term of one year, from September 7, 1871, to the firm of Howard & Carpenter, composed of John R. Howard and Ira M. Carpenter. Thereupon the firm went into possession, and performed all the covenants and conditions to be performed on their part. Pursuant to one of its provisions the lease was renewel for an additional term of four years, and under the renewal the lessees continued in possession, and fully performed on their part, except as hereinafter stated.

On November 1, 1873, Moore, the lessor, conveyed the demised premises to the plaintiff and transferred to him all his rights in and under the lease. At the time of the execution of the lease there was a two-story building upon the demised premises, the second story of which was used as a tin shop, access to which was had by an outside flight of stairs upon the demised premises, and on the south side of the building. This flight of stairs furnished the only public means of access to the tin shop. In addition to the site of the building mentioned, the lease demised another portion of the lot upon which the building was situated, which portion was well adapted as a place of deposit for bulky goods, such as agricultural machinery.

In the latter part of September, 1875, the plaintiff entered upon this portion of the lot, and during October following removed the stairs and there erected a building which he has ever since occupied as a bank. At the same time plaintiff put up a flight of stairs at the rear of the building, so as to afford access to the second story and to the tin shops, and subsequently, at the request of one of the defendants, cut a doorway in the rear part of the first story of the building and put in a door so as to afford the lessees more convenient access to the stairs which he had erected.

Previous to plaintiff's entry upon the above-mentioned portion of lot 7, he informed Howard (of the firm of Howard & Carpenter) of his desire to make such entry, and to make th erection and improvements aforesaid, promising Howard that if he would consent to the same he would obtain for him another lot upon which to store and deposit goods or agricultural machinery, in case he desired him to do so. Howard made no objection then or at any other time to plaintiff's acts or proceedings in the matter, but permitted him to go on with his entry and improvements, and by his ward's) conduct led the plaintiff to believe that it was entirely satisfactory to him.

Ön November 8, 1875, Howard & Carpenter assigned all

their rights under the lease to John R. Howard, who retained possession of the demised premises, except as above stated, until January 27, 1876. On that day, and after the plaintiff had made the entry and all the erections and improvements aforesaid, Howard assigned all his rights under the lease to the defendants. They thereupon entered into possession of the demised premises, except the portion entered upon by plaintiff, as aforesaid, and occupied, and used the same under the lease from said twenty-seventh day of January up to September 7, 1876, inclusive, when they surrendered possession to the plaintiff. Defendant paid the rents reserved in the lease which accrued up to March 7, 1876.

The last payment was made by them on March 9, 1876, and they have paid no rent for their use and occupation of the premises since March 7, 1876. No dissatisfaction was ever expressed to plaintiff on account of his entry and improvements until April, 1876, and then by the defendants only, and no damages were claimed before that time on account thereof.

Upon the state of facts summarized above, the court below found as conclusions of law: First, that the acts and conduct of the lessees were equivalent to consent to the plaintiff's entry and improvements aforesaid; second, that the plaintiff was entitled to judgment against the defendants for rent according to the terms of the lease at the rate of $50 per month, for the six months between March 7 and September 7, 1876, with interest.

We have no doubt of the correctness of these conclusions. The first, however, does not go as far as the findings of fact would have justified the court in going, nor as far as it ought to go. We are of opinion that the facts found by the court make out a case of a surrender to the plaintiff, by operation of law, of that part of the demised premises entered upon and occupied by him as aforesaid.

The case appears to us fully to fall within the doctrine laid down by Baron Parke in Lyon v. Reed, 13 Meeson & Welsby, 285, a case cited and applied by this court in Nelson v. Thompson, 23 Minn. 508. In considering what is meant by a surrender by operation of law, Baron Parke says: "That term is applied to cases where the owner of a particular estate has been a party to some act the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist, There the law treats the doing of such act as amounting to a surrender. Thus, if lessee for years accept a new lease from

his lessor, he is estopped from saying that his lessor had not power to make the new lease; and as the lessor could not do this until the prior lease had been surrendered, the law says that the acceptance of such new lease is of itself a surrender of the power."

After giving some other instances, he adds: "It is needless to multiply examples; all the old cases will be found to depend on the principle to which we have adverted, namely, an act done by or to the owner of a particular estate, the validity of which he is estoppel from disputing, and which could not have been done if the particular estate continued to exist."

Now it is found in effect that the plaintiff's entry upon and occupation and improvement of the before-mentioned portion of the demised premises was with the knowledge and assent of the then lessees (Howard & Carpenter.) The plaintiff could not lawfully have inade the entry and improvements, or have gone into and continued the occupation, if, as respected the portion so entered upon and occupied, the leasehold estate continued to exist. The validity of the plaintiff's entry and occupation the lessees were therefore estopped to dispute. The plaintiff acted and made expenditures upon the basis of the assent of the lessees, and to permit then to repudiate their assent would prejudice the plaintiff and make a fraud upon him. See Pence v. Arbuckle, 22 Minn, 417.

As respects the then lessees, Howard & Carpenter, we think the facts found clearly show a surrender of that portion of the demised premises entered upon by the plaintiff. Howard was one of the firm of Howard & Carpenter, and through the firm's assignment to him he succeeded to the firm's rights only. By Howard's assignment to the defendants, made after the plaintiff's entry and improvements, and during his occupation, the defendants acquired no more rights than Howard had, and the surrender was as effectual and operative as against them as against Howard or Howard & Carpenter. This disposes of the defendants' position that the plaintiff cannot recover the rent reserved in the lease because he has evicted the defendants from a portion of the demised premises. There has been a surrender of a portion of the demised premises by operation of law, and this satisfies the requirement of the statute found in chapter 41, § 10, Gen. Stat. 1878.

It is further claimed by the defendants that the plaintiff is not entitled to recover the entire rent reserved because they

are deprived of the enjoyment of a portion of the demised. premises. If it were found that on account of this deprivation, taking all the accompanying facts and the circumstances into consideration, the value of the use of the demised premises was impaired, it is possible that this point might present some difficulty. But it is not so found, and there is, therefore, no ground upon which the rent can be reduced.

It is urged that the court below erred in not distinctly and specifically finding upon the question, whether and how much the rental value of the demised premises was diminished by the deprivation spoken of. The answer to this is that, if the finding were defective in these respects, the court below should have been moved to perfect it. Otherwise, any such objection to it is taken as waived. These are all the points which appear to us to require special consideration, and the result is that the judgment is affirmed.

THE STATE OF MINNESOTA, Plaintiff, vs. RICHARD M.
JOHNSON, Defendant.

Filed December 30, 1879.

The courts of this state cannot take judicial notice of the proper orthography or pronunciation of names in the Polish language.

Certified from district court, Swift county.

James Hodgson and J. G. Stewart, for the state. W. W. Erwin and W. A. Foland, for respondent. BERRY, J. The defendant was indicted for a rape cominitted upon a person called in the indictment Mary Kurkwiski. Upon the trial the evidence showed that the name of the person upon whom the offence was committed was pronounced as if written Kurkowski. The jury found the defendant guilty as charged in the indictment.

A motion for arrest of judgment was made, upon the ground of variance between the evidence and the indictment, as respected the name of the party injured. Without stopping to inquire whether, strictly speaking, this was a proper way in which to raise the objection, we are of opinion that the motion was well denied upon the merits. It appears that the name is a Polish one. There is no evidence tending to show that, though pronounced Kurkowski, it is not properly spelled Kurkwiski.

The courts of this state cannot take judicial notice of the

proper orthography or pronunciation of names in the Polish language. There was, therefore, nothing before the court below, nor is there anything before this court, tending to show that there was any variance between the evidence and the indictment in the respect contended for.

FRED. H. MCINTOSH, Appellant, rs. E. LYTLE, Respondent. Filed January 3, 1889.

A writing in this form"$200.

ST. PAUL, MINN., January 22, 1879), D. & Co., BANKERS: Pay to the order of, on sight, two hundred dollars in current funds.

E. L."

is not a check, because no payee is indicated by it, and no action on it can be maintained against the drawer on its non-payment.

Appeal from judgment district court, county of Ramsey. Lamprey & James, for appellants.

Gilman & Clough, for respondents.

GILFILLAN, C. J. Action on a writing as follows:

*$200.

ST. PAUL, MINN., January 22, 1879. "DAWSON & Co. BANKERS: Pay to the order of, on sight, $200 in current funds.

E. LYTLE.' When presented to Dawson & Co. they refused payment, having been instructed so to do by the defendant.

A check must name or indicate a payee. Checks drawn payable to an impersonal payce, to "bills payable" or order, or to a number, or order, are held to be payable to bearer, on the ground that the use of the words "or order" indicate an intention that the paper shall be negotiable; and the mention of an impersonal payee, rendering an indorsement by the payee impossible, indicates an intention that it shall be negotiable without indorsement; that is, that it shall be payable to bearer. So when a bill, note or check is made payable to a blank or order, and actually delivered to take effect as commercial paper, the person to whom delivered may insert his name in the blank space as payee, and a bona fide holder may then recover on it.

This case differs essentially from the one at bar. In the latter case the person to whom delivered is presumed, in favor of a bona fide holder, to have had authority to insert a name as payee. In the former cases the instrument is, when it passes from the hands of the maker, complete, in just the form the parties intend. But in this case there is neither a blank space