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 was of an unusual and extraordinary character, but not so unprecedented that the defendants were not bound to anticipate it.

While dissenting upon the ground above indicated, I deem it proper to say that in my judgment it is gravely doubtful whether the defendants were not prejudiced by the instruction of the trial court relating to the so-called expert testimony. On this account I am not prepared to say that the order of reversal and remand for a new trial is erroneous.

JOHN BRANDENBURG, Appellant, v. FIRST NATIONAL BANK OF CASSELTON, NORTH DAKOTA, Respondent.

Fraud—special verdict for plaintiff in action against national bank held supported by evidence.

1. In an action for fraud and deceit by a National Bank concerning the negotiation and sale of a rea] estate mortgage, it is held, for reasons stated in the opinion, that the special verdict, favorable to the plaintiff, finds support in the evidence.

Banks and banking—national bank forwarding note and mortgage for collection held to act intra vires.

2. A National Bank receiving for custody, care and collection a note and mortgage of its customer and thereafter forwarding the same for collection is acting intra vires and liable for breach of its duty.

Banks and banking — national bank receiving proceeds of note and mortgage with authority to pay upon a first mortgage lien on real estate held to act intra vires.

3. A National Bank receiving the proceeds of a customer’s note and mortgage with authority to pay out the same upon a first mortgage lien upon real estate is acting intra vires and liable for breach of its duty.

Banks and banking—bank liable for fraud of president investing proceed of customer’s note in worthless mortgage.

4. Where a president of a National Bank, pretending to act as such, fraudulently and deceitfully made representations to the customer of the bank concerning the character of a pretended first mortgage lien and