Volume 1 — Montana Reports

<p> Appeal from the District Court of the Second District, Deer Lodge County. </p> <p>Thomas applied to the district court of the second district for a peremptory writ of mandate on April 18,1868, to compel Smith, the treasurer of Deer Lodge county, to pay a certain warrant. After the answer and replication had been filed the following order was made by the court:</p> <p>“ April Term, 1868; May 12, 1868.</p> <p>“W. W. Dixon, Esq., an attorney at law, is hereby appointed referee in the application of J. M. Thomas for a writ of mandamus against Addison Smith, treasurer of Deer Lodge county, to report both the facts and the law in the case; to make his report in twenty days.</p> <p>“ May 12,1868.</p> <p>“L. P. Williston, Judge.”</p> <p>The referee made his report on May 30, 1868, in favor of Thomas.</p> <p>On February 22,1868, the board of county commissioners of Deer Lodge county passed the following order, which is referred to in the opinion of the court:</p> <p>“It is hereby further ordered by the board of county commissioners that the treasurer shall not pay any moneys out of the county treasury, for the purpose of paying off any unpaid county warrants that may have been issued prior to the first day of February, 1868; neither shall he take in payment of taxes or licenses any warrant that may have been issued previous to the date above named.</p> <p>“ February 22, 1868.</p> <p>“Gr. J. Luoas,</p> <p>“ Chairman Board County Commissioners.”</p> <p>At the June term, 1868, the court, Williston, J., set aside the report of the referee, and Thomas appealed.</p> <p>The facts are fully stated in the opinion.</p> <p>Appellant presented his warrant to the treasurer of Deer Lodge county for payment on May 9, 1866, and April 17, 1868. On the last day the treasurer had moneys in his hands sufficient to pay appellant’s warrant and refused to pay it. Appellant presented his warrant under section 8, page 518, act 1865, and registered it under sections 2 and 3 of the act of 1867, page 59, approved November 19, 1867.</p> <p>The first question is, the proper construction of the act approved November 22, 1867, page 234, providing for the bonding of county warrants. Appellant contends that this act only authorizes the county commissioners to call in the outstanding indebtedness, and to fund or bond so much of said indebtedness as may be presented to the treasurer of the county for that purpose by the holders thereof. The holders of the warrants cannot be compelled to bond or fund them. The county commissioners cannot prohibit the treasurer from paying any warrants. This act is not repugnant to the acts of February 9, 1865, and November 19, 1867, cited above. These acts relating to the same subject-matter must be construed together.</p> <p>Eepeals by implication are not favored by law. Sedg. Stat. and Const. Law, 127 et seq.; 5 Abb. N. Y. Dig. 93, §§ 199, 200, 201 and 202.</p> <p>„ If these acts can subsist together the courts will uphold the prior law. Sedg. Stat. and Const. Law, 127 et seq., 247; Merrill v. Gorham, 6 Cal. 41.</p> <p>The intention of the legislature is to be searched for in the words of the statute. Sedg. Stat. and Const. Law, 243 et seq.; 5 Abb. N. Y. Dig. 79, § 31.</p> <p>The law under which appellant presented his warrant formed part of the contract between him and the county. His right to receive payment became vested when he complied with the law. The legislature cannot by any subsequent act impair-its obligation by requiring other conditions to be performed, which were not required by the law of the contract itself. Robinson v. Magee, 9 Cal. 81.</p> <p>The previous acts of the legislature, providing that appellant’ s warrant should be paid in the order of its presentation or registry, appropriated the county funds to that purpose. The county commissioners cannot change this order of payment. Laforge v. Magee, 6 Cal. 285.</p> <p>The act of November 22,1867, authorizing the funding of county indebtedness, is unconstitutional and void. It delegates to the county commissioners legislative powers. 17 Mo. 530.</p> <p>The order , of the county commissioners, forbidding the treasurer to pay warrants issued prior to February 1, 1868, is void. It is an exercise of legislative power. It repeals and annuls the acts of the legislature. No such power is conferred upon the commissioners by any statute.</p> <p>The act of November 22,1867, and the orders of the county commissioners thereunder, impair the obligation of the contract between the county and the holders of warrants. Robinson v. Maqee, 9 Cal. 81; Laforqe V. Maqee, 6 id. 285, 650; 17 Mo. 530.</p> <p>What is termed the policy of the government, with regard to any particular legislation, is generally a very uncertain thing. Sedg. Stat. and Const. Law, 308; Hadden v. The Collector, 5 Wall. 111.</p> <p>The decision of the court below in setting aside the report of the 'referee is correct. It is clearly settled that it is not necessary to the repeal of a law that it should be done in terms, nor that one law should be directly repugnant to the other. 1 Kent’s Com. 462; Pierpont v. Cranch, 10 Cal. 316 ; Sacramento v. Bird, 15 id. 295; Appeal of N. B. & M. R. R. Co., 32 id. 515.</p> <p>The intention of the legislature, when it can be ascertained, must govern in the construction of statutes. That intention must be gathered from the act itself. Sedg. Stat. and Const. Law, 229-284, 293-298; Schofield v. White, 7 Cal. 400; Smith Stat. and Const. Law, 649; Knowles v. Teates, 31 Cal. 86.</p> <p>Where there are two statutes of different dates upon the same subject, and full force and effect cannot be given to both, the latter operates as a repeal of, and destroys the force and effect of the former. Whenever a power is given by statute, every thing necessary to attain the end is implied. 1 Kent’s Com. 524.</p> <p>The act of November 22, 1867, gives the commissioners the authority to call in all indebtedness. Webster defines authority to be legal power, or a right to command or to act, as the authority of a prince over subjects, etc. The intention of the legislature in making the law of November 22, 1867, was to prescribe the only mode of payment. It not only gives the authority referred to, but further provides that all bonds shall draw interest and be paid in seven years. The creditors are compensated for the delay in enforcing their remedy. It cannot be that it was only intended to empower the commissioners to fund or not, at the pleasure of the sorip holder. If so, they would have been allowed to bond on the best terms they could. They must pay fifteen per cent per annum interest. Appellant’s construction would simply give commissioners the power to compromise the county indebtedness and borrow money, which they can do under the acts of 1865, page 500, section 14. Section 8 of the acts of 1865, page 518, is in conflict with sections 3 and 6 of acts of 1867, . page 234.</p> <p>There was no necessity for a repealing clause as the bonding act was ineffectual until acted upon by the county commissioners. The commissioners have ordered the bonding of the county warrants under the law, and declared that they will only pay by bonding, which renders the law effectual. The subject of this action is included in the warrants thus ordered bonded.</p> <p>To sustain both acts, as contended for by appellant, would virtually render the last of no effect whatever. A statute should never be so construed as to render it a nullity. Smith Stat. and Const. Law, §§ 671, 672.</p> <p>Remedial statutes should be largely and liberally construed. Smith Stat. and Const. Law, §§ 547, 709, 710.</p> <p>The legislature has the right to alter the remedy, if it does not thereby impair the right and make the remedy hardly worth pursuing. Smith v. Morse, 2 Cal. 549. The legislature may fund the debt of a county. Huns acker v. Borden, 5 Cal. 288; Chapman v. Morris, 28 id. 394.</p> <p>The record shows that appellant’s right never became vested.</p> <p>The legislature did not delegate legislative power to the county commissioners in leaving it discretionary with them to fund the county indebtedness. Blanding v. Burr, 13 Cal. 358; Chapman v. Morris, 28 id. 394.</p> <p>County commissioners understand the wants of their county better than the legislature. The action of the commissioners was not legislative in its character, but simply ministerial. They complied strictly with the funding act. Upham v. Supervisors Sutter County, 8 Cal. 378 ; Emery v. San Francisco Qas Co., 28 id. 348.</p> <p>Any one interested could have compelled the commissioners to fund if they had refused. City of New York v. Furze, 3 Hill, 612.</p>

<p> Appeal from the District Court of the Third District, Lewis and Clarice County. </p> <p>Langford applied to the district court of the third district on August 5, 1868, for a writ of mandate to require King, as county treasurer of Lewis and Clarke county, to accept a territorial warrant in payment of taxes due from Langford. The warrant was duly drawn and issued in fayor of Green 0. Smith, and presented for payment on July 17, 1867. Smith sold the warrant for a valuable consideration to Langford, who tendered it, in part payment of his taxes, to King on July 11, 1868. King refused to receive the warrant, because it was not issued in the name of Langford, according to the act approved November 19,1867, £< defining the duties of county treasurers, and the payment of county warrants.” Langford then applied for the writ of mandate, which was issued in the alternative on August 15, 1868, by the court, Munson, J., who made the following order in chambers: «</p> <p>£ £ This case having been submitted to me for a ruling, under stipulation that the same be taken to the supreme court for final decision, without giving the subject that full consideration its importance demands, and for the purpose of raising the question for the consideration of the supreme court, I do hereby make a ruling in favor of the plaintiff and against the defendant, and, therefore, adjudge that the defendant receive said warrant for said taxes due from the plaintiff, as in said complaint specified.”</p> <p>The parties stipulated in writing that no peremptory writ of mandate should be issued until the final decision of the supreme court had been rendered.</p> <p>The statutes relating to the subject of the action, and further facts, appear in the opinion.</p> <p>The purpose and manner of issuing territorial warrants, as well as the mode, manner and order of payment of the same, are strictly within the control of the territorial legislature.</p> <p>The legislature has a right to provide means for defraying the expenses of the territorial government. It must necessarily provide laws for levying and collecting taxes. Hence follows the authority to prescribe in what the taxes shall be paid, money, warrants or both.</p> <p>The act approved November 19,1867, does not impair the obligation of contracts. The contract made between the Territory, and the holder of the warrant tendered, was that lie should have $10 paid by the territorial treasurer out of any money in the treasury, not otherwise appropriated. This contract is not impaired by that act. He is required to pay his taxes in money when they become due, but his right to receive the money on his warrant is not affected. One use to which the warrant might have been applied has been destroyed by the act.</p> <p>The appellant properly refused to receive the warrant tendered by respondent, as it was issued to Grreen C. Smith, and assigned by him to respondent.</p> <p>Const. U. S., art. 1, § 10. No State shall pass any bill of attainder, ex post f acto law, or law impairing the obligation of contracts. If a State cannot do it, much less can a Territory. This law applies to all contracts between the State and individuals. 1 Kent’s Com. 462.</p> <p>All effectual remedies affecting the interests and rights of owners, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor’s rights, and ought not to be disturbed. All suspension by statute of remedies, or any part thereof existing when the contract was made, is more or less impairing its obligation, tion. 1 Kent’s Com. 461-2.</p> <p>What is the contract contained in this warrant under the law existing at the time it was issued ? It is negotiable. The indorsee has all the remedies of original payee. Section 14, page 57, and section 1, page 59, of the act of 1867, do not apply to warrants issued prior to November 1, 1867, or they are unconstitutional.</p> <p>The warrant is in the form authorized by law, and is receivable for full amount of taxes payable into territorial treasury. Acts 1865, pp. 408 and 422, § 35; also, p. 528, § 16.</p> <p>County treasurers are collectors of taxes and licenses due the Territory. Act 1865, p. 421, §§ 34, 35; act 1867, pp. 45, 240.</p> <p>The holders of such warrants are deprived of all remedy. Act 1867, pp. 53, 57, 59.</p>

The parties stipulated in writing that this cause should be heard on appeal on the original papers. The appellants appealed from the judgment of the district court, Hosmer, J., affirming the report of the referee in favor of Hutchinson. The facts are contained in the opinion.

Drennan was tried in May, 1868, in the second district, upon an indictment for an assault with intent to inflict upon Patrick Dalton a bodily injury. He was convicted in the district court, Williston, J., to whose rulings, upon the admission of evidence, the defendant filed exceptions, which are contained in the opinion of the court.

Appeal.from the First District, Madison County. Christnot commenced this, action against the defendant, a foreign corporation, to recover for services performed by him under a contract made with its managing agent in Montana, and have the same adjudged a lien upon the quartz mill of defendant. The defendant admitted that the amount sued for was due, but denied that plaintiff was entitled to a lien as a mechanic upon its property.

Mabden commenced tMs action in May, 1867, against the defendants upon two promissory notes made by them to plaintiff. After the answer and replication had been filed, the defendants filed an “additional answer” on June 13, 1868, and alleged that Gr. W. Morse had commenced a suit against Marden on that day, and garnished the defendants as the debtors of Marden.

Cope commenced this action in February, 1868, to recover for services performed and goods sold and delivered. The complaint contained the following verification and affidavit of the respondent: “'George F. Cope, plaintiff in tire above suit, makes oatli and says, the facts as stated in the foregoing complaint have been read to Mm, and that he knows of his own knowledge they are as stated therein true.

Brown commenced this action in December, 1867, for services in erecting a quartz mill for defendant, and to enforce his lien as a mechanic therefor. The sheriff served the summons upon Hodman Carter and made Ms return, wMch is stated in the opinion of the court.

The facts in this case are substantially the same as those in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57. The pleadings, motions and orders of the court, Munson, J., are the same. This case was argued at the same time with that of Brown against same defendant, and the arguments are given in the report of that case.

Griffith and Thompson commenced this action to foreclose a mortgage executed by Hermann & Star, to secure the payment of a number of ounces of gold dust. The suit was brought in the district court in Jefferson county, on June 18, 1867, which was then attached to Edgerton county for judicial purposes. The name of Edgerton county was changed to Lewis and Clarke county by an act of the legislature, approved December 20, 1867.

This action was commenced by Conner and O’Neal in September, 1865, in the district court.

Anderson brought this suit in May, 1867, in the justices’ court of Deer Lodge county, Newcomer, J., to recover the possession of a horse of the value of $80. The cause was appealed and tried in the district court in July, 1867.

MoElroy was indicted in September, 1868, by tbe grand jury of Deer Lodge county.

<p> Appeal from the Second District, Deer Lodge County. </p> <p>This was an action on a promissory note commenced by Loeb in the district court. The complaint was filed and summons was issued on July 25, 1867. The names of the parties on the complaint were “Leon Loeb v. Jacob Smith & Co., and Joseph Holzbauer et a,ID The summons contained a notification to “Jacob Smith & Co. and Joseph Holtzbauer, Henry Apple.” The sheriff made the following return.-: “ Served the within by reading to Henry Apple, on 1st day of October, A. D. 1867, on Bear gulch, Territory and county within mentioned.” Judgment by default was rendered at the October term, 1867, against “ Jacob Smith & Oo. and Jos. Holtsbor et aV for $907.</p> <p>On September 10, 1868, a new complaint, for the same cause of action, was filed by Loeb against eight defendants, who were separately named, and included “Henry Appel.” This complaint alleged that the defendants were partners at the time the note was made, under the firm and style of “Jacob Schmith & Co.” The summons, which contained the names of these defendants, including “Henry Appel,” was issued on the same day. The sheriff’s return showed that personal service had been made upon “Henry Apple,” on September 12,1868, by reading the summons, and delivering a true copy of the same and a certified copy of the complaint. On September 23, 1868, judgment by default was rendered in the district court for $1,427.57, against all the defendants, and also “against the separate property of the said defendant, Henry Apple.” On the same day the defendant, “Apple,” filed a demurrer to the complaint, and also a motion to set. aside the judgment against him. On October 2, 1868, the affidavit of ft. H. Williams, Esff., the attorney of “Eppel,” was filed in support of this motion, and stated the following facts: That he wrote the demurrer In good faith, and forwarded it to be filed from Beartown (so-called); that he made a special agreement with the -express agent (no United States mail being then established between Deer Lodge City and Beartown) to carry through ■and deliver the letter containing the demurrer; that three ■days of the statutory time to answer were yet to expire when the letter was expressed; that only one day is necessary to carry mail matter from Beartown, where the summons was served, to Deer Lodge City; and that through the delay of the express agent, and without any fault of “ Eppel,” the letter was not delivered until one day after the time for answering had expired.</p> <p>That Appel had never been a member of the firm described in the complaint; that judgment had been obtained at the October term, 1867, on the note sued upon; that said judgment was still valid, and no new cause of action had accrued; and that affiant had written to Eppel to be in court at 10 A. M. of October 2, 1868, and placed the letter post-paid in the TJ. S. post-office of Deer Lodge City four days ago, but had received no answer, and, therefore, affiant made this affidavit.</p> <p>No other affidavits were filed.</p> <p>The note was as follows :</p> <p>“ 604.50. One day hafter dayt we promise to pay to L. Loeb, or bearer, the sum of six hundred and four dollars 50c., for value received, whit interest from date at 5# per each month.</p> <p>Bear Town, June 30,1866.</p> <p>Mr. Loeb will stamp this if stamps are had.</p> <p>Jacob Schmith Co.,</p> <p>Joseph Holzbauer.”</p> <p>Jacob Schmith Co.,</p> <p>Joseph Holzbauer.</p> <p>f Internal Revenue, l ( 50 cts., canceled. J</p> <p>The court, Knowles, J., set aside the judgment on October 8, 1868, and allowed the defendants till 2 o’clock p. M. to answer, on the payment of all costs. The plaintiff excepted.</p> <p>The court abused its discretion in setting aside the default. The affidavit on which the order was based was insufficient, and made by an improper party; and there was no answer with the affidavit. Bailey v. Taafe, 29 Cal. 422. Apple should have made the affidavit instead of Williams, his attorney. Apple used no diligence to appear within the statutory time. The sending of a frivolous demurrer by express, instead of an answer to parties, not known to the record, is not diligence. The affidavit must show that the default was the result of mistake, surprise, inadvertence or excusable neglect. Prac. Act 1867,146, § 68 ; Harlan v. Smith, 6 Cal. 173; People v. O' Oonnell, 23 id. 281.</p> <p>Every fact necessary to be shown to authorize the court to set aside the default must be shown by the affidavit of a person, who could testify upon the trial of the cause to the facts. Williams’ knowledge is derived from the statements of others, and is not competent proof by affidavit to establish the connection of Apple with “ Schmith & Co.” Williams’ affidavit is inconsistent. It shows that Apple was not a party to the note sued upon, and that a former judgment against Apple is in force, without any new cause of action accruing.</p> <p>There should have been an answer with the affidavit, as the complaint was verified, and there was nothing from Apple under oath to indicate that he had a defense. See authorities cited above.</p>

In January, 1868, Carpenter filed Ms affidavit, and applied for a peremptory writ of mandate. After a hearing at chambers, the court, Hosmeb, J., issued the writ in accordance with the application, and Rodgers appealed. The facts appear in the opinion. The first legislature created the office of superintendent of public instruction. Acts 1865, 438. The law fixing the salary was passed by the second legislature on April 10, 1866. Acts 1866, 17.

This case came before the court at the August term, 1870, and the facts are contained in the report on page . In October, 1867, Wilson brought this action in the first district in Gallatin county. After a hearing at chambers, the court, Hosmer, J., appointed a receiver to take charge of the property in controversy, and issued an order restraining some of the defendants from interfering with the same. The other facts appear in the opinion.

In December, 1867, Kleinschmidt commenced this action upon certain drafts in the district court. In February, 1868, an amended complaint was filed and an alias summons was issued, which was returned by the officer as personally served. On March 2,1868, the defendant appeared specially, and moved to quash the alias summons, and the return of service indorsed upon it. This motion was sustained by the court on March 9, 1868.

This action was brought by Godbe in October, 1866, in the county of Edgerton (now .Lewis and Clarke), to recover the amount due on a contract executed May 31, 1866, by Godbe and McCormick. The place of trial was afterward changed to the county of Madison. On December 2, 1867, during a term of the district court, the defendant filed a motion for a change of the venue of the action. The motion was overruled.

This action was commenced in the district court in November, 1868, by Caruthers and others against Pemberton and others. The plaintiffs owned a water-ditch, known as the De Long ditch, which diverted the waters of Gold creek in Deer Lodge county prior to September 1, 1868.

behalf of himself and other judgment creditors of B. Morse, surviving partner of the late firm of E. & B. Morse, against said B. Morse and Dunphy, in the district court in Gallatin county.

Bautz and Horskey commenced this action to recover $1,000, money had and received on an agreement. The court, Warren, J., sustained Kuhworth’s demurrer to the complaint and rendered j udgment for defendant. The plaintiffs appealed. The facts appear in the opinion. The complaint states facts sufficient to constitute a cause of action, and the court erred in sustaining the demurrer thereto. Hilliard on Vendors, 73 et seq. ; Sto. on Sales, §§ 423, 424, 448 ; 1 Sto.

On April 28, 1868, Grant commenced this action in the district court against three defendants, on the following instrument: “ $700 Gold. Virginia City, M. T., October 1,1867. On the 1st day of March, 1868,. for value received, I promise to pay Spencer, Harrison & Co., or order, the sum of $700 in good gold dust or United States currency, at current rates, with, interest from date until paid, at the rate of five (5) per cent per month.

J. M. Clarkson recovered a judgment for $5,000 against Wells, Fargo & Co., in the district court in and for Lewis and Clarke county, in July, 1868. In December, 1867, Wells, Fargo & Co. brought an action in the same court against Clarkson, Norman & Drake, partners, and doing business under the style of Drake, Clarkson & Co., to recover a partnership debt.

In Angnst, 1869, W. S. and C. M. Travis commenced tlds action to obtain tbe possession of a “red roan” horse. The court, Symes, J., sustained the plaintiff’s demurrer to the answer, and defendant appealed. The pleadings and facts appear in the opinion. The statute of the Territory, concerning chattel mortgages, which is referred to in the opinion, is as follows: “ Section 1.

Loeb and another brought this action to recover $8,000 as damages, and obtained a verdict for $700. The. plaintiffs then moved for a judgment for $3,000 non obstante neredicto. The motion was overruled by the court, Stmes, J., and the plaintiffs appealed. The opinion contains the facts. The complaint alleged fraud on the part of respondents, and damages in the sum of $3,000. The answer denied fraud, but did not deny the allegations of the complaint as to the damages.

This action was tried in the district court in Lewis and Clarke county, in April, 1870, and the jury returned a verdict for McCormick for $5,843.75, on which the court entered judgment. During the trial the defendants offered in evidence the depositions of S. B. Rice and L. S. Wild. The plaintiff moved to suppress the portions of the same that were taken in narrative form. The defendants also offered in evidence the deposition of S. A. Willey.

On December 4, 1869, Morgan and Embody commenced this action to recover the possession of two mules and harness, or the value thereof, and “$5 for each day the same were detained,” and $100 further damages. In April, 1870, the jury rendered a verdict for plaintiffs for the delivery of the property valued at $200, and also $204 damages. Reynolds obtained possession of the property on November 30, 1869.

In this action, Thorp and Woolman filed their agreed statement of facts in the district court for Lewis and Clarke county, on March 14, 1870. The attorneys of the parties also filed a stipulation “that the above agreed statement is made with reference to the settled customs and usages of Montana Territory, of which we desire that the court shall take judicial notice.” On June 10, 1870, the court, Symes, J., signed a decree in favor of Thorp, and Woolman appealed.

On June 25, 1869, Gerber commenced this action against Saunders and Stuart, upon a promissory noie. Stuart filed a separate answer on July 12,1869. On motion of the plaintiff, the court, Warren, J., struck out parts of this answer. On July 16,1869, Stuart filed his amended answer. On motion of the plaintiff, the court ordered parts of the same to be struck out. On July 19, 1869, Stuart filed his second amended answer.

Febes, aud others, commenced this action in July, 1870, in the district court, to enjoin Tiernan and another from injuring their water ditch, and recover $2,500 damages for injuring said ditch, and diverting the water therefrom. The jury returned a general verdict for $200 for plaintiffs, and certain special findings.

This case was before tbis court at tbe December term, 1868, and is reported, ante, p. 98.

This action was tried by a jury in the district court, in May, 1869, and nine of the jury returned a verdict for plaintiff, for $800. Three jurymen dissented. The court, Waeren, J., entered judgment on the verdict, and defendants appealed. The decision upon one exception renders unnecessary a statement of the facts.

Ten persons, who described themselves individually and as doing business under the style of the Comanche Mining Company, commenced this action on February 25, 1868, against “C. Rumley, Louis Bugher, Peter Rea, H. Comly and other parties unknown to these plaintiffs, who are doing mining business under the firm name and style of the Rumley and Bugher Mining Company,” in the district court for Beer Lodge county.

Dahlee commenced this action on February 1, 1870, in the district court, against Steele, who was then the sheriff of Lewis and Clarke county, to recover the possession of certain personal property valued at $4,750, and also $500 damages for its wrongful detention. The affidavit and undertaking required by law were filed, to enable the officer to take the property from Steele.

Davis filed his amended complaint in tlie district court, on October 13, 1869, and demanded judgment against Germaine for $5,000, and interest for money loaned and advanced under a contract. The complaint alleged that the times, when this money was to be loaned and advanced under the written contract, were changed and altered at the special request of defendant.

This action was commenced in May, 1869, against Shontz and three other parties, to recover judgment for $500 damages for the diversion of water claimed by him in Washington gulch, Madison county; that defendants be perpetually enjoined from diverting the same, and for general equitable relief. The defendants answered, and prayed for a dissolution of the temporary restraining order, and that defendants be adjudged the owners of, and entitled to, the use. of the water.

This action was commenced by Lincoln and another in the district court, in April, 1869, to recover $3,000 damages, and enjoin defendants from washing down on plaintiffs’ mining claims, tailings, gravel and sand. The cause was tried at the September term, 1869, by a jury that rendered a general verdict for defendants, and, also, ten special findings. The court, Knowles, J., refused the motion for a new trial, and plaintiffs appealed. The facts are stated in the opinion.

In April, 1870, Nolan commenced this action against Lovelock, J. R. Weston and J. A. Harding, in the district court in Meagher county. The defendants demurred to the complaint, because there was a defect and misjoinder of parties defendant; the complaint did not state facts sufficient to constitute a cause of action, and the complaint was ambiguous. The demurrer was overruled by the court, Symes, J., and defendants excepted.

Higgins and Hagadorn commenced this action in February, 1870, to recover from Germaine $1,847.15, on an account for goods sold and delivered. The defendant demurred to the complaint, on the grounds that the complaint did not aver a promise to pay the amount demanded, or that this amount was the reasonable value of the property alleged to have been sold, or that this amount was the contract price therefor.

In May, 1869, King and Gillett filed their complaint against Edwards and ten others, including John Doe and Richard Roe, in the district court in Meagher county. The cause was tried by a jury in November, 1869, before Symes, J., and a verdict was returned for defendants. The facts are stated in the opinion. There was no evidence that appellants had abandoned the ground in controversy.

This action was tried by Knowles, J. The facts are stated in the opinion. The fourth ground of the demurrer to the amended complaint was as follows : “Complaint shows that there is an administrator of the estate of Greorge Carrhart, and defendants demur to misjoinder of parties, on the ground that the action should be prosecuted in the name of the administrator alone.” The arguments of counsel upon questions that are not decided by the court are not reported.

The facts are stated in the opinion. The judgment was rendered by Warren, J. The governor cannot fill the office of territorial auditor by appointment, after he has exercised the appointing power in the first instance, under section 7 of the organic act. The expression of one thing is the exclusion of all others. The organic act provides the manner of filling the office and defines the powers of the executive. Smith’s Const.

This action was tried by Svmes, J., at the April term, 1870, and a decree was made in favor of Mason ei al., plain tiffs. The facts appear in the opinion. The court erred in refusing to consolidate and require all the parties to litigate their rights in one action. Acts 1865, §§11,12, 18. The allegations of the complaint will not support the prayer thereof. Civ. Prac. Act, § 39; 1 Edw. Ch. 654 ; 1 TJ. S. Eq. Dig. 278, 280, 281, 292.

Murphy commenced this action against T. P. and J. A. Ames, in the probate court of Lewis and Clarke county, in April, 1868, to recover $231. A summons was issued under the hand and seal of M. F. Trnett, probate judge. The defendants then appeared, specially, for the purpose of making a motion to dismiss the action and quash the summons, because there was no legal summons issued under the seal of the court, and signed by the clerk thereof.

The facts appear in the opinion of the court. Shober & Lowry, W. F. Sanders and Chumasero & Chadwick; for motion for a remittitur. The bond required by the last clause of the judiciary act must be sufficient to secure the whole judgment in case it should be affirmed, if the writ of error operates as a supersedeas. 1 U. S. Stats, at Large, 84, 404; Catlett v. Brodie, 9 Wheat. 553 ; Stafford v. Union Bank of Louisiana, 16 How. 135.

The arguments of counsel and statement of facts are not reported, because the court did not review them. The cause was tried in the district court before Symes, J.

The facts are stated in the opinion of the conrt. The judgment appealed from was rendered in the district court, in August, 1870, by Symes, J. It is admitted by the pleadings that respondents were insolvent. The jury found that the erection of the dam higher, as complained of by appellant and -threatened by respondents, would interfere with the profitable use and enjoyment of appellant’s mining ground.

The facts are contained in the opinion. The action was tried in April, 1870, in the district court, before Symes, J. The decree of the court below was not justified by the evidence or special findings of the jury. The testimony shows that the water flowing from the springs was diminished in quantity almost one-third, and lacked only ten inches of furnishing respondent with all the water he was entitled to by the findings of the jury.

The facts aré stated in the opinion. The complaint alleged “that, on tbe 1st day of July, A. D. 1869, the said defendants were copartners, doing business at the town of Helena, county and Territory aforesaid, under the firm name of B. C. Kintzing & Co.; that, on the day and year aforesaid, the said defendants, copartners as aforesaid, were indebted unto this plaintiff in the sum of $4,384.89, balance due for money lent and advanced by plaintiff to the defendants, and for…

The facts are stated in the opinion. The judgment was rendered in the district court, at the July term, 1870, by Symes, J. The answer does not deny the allegation of the complaint, that appellant and its grantors, from March 28, 1865, to the .commencement of this action, had enjoyed the water specified.

This action was tried in the district court by Symes, J. The decision of the court renders unnecessary a report of the facts and arguments.

Stewart, and eleven other plaintiffs,' brought this action in August, 1869, against Miller and J. B. Hyde, to recover damages sustained by the granting of an injunction. The case was tried by a jury in March, 1870, and a verdict returned for plaintiffs for SI ,750.

The facts are stated in the opinion. The eighteenth section of the mining laws of the Barrette district, referred to in the opinion and… Held: unless the prior claimant has personally pre-empted the same, with the exception of three claims allowed the discoverers for their prospecting partners.” The case was tried in June, 1870, before Knowles, J. The respondents claimed under the exception, in section 18 of the laws of Barrette district, as prospecting partners of the…

The facts appear in the opinion. Judgment was rendered in August, 1870, by Warren, J. Congress has granted the appellants the right of way for the construction of then' ditch over the public domain possessed by respondent. 14 U. S. Stat. 253, § 9. The words “right of way,” are used in other statutes by congress, and are to be construed the same. 14 U. S. Stat. 94, § 1; 240, § 3 ; 290, § 6 ; 294, § 2 ; Doran v. Central P. B. Co., 24 Cal. 259.

This action was tried in October, 1869, before Symes, J. The jury found the following special findings : That Taylor and others, at the time of the commencement of the suit, did not have the exclusive right, by prior appropriation, to the water flowing from the springs in dispute ; that Taylor and others appropriated and run in their pipes about nine inches of water ; that the citizens of Helena had no other means of procuring water except these springs at the time the pipes…

Ming commenced this action against Truett, probate judge of Lewis and Clarke county, to recover $396, being treble the amount of fees that were alleged to have been illegally charged and received by said Truett, as such judge, in October, 1869. Tlie case was tried by Symes, J., who rendered a judgment for Ming.

Ktnna brought this action against Horn and Marvin, as partners, to recover for goods sold and delivered, moneys advanced and services rendered to the firm. Marvin did not appear, and Horn filed a separate answer, and denied that he and Marvin were partners, and that he was liable personally on account of the matters alleged in Kinna’s complaint. The case was tried in July, 1870, and the jury rendered a verdict for Horn.

On February 27, 1868, Bobm and Aub brought this suit against Dunphy, Bentley, Arinitage, Morse and John Doe to recover $25,000, damages. The complaint alleged that the defendants entered into the banking-house of plaintiffs in Helena on February 26, 1868, and by force and violence, willfully and wrongfully took and carried away $2,000, the property of plaintiffs, and that they detained $1,935 of said sum.

Black brought this action in May, 1870, to recover $719.50 and interest, and bave the same decreed a lien on the ‘c Walia Walia Hotel.5 ’ The lien set forth, in the .complaint was as follows: “Know all men by these presents that, under an agreement with Joseph Appolonio, the owner of the premises (description omitted by reporter), the undersigned has performed labor and furnished materials in and about (description): That said materials were furnished and labor performed…

The facts appear in the opinion and the report of the case at the January term, 1870 {ante, 148). The action was tried by the court, Symes, J. The only question presented is, the sufficiency of the diligence used by respondents to secure the possession of the mortgaged property. The statement that in Illinois a mortgagee should not delay one or two days is an illustration and not the assertion of a principle. Silence might sometimes be wiser diligence than many inquiries.

The facts appear in the opinion of the court and the dissenting opinion. The decree was rendered by Symes, J. The court erred in sustaining the demurrer to the amended answer, which set out an attachment issued and levied by respondent, Story, for Ms debt after tbe filing of tbe petition. Such a proceeding on the part of a creditor violates tbe bankrupt act. § 39 of Act; In re Princeton, 1 Bankr. Reg. 178 ; In re Coleman, 2 id. 172.

, and found guilty under an indictment drawn upon the following statute: “Any man and woman who shall live together in an open state of adultery or fornication, shall be indicted, and, on conviction, shall be fined in any sum ■* * * or imprisoned” * * * . Crim. Prac. Act, § 127; Acts 1865, 208. The facts are stated in the opinion. Only one day is named in the indictment as the day of the commission of the offense.

Simowton brought this action in April, 1870, to recover $950, and interest, and have a decree for the sale of certain premises. The case was tried in April, 1870, in the district court, Symes, J., and the jury returned a verdict for Simonton. The facts are stated in the opinion. The evidence and verdict show that respondent did not perform the conditions of the contract on his part. The court instructed the jury to find upon a quantum meruit. This was error.

Pinney commenced this action in September, 1869. The cause was tried in March, 1870, by a jury, that returned a verdict for Pinney for $1,300. The court, Symes, J., overruled the motion for a new trial. The facts appear in the opinion.

Judgment was rendered in this case in April, 1871, by Murphy, J. Tbe warrant that was tbe subject of tbe action was bought by Largey, February 16, 1869. Tbe other facts appear in tbe opinion.

This action was tried in November, 1870, before Symes, J., and the jury returned a verdict for Campbell and other plaintiffs. Metcalf made a motion for a new trial, which was overruled in May, 1871, by Wade, J. The facts appear in the opinion. There was no evidence showing any damages beyond merely nominal damages. Respondents should show that they had tried unsuccessfully to get work. They must show actual damages from enforced idleness.

Appealfrom, the Third District, Lewis and Clarice County. In March, 1871, the court, Warren, J., rendered judgment in favor of McFarland. The promissory note, set forth in the complaint, was as follows: “Fort Shaw, M. T., May 14,1870. “ On demand, we promise to pay Joseph J. McFarland, five hundred and fifty dollars for value received ($550). “CUTTER & TAYLOR.” [Stamp.] The other facts appear in the opinion.

<p>Appeal from the Third District, Meagher Qounty.</p> <p>The facts are stated in tbe opinion.</p>

This action was tried in August, 1871, and judgment was entered for McDonald, by Wade, J., on the verdict. The facts appear in the opinion. The terms, “ bills of exchange” and “promissory notes,” include every species of commercial paper. Harker v. Anderson, 21 Wend. 373; Byles on Bills, 26. The legislature intended that all the rules of commercial paper, except that relating to days of grace, should apply to the checks sued on. Acts 1865,343; Broom’s Leg. Max. 638.

McClin was tried in June, 1871, by a jury, who returned a verdict of guilty, and the court, Murehy, J., sentenced him. The other facts are stated in the opinion of the court, the remarks of Murphy, J., and the note of the reporter. Appellant was convicted upon his confession. There was no other evidence of guilt, and such a conviction could not be had. People v. Hennessey, 15 Wend. 148 ; People v. Badgley, 16 id. 53.

This case was tried by a jury, in November, 1870, and a verdict rendered for defendants. Tbe court, Warren, J., overruled the motion for a new trial, and Creighton appealed. Tbe facts appear in tbe opinion. Tbe agreement betwen appellants and respondents, Thomas and McBoberts, is not a defense in this action.

The judgment in this action was rendered in July, 1871, by Wade, J. The other facts are stated in the opinion. Persons mining on the public domain before the act of congress of July 26, 1866, were trespassers and could have no possessory rights. Yale on Water Rights, 331-334; United States v. Gear, 3 How. 120 ; Cotton v. United States, 11 id. 229.

Kemp commenced this action in October, 1871, and described himself in the complaint as “Alex. Kemp,” and the defendants as “Jno. McCormick” and “Wm. H. Taylor.” The cause of action was the following instrument: “$650. Helena, M. T., Mar. 1st, 1871. “ On the first day of June next we promise to pay Alex. Kemp or order the sum of six hundred and fifty dollars, for value received, with interest after due at the rate of two per cent per month till paid. “ JNO.

This action was beard by the court, Wade, J., in August, 1871, and judgment rendered for Reins on Ms demurrer to the complaint. The facts are stated in the opinion. This action was limited by the original statute of limitations to two years from the time the cause of action arose. Acts 1865, 467, § 8. This was amended, and the time was extended to five years. Acts 1870, 62. The statute in force at the time the action was brought governs it.

The facts are stated in tlie opinion. The decree was entered by the court, Wade, J. By the motion for a rehearing in the original case, and the continuance of the same, the jurisdiction over the cause was retained in this court. No judgment could be rendered in the court below until the motion for a rehearing had been disposed of. This is the only question involved in the case. The motion for rehearing and its continuance operated per se as a supersedeas.

This action was tried in May, 1871, by a jury, who returned a verdict for Carothers, and the court, Knowles, J., entered judgment against Connolly. The facts appear in the opinion. The statute of the Territory, relating to the action, is as follows: “In the following cases, any agreement shall be void unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party charged thereunto: First.

This action was trie^L in November, 1869, by a jury, who returned a general verdict for Isaacs, on which the court, Warren, J., rendered judgment. Isaacs was restrained by an order of the court, in a suit in which McAndrew and another were the plaintiffs, from acting as superintendent of mines under the contract set forth in the opinion, from January 7, 1868, to September, 1868.

The decree was rendered by Wade, J. The jury found eighteen special findings. The facts appear in the opinion. The parties stipulated that this cause should be “heard and determined on the merits of the decree and special findings and record without brief.”

This cause was tried in February, 1872, by a jury, that returned a verdict for Blume. Wade, J., overruled the motion for a new trial, and Davis appealed.

Judgment was rendered by Mubphy, J., in November, 1871, and tbe demurrer of Redfern to tbe complaint was sustained. Daily appealed. The facts appear in tbe opinion. Tbe only inquiry in this case is, whether facts enough to support tbe action are stated in any form. Buzzard v. Knapp, 12 How. Pr. 504; CH'aham v. Cameron, 13 id. 362. Appellant properly sued tbe respondents jointly. Barb, on Parties, 203, § 2; 2 Hill, on Torts, 292, § 9.

In August, 1871, .the court, Wade, J., entered a decree in this action. The facts are stated in the opinion. Mechanics’ liens attach from the time of the commencement of the building, and have priority over all incumbrances made thereafter. Acts 1865, 384, § 8; 1 Hill, on Real Prop. 492, § 40 ; Mason v. Germaine, ante, 263; Dubois'1 Administrators v. Witson’s Trustees, 21 Mo. 213. Appellant Sullivan is in default and had no right to appeal.

The facts in this case are the same as those in the case of MocTion v. Sullivan, ante, 470, and the same decision was made by the court.

In October, 1871, the court, Murphy, J., sustaiued the motion of King et al. for a nonsuit. Granting a nonsuit on the facts is a question of law, and may be reviewed on appeal from the judgment roll, and statement of the evidence on appeal. 3 Estee’s PL 496; Cravens v. Dewey, 13 Cal. 42; Darst v. Rush, 14 id. 82 ; Pratt v. Hull, 13 Johns. 335. A nonsuit cannot be granted when there is any evidence tending to prove plaintiff’s case.

This case was before the court in August, 1871, and is reported ante, p. 363. Wade, J\, rendered a decree in favor of Simonton, in June, 1872, and Kelly appealed. The cause came on regularly for trial on June 14, 1872, and the court, Wade, J., ordered that the same “be tried in accordance with the rules and practices established in equity cases, and that the same be regarded as an equity cause, and, as such, tried by the court.” To all of which Kelly excepted.

McMullen recovered judgment in the probate court of Choteau county against Armstrong, in May, 1871. Armstrong appealed to the district court of Lewis and Clarke county, to which Choteau county is attached for judicial purposes.

In January, 1871, Langler and Carson, the claimants in this action, demurred to the libel of information, and assigned three causes therefor, to wit: That the goods were not seized in an Indian country; that the goods were purchased and procured in a regularly organized county, subject to settlement and occupation by citizens of the United States; and that the libel did not state facts sufficient to constitute a case of forfeiture.

Judgment was rendered in December, 1871, by Wade, J. Tbe facts appear in the opinion. The Montana statute leaves the rate of interest on written obligations to be regulated by the parties. Acts 1865, 535; 2 Sto. on Cont. 1028. The parties to the note sued on contract, especially and exclusively, for interest after maturity. Is this good ?

In March, 1872, the court, Wade, J., entered judgment for Bullard on the pleadings. The facts appear in the opinion. No action could be commenced on the undertaking on appeal from the district court to the supreme court, until the appeal from the supreme court of the Territory to the supreme court of the United States had.been finally determined, and a mandate had been transmitted from the supreme court of the United States to the supreme court of the Territory.

•In May, 1872, the court, Murphy, J., dismissed this action, and Parks appealed. The facts are stated in the opinion. The court erred in dismissing this action. The pleadings do not raise the'question of title. The complaint is in the usual and proper form. 2 Estee’s PI. 520. The question of title cannot arise in a forcible entry and detainer case. The object of the law is to prevent the disturbance of the peace by the forcible assertion of a private right.

In September, 1871, the court, Knowles, J., entered judgment in favor of Humphreys. The facts are stated in. the opinions. The court should interpret and construe the deed, after knowing what property is referred to. It is to be construed in the light of surrounding circumstances in order that the intent and meaning of the parties should be perfectly understood. 1 Grreenl. Ev., § 277.

The decree was entered in this action in March, 1871, by Waeeen, J. At the trial, Garringer excepted to the following instructions, which were given by the court : ‘£ The plaintiffs are not required to take notice of the intention of the defendants to carry or convey the waters of the said gulch beyond the point specified in the notice, unless such intention was indicated by such acts as would convey to a reasonable person notice of such intention, or actual notice given to…

This action was tried in November, 1870, in the district court, Symes, J., by a jury that found for Griswold. In October 1871, the court, Murphy, J., overruled the motion for a new trial, and Boley appealed. The facts appear in the opinion. No special damages are claimed in the complaint. Boley, as sheriff, levied on the property by virtue of an execution in favor of Hall and Miller.

This case was tried by the court, Wade, J., iu November, 1871, who rendered a judgment for Peterson, and Atchison appealed. The facts appear in the opinion. Appellants were injured by the filling in of the ditch with sand and sediment, which required the services of one man extra to keep the sand out, and diminished the capacity of the ditch, and caused more labor to clean out the ditch in the spring. The court below ignored the evidence upon these points.

This case was tried in July, 1871, by a jury, that returned a verdict for Cans. The court, Wade, J., overruled the motion for a new trial. The facts appear in the opinion. The first ground of defense to this case, that the sureties were released by the sheriff retaking the property upon a second writ of attachment, is untenable. There is no authority in law to sustain such a proposition.

Appealfrom the Third District, Lewis and Clarice County. This action was tried by a jury that found for Lomme, and tbe conrt, Wake, J., entered judgment thereon. The facts appear in the opinion. The case of Lomme y. Kintzing, is reported ante, 290. Respondent had no right to sue upon the undertaking executed to Roberts in the replevin suit. The undertaking was never assigned to respondent. Civ. Prac. Act 1867, §§ 109, 123, 131, 134, 137, 216, 217, 218.

This case was before the court in January, 1871, antes 329. The second trial in August, 1871, resulted in a verdict and judgment for defendant, Horn. In December, 1871, the court, Wade, J., overruled Kinna’s motion for a new trial and Kinna appealed. Kinna filed three affidavits in support of the ground of irregularities in the conduct of Horn and one of his attorneys during the trial.

The demurrer of Farwell to the bill of Sanders was sustained by the court, Murphy, J., in April, 1872, and Sanders appealed. The facts are stated in the opinion. The district courts have jurisdiction of the subject-matter. Respondent appeared by demurrer, and that gave the court jurisdiction of his person. If the process was improper, it will be set aside or quashed, and new and proper process could be invoked.

• In April, 1872, tlie court, Murphy, J., sustained tlie motion of plaintiff for judgment on tlie pleading, and refused to allow tlie defendants,' How-ei al., to file anotlier amended answer.

In May, 1872, the court, Murphy, J., overruled tke motion of Ervin and Metcalf to set aside tlie sale of certain property by the sheriff under execution, and they appealed. The facts are stated in the opinion. Where two or more debtors are jointly and severally bound, a release of one is a release of all. Story on Prom. Notes, §425; By les on Bills, §232; Brightly’s Fed.

This case was before the court at the January term, 1872, ante, 424. After the action was commenced by plaintiff, she was married to A. H. Wormall. In March, 1872, the case was tried by a jury, that found for plaintiff for $5,000 damages. The court, Wade, J., overruled a motion for a new trial, and Reins appealed. The facts are stated in the opinion.

In May, 1872, the court, Murphy, J., overruled the motion of Ervin and Metcalf to set aside the sale of certain property under a decree of court for the foreclosure of certain mortgages, and they appealed. The facts are stated in the opinion. The decree is void as to appellants, and should be set aside. The action was not brought as a chancery suit. The complaint is not framed as a bill in chancery, and prays legal rather than equitable relief.

This case was before the court iu December, 1868, ante, 66. In November, 1870, the court, Symes, J., rendered a judgment in favor of Creighton et al., plaintiffs, for $4,400. The court, Wade, J., sustained the motion of Hershfield et al., defendants, for a new trial in December, 1871, and plaintiffs appealed. The facts are stated in the opinion. Respondents were intervenors in the original suit of appellants’ assignors.

The court, Wade, J., rendered the decision in this case. The facts are stated in the opinions. Counsel filed an argument containing authorities on the questions on which there was no opinion of the court. [The reporter has omitted that part of the argument relating to the water questions.] There are no written findings in this case and none were demanded by appellants. Civ. Prac. Act, § 180; Sanchez v. McMahon, 35 Cal. 225.

The court, Wade, J., granted a nonsuit in this case. The facts are stated in the opinion. Appellants should have been permitted to introduce their testimony to explain, and interpret the description in the deed of respondents. Prominent landmarks are controlling points as to description. In this case the monuments are fixed and certain, and the actual possession of the identical property was delivered by respondents.

Appeal, from the Third District, Lewis and Clarice County. In February, 1872, the court, Wade, J., ordered that judgment should be entered nunc pro tunc on. a verdict rendered in July, 1871. The facts are stated in the opinion.

<p>Practice — oral notice of appeal. Section' 370 of thp Civil Practice Act requires a written notice of appeal, and an oral notice given in open court is insufficient.</p>