the provisions of this section, the certificate of the district judge is as follows: (Title of the cause.) "This cause came on for trial at general term held in said (Fillmore) county, November, 1875, on an indictment for larceny, charged to have been committed in said county. On the trial it appeared by the evidence that the property was stolen in the state of Iowa, and was afterwards found in the possession of the defendant, in Fillmore county. The question was raised whether a person who steals property in an adjoining state, and brings it into this, is guilty of larceny here. The court, deeming the question important and doubtful, at the request of counsel and with the consent of the defendant, decided to report the case to the supreme court for its decision, and thereupon all further proceedings were stayed." There are several reasons why we cannot take jurisdiction in this case. In the first place, the case does not come within the terms of the statute before cited. Though it appears that the question of law involved arose upon the trial of a person in a district court, it does not appear that the person was convicted; on the contrary, the certificate appears to show that the proceedings were stayed before conviction. Neither does it appear that it arose upon any demurrer to the indictment, or to a special plea or pleas to an indictment, or upon any motion upon or relating to an indictment; on the contrary, it appears to have arisen upon the evidence. In the second place, it does not appear that the question raised was in any way passed upon or determined by the court below. It is indispensable that it should be thus passed upon and determined, because the jurisdiction of this court is (except in certain cases not here important to be mentioned) purely appellate. The exercise of appellate jurisdiction, ex vi termini, necessarily calls for something to be appealed from-that is to say, there must be some action on the part of the inferior tribunal which the appellate court is called upon to review. In the absence of such action, the appellate tribunal, therefore, has no jurisdiction. In view of the appellate character of our jurisdiction, the statute itself appears to be open to criticism. When a person is tried and convicted, any question arising "upon the trial" is necessarily passed upon by the court below, and in such case we see no reason why the determination of the question may not properly be reviewed here upon the certificate provided for. But, as respects a question of law arising upon "demurrer to the indictment, or to a special plea or pleas to an indictment, or upon any motion upon or relating to an indictment," the statute does not expressly require, as it should have done, that the question raised shall be passed upon by the court below; as, however, the statute does not forbid the court below to pass upon such question before reporting the case to this court, we think the duty to do so is to be implied. This is in accordance with the presumption in favor of the constitutionality of legislation, and with the rule that when a statute is susceptible of two constructions, that should be adopted which will effectuate the manifest intention of the law-maker. Proceedings dismissed. STATE OF MINNESOTA US. WILLIAM P. HOAG and another. May 22, 1876. Criminal Practice-What Cases may be Certified.-State v. Byrud (ante p. 29) followed, and applied to this case. Case certified by the district court for Wabasha county, Mitchell, J., presiding. Geo. P. Wilson, Attorney General, for the State. BERRY, J. This case must follow State v. Byrud (ante p. 29.) The first question certified arose upon an objection to the introduction of evidence under the indictment. The second question certified arose upon a motion for an instruction to the jury. As it does not appear that the defendants were convicted, the case does not fall within the provisions of Laws 1870, c. 76, § 1, under which it is attempted to be brought to this court. It is further to be observed that it does not appear that the questions raised were passed upon or determined by the court below. Proceedings dismissed.1 MARK D. FLOWER US. JOHN GRACE. May 22, 1876. New Trials. An order allowing a new trial reversed, it appearing not to have been granted upon any ground upon which it could properly have been granted. Appeal by defendant from an order of the district court for Ramsey county, Stearns, J., presiding, (acting for the judge of the second district,) granting a new trial. Hauser & Robinson, for appellant. H. A. Castle, for respondent. BERRY, J. In this case defendant had a verdict; but, upon plaintiff's motion, upon a case settled, a new trial was granted. The record does not disclose the grounds upon which the motion was based. As no exceptions were taken 1 STATE OF MINNESOTA vs. A. G. WEDGE. (June 26, 1876.) GILFILLAN, C. J. This case stands in the same position as State v. Byrud and State v. Hoag, disposed of at this term. It comes here without any decision of the court below, and this court has no jurisdiction over it, and it must be dismissed. It will, therefore, be remanded to the court below for its action. John A. Lovely, for the State. by the plaintiff, and no question of excessive damages is raised, it could properly be based only upon the ground that the verdict was not justified by the evidence, and of course it could not be properly granted upon any other ground. The order granting the new trial was accompanied by this memorandum, signed by the judge, viz.: “I grant this motion in the exercise of a discretion with which I deem the law has vested me, and in furtherance of substantial justice. One reason for granting the motion is that I think it probable the jury were unduly influenced by the testimony of the defendant, commencing at line 145, case, admitted without objection, and not commented upon by the court." Whatever may have been the grounds upon which the new trial was granted, it is apparent from this memorandum that it was not upon the ground that the verdiet was not justified by the evidence. The reason specially assigned by the court is unsound. The testimony referred to was not only not objected to, but it was entirely harmless. This was an action of claim and delivery, in which plaintiff sought to recover the possession or value of twenty cases of boots. The defence was that defendant, as sheriff', by virtue of an execution issued upon a judgment against Stewart & Co., levied upon the same, and took them into his possession, from the possession of said Stewart & Co." The plaintiff's theory was that the property in controversy was in his possession at the time when it was levied upon and taken. The defendant's theory was that it was in the possession of Stewart, who constituted the firm of Stewart & Co. There was testimony in the case having a tendency to sustain each of these theories. Now, the testimony referred to in the memorandum was "that there was no affidavit of the plaintiff's claim of title to these goods served in this case." This testimony was evidently introduced with reference to Gen. St. c. 66, § 137, as, in effect, construed in Barry v. McGrade, 14 Minn. 163, and the worst that can be said of it is that it was superfluous, as going to prove V.23M-3 something which the law would imply in the absence (as in this case) of evidence affirmatively showing the service of the prescribed affidavit. As there is certainly evidence in the case upon which the jury might have arrived at their verdict, and as the order allowing the new trial appears not to have been granted upon the insufficiency of the evidence to justify the verdict, we perceive no ground upon which it can be sustained, and it is accordingly reversed. REUBEN WARNER and another vs. HIRAM ROGERS. * * * Easement-Purchaser with Notice Bound by his Grantor's Agreement to Pay One-half the Cost of a Party-wall, upon Using It.-In August, 1872, the owner of a lot in St. Paul leased the same to plaintiffs for a term of twenty years, to commence May 1, 1873. The leased lot adjoined, on the west, a lot owned by Brown. On January 28, 1873, plaintiffs, being about to erect a brick store on the leased premises, entered, as parties of the first part, into a sealed agreement with Brown, as party of the second part, which, after reciting the lease, the plaintiffs' intention to erect the store, and Brown's ownership of the lot adjoining, proceeds as follows: "Therefore, in consideration, etc., * * *it is mutually agreed ** *that the centre of the westerly wall of the building so to be erected shall be the dividing line between the aforesaid leasehold premises * * and the said real estate of the party of the second part; * and said wall shall be and remain a party-wall between the parties of the first and second part, their heirs and assigns forever; and it is further mutually agreed that, whenever the party of the second part, his heirs and assigns, shall desire to use said wall, they shall have the right to do so, upon first paying to the parties of the first part, their heirs and assigns, one-half the actual cost thereof; and the parties of the first part agree to leave proper openings in said wall for the support of joists or timbers for the use of the party of the second part. The plaintiff's proceeded to erect the wall, and completed it by June 1, 1873. There was evidence tending to show that they put two windows in the wall, and did not leave the proper number of places for joist. Early in June, 1873, defendant entered into a written contract with Brown for the purchase of his lot, and in August, 1873, Brown conveyed the same to him with full covenants of warranty and seizin. The evidence in the case tended to show that, aside from the effect of the wall itself as notice, the defendant, before he contracted for the lot, received actual and express notice of the arrangement |