matters alleged as error. If he had a defense, there was no way of proving it without producing the evidence. The presumption is that if produced the evidence would be adverse to him. Code, § 7936. Allowing full force and effect of the alleged errors, there is no showing that the judgment is not in all respects just and righteous beyond a question or a peradventure. If it be true, which it is not, that one of the jurors was prejudiced by accidentally overhearing defendant drilling his witness, it was no fault of the plaintiff; and defendant knew of the occurrence long before the close of the trial and he did not object to the juror. One who consents to an act is not wronged by it. Code, § 7249. Acquiesence in an error takes away the right of objecting to it. Code, § 7250. No one can take advantage of his own wrong. Code, § 7251. No one should suffer by the act of another. Code, § 7254.
Judgment affirmed.
Grace, C. J., and Birdzell, J., concur,
Christianson, J. (concurring specially). I concur in an affirmance of the judgment and of the order denying a new trial.
Appellant contends that the judgment and order should be reversed, and a new trial awarded him on account of: (1) Misconduct of the jury; and (2) erroneous instructions.
The only basis for the first ground are affidavits made by jurors and an affidavit of defendant’s counsel as to statements alleged to have been made to him by a juror. There is no contention that one or more of the jurors were induced to assent to the verdict by a resort to the determination of chance, and under our statute it is only in such case that the verdict of a juror may be impeached by the affidavit of jurors. See subdivision 2, § 7660, C. L. 1913. Not only does that seem to be the plain meaning of our statute, but that was the interpretation placed thereon by this court in Johnson v. Seel 26 N. D. 299, 144 N. W. 237.
In this case defendant made a motion for a new trial. In such motion no complaint was made of the court’s instruction to the jury. In other words, error in the instructions was not assigned as a ground for a new trial. This being so, the error, if any will be deemed waived, and cannot be asserted in this court. State v. Glass, 29 N. D. 620, 151 N. W. 229.
While I believe that the two decisions cited above are determinative of the questions raised on this appeal, I deem it proper to say that, upon
