Page:North Dakota Reports (vol. 3).pdf/199

 any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force, for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” Other states have substantially this same provision. For a construction of the Indiana statute, see W. U. Tel. Co. v. Brown, 108 Ind. 538, 8 N. E. Rep. 171. For Missouri statute, see State v. Kansas City, etc., R. Co., 32 Fed. Rep. 722. For Kentucky statute, see Com. v. Sherman, 85 Ky. 686, 4 S. W. Rep. 790. In each of these cases the court enforces a penalty incurred under a statute that had been repealed prior to the time of the trial. The repealing statute of this state passed in 1890 is silent as to the penalties incurred under the former law. Hence, under this plain provision of § 4767, Comp. Laws, appellant is not relieved from that penalty.

On the question of payment, the court instructed the jury that, if they found that payments were made in wheat, they should allow respondent the highest market price from the time of delivery to the time of trial. This was clearly error. The court had in mind a rule sometimes applied in cases of conversion, but clearly foreign to this case. Appellant insists that for this error the case must be reversed. When anerroncous instruction is given an immediate presumption of prejudice arises, and the case must be reversed, unless it is clear that such error, under the facts, could have worked no prejudice to the complaining party. McKay v. Leonard, 17 lowa, 569; Hook, Adm'r v. Craghead, 35 Mo. 380; Freeman v. Rankins, 21 Me. 446, Hayne, New Trials, § 287, and cases cited. It is equally certain that when the error could work no injury to the complaining party the case will not be reversed by reason thereof. Sce last citations. In the statement of facts as heretofore made, we have cither taken facts about which there was no dispute in the testimony, and which the jury were bound to accept as true, or we have in every case taken