Volume 10 — Montana Reports

The action was tried before Theodore Brantly, sitting as judge pro tern, in place of Durfee, J. The plaintiff had judgment below. The complaint alleged the contract in general terms, and shows it has been executory, and sets up no agreement between the parties for plaintiff to enter upon the land before its terms were fulfilled.

.Appeal from, First Judicial District, Lewis and Clarice County. The demurrer to the complaint was sustained, and judgment entered for defendant by Hunt, J. Statement of facts, prepared by the judge delivering the opinion.

<p>School Moneys — Statutory construction. — Section 1886 of the Montana School Law, fifth division, Compiled Statutes, makes it the duty of the district clerk to take annually “ an exact census of all children residing in the district. Children absent from home attending private schools to be included in the census list of the district where their parents reside.” Sections 1869 and 1907 empower the county superintendent to apportion all school moneys to the school districts in proportion to the number of school census children as shown by the returns of the district clerk. In the case at bar certain children were returned by the district clerk as of one district, while tlieir fathers resided in another district. The county superintendent transferred these children to the districts where their fathers had residence, and apportioned the school moneys accordingly. Meld, that the exact census required by law could not include any person whose legal residence was elsewhere, and the transfer and apportionment were proper.</p>

The defendant was tried before Benton, J. Statement of facts, prepared by the judge delivering the opinion. The defendant was indicted for grand larceny. The subject of the larceny is described in the indictment as “one iron-gray horse, a gelding, about three years old,” etc. The proof on the trial on the part of the prosecution described the animal alleged to have been stolen as a “horse” or “colt.” Each of these words were used by the witnesses.

In the matter of the application of Frank Langford for a writ of certiorari to review the proceedings of the District Court of the First Judicial District, Lewis and Clarke County, whereby he was found guilty of contempt for violation of an order of injunction issued by Hon. T. J. Galbraith, presiding judge, who was holding court for Hon. William FI. Hunt, judge of said district.

Judgment in replevin was rendered for plaintiff below by Galbraith, J. Statement of facts, prepared by the judge delivering the opinion. It appears from the pleadings that plaintiff was a married woman. On July 8, 1889, she filed in the proper office a declaration of her intention to do business as a sole trader. The law is found in sections 1433-1438, division 5, Compiled Statutes.

Election contest. Motion to quash the statement of contest was sustained by Hunt, J. The effect to be given to the provisions of law prescribing the several things to be done before the name of a candidate can be printed upon an official ballot is a question of first impression, so far as the courts of the United States are concerned; but it is obvious from the debisions by the courts of Great Britain and her colonies, that failures to observe them are there held to…

Claim and delivery. Judgment was rendered for the defendants by Durfee, J. A full compliance with the statute is shown; the affidavit being made, as is required, by all the parties to the mortgage. (Comp. Stats, p. 1068, fifth div. Gen. Laws, § 1538.) It may be claimed, however, that the affidavit being subscribed in the partnership name, it purports to be made by the partnership as such, and that it is impossible for a partnership to make an affidavit.

Judgment on the pleadings was rendered for the defendant by Hunt, J. Statement of facts, prepared by the judge delivering the opinion. The action is for the foreclosure of a mechanic’s lien. The complaint alleges that the defendant is a corporation organized under the laws of the State, and doing business therein.

The cause was tried before Milburn, J. Statement of facts, prepared by the judge delivering the opinion. This is an appeal from the action of the board of commissioners of Yellowstone County in disallowing an alleged account of appellant against the county. There are no pleadings in the case, except the bill filed by appellant with the board.

The demurrer to the complaint was sustained, and judgment rendered for defendant by Henry, J. The prayer of the complaint is for an order of… Held: also, that there exists no cloud upon the title which justifies the interference of a court of equity, where the proceedings are void upon their face, that is, the same record which must be introduced to establish the title claimed, will show that there is no title.” (Also, Purrington v. People, 79 111. 13.) In Du Page County v.…

The defendant had judgment below. Plaintiff’s motion for a new trial was granted by Hunt, J. The statement on motion for new trial contains no specification of particulars in which the judgment or findings of the court is not sustained by the evidence, nor any assignment of errors of law committed upon the trial of the cause.

Original proceeding. Application for writ of habeas corpus. The record in this case which is made a part of the petition discloses the fact that the defendant in this action stood mute, made no plea, and no waiver of his right of trial by jury. Unless he expressly waived his right to a trial by jury the justice had no jurisdiction to determine the cause.

Judgment on tlie pleadings was rendered for the plaintiff by Hunt, J. Statement of facts, prepared by the judge who delivered the opinion. This is an appeal from an order granting a motion for judgment on the pleadings, and from the consequent judgment. The complaint is on two promissory notes, each for five thousand dollars, and dated November 1, 1887, made by defendant, payable to plaintiff.

Defendant’s motion for a new trial was overruled by Hunt, J. There is no provision of the statute for giving or serving a notice of motion for a new trial after the expiration of ten days from the rendition of the verdict in a civil action, and it is incumbent, when the notice of motion for a new trial is prepared, that it shall designate generally the grounds upon which the motion will be made.

<p>CoNSTrrtraoiiATj Raw — Prosecution by information. — The provision of the Constitution relating to prosecution by information is not self-executing, and in the absence of legislation defining the procedure, a trial and conviction upon information is without process of law. (State v. Ah Jim, 9 Mont. 167, affirmed.)</p>

The cause was tried before Milburn, J., upon an agreed statement of facts. The defendant had judgment below. Statement of facts, prepared by the judge delivering the opinion. The case was tried upon an agreed statement of facts, which, with the admissions of the pleadings, are as follows : On August 18, 1887, J. W. Story and one Jackson made a joint note to respondent, the bank, for $1,000, and also a note with one Severance for $1,200 to the bank, each at sixty days.

The cause was tried before Henry, J. The plaintiff had judgment below. It is apparent upon a careful inspection of the note that in drawing the instrument it was the intention of the makers to stipulate something more than the payment of $1,250 on a particular day with a certain rate of interest from date until paid.

<p>Original proceeding. Application for writ of mandamus.</p>

Judgment was rendered for relator by Benton, J., upon defendant declining to answer after demurrer overruled. Statement of facts, prepared by the judge delivering the opinion. This is an action for the usurpation of office, brought under the pi’ovisions of sections 410-417 of the Code of Civil Procedure.

Judgment on the pleadings was rendered for the plaintiff below by Milburn, J. The defendant admits the contract which is the basis of the plaintiff’s action, and alleges a compliance with its terms up to the fourth day of February, 1887, and sets up the further fact that on said date an act was passed by the Congress of the United States and approved by the President, entitled “An act to regulate commerce,” the effect of which was to annul the contract in question.

Judgment was rendered for the defendants below by Mil-burn, J. The contention of the plaintiff involves the question of the effect of the registry law of the State, as between a judgment lien and a mortgage, executed before tbe docketing of a judgment, and filed for record after that time, but before, the sale under the execution issued on the judgment.

Plaintiff’s motion for leave to issue execution was refused by Hunt, J. Statement of facts, prepared by tbe judge delivering tbe opinion. This is an appeal from a special order made after final judgment, refusing plaintiff leave to issue execution upon a judgment.

Conviction for perjury. The defendant was tried before Benton, J. Statement of facts, prepared by the judge delivering the opinion. At the May term, 1890, of the Eighth Judicial District Court in and for Cascade County, the defendant was convicted of the crime of perjury.

<p>Pbactioe — Appeal—Amendment of record. —Where an appeal has been dismissed, the ease cannot be re-instated upon a showing that the dismissal was due to an error oí the compiler of the record, as a record of the District Court cannot be amended or changed in this court; but it may be withdrawn and refiled when corrected.</p>

Conviction for perjury. The defendant was tried before Benton, J. The affidavit for a continuance cannot be made as strong and beneficial for the defendant as the testimony of the witnesses who are present in court and testifying in the presence and hearing of the jury.

<p>Attorneys — Disbarment.—The evidence in the case at bar reviewed, and held insufficient to support the charges.</p> <p>Contempt oe Court Witnesses — JXeferee.—The use of profanity by witnesses before a referee may be punished as a contempt of court.</p>

Original proceeding. Application for disbarment. Statement of facts, prepared by the judge delivering the opinion. Application is made to revoke the license granted to Peter M. Baum at the July term, 1890, of this court.

The application of defendant was granted by McHatton, J. The question of the respondent’s competency, within the statutory meaning of the word “incompetent,” must be determined under the provisions of section 59 of the Probate Practice Act, which provides that he must be adjudged incompetent by reason of drunkenness, improvidence, or want of understanding or integrity. Drunkenness.

<p>CünmrAL Pkactice — Transcript on appeal — Evidence.—Where the evidence contained in a transcript on appeal does not appear to be included in a bill of exceptions, nor in any manner authenticated as the minutes of the court, nor to have been before the court on motion for a new trial, it will be stricken out on motion, and an alleged variance between the indictment and the proof cannot be considered.</p> <p>Ckiminai, Law — Indictment—Infamous crime against nature__The ordinary common-law indictment for the infamous crime against nature is sufficient in this State.</p>

<p>On motion to retax costs.</p>

Defendants appeal from the judgment and an order sustaining plaintiffs’ demurrer and motion to strike from the answer. Statement of the case, prepared by the judge delivering the opinion. The action is a contest between claimants of mining ground on the public domain of the United States. The plaintiffs below, respondents here, relied upon their claims of the Ida May and Corbett lodes.

The cause was tried before Durpee, J., without a jury. On motion to strike the bill of exceptions from the transcript on appeal.

The cause was tried before Hunt, J., upon an agreed statement of facts. The plaintiff had judgment below. Statement of the case, prepared by the judge delivering the opinion. This case was tried upon an agreed statement of facts, from which the following appears: — Plaintiff sold defendant a stock of goods.

Defendant’s motion for a change of venue was denied by Benton, J. Statement of the case by the judge delivering the opinion. This appeal is from an order denying a motion for a change of venue made by the defendant. The complaint states two causes of action.

Judgment was rendered by McHatton, J., against relator on application for a writ of mandate. Plaintiff in support of his position cited the following authorities : Pennoyer v. Neff, 95 U. S 714, and cases cited; Mudge v. Steinhart, 78 Cal. 34; 12 Am. St. Pep. 17, and cases cited; Cooper v. Reynolds, 10 Wall. 319; Walker v. McOusker, 65 Cal. 360; Belcher v. Chambers, 53 Cal. 635; Hart v. Sansom, 110 TJ.

The cause was tried before Duefee, J. Plaintiff had judgment below. Statement of the case by the judge delivering the opinion. The action is by the plaintiff, as surveyor, employed under the provisions of the Act of February 8, 1889, 16th Sess., page 231.

Judgment was rendered for plaintiff below by Milburn, J., sitting in place of Hunt, J. Tbe license acts of Montana (ch. 81, p. 1017, Comp. Stats, and tbe acts amendatory thereof, Extra Sess. 15th Leg. Assembly, p. 72) contemplate tbe collection of license taxes from persons or corporations engaged in business.

The cause was tried before Galbraith, J,, sitting in place of Hunt, J. Plaintiffs had judgment below. Plaintiffs must recover on an award by arbitrators or appraisers, if at all. The action is based upon an award. Any evidence of value except to establish an award was duly excepted to. There is no evidence of an agreement to appoint arbitrators or appraisers, and none were appointed. No award or appraisement was made. There was no waiver by defendant of anything.

The cause was tried before Galbraith, J., sitting in place of Hunt, J. Plaintiffs had judgment below. The condition of the policy, that no suit or action against the company for the recovery of any claim, by virtue of the policy, shall be sustainable until after an award shall have been obtained, fixing the amount of such claim in the manner provided in the policy, which is agreed to be a condition precedent, is valid and binding upon the assured.

Appeal from First Judicial District, Lewis and Clarice Cou/nty. The case was tried before Galbraith, J., sitting in place of Hunt, J. Plaintiffs had judgment below.

The cause was tried before Galbraith, J., sitting in place of Hunt, J. Plaintiffs had judgment below.

<p> Appeal from, Third Judicial District, Deer lodge County. </p> <p>Judgment was rendered by Dureee, J., for relator, on application for a writ of mandate.</p>

The court below disregarded the provisions of the Act of March 14, 1889, upon the theory that under the Constitution there are no terms of court in Silver Bow County, but that the court is in continuous session, and that it would be impossible to select a jury during one term for the next term.

The cause was tried before Galbraith, J., sitting in place of Hunt, J. Defendants had judgment below. Appellants having by virtue of the power contained in the mortgage taken possession of the property prior to the 17th of September, 1888, when defendants took possession from them, occupied the same position as though possession had accompanied the mortgage at the time it was executed.

Plaintiff had judgment below. If defendant could not prove a justification under the executions, on account of a want of judgments on which they were-issued, he should have been permitted to amend his answer in. order to justify under the writs of attachment. This court in this case (8 Mont. 186), has decided that the said judgments were invalid.

Defendants’ demurrer was overruled by Galbraith, J. Statement of the case by the judge delivering the opinion. This action was brought for the purpose of obtaining relief under the provision of chapter 121 of the General Laws, the act for the protection of wage workers, the first section of which is as follows: “Sec. 2050.

Original proceeding. Application for writ of certiorari. Statement of the case by Mr. Justice De Witt. James W. Murphy, upon a writ of certiorari, asks this court to review the action of the District Court, in appointing James A. Talbot as special administrator of the estate of Andrew J. Davis, deceased, and not appointing the relator.

<p>Criminal Practice — Motion for new trial — Motion book. — A notice of intention to move for a new trial which is entered in the motion hook, and which recites that the defendant will, as soon as the transcript of the evidence is made, move the court for a new trial upon the grounds to he set forth in the motion, is insufficient under sections 355 and 356 of the Criminal Practice Act, which requires the filing of a written notice within a specified time, and that the notice of motion must state particularly the error relied upon.</p> <p>Same — New trial — Motion book. — The provisions of section 433 of the Code of Civil Procedure, providing for the entry of notices of motions made during term time in a motion, hook, are inapplicable to any of the proceedings relating to new trials.</p>

<p>Constitutional Law — Legislative assembly — Compensation of members. — The first legislative assembly of the State having passed no laws, the second legislative assembly made an appropriation by law for the payment of its members at the same rate established by the Constitution (§ 5, art v.) as the compensation for members of the first legislative assembly. Said section 5 also declares that after the first session the compensation of the members of the legislative assembly shall be as provided by law, pi-ovided, that no legislative assembly shall fix its own compensation. Section 8, article v. of the Constitution provides that the salary of no member shall be increased by any law passed during the term for which he is elected. Held,, that the intent of the Constitution being to prevent a legislative assembly from securing extravagant compensation by its own votes, the second legislative assembly did not fix its own compensation within the intent, spirit, or scope of such constitutional provisions, and the appropriation was valid.</p> <p>Basie — Interpretation of Constitution. — The constitution of a State should be liberally construed to determine the primary purpose of any constitutional enactment.</p>

<p> Appeal from Seventh Judicial District, Yellowstone County. </p> <p>Judgment was rendered for the defendant by Milburn, J.</p>

<p>Aduhnistkatoes — Probate law — Appeals.—It is no objection to an appeal taken by an administrator, both from an order of the District Court sustaining objection to a final account and also from an order entering a decree of distribution, that thereby two separate actions have been united in one appeal, as such orders are not actions in a legal sense.</p> <p>Same — Appealable order — Mnal aooownt. — An order of the District Court sustaining objections to the final account of an administrator is an appealable order. (In re McFarland’s Estate, post, p. 445, affirmed.)</p> <p>Same — Appeals.—An administrator who has no interest in an estate apart from his official character cannot appeal from an order entering a decree of distribution.</p>

The orders sustaining objection to appellant’s final account and entering a decree of distribution were made by Hunt, J. Statement of the case by the judge delivering the opinion. This is an appeal of Henry C. Yaeger, administrator of the estate of William A. Dewar, deceased, from an order of the District Court, exercising probate jurisdiction, sustaining objection to the final account of the administrator, whereby the court disallowed certain fees by him claimed.

The appeal was taken from an order by Dueeee, J., directing the distribution of decedent’s estate. On motion to dismiss.

Original proceeding. Application for a writ of certiorari. Mr. Justice De Witt stated the case as follows: — This is a writ of certiorari brought to review two orders of the Second Judicial District Court, made in the case of Charles O'Donnell v. Nelson Bennett et al., pending in that court. The case came on for hearing December 16, 1890. The defendants moved for a continuance upon the ground of the absence of evidence.

Defendant’s motion for a new trial was granted by Hunt, J. Defendant’s statement on motion for a new trial is wholly insufficient to sustain the order of the court granting a new trial. It does not appear that any motion for a new trial was ever made or filed. (Griswold v. Boley, 1 Mont. 545; First Nat.

Judgment was rendered for plaintiff below by Marshall, J. No grounds for an injunction are stated. The court should not restrain a sale of property under execution unless in cases of fraud or gross injustice. And no fraud or injustice is alleged in the complaint.

The cause was tried before Durfee, J. Plaintiff had judgment below. Thé contract under which plaintiff cut the wood was one of hire of the services of plaintiff and others engaged with him. The wood belonged to the Butte Manufacturing Company as cut, and the plaintiff cannot recover for it.

<p>Code Cohmissionees — Compensation—Appropriations.—Section 4 of the Act of March 14,1889, creating a code commission, provides that said commissioners shall each receive a compensation for his services of four thousand dollars. Section 5 of the Act of March 14, 1889, provides that upon the filing of any one of the completed Codes with the secretary of State the auditor shall draw his warrant for the pro rata salaries of the commission. In an application for mandamus to compel the issuance of a warrant for relator’s salary, which had been refused for want of an appropriation, held, that the designation in said act of a definite sum as compensation of the commissioners constituted an appropriation of money to pay the same. Held, also, that the rights of relator were not affected by appropriations made by laws enacted subsequently to the act in. question. (State v. Kenney, 9 Mont. 389, affirmed.)</p>

<p>Constitutional Law — State revenue — Appropriations. —Bunds which will be realized by the State from the levy of taxes authorized by the legislature for any fiscal year may be treated as revenue for that year, although they are-not actually placed in the State treasury until after the commencement of the following fiscal year, and must be held available to meet, when collected, the appropriations made for the fiscal year in which the tax was levied; and therefore an appropriation bill which authorizes expenditures for any year in excess of the revenue actually to be received during that year is not in violation of section 12, article xii. of the Constitution, prohibiting appropriations whereby the expenditures of the State during any fiscal year shall exceed the total tax provided for by law.</p> <p>Auditor — Duty as to claims approved by State examiners. — When the appropriation by law for the expenditures of a fiscal year have not exceeded the constitutional limitation, it is the duty of the State auditor to draw his warrant for the amount of a claim for which a lawful appropriation has been made, and which has been approved and transmitted to him by the State board of examiners, and this duty is not dependent upon there being funds in the treasury for its immediate payment.</p>

Original proceeding. Application for writ of mandate. The clerk of the code commission is an officer whose salary is fixed by law. (Gilbert v. Moody, Idaho, Feb. 1891; United States v. Hartwell, 6 Wall. 385; Bradford v. Justices, 33 Ga. 332; Clark v. Stanley, 66 N. C. 59.) Section 4 of the Act of March 14,1889, creating the code commission, contains a specific appropriation.

<p>Original proceeding. Application for writ of mandate.</p>

The cause was tried before Marshall, J. The plaintiff lad judgment below. In plaintiff’s attempt to allege special damages he has not set out how much, or to what extent he has been damaged as to his crop, grass, or fruit trees, and in order to recover or let in proof as to the same, it is necessary that such facts should 'be alleged. (Potter v. Froment, 47 Cal. 165; Dabovich v. Fmeric, 12 Cal. 178; Cole v. Swanston, 1 Cal. 51; 52 Am.

The cause was tried before Durfee, J., without a jury. The court erred in failing to find the amount of wafer that the plaintiffs owned. This is one of the material issues of the case as presented by the pleadings, and the rule is, that where the court fails to find on a material matter the judgment should be reversed.

The action was tried before Marshall, J. Defendant had judgment below. Statement of facts, prepared by the judge delivering the opinion. Held: under statutes similar to ours, that cities and counties are subject to garnishment. ‘{Wales v. Muscatine, 4 Iowa, 302; Adams v. Tyler, 121 Mass. 380; Bray v. Wallingford, 20 Conn. 416; Hodman v. Mussel-man, 12 Bush, 354; 23 Am.

Defendant’s motion for a change of venue was denied by Galbraith, J. In actions against corporations the principal place of business of tbe corporation is its residence, and the action should be brought there. (Jenkins v. California Stage Co. 22 Cal. 537; Hubbard v. Nat. Pro. Ins. Co. 11 How. Pr. 149; Pond v. Hudson River P. P. Co. 17 How.

The cause was tried before Henry, J., without a jury. The date of the issuance of the summons is the date at which the value of the land taken and the damage to that remaining shall be ascertained. (§ 609, Code Civ.

<p>Eepoets of Supbeme Couet — Compensation of reporter — Statutory construction. — Section 1992, fifth division of the Compiled Statutes, requires the reporter of the Supreme Court to publish a volume of reports as often as there is sufficient matter to form a volume of not less than six hundred pages. Section 1993, as amended by the Act of March 8, 1889, provides for the delivery to the State of three hundred volumes, and that the same shall be paid for at the rate of six dollars for each volume of six hundred pages, and that each volume of more than six hundred pages shall be paid for at the same rate for the number of pages exceeding six hundred, three hundred dollars being allowed on each volume to cover expenses and clerical work; and concludes with the proviso that the whole expense of publication and preparation of a full volume of such Teports shall not exceed two thousand one hundred dollars. Held, that such limitation as to the cost of a full volume related only to a volume of not less than six hundred pages, and the reporter was entitled to payment for pages in excess of six hundred.</p>

“Prosecution by information is in derogation of the common law, and a departure from the general policy of the law, and for that reason… Held: that a general provision of the law which declared that “the repeal of any law creating offense does not constitute a bar to the indictment and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punishment is expressly declared in the repealing act,” could not…

The defendant was tried before Galbraith, J. Statement of the case, prepared by the judge delivering the opinion. This is an appeal by the defendant from a judgment on conviction for the crime of rape.

<p>Damages — Negligence—Physicians.—In an action for damages against a physician for negligent and unskillful treatment of a fracture of plaintiff’s wrist, it appeared that the defendant used simple and common appliances in treating the injury; that a physician called on behalf of plaintiff testified that he had examined plaintiff’s wrist; that he could not say that anything was the matter with it; that there was some stiffness and tenderness; that the bones and wrist seemed to be in proper place, and were in such good apposition that it was almost impossible to tell whether there had been a fracture; that, assuming that plaintiff had sustained a Oollee’s fracture, it was a good job; that he could see nothing wrong with the treatment or any indications of negligence; that he thought the wrist was only badly sprained; that the use of pasteboard splints was proper. Another physician called by plaintiff testified that he concluded that the injury was a Collee’s fracture. In answer to the question as to whether “ ordinary care and treatment would have called for different apjjliances than those used by defendant, assuming that plaintiff had suffered a severe Collee’s fracture of his wrist,” the witness said that “if it was a very severe fracture possibly he could not have any splints on it at all; ” that he had found the bones in plaintiff’s wrist in perfect apposition; that perfect recoveries from such injuries were very few. That witnesses called as experts by defendant approved of the treatment and appliances used by defendant, and testified that the bones of plaintiff’s wrist were in perfect apposition; that the rotation of the wrist was natural; that if the injury was a Collee’s fracture the restoration was extraordinary. Held, that a verdict for plaintiff for the sum of five hundred dollars was entirely unsupported by the evidence.</p> <p>Evidence — Reputation. — In an action against a physician for damages for negligence in Ins treatment of a particular case, evidence as to his reputation for skill and ability is incompetent.</p>

The demurrer to the complaint was sustained by Henry, J. General Statutes of Limitation do not run against the widow’s1 right to dower, and her right to dower is not barred by limitation, unless it is expressly so stated in the statutes. (Buswell on Limitation of Actions, § 289; Park on Lower, 311-315; 4 Kent Com. [7th ed] p. 70; May v. Rumney, 1 Mich. 1; Barnard v. Edwards, 4 N. H, 107; 17 Am. Dec. 403; Robie v. Flanders, 33 N. H. 524; Wakemon v. Roache, Dud.

<p>Rbobate Law — Administrators.—Where a decree of distribution of an estate of the value of fifteen thousand dollars had been made and the final account of the administrator approved, and himself and his bondsmen discharged in less than two months after the granting of letters of administration, and it also appeared that no inventory or appraisement had ever been made or notices to heirs given by mailing the same in addition to publication, the proceedings will he annulled and the administration of the estate re-opened for regular administration.</p> <p>Aoministbatoes — Costs.—In the case at bar the costs of such irregular proceedings and of appeal to the Supreme Court were ordered taxed against the administrator personally.</p>

1 ■ The orders granting and refusing to dissolve the injunction were made by Benton, J. Statement of the case by the judge delivering the opinion. The action is for damages and injunction. The wrong complained of is that defendant entered upon the land of plaintiffs, trespassed upon the same, and cut down the trees upon the land. An injunction was issued upon the complaint.