included in the section of the Civil Code in reference to animals wild by nature. In the opinion quoted, the term "animals wild by nature," as used in the Civil Code, was construed to include game birds. Laws for the protection and preservation of wild game are in their nature police regulations, and as said in Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543: "This power can be used only to promote the public good, and is always subject to judicial scrutiny." And in Colon v. Lisk, 153 N. Y. 197, 47 N. E. 305, 60 Am. St. Rep. 609, it is said: "That power must be exercised subject to the provisions of both the federal and state constitutions. Laws passed in the exercise of it must tend toward the preservation of the lives, health, morals, or welfare of the community, and the court must be enabled to see some clear and real connection between the assumed purpose of the law and the actual provisions thereof, and that the latter tend in some plain and ar preciable manner toward the accomplishmen of the objects for which the legislature may use this power." Judge Ross, in the case of In re Marshall (C. C.) 102 Fed. 323, says: "Laws enacted in the exercise of the police power by a municipal corporation acting in pursuance of the laws of the state, or by a state itself, must be reasonable, and are always subject to the provisions of both the federal and state constitutions, and they are always subject to judicial scrutiny;" and as further said in the same case: "Property is everything that has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner." Mr. Justice Field, in his dissenting opinion in Geer v. Connecticut, 161 U. S. 541, 16 Sup. Ct. 609, 40 L. Ed. 793, says: "When property, like the game birds in this case, is reduced to possession, it becomes an article of commerce, and may be the subject of sale." Mr. Justice Harlan, in the same case, also dissenting, says: "The state, as we have seen, does not prohibit the killing of game, but permits hunting and killing of quail between the 1st day of October and the 1st day of January. The game in question, having been lawfully killed, the person who killed it and took it into his possession became the rightful owner thereof. This, I take it, will not be questioned. such owner, he could dispose of it by gift or sale, at his discretion." Although these are dissenting opinions, it would not be the first time in the history of jurisprudence if they contained the better law. In Ex parte Knapp, 127 Cal. 101, 59 Pac. 315, it is held: "An ordinance intended to discriminate in favor of sportsmen and against all other persons in respect to the disposition of game lawfully killed is not a proper exercise of police power;" and to show that this rule is made applicable also to state legislation, as well as ordinances of a city or county, the opinion proceeds: "The statutes of the state in regard to game prohibit the offering for

*

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As

sale of game during the time it is unlawful to kill such game. St. 1897, p. 90. State legislation upon this subject seems complete, and restricts the rights of citizens so far as was necessary to prevent the unlawful killing of game. It was stated on argument, substantially, that the ordinance was aimed at 'pot hunters.' I understand this phrase covers all except sportsmen. Relatively, a small part of the community only are sportsmen. A law or ordinance which would discriminate in their favor would not be a proper exercise of the so-called police power."

For the foregoing reasons, I think the prisoner should be discharged. I concur: TEMPLE, J.

(11 Okl. 479)

D. M. OSBORNE & CO. v. CASE et al. (Supreme Court of Oklahoma. June 5, 1902.) APPEAL-REVIEW-ISSUES OF FACT.

1. Where an issue of fact is submitted to a jury in the court below, this court will not disturb the finding if there is evidence in the case which reasonably tends to support such finding.

2. Alleged errors occurring in the trial which are not raised in the trial court, or set forth in the motion for a new trial, will not be considered for the first time on appeal.

(Syllabus by the Court.)

Error from probate court, Garfield county; James K. Beauchamp, Judge.

Action by D. M. Osborne & Co. against E. D. Case and S. W. Humphrey. Judgment for Afdefendants, and plaintiff brings error. firmed.

At the September term, 1900, the plaintiff brought suit against the defendants in the probate court of Garfield county, Okl. T., on a certain promissory note executed by the defendants September 22, 1898, for the sum of $125, with interest at 10 per cent., due February 1, 1900. Defendants filed answer thereto, admitting the execution of said note, but say, as a matter of defense, that said note was given to replace two notes formerly given by said defendants in payment for a corn-harvesting machine; that said corn-harvesting machine was purchased of Newell & Ross, agents of plaintiff, at Enid, Okl. T., and that said machine was warranted, and on trial did not comply with the terms of such warranty, and was returned to said agents; that at the time of giving the note in question the plaintiffs entered into another written guaranty, terms of which are as follows: "Enid, O. T., 12/1/'98. D. M. Osborne & Co. agree to fix corn harvester bought by Case & Humphrey before harvest of 1899, so they can use the three horse evener without side draft, and to do as good work as any machine. [Signed] D. M. Osborne & Co., by W. H. Gibbs." And said defendants claim that such written guaranty was a part of the same transaction as the giving of the note in question, and that said written guaranty was

never fulfilled, and by reason thereof the consideration of said note entirely failed; and for a further defense the defendants allege that, in consequence of such failure on the part of the plaintiff to fulfill such written guaranty, they have been damaged and sustained loss. To this answer the plaintiff filed a reply of general denial. On this issue a trial was had in the probate court before a jury, and a verdict rendered in favor of the defendants, assessing their damage at $30 and costs. Motion for a new trial was filed within the time allowed by law. Motion for new trial is as follows: "Motion to Set Aside the Verdict of the Jury and to Grant a New Trial. Comes now the plaintiff, and moves the court to set aside the verdict of the jury and to grant a new trial, and for causes states: First, the verdict is against the preponderance of the evidence; second, the verdict is against the evidence; third, the verdict is against the law as given by the court; fourth, the verdict sounds in prejudice against the plaintiff; fifth, the verdict is not supported by the facts and is against the law; sixth, the court admitted improper and illegal evidence; seventh, the character of the case was changed after much prejudicial and illegal evidence had gone to the jury, and the verdict thereby became and was prejudiced against the plaintiff; eighth, the jury disregarded the instructions of the court and found for the defendant, when their verdict should have been for the plaintiff." Which motion was by the court overruled, and exceptions saved by the plaintiff, to which verdict of the jury, and the action of the court in sustaining the same and rendering judgment thereon, plaintiff excepts, and brings the case here for review.

Moore & Moore, for plaintiff in error. Rush & Steen, for defendants in error.

IRWIN, J. (after stating the facts). In this case the execution of the note being admitted, and the only defense made being a failure of consideration and a claim in the nature of a counterclaim for damages for breach of warranty, and the warranty being in writing and admitted by the plaintiff, it presents purely and simply a question of fact; that is, was there such a breach of the warranty as would amount to a failure of consideration of the note, and what, if any, damage has defendant sustained thereby? If the jury were properly instructed by the court as to the law, and there was evidence in the case which would reasonably tend to sustain the verdict, this court will not disturb it. It will be seen by an examination of the motion for a new trial that no complaint is therein made of the instructions to the court as to the law. Our statute provides specifically how exceptions to the Instructions of the court must be saved, and the record in this case does not disclose that exceptions to the instructions were preserved in the manner pointed out by

statute, or in fact in any way,-either general or special; and this court has repeatedly held (in fact, it is the settled rule of this court) that alleged errors occurring during the trial, not raised in the trial court, or set forth in a motion for a new trial, will not be considered for the first time on appeal. Hardwick v. Atkinson, 8 Okl. 608, 58 Pac. 747. Hence the only assignment of error in the motion for new trial for us to consider is, was illegal and improper evidence admitted on the trial over the objection of the plaintiff in error? We have carefully examined the record, and think that this objection is not well taken; and as, on a full examination of the record, we can see no error, the judgment of the probate court is affirmed, and the costs of the appeal taxed to the appellant.

All the justices concurring except BEAUCHAMP, J., who tried the cause below, not sitting.

(10 Wyo. 373)

DOWNING v. STATE. (Supreme Court of Wyoming. June 25, 1902.) APPEAL-BILL OF EXCEPTIONS-ERROR IN IN

STRUCTIONS.

An appeal founded on the giving of erroneous instructions will not be dismissed for failure to set out the evidence in the bill of exceptions, where the errors assigned could not have been correct under any evidence.

Proceedings between George W. Downing and the state. Motion of the state to dismiss plaintiff in error's appeal denied.

N. E. Corthell and T. H. Gibson, for plaintiff in error. J. A. Van Orsdel, for the State.

KNIGHT, J. Defendant in error moves the court to dismiss the appeal in this case for the reason that the bill of exceptions does not contain the testimony adduced on the trial of said case, or any part thereof, and is therefore insufficient upon which to predicate error in this court. Counsel for defendant in error, to support his motion aforesaid, relies upon the judgment of this court announced in Miller v. State, 3 Wyo. 658, 29 Pac. 136, where this language is found: "The rule as to reversing judgments on account of erroneous instructions to the jury, by this court, and stated by Thompson on Trials as the rule of nearly all the courts, is that no judgment will be reversed on account of the giving of erroneous instructions unless it appear probable that the jury were misled by them.' And again: 'Of course, it can never be said that the jury were misled by the giving of erroneous instructions where they have reached the correct result by their verdict. Accordingly it is the practice of most of the courts, before passing upon exceptions to instructions, to look into the evidence, and see if the verdict was right; and, if it is found to be so, the court will look no further.' 2 Thomp. Trials, §§ 2401, 2402, and authorities there cited. This rule is sustained by very numerous authorities of the highest respecta

bility. Some courts say that the doctrine of error without prejudice does not apply to the same extent in criminal as in civil cases, and some courts hold that error in the instructions will be presumed to be prejudicial. Admitting, without discussing or deciding either point, that both these restrictions of the rule are correct in their proper application, it may safely be said that it is never the right of a party to demand a new trial in any case, civil or criminal, on account of error in the instructions to the jury, where it is clear from the evidence that the verdict is right, and that a new trial ought to produce the same result, or would, under correct instructions, certainly produce the same result."

In opposition to the motion to dismiss this appeal, counsel for plaintiff in error contend, "Though the evidence is not in the record, judgment will be reviewed if an instruction complained of would not be correct under any evidence that might have been given under the issues, because the errors complained of in such cases clearly relate to matters of law alone, and to incorporate the evidence would only encumber the record, tend to confusion, and cause unnecessary expense." And in support of this said contention several authorities are cited, among them being Rapp v. Kester, 125 Ind. 79, 25 N. E. 141; Wenning v. Teeple, 144 Ind. 189, 41 N. E. 600; Lindley v. Dempsey, 45 Ind. 246; Palmer v. Wright, 58 Ind. 486. And in the case of Rapp v. Kester, supra, after stating, in substance, as is contended, we find the following language: "Every presumption in favor of the correctness of the ruling of the trial court is indulged in by this court, and, unless the record affirmatively discloses an error of which com; plaint is made, the judgment from which the appeal is prosecuted will be affirmed. Davis

v. Perry, 41 Ind. 305; Crowell v. City of Peru, 41 Ind. 308; Myers v. Murphy, 60 Ind. 282; Bowen v. Pollard, 71 Ind. 177. For this reason it has been repeatedly held that when the evidence is not in the record a cause will not be reversed for giving to the jury an instruction which would be correct under any evidence that could have been admitted under the issues in the cause. Railroad Co. v. Harrigan, 94 Ind. 245; Conden v. Morningstar, 94 Ind. 150; Drinkout v. Machine Works, 90 Ind. 423; Beller v. State, 90 Ind. 448; Cartwright v. Yaw, 100 Ind. 119; Smith v. Stanford, 62 Ind. 392; Wells' Estate v. Wells, 71 Ind. 509. It is held, however, that if the instructions are in themselves radically wrong under any state of facts that could have been proven under the issues in the cause, and direct the minds of jury to an improper basis on which to place their verdict, the cause will be reversed, though the evidence is not in the record. Murray v. Fry, 6 Ind. 371; Lindley v. Dempsey, 45 Ind. 246; Evans v. Gallantine, 57 Ind. 367; Terry v. Shively, 64 Ind. 106. In Wenning v. Teeple, 144 Ind. 189, 41 N. E. 600, the above case is affirmed. Chief Justice Waite, of the supreme court of the United

States, in Jones v. Buckell, 104 U. S. 554, 26 L. Ed. 841, makes use of the following language: "As long ago as Dunlop v. Munroe, 7 Cranch, 242, 270, 3 L. Ed. 329, it was said by this court that 'each bill of exceptions must be considered as presenting a distinct and substantive case, and it is on the evidence stated in itself alone that the court is to decide.' Of course, evidence may be inIcluded in a bill of exceptions by appropriate reference to other parts of the record, and, if that had been done here, it might have been enough. But with no issue made directly by the pleadings, and no evidence set forth or referred to in the bill of exceptions showing the materiality of the charge complained of, the case presents to us only an abstract proposition of law, which may or may not have been stated by the court in a way to be injurious to the plaintiff in error. Such a proposition we are not required to consider." The claim made by counsel for plaintiff in error in his argument before this court was, in substance, the same as the language used by Chief Justice Seevers in Murphy v. Johnson, 45 Iowa, 57: "The errors assigned relate solely to the instructions given and refused, and it is objected by the appellee that no part of the evidence is properly before us, and that therefore we cannot pass upon the pertinency of the instructions, or determine they are erroneous. This does not necessarily follow, for if under no possible view that can be taken do the instructions employ correct propositions of law when applied to the issues presented by the pleadings, and if, on the contrary, they are clearly erroneous, then we not only have the power, but it is our duty, to pass upon and determine the questions presented. Stevenson v. Greenlee, 15 Iowa, 96."

Counsel for plaintiff has claimed more for his record before us for review, but the errors assigned upon the instructions entitle this record to our consideration, the same as indicated in Murphy v. Johnson, supra, and the motion to dismiss this appeal is denied.

Snyder, Westervelt, Snyder & Wight, for appellant. Richards & Ferry, for respondent.

BASKIN, J. This is an action for divorce on the alleged grounds of cruel treatment of the plaintiff by the defendant. The divorce was denied by the lower court, and the plaintiff appeals.

The answer denies all of the allegations of the complaint, except that "the plaintiff and defendant are husband and wife, and that they intermarried at Salt Lake City, Utah, on or about the 18th day of January, 1872, and that the plaintiff for more than one year last past is and has been an actual and bona fide resident of Summit county, in the state of Utah." The plaintiff, in his complaint, in addition to the general and specific charges of cruelty of the defendant, alleges that he "has always been kind and considerate to her," and that he has always been sober, etc. The ninth assignment of error is that "the court erred in entering and signing the findings and decree in this action in favor of defendant." In this connection it is contended by appellant's counsel that the evidence adduced by plaintiff, which was not disputed, was sufficient to justify a decree in favor of the plaintiff, and that, in order to render a decree in favor of the plaintiff that evidence must have been totally ignored. If this were conceded, the objection is overcome by evidence of the defendant which is not contradicted. After the defendant had been examined as a witness on her own behalf, the following occurred in her cross-examination by plaintiff's attorney: "Q. Did Byron Hartwell ever in the world strike you? A. I needn't answer that. That is not in the evidence. I shall never go against my husband any more than I have to. He is the father of my children. I have been married 30 years, and I can't do it. Q. Just answer my question. I want to know what reason you had for any such fear as you stated you had. Had he ever struck you? A. Do I have to answer that question? The Court: Yes, you may answer it. A. Yes, sir; he has struck me. Q. When? A. I haven't any dates. Q. More than once? A. Yes, sir; lots of times. Q. Name us one time, then? A. Oh, I don't want to go into things I don't have to. I don't have to go into things over my past life. Please, your honor, don't have anything up more than has to. I have two lovely girls. Q. How long ago was it? A. When he used to come under the influence of liquor, and that. Q. It was when he was drunk, then, if he ever did it? He never did it any time when he was sober, did he? A. No." After the defendant had testified, the plaintiff, who had before been a witness in chief on his own behalf, was, in rebuttal, again examined by his attorney, and while he was interrogated in respect to and contradicted other portions of the defendant's testimony, he was not interrogated in respect to, and did not deny, any of the statements made by the defendant in answer to the par

ticular questions herein before set out, asked her by plaintiff's attorney on cross-examination. The misconduct of the wife, under some circumstances, may prevent her from obtaining a divorce, but is no excuse for the personal violence of her husband. Gross cruelty upon the part of the husband, when shown in an action by him, will bar his right to a divorce, however great the fault of the wife may have been. The gross conduct of the plaintiff, stated by his wife, and which the plaintiff, though he had an opportunity to do so, did not deny, barred any recovery by the plaintiff, and would have done so even if it had been admitted or shown that the wife had committed all of the alleged acts of cruelty charged in the complaint. In this view of the case the other assignments of error are of no consequence. It is ordered that the judgment of the lower court be affirmed, with costs.

MINER, C. J., and BARTCH, J., concur.

(41 Or. 481) UNITED STATES MORTG. & TRUST CO. V. WILLIS.1

(Supreme Court of Oregon. June 30, 1902.) MORTGAGES -LEASED PREMISES- FORECLOSURE SALE-RIGHTS OF PURCHASER AND TENANT-ACTION FOR RENT-COSTS.

1. Hill's Ann. Laws Or. § 307, provides that a purchaser of land at a judicial or execution sale, from the day of sale until a resale or redemption shall be entitled to the possession, unless the same be in the possession of a tenant holding under an unexpired lease, in which case he shall be "entitled to receive from the tenants the rents, or the value of the use and occupation thereof, during the same period.' Held, that where land sold on foreclosure is in possession of a tenant holding under an unexpired lease made by the owner of the property subsequent to the mortgage, the purchaser thereof, whether the mortgagee or not, is entitled to the rent, or the value of the use and occupation of the premises, from the day of sale, notwithstanding the tenant, in accordance with his lease, has paid the rent in advance to his lessor.

2. Hill's Ann. Laws Or. § 549, enumerates the actions in which plaintiff, on a judgment in his favor. is entitled to costs as a matter of course, and by subdivision 5 includes therein actions not therein before specified for the recovery of money or damages when plaintiff should recover $50 or more. By section 551 costs are allowed of course to defendant in actions mentioned in section 549, unless plaintiff be entitled to costs therein. Held, that where a purchaser on foreclosure sued and recovered judgment against the tenant in possession for less than $50 for rent or for use and occupation, the action being included in subdivision 5 of section 549 above referred to, defendaut was entitled to costs.

Appeal from circuit court, Multnomah county; Arthur L. Frazier, Judge.

Action by the United States Mortgage & Trust Company against P. L. Willis. From a judgment for plaintiff, defendant appeals. Reversed as to the costs only.

This is an action by the purchaser of real estate at a judicial sale against a tenant in 1 Rehearing denied July 26, 1902

possession under an unexpired lease to recover rent, or the value of the use and occupation of the premises, from the day of sale. The facts are that in October, 1894, the Portland Savings Bank mortgaged the premises upon which the building, a part of which is occupied by the defendant, is situated, to the plaintiff, to secure the payment of $150,000, and the mortgage was duly recorded on the following day. On October 12, 1901, a suit was commenced to foreclose the mortgage, and Henry F. McClure, the successor in interest of the savings bank, was made a party defendant. Thereafter, and on October 31, 1901, McClure leased three rooms in the building to the defendant for a rental of $35 a month, payable in advance on the 1st day of each calendar month. A decree of foreclosure was subsequently rendered, and on January 13, 1902, the property was sold under the decree to the plaintiff. A few days later, it notified defendant that it had purchased the property, and demanded the rent for the rooms occupied by him from the date of the purchase until the 1st of the following month, but he refused to make such payment on the ground that under the terms of his lease he had paid the rent for the entire month of January to McClure on the 1st of the month, and prior to the sale. This action was thereupon begun in the circuit court to recover $20.32 as rent from January 14th to February 1st, and, a judgment having been rendered in favor of the plaintiff for the amount demanded, and for costs and disbursements, the defendant appeals.

P. L. Willis in pro. per. J. Thorburn Ross,, E. B. Seabrook, and Wm. A. Munly, for respondent.

BEAN, C. J. (after stating the facts). The principal question for determination is whether, in case land sold under a decree of foreclosure is in possession of a tenant holding under an unexpired lease made by the owner of the property subsequent to the execution of the mortgage, the purchaser thereof is entitled to the rent, or the value of the use and occupation of the premises, from the day of sale, notwithstanding the tenant, in accordance with the terms of his lease, has paid the rent in advance to his lessor. The defendant's brief contains a discussion of the rights at common law of a mortgagor, mortgagee, and a tenant of the mortgaged premises; and it is insisted that under our statute a tenant in possession of property at the time of a judicial sale, holding under an unexpired lease, stands in the same position, and is entitled to the same rights, as the lessee of mortgaged property at common law holding under a lease executed prior to the mortgage. But we are not dealing with the rights of a mortgagee and a tenant of the mortgaged property, but with those of a purchaser at a judicial sale and one in possession, holding under an unexpired lease. The fact that

in this particular case the purchaser happens to be the mortgagee is a mere incident, and has no effect on the question involved. In our opinion, the question for decision is plainly settled by the statute. Section 307, Hill's Ann. Laws Or., provides that a purchaser of land at a judicial or execution sale, from the day of sale until a resale or redemption shall be entitled to the possession, unless the same be in the possession of a tenant holding under an unexpired lease, in which case he shall be "entitled to receive from the tenants the rents or the value of the use and occupation thereof during the same period." Under this statute the purchaser is entitled either to the possession of the property, or to the value of the use and occupation thereof, from the day of sale until a resale or redemption. If at the time of the sale the property is not in possession of a tenant holding under an unexpired lease, he is entitled to the immediate possession; but, if it is in possession of such a tenant, he is then entitled to the rents, or the value of the use and occupation thereof, for the same time. No contract of a mortgagor made subsequent to the mortgage can deprive the purchaser of the rights given him by statute. This necessarily results from the principle that a subsequent lease or grant of mortgaged premises is subject to the prior mortgage, and the interest acquired by the grantee or lessee therein is subject to be defeated by a subsequent foreclosure and sale. In this case the plaintiff's mortgage was on record at the time the lease was made to the defendant, and he had at least constructive notice of the rights of the plaintiff thereunder, and must be held to have accepted his lease and paid the rent in advance with knowledge of the fact that in case of a foreclosure and sale the purchaser would be entitled to the rents from the day of sale. The defendant's lessor was not entitled to the rent of the premises after the day of sale, and it therefore can be no defense to the defendant that he paid it to him, whether before or after that time. "If," as said by the supreme court of California, "the law were otherwise, it would be in the power of the mortgagor to materially diminish the value of the mortgaged property as security for the debt for which the mortgage was given by simply leasing it for a long period, and collecting the rent in advance, or by leasing it for such period for a nominal rent." Harris v. Foster, 97 Cal. 292, 32 Pac. 246, 33 Am. St. Rep. 187. If the mortgagor or his successor in interest could, by leasing mortgaged premises and collecting the rent in advance, deprive the purchaser at the foreclosure sale of the value of the use and occupation during that time, there would be no limit to his right in the premises, and he could make such a lease for any length of time he might think proper. To permit him to do so would practically be annulling the statute, and would be contrary to the inter