bold, brazen effrontery, for the purpose of screening another, or for the purpose of adding one more crime to the list of those he has committed." We note here that it did not appear in the case that Brown had committed any "list of crimes," or any crime save one. But the language last quoted made the question of Brown's reformation depend upon his having shown evidence of "penitence, any signs of humiliation, any signs of obedience to law and order." Certain it is that no such evidence of Brown's reformation is contained in the record, and equally certain that no such evidence, if offered, would have been competent. The jury might well conclude, from this feature of the charge, that, in the absence of any of the required evidence of Brown's reformation, they would be justified in concluding that Brown had not in fact reformed, and consequently was unworthy of belief. It followed in natural and logical sequence for the court to say, as it did say, in that immediate connection, that the jury "might consider whether Brown's testimony is bold and brazen effrontery, for the purpose of screening another, or for the purpose of adding one more crime to the list of those he he has already committed." We think that it would have been much more fair and impartial if the trial court had somewhere thrown into its remarks to the jury, by way of counterpoise, some suggestion or theory of Brown's evidence which would have been consistent with its truthfulness. It strikes this court quite forcibly that it would have been only fair to the defendant if the district court had suggested, as an aid to the jury, a hypothetical question something like the following: Whether it was probable that a man in Brown's position, standing upon the confines of the grave, and about to be ushered into the presence of a God whose commands he had ruthlessly broken, with no perceptible selfish interest to spur him to the deed, would be likely to publish to the world a false accusation of murder against himself, and then, to bolster such false accusation, commit the additional crime of perjury, by calling upon the name of his Creator and Final Judge to witness that his false charge of murder against himself was true. Such a view as that suggested above would, in the opinion of this court, not have been too far-fetched, and would have been a theory of Brown's testimony, to say the least, as in trinsically probable, as a theory, as that advanced in the other direction by the trial court, viz., whether or nct such testimony was "bold and brazen effrontery.' We will conclude our comments upon this branch of the case by saying, briefly, that, where a trial court assumes to remark upon the weight of testimony, or upon testimony affecting the credibility of witnesses, it is treading upon delicate and dangerous ground, and cannot be too cautious about revealing its own opinion to the jury. If hypothetical suggestions are made at all to aid a jury in weighing the testimony, or in estimating the credibility of a witness, such suggestions should be impartial, and not look in one direction only. The statute regulating instructions in criminal cases allows the judge to "state the testimony," but declares that he "must not charge the jury in respect to matters of fact." See § 343, Code Crim. Proc. To say to the jury that the testimony of a material witness is unworthy of belief, whether the statement is made directly or by way of inference, is indirectly charging the jury as to matters of fact, and contrary to the spirit of the statute. The court can state the testimony, but is forbidden to charge or advise as to the facts. A different rule prevailed at the common law, and in some of the states; but the statute has changed the commonlaw rule in this jurisdiction. The authorities cited below are from jurisdictions where the matter of charging the jury is regulated by enactments similar to our own, and will fully sustain our views upon this branch of the case. See cases collated in 2 Thomp. Trials, §§ 2285-2287. See Thomp. Char. Jur. § 36. See, also, Dingman v. State, (Wis.) 4 N. W. Rep. 668; Lampe v. Kennedy. (Wis.) 18 N. W. Rep. 730; People v. Lyons, 49 Mich. 78, 13 N. W. Rep. 365; Mawrich v. Elsey, 47 Mich. 10, 10 N. W. Rep. 57. We will conclude this opinion by saying that it behooves this court, as a court of last resort, in deciding the first criminal case ever brought before it for review, and that a case of homicide, not to allow a prejudicial charge upon the facts, such as we conceive that given in this case to have been, to pass unchallenged, and thereby become a precedent. Our duty is, on the contrary, to make sure, at this early date in the history of the jurisprudence of the state of North Dakota, to uphold with a strong hand the safeguards of life and liberty which the law throws around all who invoke its protection. The judgment is reversed, and a new trial granted. THOMAS HENNESSY, Plaintiff and Appellant, v. ALEXANDER GRIGGS, JACOB S. ESHELMAN, and DAKOTA GAS AND FUEL COMPANY, Defendants and Respondents. 1. Partnership - Corporation - Parol Evidence to Vary Written Agreement. Three parties G., E., and H.-formed a copartnership under the name of "The Dakota Gas & Fuel Company." The copartnership articles provided that the partnership capital should be $50,000–G. to furnish $5,000, E. to furnish $10,000, and H. $10,000—the remaining $25,000 to be held by G., to be by him negotiated, and raised from outside parties; and, further, that all profits should be divided between the parties in proportion to the capital furnished and held by each, and on the basis of a capital of $50,000, and that, as soon as might be, said parties should incorporate under the same name, for the same purposes, and all the partnership effects should be assigned to the corporation, and that the capital stock should be not less than $50,000, and should be held and divided among said parties in the same proportion as the capital of said copartnership. Held, (1) that the articles contemplated that the capital to be furnished as specified should be actual capital, and that parol evidence to show that said capital was to be nominal only was properly disregarded; (2) that plaintiff H., having joined with G. and E. and two other parties in executing and filing articles of incorporation, whereby they became a body corporate under the name and for the purposes provided in the copartnership articles, as between said parties, and under the copartnership articles, the existence of the corporation worked eo instanti the dissolution of the partnership, and that, although the articles of incorporation provided for five incorporators, instead of three, and fixed the capital stock at $100,000, yet, as H. was one of the incorporators, he is conclusively held to have assented thereto, and cannot be heard to say that the corporation so formed is not the corporation provided for by the copartnership articles, particularly when such changes could in no manner affect his interest in or control over such corporation; (3) that, while H. was a necessary party to a transfer of the firm property to the corporation, yet a transfer thereof by G. and E. cannot, in equity, be avoided by H. because he wrongfully refused to join therein; (4) that, as all the capital stock of the corporation would A belong to the same parties who furnished the firm capital, and in the same proportion, it was competent for said corporation to assess its capital stock for an amount sufficient to pay the debts incurred by the firm in procuring the property that was transferred to the corporation, so long as such assessment was less than the amount that each party was originally required to furnish under the copartnership articles, none of said parties having actually paid in their firm capital, and said parties would not be entitled to said stock without paying such assessment: and plaintiff H. would not be entitled to paid-up non-assessable stock unless he had paid in the full amount as required by the copartnership articles. (Opinion Filed April 1, 1890.] PPEAL from district court, Grand Forks county; Hon. Action in equity by Thomas Hennessy against Alexander Griggs, Jacob S. Eshelman, and the Dakota Gas & Fuel Company. The decree dismissed plaintiff's complaint, and he appeals. Bosard & Corliss, R. E. Noyes, W. P. Langdon and P. J. McLaughlin, for the appellant, argued that the corporation formed was not the company contemplated in the articles of partnership; citing, Jones v. Cowing, 82 N. Y. 449; Bellows v. President, etc., 3 Mason, 31; The Georgia Co. v. Casselberry, 43 Ga. 187; White v. Newport Co., 1 Pick. 215; Matthews v. Stanford 17 Ga. 543; Thrasher v. Pike Co. R. R. Co., 25 Ill. 393; Childs v. Smith, 55 Barb. 45. The transfer of the partnership property to the corporation was not made in manner provided in articles of partnership; the ratification of it by the court was equivalent to decree for specific performance, which should be refused in such a case because it would be unfair if the stock is assessable. Keen v. Hamilton, 4 Peters, 311; Cathcart v. Robinson, 5 id. 264; Jackson v. Ashton, 11 id. 229. The instruments are too vague to justify a decree tantamount to a decree for specific performance. Stanton v. Miller, 58 N. Y. 192; Shakespeare v. Markham, 72 N. Y. 400; Pomeroy on Spec. Perf. 222. The plaintiff is not estopped by his conduct, 7 Am. & Eng. Encyc. Law, 12-17; Ins. Co. v. Mowry, 96 U. S. 544; White v. Ashton, 51 N. Y. 280. The acts of the copartners show that the capital was nominal or to be paid by services, and the circumstances under which the partnership agreement was made should have been taken into consideration. Lindley on Partnership, 408; Bowler v. Gleason, 2 Atl. Rep. 885; Grieb v. Cole, 27 N. W. 579; Foster v. Schmeer, 15 Pac. Rep. 626. C. Wellington, for the respondent, argued: That there was no latent ambiguity in the contract of partnership, and that, therefore, oral testimony to explain it was inadmissible. Gove v. Gowne, 3 N. E. Rep. 463; Brady v. Cassidy, 6 Cent. Rep. 76; Norton v. Woodruff, 2 N. Y. 153; Giles v. Comstock, 4 ib. 270. Plaintiff is estopped from demanding non-assessable stock. He induced respondents to believe that he would carry into effect the partnership agreement to organize a corporation; he joined them in the organization of it. Their money is invested on the belief that he would comply with the terms of the contract; the plaintiff does not assert his claim till the assertion will injure them. Simpson v. Pearson, 31 Ind. 1; Horn v. Cole, 51 N. H. 287; Douglas v. Scott, 5 Ohio 195; Morris Canal Co. v. Lewis, 12 N. J. Eq. 323; Chapman v. Chapman, 59 Penn. St. 214; Continental Bank v. Bank, 50 N. Y. 575. BARTHOLOMEW, J. On November 26, 1886, and as a result of certain parol negotiations theretofore had, the plaintiff, Hennessy, and the defendants Griggs and Eshelman, entered into a written agreement of copartnership, as follows: "This contract of copartnership, made and entered into between Alexander Griggs, J. S. Eshelman, and Thomas Hennessy, all of the city of Grand Forks, county of Grand Forks, and territory of Dakota, witnesseth: That the parties aforesaid have, and by these presents do, enter into and form a copartnership under the name and style of the 'Dakota Gas and Fuel Company.' The principal place of business of said copartnership shall be the city of Grand Forks; and the nature of the business to be transacted shall be the manufacture and sale of gas and coke, also dealing in and selling of fuel of all kinds. The capital of said copartnership shall consist of $50,000-Alexander Griggs to furnish $5,000; Thomas Hennessy, $10,000; and J. S. Eshelman, $10,000; the remaining $25,000 to be held by Griggs, to be by |