demand and refusal to deliver the possession of goods and chattels, where the defendant lawfully acquired and lawfully holds the possession, is an essential prerequisite to an action to recover the possession; but this rule is a technical one, and it does not by any means follow that a failure to make such preliminary demand will in all cases operate to defeat an action to recover personal property or its value. The omission to make demand, when a demand is necessary, will, under the better authorities, be excused under certain conditions. The reason underlying the rule requiring a demand is the legal presumption that a party who is not the owner of property, and has no right to retain the possession thereof, will, on demand, surrender the possession to the party entitled thereto, and do so without suit; but, where it appears that a demand would have been unavailing if made, no proof of demand and refusal is required. See Raper v. Harrison (Kan. Sup.) 15 Pac. 219, and authorities cited in that case. The better rule undoubtedly is that, where a demand before suit is necessary, a failure to prove the demand at the trial will not defeat the action where it appears, either from affirmative allegations in the pleadings or the evidence, that a want of demand is not relied upon as a defense, but, on the contrary, that the plaintiff's alleged right of possession is contested on the merits, and on grounds of a superior right of possession in the defendant. See Myrick v. Bill, 3 Dak. 284, 17 N. W. 268; Breitenwischer v. Clough (Mich.) 69 N. W. 88, 66 Am. St. Rep. 372; Irrigation Co. v. Hawley (S. D.) 63 N. W. 904; Guthrie v. Olson (Minn.) 46 N. W. 853; Cobbey, Repl. § 448. The rule is stated in Shinn, Repl. § 311, as follows: "When the defendant contests the case on the merits wholly upon the claim of ownership and right of possession of the property in himself, no previous demand is necessary, even for the purpose of entitling the plaintiff to recover costs in case of a verdict in his favor;" citing Rodgers v. Graham, 36 Neb. 730, 55 N. W. 243. See, also, Am. & Eng. Enc. Law (2d Ed.) p. 209, and cases in note 5.

The note and mortgage were made and delivered to one Thomas Creath, and the complaint alleges that Creath transferred them to the plaintiff for a valuable consideration, and that the plaintiff is the owner thereof. This allegation is denied by the answer. This defense goes to the merits, and, if defendant established the fact that the transfer of the paper to plaintiff was not made, it would defeat the plaintiff on the merits. The answer, as an affirmative defense, states, in effect, that nothing was due plaintiff, and alleges in that behalf that, after this action was brought, plaintiff brought an independent action, based upon the note which was then due, and in such action obtained judgment against defendant for the amount due on the note, and that defendant had paid such judgment, thereby leaving nothing due plaintiff at

the time the answer in this action was served. This defense was interposed upon the merits of the controversy, and was intended to defeat plaintiff's action upon grounds other and independent of the matter of a mere demand for the property before suit. It therefore conclusively appears alike from the pleadings and from the evidence that the defendant at the trial contested plaintiff's alleged right of possession not alone upon the technical ground of a failure to show a demand of delivery and refusal to deliver before suit brought, but also upon the ground of a superior right of possession in the defendant. Hence it appears that a previous demand, if made by the plaintiff, would have been wholly unavailing. It was therefore error to give the instruction to the jury which is above set out. The jury should have been distinctly informed by the trial court that the matter of a preliminary demand, which by the pleadings was put in issue, had been eliminated as a factor in the case, inasmuch as the defendant had contested the action upon the ground of a superior right of possession in himself. The instruction as to the demand was emphatic, and was much elaborated; and, under the evidence, it may well have led the jury to return the verdict which was returned. Therefore the error was prejudicial to the plaintiff.

For such error the judgment must be reversed, and a new trial granted. All the judges concurring.

CLOPTON v. CLOPTON. (Supreme Court of North Dakota. June 9, 1902.)

DIVORCE-REFERENCE-WAIVER OF OBJEC

TIONS.

1. This action was brought to obtain a divorce from the bonds of matrimony upon the ground of extreme cruelty. Defendant appeared by attorney, who served and filed an answer to the complaint, which admitted the marriage and denied all other allegations of the complaint. After issue was joined, the trial court, upon the written consent of counsel, by its order referred the case, with directions to take the testimony and report the same to the court; and thereafter the referee took the testimony, and reported the same to the court, but did not make or report any findings in the case. Held, that such reference was properly made despite the fact that the statute (article 7, c. 10, Code Civ. Proc.) does not in terms authorize such limited reference. In divorce cases the jurisdiction is of statutory origin, but the procedure, unless the statute otherwise directs, is that which obtains in courts of chancery. In such courts the authority to require a master or a referee to take and report the evidence, either with or without findings, is inherent.

2. Held, further, such reference having been consented to, that counsel cannot object to the same for the first time in this court.

3. The fact of the intermarriage of the parties was alleged in the complaint, admitted in defendant's answer, and testified to by the plaintiff, out such testimony was not corroborated. Held, construing section 2757. Rev. Codes 1899, that said testimony of the plaintiff did not require corroboration.

4. Evidence examined, and held, that the plaintiff's residence in this state in good faith for 90 days prior to commencing this action is established, and that the plaintiff's testimony as to such residence is sufficiently supported by_corroborating evidence.

5. The plaintiff testified fully and in detail to the facts alleged as grounds of action and to the results produced upon his health by the alleged extreme cruelty of the defendant, and testified also that he consulted a physician and took medical treatment as a means of obtaining relief from bodily ailments caused by the cruel and inhuman treatment he received at the hands of the defendant. This testimony was corroborated by the physicians who treated the plaintiff for the bodily ailments which the plaintiff stated to his physician were caused by the strain and worry arising from his domestic troubles. Held, that the testimony of the physicians was competent under an exception to the rule excluding hearsay evidence, and that such testimony constituted corroboration, within the meaning of section 2757, supra.

6. The statute requiring corroborating evidence in support of the statements, admissions, or testimony of the parties voices a rule of ancient origin, and the purpose of the rule is to guard against the evil of granting collusive divorces. Accordingly, it is held, where the element of collusion is excluded, that the reason for the rule falls; and in such cases, while there must be corroborating evidence to satisfy the statute, such evidence need not extend to every feature of the matrimonial offense. The degree of corroboration is not defined or specified in the statute. Said statute is adopted from the Code of California, and the adjudications of that state construing the same are adhered to in this case.

(Syllabus by the Court.)

Appeal from district court, Morton county; W. H. Winchester, Judge.

Action by William C. Clopton against Josephine Clopton. Judgment for plaintiff, and defendant appeals. Affirmed.

Cochrane & Corliss and E. C. Rice, for appellant. Newman, Spalding & Stambaugh, for respondent.

WALLIN, C. J. This action was brought to obtain a divorce from the bonds of matrimony, and the plaintiff alleges extreme cruelty as a cause of action. On February 2, 1899, the court below entered judgment divorcing the parties. Defendant has appealed from the judgment, and in the statement of the case, which embraces all of the evidence offered and proceedings had at the trial, the defendant demands a retrial of all the issues in this court. The complaint alleges that the plaintiff and the defendant intermarried on or about the 16th day of December, 1896, in the state of New York, and that there are no children living as the issue of such marriage; and further alleges "that the plaintiff now is, and for a period of more than ninety days immediately preceding the commencement of this action has been, a resident of this state in good faith." The plaintiff also alleges in general terms that defendant is a woman of violent and ungovernable temper; that ever since said marriage the defendant has abused and cruelly maltreated the plaintiff, and that on two occasions, to wit, on June 29, 1898, and on October 15, 1898, the defendant as

sailed and struck the plaintiff; and that defendant's cruel and inhuman treatment of the plaintiff has caused the plaintiff great mental suffering, and impaired plaintiff's health to such an extent that he has been rendered unfit to attend to his business affairs. The answer of the defendant, after admitting the averment of marriage, denies all the other allegations of the complaint. Defendant's answer was served and filed in the district court on the 26th day of January, 1899, one James E. Campbell, an attorney at law, residing at Mandan, N. D., appearing for defendant, and verifying her answer. The record shows that on the 2d day of February, 1899, the following stipulation in the action was filed with the clerk of the district court for Morton county: "It is hereby stipulated by and between the plaintiff and defendant that the above-entitled action be referred to Lydia W. Heuman to take the testimony therein, and that all the depositions taken in said action be submitted to the court; and it is further agreed that said cause be submitted to the court for determination and decision at the chambers of the judge of said court at Bismarck on February 2, 1899, at 2 o'clock p. m. Dated February 2, 1899. H. G. Voss, Attorney for Plaintiff. J. E. Campbell, Attorney for Defendant." On the same day the judge of the district court made an order of reference in the action as follows: "The above cause being at issue upon the complaint of the plaintiff and the answer of the defendant thereto, and it being agreed between the counsel for the plaintiff and the defendant, this cause being a proper case to be referred, on motion of H. G. Voss, Esq., attorney for the plaintiff, and by consent of the defendant's counsel, Lydia W. Heuman is hereby appointed referee to take the testimony in the above-entitled action on written questions and answers, and report the same to this court at her earliest convenience. W. H. Winchester, Judge of said District Court." It further appears that upon said 2d day of February, the referee made and filed her report, embracing the evidence taken by her, and that upon said day the trial court made, signed, and filed its findings of fact and conclusions of law in the action. Said findings recite, in effect, that the action was tried on February 2, 1899, and that Hoggatt, Caruthers, and H. G. Voss appeared at the trial in behalf of the plaintiff, and James E. Campbell appeared for the defendant. The first and second findings of fact are as follows: "(1) That the plaintiff now is, and ever since and for more than ninety days prior to the commencement of this action has been, a resident of this state in good faith. (2) That the plaintiff and defendant were married at New York City in the year 1896, on or about the 16th day of December, and now are, and ever since have been, husband and wife." The third finding of fact is to the effect that the charge of extreme cruelty as contained in the complaint is true, and that the specific

acts of cruelty set out in the complaint were committed by the defendant, and that the cruel and inhuman treatment of the plaintiff by the defendant caused plaintiff great mental suffering, and resulted in producing sickness and nervous prostration, from which the plaintiff was and had been a great sufferer. The court, as a conclusion of law, found that the plaintiff was entitled to a divorce, and thereafter, by its order, directed the entry of a judgment in favor of the plaintiff. Whereupon, and on February 2, 1899, a judgment was regularly entered divorcing the parties from the bonds of matrimony.

The evidence taken and reported to the court by the referee contained only the testimony of the plaintiff and a certain exhibit put in evidence in connection with the plaintiff's testimony, said exhibit consisting of a physician's certificate signed "J. C. Minor, M. D." In addition to the evidence reported by the referee, the plaintiff introduced the deposition of Dr. Austin W. Hollis, of New York City. The defendant offered no evidence, nor did her counsel, who was present at the trial, attempt to cross-examine the plaintiff, who testified orally in his own behalf before the referee. The appellant's counsel have assigned errors in this court briefly as follows: (1) The court erred in making its findings of fact and law without having the original complaint before the court in doing so. (2) The court erred in entering judgment, for the reason that no evidence was taken in open court, and the report of the referee did not embrace findings of fact or law. (3) The court erred in making its findings of fact, because the plaintiff's testimony was uncorroborated. (4) The court erred in making its findings of fact, because there was no corroboration of the marriage, or of the plaintiff's residence in this state in good faith. (5) The evidence did not show jurisdiction of the case in the district court.

With reference to the assignments of error relating to alleged irregularities of procedure in the case before the district court, it will suffice to say that any such irregularities, if any exist, unless they go to matters of jurisdiction, furnish no ground whatever for reversing the judgment entered below in this class of cases. The action was tried to the court, under section 5630 of the Revised Codes of 1899, and the defendant has availed herself of the right conferred by that section to bring the case to this court for trial anew upon all the evidence offered at the trial. In this class of cases a new trial is had in this court upon the merits, and this court does not sit to correct mere irregularities or errors of law occurring in the court below. Nevertheless we have considered the assignments of error. The first, in matters of fact, seems to be sustained by the record. The original complaint and the summens were served on defendant in the state of New Jersey, and the record indicates that the papers bad not been returned, and were not before the court at the

trial. But there is no proof before this court, and the fact cannot be presumed, that the trial court proceeded to hear and determine the case without having either copies or the original pleadings before it. The contrary presumption must be indulged in the absence of evidence upon the point. Nor do we think that the fact that no testimony was taken in open court, or that the referee, in reporting the testimony, omitted to make findings of fact or law, constitute error or irregularity. There is no statute in this state requiring that the testimony in a divorce case shall be elicited in open court, but the statute does forbid the granting of a divorce upon any findings of a referee alone. Such findings must, when made, be supported by the evidence, and the court is required to rest its conclusions of fact upon the testimony. Section 2757, Rev. Codes 1899, reads as follows: "No divorce can be granted upon the default of the defendant or upon the uncorroborated statement, admission or testimony of the parties, or upon any statement or finding of fact made by a referee, but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged." This section contemplates that a referee may make a statement of the facts or finding of facts, but, when the same is made, the court must, in addition thereto, require proof of the allegations constituting the cause of action. But this section nowhere undertakes to prescribe the mode or manner of taking the required proof, and hence the mode or manner of taking proof must be governed by other provisions of law. But counsel cite section 5455, Rev. Codes 1899, and contend that the reference to take and report the evidence was unlawful or unauthorized for the reason that the statute governing the matter of references makes no specific provision for any such reference, but requires all references which are made by consent to be for the purpose of trying either all or a part of the issues. It will be conceded that the statute does not, where a reference is had by consent, affirmatively confer authority to order a reference for the limited purpose of taking and reporting the testimony; but in divorce cases the procedure, except as modified by statute, is that which obtains in courts of equity. See Nels. Div. & Sep. p. 16, and cases in note 1. See, also, Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709. There can be no doubt of the inherent power of a court of equity to appoint a master or referee to take and report the testim ny for the consideration of the court. 17 Enc. Pl. & Prac. 986. And it is discretionary with a court of equity to send a case to a referee to report the testimony either with or without findings. In Baker v. Baker, 10 Cal. 527, under a statute practically the same as section 2757, Rev. Codes 1899, the court said: "But suits for divorce are by statute excepted from the general rule. The whole issue in that class of cases cannot be referred. even by stipulation, and the referee cannot

pass upon testimony. If he makes any statement or finding of facts, the court is bound to disregard it, and base its decree upon the legal testimony taken in the case." But in the case at bar the order of reference was based upon a stipulation signed by counsel on both sides, and filed in court. Having thus consented to the reference, counsel cannot be heard to object to the same; and this is doubly true where objection to the reference is raised for the first time in the appellate court. Upon this feature of the case a decision of this court is directly in point. See Heald v. Yumisko, 7 N. D. 423, 75 N. W. 806. But counsel claim-and this is their principal contention that the individual testimony of the plaintiff is wholly unsupported as to one material feature of the case, and that as to other material features the corroboration is inadequate, and fails to meet the requirements of section 2757, Rev. Codes 1899, above set out. Our attention is called to the fact that no witness except the plaintiff testified to the fact of marriage. But the allegation of marriage contained in the complaint is expressly admitted by the answer to the complaint. It is, of course, needless to say that in actions other than divorce actions any material fact alleged in the complaint and expressly admitted by the answer is sufficiently established for all purposes of the case. Under this rule the plaintiff's testimony as to his marriage with the defendant was entirely unnecessary. But counsel insist that the fact of marriage is the primary fact in an action for divorce, and that under the statute such fact cannot be shown by the uncorroborated evidence of the parties, even when supplemented by the admission of the parties. This contention makes it necessary to consider and construe the language of section 2757; and in doing so we have found that this section voices a rule which was established by the divorce courts in England, and was adopted in this country long prior to the enactment of the statute in the state of California, from which state it was borrowed and re-enacted by the territory of Dakota. The rule and the statute are alike intended to operate as a barrier against granting collusive divorces. A collusive divorce is one obtained by a corrupt connivance between the husband and wife, wherein one party consents or passively submits to the commissions of acts which will furnish apparent grounds of divorce; or where there is a collusive agreement to represent to a court that one of the parties has committed acts which constitute grounds of divorce. Revised Codes 1899, §§ 2745, 2746. In this case there is not a scintilla of evidence of any such collusion or connivance. It is true, and there is ample evidence of the fact in the records and files of this court, that an arrangement was made between the parties with a view to avoiding a threatened scandal and of softening the asperities of a contemplated action for a diClopton v. Clopton, 10 N. D. 569, 88 91 N.W.-4

vorce.

N. W. 562. But such arrangements as these, when they go no further, are not amenable to judicial censure. There are no acts of recrimination pleaded by the defendant, and, so far as appears, no grounds for an action exist against the husband for a divorce. Nor is there a pretense in this record that the defendant has any defense to this action on the merits. In such cases the fact that a defendant puts in no evidence involves neither collusion nor suspicion of imposition upon the court. In some cases such a course is deemed to be meritorious. See 2 Bish. Mar. & Div. § 253. But the rule under consideration was never intended to be an obstacle in proving the fact of marriage, and it has been so distinctly held in California, in a case where a section of the code corresponding with that in this state was expressly passed upon. See Fox v. Fox, 25 Cal. 588. See, also, Harman v. Harman, 16 Ill. 85, 87. In the California case, as in this case, the complaint alleged and the answer admitted the marriage. Commenting upon this fact, the court used the following language in construing the statute of California: "The statute was framed to prevent collusion between the parties having for its object the dissolution of the marriage relation, not its creation. The fact of the marriage is fully established by the defendant's failure to deny it in her answer, and that is equivalent to the most direct proof." See, also, Baker v. Baker, 13 Cal. 88. The reasoning of these adjudications seems to be conclusive upon the point under consideration, and we shall, therefore, hold that the marriage is duly established.

But it is further claimed that the plaintiff's good-faith residence in this state is not shown by sufficient corroborating evidence. The plaintiff undoubtedly had the burden of establishing the fact of his good-faith residence in this state for the then statutory period of time, viz., 90 days, prior to commencing this action. We think this fact was established. The plaintiff testified that he had in good faith resided in this state 90 days before he brought the action, and this evidence was supported by the testimony of Dr. Hollis, who testified as follows: "Q. Do you know where Mr. Clopton is now residing? A. In the state of North Dakota." Neither of these witnesses were cross-examined, nor did the defendant offer testimony upon the question of plaintiff's residence. The court, representing the public, did not see fit to interfere by requiring further testimony upon the matter of residence, as it might properly have done if not fully satisfied in this regard. See Smith v. Smith, 10 N. D. 569, 86 N. W. 721. We think, therefore, that the fact of residence in good faith is established by competent testimony, and that the testimony of the plaintiff is sufficiently corroborated upon this point within the meaning of the statute.

But counsel lay greatest stress upon their contention that the cause of action stated