Page:North Dakota Reports (vol. 3).pdf/218

 or prosecution for the enforcement of such penalty, forfeiture, or liability.” This section constitutes § 2133 of the Civil Code, and was enacted by the territorial assembly on February 16th, 1877. It follows that such section has, under a provision of the state constitution, become incorporated with the laws of this state. Counsel is in error in his claim that § 4767 never was enacted by the territorial legislature. The repealing act (§ 12, Ch. 184, Laws 1890) is as follows: “All acts and parts of acts in conflict with the provisions of this act are hereby repealed.” This language does not provide, expressly or otherwise for the extinguishment of penalties er forfeitures which may have been incurred under a former law. Hence, such penalties and forfeitures, if any, are, under § 4767, enforceable, notwithstanding such repeal. The court so held in a decision rendered at this term, Bank v. Lemke, 54 N. W. Rep. gig. The penalty of the law of 1889 for usury, which was the law in force when the note and mortgage were executed, was a forfeiture of all interest “contracted to be received.” Chapter 70, Laws 1889. It follows that the affidavit used as a basis of the order embodied facts tending to establish a valid defense to the claim for interest which was sought to be enforced by the foreclosure proceeding. The following authorities are in point, and fully sustain the construction we have placed upon § 4767, Comp. Laws; U. S. v. Matthews, 23 Fed. Rep. 74; U. S. v. Ulrici, 3 Dill. 532; Com. v. Desmond, 123 Mass. 407.

Referring to the assignment of error marked “b.” counsel claims that the mortgagor's affidavit is insufficient, and “fails to show a valid foreclosure proceeding,” because it fails to set out the following facts: “First, That the mortgage contained any power of sale; second, that the mortgage was properly acknowledged; third, that the mortgage was properly recorded; fourth, that the title to the mortgage showed of record to be in the name of the party foreclosing; fifth, that the first publication of the notice of sale was made early enough to give time for the proper number of publications; sixth, that the publication of the notice of sale was