Page:North Dakota Reports (vol. 1).pdf/568

 est may be granted in the discretion of the jury.” Under this section, the following charge held te be prejudicial error; “If you find from the evidence that the plaintiff's property was destroyed by or through negligence of the defendant, then you must assess the damages of the plaintiff in such a sum as he has proven to you he has sustained, with interest at seven per cent. per annum from the date of loss to plaintiff.” The instruction directly violates the statute, in this: The discretion vested by the statute in the jury to either grant or withold interest is taken away from the jury, and exercised by the trial court. For this error a new trial will be granted, unless plaintiff consents to a modification of the judgment by deducting interest upon the value of the property destroyed; such value not being contradicted by testimony. Johnson v. N. P. R. R. Co., 354.

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Errors not properly objected to will not be considered on motion for. Territory v. O'Hare, 30.