defendant from month to month for the agreed rent of $60 a month, payable at the end of each month; that on July 27, 1906, and before the termination of the tenancy, the plaintiff wrongfully evicted the defendant from the premises, whereby it sustained damages in the sum of $150; and that the plaintiff take nothing by its action, but that the defendant have judgment for $150. The plaintiff appealed from an order denying its motion for a new trial, and here assigns errors which raise the question whether the findings of fact as to the time the rent was payable, the ouster, and the defendant's damages are sustained by the evidence.

We find upon an examination of the record that all of the findings are fairly sustained by the evidence, unless it be the one as to the time of payment of the rent. If it be assumed that the evidence supports the plaintiff's contention that the rent was payable monthly in advance, this would not justify the claim of the plaintiff that it was entitled, at least, to recover the rent for July up to the time of the eviction. This conclusion follows from the entirety of the contract. The defendant did not agree to pay rent at the rate of $60 a month for the use of the premises for a part of the month of July, but for the whole thereof. Therefore, the plaintiff having, as the court found, wrongfully evicted the defendant before the expiration of the month, it cannot recover any part of the rent for that month. Whether the defendant, if it had paid in advance the rent for July, could recover from the plaintiff the whole of the $60 paid, we need not decide; for the fact remains that the plaintiff is here seeking to recover upon an entire contract, which it has not performed on its part, but has wrongfully deprived the defendant of the benefits thereof.

FRANK C. AVERY v. WILLIAM HOLLISTON.1

May 8, 1908.

Nos. 15,560-(71).

Review of Order Granting New Trial.

When the court, in setting aside a verdict and granting a new trial, states in the order that he does so because (1) the evidence does not justify the verdict, and (2) that he erroneously instructed the jury on a question of law, the order will not be reversed, unless the evidence was manifestly and palpably in favor of the verdict, although this court is of the opinion that the instruction as given was correct.

Action of replevin in the municipal court of the city of Hutchinson to recover possession of a horse claimed to have been purchased by oral contract. In that court there was a verdict in favor of plaintiff. From the judgment entered pursuant to the verdict, defendant appealed to the district court for McLeod county where the first trial resulted in a disagreement of the jury. A second trial was had before Morrison, J., and a jury which rendered a verdict that plaintiff was the owner of the property described in the complaint. From an order setting aside the verdict and granting defendant's motion for a new trial, plaintiff appealed. Affirmed.

Sam G. Anderson, Jr., for appellant.
W. C. Odell, for respondent.

ELLIOTT, J.

In an action of replevin to secure possession of a horse, the jury returned a verdict for the plaintiff, and thereafter the court set aside the verdict and granted a new trial. The question at issue was whether there had been a sale of the horse to the plaintiff, and in the order setting aside the verdict the trial court stated that in his opinion the evidence did not justify the verdict, and also that he had erroneously instructed the jury as to what was necessary to show a sale of the horse. We think the instruction as given was correct, and therefore the court would not have been justified in granting a new trial on the ground stated as an error of law. But, regardless of this erroneous reason thus given, the order must be sustained, in view of the fact that in the opinion of the court the evidence did not justify the verdict. An examination of the record fails to show that the evidence was manifestly and palpably in favor of the verdict, and therefore, under the well-known rule, the discretion of the trial court must be approved. Order affirmed.

MUTUAL BENEFIT LIFE INSURANCE COMPANY v. COUNTY

Mortgage Registry Tax.

OF MARTIN.1

May 8, 1908.

Nos. 15,569—(113).

Chapter 328, Laws 1907, known as the mortgage registry tax law, is constitutional. It provides for a proper classification of the subjects of taxation and for a uniform tax upon the subjects of the class.

Same.

The subject of taxation under this statute is the security and not the debt secured.

Extension of Mortgage.

The registry tax must be paid upon the filing for record of an agreement for an extension or renewal of the mortgage.

Percentage on Premiums.

The two per cent. paid annually on all premiums received in the state by a foreign insurance company doing business in the state, as provided by R. L. 1905, § 1625, is not a tax on the gross earnings of the company. Real and personal property owned by such a corporation within the state are taxable the same as like property of individuals.

Foreign Insurance Company not Exempt from Registry Tax.

A foreign insurance company which has paid the two per cent. tax required by R. L. 1905, § 1625, is not exempt from the payment of the registry tax required by chapter 328, Laws 1907, upon the filing for record of a real estate mortgage owned by it.

The county treasurer of Martin county being unable to determine whether plaintiff company was entitled to record a certain agreement

for the extension of a mortgage in its favor without payment of the registration tax required by Laws 1907, c. 328, the treasurer indorsed the fact of his uncertainty upon the instrument and the company paid the amount of the tax to the clerk of the district court for that county. The plaintiff having brought the hearing of the matter whether the amount should be repaid to it before the district court, the facts being stipulated, the court, Quinn, J., made findings and ordered that the proceeding be dismissed and judgment be entered in favor of defendant. From this order, plaintiff appealed. Affirmed.

Stuart & Finstad and Lane & Waterman, for appellant.

E. T. Young, Attorney General, J. E. Palmer, County Attorney, and E. C. Dean, for respondent.

ELLIOTT. J.

This is an appeal from an order denying the right of the appellant to the return of certain money paid by it to the clerk of the district court under the provisions of chapter 328, p. 448, Laws 1907.

The Mutual Benefit Life Insurance Company, a foreign corporation, with its home office in Newark, New Jersey, engaged in business in Minnesota under the authority of the laws of this state, as required by section 1625, R. L. 1905, on March 1, 1907, paid to the state treasurer of the state of Minnesota a sum equal to two per cent. of all premiums received in cash or otherwise by it in Minnesota for business done within that state for the year 1906. Ever since its execution the company has been the owner of a certain mortgage upon real estate located in Martin county, Minnesota, given to secure the payment of a promissory note for the sum of $2,500, payable April 1, 1907. The mortgage bore date of August 15, 1902, and was duly recorded in the office of the register of deeds in and for Martin county. On June 5, 1907, the insurance company executed an extension agreement whereby it extended the time for payment of the note for a period of five years from the maturity thereof. This extension agreement was on July 24, presented to the county treasurer of Martin county, Minnesota, with the request that the treasurer indorse the agreement for extension as "exempt from registration taxes" in order that the mortgagee might have the extension agreement filed and recorded in the office of the register of deeds of Martin county, with