Volume 2 — Montana Reports

Tiie demurrer to the complaint was sustained by IVIurpiiy, J., on the ground that the same did not state facts sufficient to constitute a cause of action, and Perkins appealed. The sections of the Civil Practice Act, approved December 23,1867, referred to in the opinion, are embodied in the Practice Act, approved January 12, 1872. Appellant had no remedy under laws of Territory, and this is a proper case for a bill of interpleader. 1 Bduv. L. Diet., “Inter-pleader ; ” 1 Danl.

Ajypeal from Fvrst District, Gallatin Gounty. The respondent filed a motion to strike from the transcript the statement of the evidence. This action was tried in March, 1872, by Murphy, J., without a jury, and tbe statement on this appeal was settled by Servís, J. (who was tbe successor of Murphy, J.), at a subsequent term.

The judgment was rendered by Servís, J. Appellant is entitled to fees for drawing indictments, which were dismissed by the court on account of facts and the trial thereof, and not for any defect in the indictments. No statutory grounds existed for quashing the indictments, nor were they, in fact, quashed. The statute intends that district attorneys shall be entitled to fees for drawing indictments which are not quashed through any fault of the party drawing them.

WilliaMS sued Stevens and Trivett, December 12, 1870, to recover wages for services rendered. A writ of attachment was issued and the sheriff levied upon some gold retort as the property of Stevens and Trivett. Stevens applied to the sheriff for the release of the property May 9,1871, and presented an undertaking that was signed by Stevens, as principal, and the appellants, as sureties. The officer approved the undertaking and delivered the retort to Stevens.

The complaint of Sands alleged that Maclay. et al. were common carriers and received goods at Corinne, which were to be carried to Helena and delivered to' Sands; that the goods were lost through the negligence of Maclay et al., and demanded damages.

This action was commenced in a justice’s court and thence appealed to the district court. The respondent filed a motion to dismiss this appeal. This court has no jurisdiction of the case. The appeal was not taken or perfected within ninety days from the time the judgment appealed from was rendered. Civ. Pr. Act, § 369; DooUng v. Moore, 20 Cal. 141. Tbe action of tbe court below was not final until tbe motion for a rebearing bad been overruled.

Muepht, J., tried tbis action without a jury, and rendered a judgment for Edwards. A question relating to tbe settlement of tbe statement was determined at tbe last term, ante, 22. Tbe duty of probate court in awarding lots under tbe town site act is ministerial, not judicial. Ming y. Truett, 1 Mon. 322. Despondent must show that be complied with tbe statutes, before be can question tbe title of appellant. Burrell v. Ha/w, 40 Oal. 377: Sts., 1867, 60; 1869, 80, 83; 1870, 67.

This case is reported in 1 Mon. 713. Tbe appellants filed a motion to set aside tbe judgment of tbis court, rendered at tbe January term, 1873. The respondent moved to strike tbe cause from the docket. After appellants abandoned then’ appeal, respondent could not file tbe transcript, and thereby give tbis court jurisdiction. A judgment so obtained against appellants can be controlled by tbis court. Bowlcmd v. Kreymhagen, 24 Cal. 57.

The judgment in tbis action was rendered by Seevis, J., wbo tried tbe cause without a jury. Tbe opinion refers to tbe following sections of tbe act relating to “ conveyances of realty.” “ Every conveyance in writing, whereby any real estate is conveyed, or may be affected, shall be acknowledged or proved and certified in the manner hereinafter provided.” Cod.

Kohrs was tbe administrator of tbe estate of Frederickson, deceased. Tbe Board of County Commissioners of Deer Lodge County commenced tbis action in bebalf of tbe county, wbicb was a creditor of tbe estate. Tbe probate court entered judgment in favor of Kobrs, January 25, 18J3. An appeal was tben taken to tbe district court and dismissed by tbe court, Knowles, J., upon tbe motion of Kobrs.

Wake, J., sustained the demurrer of King et al. to the complaint. No brief on file. The court below did not bave jurisdiction of this case. The district courts of the United States are constituted courts of bankruptcy, and have exclusive jurisdiction of proceedings in bankruptcy. U. S. Bankrupt Act, § 1. The supreme courts of Territories have had the same jurisdiction conferred upon them. Bankrupt Act, § 49.

Ajppeal from Third District, Lewis and Olarke Gounty. This action was tried by a jury that returned a verdict for Daniels, and a new trial was granted by the court, Wade, J. The 68th section of the Civil Practice Act, which is referred to in the opinion, is as follows: “ In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may. be stated generally that the party duly performed all the…

The court, Wade, J., sustainfed Ashby’s motion to quash the indictment, and the Territory appealed. The offense is couched in the language of the statute. The offense of erecting a nuisance is the same as that of continuing it. Acts 1865, 209, § 129 j Cod. Sts. 303, '§ 147; 544, §§ 2, 3. Every continuance of a nuisance is a new offense under the statute. A series of acts, which separately or together constitute an offense, may be charged in a single count.

This action was tried by a jury, and tbe judgment was rendered by Servís, J. Tbe act of incorporation of appellant is printed in Sts. 1865, 604. Tbe provisions of tbe Civil Practice Act, approved December 23, 1867, which are referred to in the opinion, are contained in the Civil Practice Act, approved J anuary 12, 1872. The complaint does not state a cause of action. The complaint raises only one question, the existence of appellant as a corporation.

At the trial, a jury was drawn from the regular panel, and passed for cause by the parties, after the jurors had been examined respecting their qualifications to serve. The defendant then challenged peremptorily one of the jury. The court, Knowles, J., overruled the challenge, and the jury was then sworn to try the ease.

This action was tried by Wade, J. Davis, one of the defendants, was interested in the property, and appealed from the judgment,'which gave priority to the claim of Alvord against Hen-drie over that of Davis. Hendrie did not appeal. Hendrie was not tbe owner or proprietor of tbe property in controversy, and bad no interest therein. It must be shown that a defendant has an interest, which can be sold, before a court of equity will decree a sale.

The judgment in this action was rendered by Knowles, J. A Territorial government is one of limited powers. Tbe people are only authorized to act by virtue of tbe Organic Act. Hep-hum v. Mllzey, 2 Cr. 445 ; Hew Orleans v. Winter, 1 Wheat. 91. The “ Alien Law” is not upon a rightful subject of legislation.

<p>ORDER taxing- costs not appeadable. A party cannot appeal to tilia court irom an order of tie court below, taxing costs.</p> <p>Case affirmed. Tbe case of Wilson v. Davis, 1 Mon. 98, bolding tbat tbe consent of parties cannot confer jurisdiction upon tbis court, affirmed.</p>

The judgment was rendered by'Wade, There is only one question in this case — the liability of respondent to pay an attorney for services in defending a prisoner by order of tbe court. Tbe law makes it tbe duty of tbe court to assign a prisoner counsel when be is unable to employ an attorney. Cod. Sts. 220, § 196; 6th Amend. TT. -S. Const. An attorney must perform this duty. If be refuses, tbe court can punish him for contempt by fine or imprisonment.

Wade, J., sustained the demurrer to the complaint. Respondent has always been the owner of the certificate of deposit, and has a complete remedy at law. Welton v. Adams, 4 Cal. 37; Morse on Banks, 52. At common law the instrument sued on is a promissory note. Morse on Banks, 53, 54. It is negotiable by the laws of this Territory. Cod. Stats. 385, § 1.

1 Mon. 689. The judgment was rendered by Wade, J. [The arguments of counsel are the same as those which are reported in the other hearings of this ease, and are omitted.]

This is tbe second appeal in this case. The first is reported, ante, 113. The case was tried by Knowles, J., with a jury, and appellants were convicted. There is no such court as that described in the indictment, “ The United States District Court of the Territory of Montana for the Second Judicial District.” The indictment has not been found by a legal jury. 1 Archb. Or. Pr. 256 ; 1 Bishop’s Or. Pr., §§ 152, 155; 2 Abb.

The judgment was rendered by Wade, J. What judgment should be entered on the verdict ? This is the only question before the court. There is no exception to the verdict. The evidence cannot be examined. Questions of boundaries, identity of monuments, etc., are subjects of parol proof and are always left to the jury. Tyler on Ejectment, 820 ; Curtis on Patents, 253 ; Davis v. Bainsford, 17 Mass. 207 ; Ferris v. Coover, 10 Oal. 625.

The cause was tried before Servís, J. The court erred in saying, in effect, to the jury that it was unnecessary for respondents’ premises to be inclosed to enable respondents to recover. This instruction disregarded the law of the Territory. Cod. Sts. 373, § 1. This requires the premises to be “ inclosed by a lawful fence,” whieh means entirely surrounded by tbe fence, or a similar obstruction. Webster’s definition of “inclosed.” The statute defines a lawful fence. Cod.

The judgment was rendered by Wade, J. The complaint alleges that respondent is “ seized in fee ” and “ entitled to the immediate possession ” of the property in dispute. The former allegation is Immaterial, and appellants were called upon to answer as to right of possession. Boles v. Cohen, 15 Cal. 150; Sta/rJc v. Ba/rrett, id. 361; Grady v. Eaady, 18 id. 108 ; Hubbard v. Barry, 21 id. 321. No eviction is charged.

The material facts are stated in Collier v. Field, 1 Mon. 612. Tbe judgment was rendered by Seevis, J. Tbe subject-matter of tbis case, so far as tbe foreclosure of tbe mortgage is concerned, is res adjudicata. The decree rendered October 12, 1871, is a perpetual bar to any further action upon the mortgage. That decree has never been appealed from, modified or reversed.

The cause was tried before Sebvis, J. The court erred, in impaneling the jury, in refusing to allow the twelve jurors to be sworn generally as to their competency. Civ. Pr. Act, §§ 197-199 ; Watson- v. Whitney, 23 Cal. 378. The court erred in overruling the appellant’s challenges to jurors who disclosed, by their answers, that they were not qualified. Civ. Pr. Act, §198; White v. Moses, 11 Cal. 68.

The judgment was rendered by See vis, J. The only question raised by appellant is the taxation of the costs. The judgment against appellant in probate court was $280.42; in district court it was $1 and costs. The court erred in refusing to tax all the costs'on the appeal against respondents. Civ. Pr. Act, § 417. The, court erred in refusing to re-tax costs taxed illegally in probate court. Votan v. Reese, 20 Cal. 90.

The judgment was rendered by Wade, J. The following sections of the Civil Practice Act are referred to in the opinion: “ In actions respecting mining claims, proof shall be admitted of the customs, usages and regulations established and in force in the mining district embracing such claim; and such customs, usages and regulations, when not in conflict with the laws of this Territory, shall govern the decision of the action.” Civ. Pr.

<p>PleadiNQ- — complaint in action to set-off judgments — liability of assignee with notice. The complaint in this case alleges that C. obtained judgment against W. in July, 1868, for $5,000 for personal injuries: that W. obtained judgment upon a promissory note against O. in October, 1868, for $2,678, ■which is unpaid; that W. paid O. one-half of his judgment in Nov.ember, 1868 ; that C., in payment of a pre-existing debt, assigned to M., in July, 1868, one-half of his judgment against W., which is unpaid; that M. had full notice at the time of the demand of W. against C., which had been owned by W. since December 2, 1867; that C., during these times, 'was and is insolvent, and that the sheriff has executions upon the judgments in favor of M. against W. and W. against C. W. prays that his judgment may be set off against the judgment entered for C. M. demurred. Held, that the complaint states facts sufficient to constitute a cause of action. Held, also, that W. has the right to set off his judgment against that assigned to M. Held, also, that M. is not a bona fide purchaser of the. judgment against W., and holds the same subject to the right of set-off by W.</p>

<p>Indian country — transportation of Uguor. Citizens of the United States, and those who have declared their intention to become such, have the right to carry spirituous liquors through the Indian country for the purpose of lawfully selling the same in other places.</p>

<p>Appeals in criminal causes. The appellant was indicted at the November term, 1873, and tried and convicted at the June term, 1873; a hill of exceptions was signed, but no notice of appeal was ever given; upon applica-' tion,the judge refused to correct the bill in vacation and within six months after the rendition of the judgment; the bill was corrected at the following term, more than six months after the j udgment had been rendered. Held, that this court did not have jurisdiction of the case.</p>

<p> Appeal from Second District, Deer Lodge Gov/nty. </p> <p>Clagett & Dixon and Sharp & Napton, for the motion to dismiss the appeal.</p>

<p> Appeal from Third District, Lewis cmd Qla/rTce Gounty: </p> <p>The action, was tried before Wade, J.</p>

Four applications for the writ of mandate were heard and determined at this term, which related to the seat of government of Montana, and contained substantially the same allegations. The pleadings in the first proceeding, that of Chumasero et al. v. Potts et al., are stated in the opinion of Wade, C. J. The other applications were filed in open court, and comprised those of Lawrence v. Hiekman, Sanders v. Stcvr and Shober v. Callaway.

Appellant cannot appeal from part of a ■ decree. This court must baye the'whole case before it to make a proper modification. The present appeal will not authorize a review of any errors assigned.

The judgment entered upon the award in this case was erroneous. The proceedings before the arbitrators did not comply with statute requirements. One of the arbitrators was not present, after the first day’s investigation. This rendered such subsequent proceedings void. Meath v. Tenney, 3 Gray, 380; JBurghardt v. Owen, 13 id. 300; FramMin M. Go. v. Pratt, 101 Mass. 359-362; Bulson v. Lohnes, 29 N. T. 291.

Higgins recovered judgment in tbe probate court of Missoula county against Dunschen, and the sheriff satisfied the same by selling Dunschen’s property. Dunschen then brought this action for the wrongful conversion of his property, on the ground that the probate court never acquired jurisdiction, and that its judgment was void.

First District, Gallatin County. This was an action for trespass, and tbe prayer for relief claimed treble damages, as provided for by section 300 of Civil Practice Act. Tbe trial was by tbe court, and tbe findings an.d judgment in favor of plaintiff.

This action was instituted to try the title and recover possession of certain quartz mining ground, claimed by the appellant under title from the earlier discovery and location as the “ Original Lode,” and adversely claimed by respondent under a subsequent location, as authorized by statute, and actual adverse possession for more than one year. There is no new matter contained in the answer that requires a replication.

1. The court erred in not allowing appellants the right to impeach the character of McDougal for truth and veracity, and refusing appellants, after Worthington had testified that he was acquainted with that character in the neighborhood where he resided, the question, “ is that reputation good or bad,” and in passing upon the competency of the witness and rejecting his testimony instead of allowing the jury to pass upon the sufficiency of thé same.

<p>Case affirmed. The case of Collier v. Field; ante, 205, is affirmed on rehearing.</p> <p>Practice — appeal — subsequent order — statute construed. On an appeal from an order made subsequent to the judgment, the court has power to reverse the judgmeút. A proper construction of section 378 of the Civil Practice Act gives the court such authority.</p>

Stears was indicted at tbe March term, 1875, witb Wheatley and another party, for the murder of Franz Warl. Wheatley and Stears were convicted, and Wheatley was hung June 29, 1875. Stears was again convicted at his second trial, and suffered death at the hands of the law.

<p>Appeal from First District, Madison Oownty.</p>

Appeal from, First District, Jefferson Oov/nty. This action was based upon tbe same instruments and indebtedness as tbe case of Fader v. Ervin, 1 Mon. 632.

<p> Appeal from First District, Jefferson Oouni/y. </p> <p>M. 0. Page, for the motion to strike out papers.</p>

<p>Appeal erom “judgments” and orders— review of evidence. At the April term, 1875, A. recovered a judgment against K. for $1, and K. recovered a judgment against Á. for the costs. A.’s motion for a new trial was refused May 10,1875. A. filed his notice of appeal July 5,1875, and appealed from the “judgments” rendered in the action at said term. A. did not appeal from the order refusing the motion for a new trial. Held, that the appeal from the “ judgments ” does not embrace an appeal from ■ the order refusing the new trial. Held, also, that this court cannot review any question of fact when there is no appeal from an order granting or refusing a new trial.</p> <p>Practice — denial — agreement of counsel. An agreement in open court that a cause pending shall be tried on the general denial in the answer to every material allegation in the complaint, precludes a party from objecting to the sufficiency of such denial and the introduction of testimony thereunder. If such denial was deemed insufficient it was the duty of counsel to have demurred thereto. If the answer was defective it was cured by the agreement.</p> <p>Measure op damages — injunction — undertaking — attorney fees. In a suit on an undertaking given to procure a temporary injunction, the merits of which were never tried, no recovery could be had for attorney fees expended in the main suit to determine the title to the waters in dispute, and evidence offered for such purpose was properly excluded. The case of Oampbell v. Metcalf, 1 Mon. 381, affirmed and applied.</p>

<p>PRACTICE —pleadings — bankrupt law. An allegation that a mortgage is void under the bankrupt law is not sufficiently explicit without setting out the clause of the law under which the claim is made and the necessary facts to justify the introduction of evidence.</p> <p>Same — pleadings — statute of frauds. If a chattel mortgage is claimed to he void under the statute of frauds, the facts to authorize such proof must be specially pleaded. A mortgage is not void under this statute because given for a pre-existing debt, or for double the amount due; there must be the further allegation that it was done to hinder, delay, or defraud creditors. Taking possession of goods under a chattel mortgage is not wrongful, unless the instrument be shown to have been fraudulent, and the pleadings must contain the proper averments to allow such showing.</p>

<p>Case jjtibmbd. The case of Bader v. Nottingham, ante, 157, holding that an order of the district court overruling a motion to re-tax costs is not appealable, affirmed.</p> <p>Appeal prom order quashing execution. An appeal can he taken to this court from an order overruling a motion to quash an execution.</p> <p>Costs — Mank for, in judgment — power of clerk. In this action a judgment was entered against O. for the costs in March, 1872, and the blank left in the judgment for the amount thereof was filled by the clerk of the district court in March, 1875. A memorandum of the costs for $115 was- filed in March, 1372, and the sum of $208 was inserted in the-blank in March, 1875. Held, that the clerk is a ministerial officer and must fill said blank within two days, or a reasonable time after the costs have been ascertained. Held, also, that the voluntary act of the clerk in filling said blank is void. Held, also, that the fees of the clerk and sheriff should be included in said memorandum by the party claiming them. Held, also, that costs can only be recovered by a strict compliance with the Civil Practice Act.</p>

<p> Appeal from Fi/rst District, Madison Oownty. </p>

The judgment was entered by BNowles, J. An appeal will he from a portion of a judgment or decree when the same is partly against and partly in favor of the appellant. A party is not compelled to bring up the part of the decree that is in his favor. The decision of Barkley v. Logan, ante, 296, is the only one to the contrary. The statute of New York is the same as our own, and the decisions and works of practice hold that an appeal can be taken from a part of a judgment.

The case was tried before Wade, J. The judgment roll in Rankin v. Campbell et al. is conclusive of the issues in tbis action and should have been admitted in evidence. Starkie’s Ev. (8th ed.) 323; Smith’s L. C. 424; Freeman on Judgt., §§ 252,302, 249. In that case the issue made by the pleadings relates to the title and right of possession of the premises in controversy. A verdict for the same cause of action between the same parties is conclusive.

<p> Appeal from First Dist/riet, Jefferson County. </p>

<p>Pkactice — motion for réhea/ring. It is not proper practice to present a case as though a rehearing had been granted on a motion for rehearing.</p> <p>Set-off — unliquidated damages — assignment. Though a claim for unliqui-dated damages is not a proper set-off against a claim founded on contract, a judgment in favor of one party is a proper offset against a judgment for damages subsequently obtained by the judgment debtor, and any assignment of such judgment or portion thereof to a third party, after this equitable right has attached, will not be allowed to defeat the same.</p>

<p> Appeal from, Third District, Lewis emd Olorice County. </p> <p>ChumaseRO & Chadwioe, for the motion to dismiss the appeal.</p>

The answer was relevant and sufficient, and the demurrer should have been overruled. Caldwell v. Cans, 1 lion. 576. The defendants were bound absolutely by the recitals in the undertaking. Being given under the statute, the law imports a good consideration besides the retention of the property. The defense might have been good if interposed in the replevin suit; but defendants cannot avail themselves of it in an action on the undertaking.

<p>Case overruled. The ease of Creighton v. Hershfield, 1 Mon. 639, holding that the Civil Practice Act of Montana did not apply to equity cases, overruled. That decision was based on the case of Dunphy v. Zleinsehmidt, 11 Wall. 614, which was reversed in the case of Horribuokle v. Toombs, 18 id. 648, and Hershfield v. Griffith, id. 657.</p> <p>Undertaking on appeal — docketing, a ministerial act — its purpose. Another ruling in the same case, 1 Mon. 639, to the effect that a deficiency judgment should he provided for in the decree and afterward entered and docketed in order to sustain an action on an undertaking to pay any deficiency on sale of mortgaged premises, given on appeal, is also overruled. That decision was based on the case of Orchard v. Hughes, 1 Wall. 77, and on rale 96 of the United States supreme court, of which the former was reversed and the latter became inoperative. The law requires a deficiency on the sale of mortgaged premises to he docketed, to become a lien and notify third parties. A decree need not contain what the law requires to he done without it, and the act of the clerk in such cases is in no sense a j udgment, nor is it final or decisive.</p>

<p>Appeal by Territory in criminal case. A demurrer to the indictment in this action was sustained on the ground that the court did not have jurisdiction of'the offense, and the Territory appealed. The three hundred and ninety-fifth section of the Criminal Practice Act provides that the Territory can appeal when judgment is rendered for the defendant in quashing or setting aside an indictment. Held, that this appeal has been properly taken by the Territory.</p> <p>Statutory construction — time for appealing and filing transcript in criminal case. The notice of appeal was filed and served October 10,1874, and the transcript was filed in this court December 28, 1874. The three hundred and ninety-sixth section of the Criminal Practice Act provides that “ the transcript must he filed -within thirty days after the appeal is taken.” Held, that this statute is directory, and that the delay of the Territory in filing the transcript does not authorize this court to dismiss this appeal.</p>

. This was a rehearing of the case reported ante, 310. The appellant made out a prima facie case. Having proved the location of the mining ground and the conveyance to him, the law presumes a continuing title until the contrary is proved.

Ajpjpeal from, Second, District, Deer Lodge County. Tbe judgment at the April term was rendered in accordance with the practice in such cases, and is good and sufficient in law. The theory of the common law is, that the rendition of a judgment is the act of the law, not of the court. Ereeman on Judgments, 546. The journal entry shows that the plaintiff was entitled to judgment, and that it was the intention of the court to give effect to the law. Nothing more was needed.

<p>CONSTRUCTION OF statute — width of lead — point of measurement. The proper construction of the act of the Montana legislature, December 26, 1864, contained in the Codified Statutes, 622, § 8, is that the measurement of the fifty feet on either side of the lead, allowed for working purposes, should begin from the outer walls of the lead, on each side, and not from the center of the lead itself.</p>

<p>Appeal —filing a/nd service of notice. This court does not have jurisdiction of an appeal in which a copy of the notice was served the day before the notice was filed in the district court.</p>

Appeal from Thi/rd Bistriot, Lewis and Clarke Cov/nty. This is the same case that was before this court at its August term, 1872, 1 Mon. 535.

The orders in tbis action were made by Wade, J. The appellant complied with the statutes of the Territory in publishing the summons and procuring the writ of attachment. The jurisdiction of the court over the parties or subject-matter in no manner depends upon the issuing of the attachment writ. The return of the sheriff upon the writ does not affect the jurisdiction. Judgment can be obtained if defendant has no property.

<p>PRACTICE — source of title — defects cw'ed — judgment supported by evidence. The source of title need not he set forth in a complaint. Defective description of property is cured by answer. Where there is evidence to support the findings of a court, or the verdict of a iury, the appellate court will not reverse a judgment based thereon. Mingv. Truett,l Mon. ÍS22, and Griswold v. Boley, id. 545, affirmed.</p> <p>Married woman’s separate property. Where a married woman has filed a list of her separate property, as required by law, it is not liable to seizure on execution against her husband.</p>

<p>Practice — amendment of pleading. A court, in furtherance of justice, and on proper terms, should allow an amendment of a pleading so as to make it correspond with the evidence introduced on trial, at any stage of the proceedings before final judgment, and may do so even after judgment. A refusal to do so. maybe cause of revising the judgment of the court below. Case of Wormall v. Reins, 1 Mon. 630, affirmed.</p>

The judgment of nonsuit was entered by Wade, J. Tbe same rule of action is to be followed in acquiring rights to placer mining ground and lode claims. Tbe court erred in excluding tbe oral testimony offered by tbe appellants to show tbeir prior rights to tbe ground in controversy. The general sections of tbe laws of tbe United States, regulating these rights, are as applicable to placer mines as lead claims.

<p>Appeal — right of — in Territory. The Territory of Montana is a corporation, entitled to maintain civil suits in its own name, with same right of appeal when aggrieved as any other party.</p> <p>Recognizance — suit on — in what name brought. Suits on forfeited recognizances should he brought in the name of the Territory. The provision of statute, that all actions should be in the name of real parties in interest, does not apply. The Territory becomes trustee of money so recovered and the law declares to whom it shall go.</p> <p>Misjoinder. Only a party improperly joined can take advantage of it.</p> <p>Recognizance — jurisdiction — comse. Under the statutes of Montana it is not necessary that a recognizance should show either the jurisdiction of magistrate or cause for its execution.</p> <p>Probate seal; The probate judge, acting as a committing magistrate, is not performing the functions of a probate court, and need not use the court seal.</p> <p>Construction — ambiguity. The recital in the recognizance was that the defendant should appear to answer on the first day of the next October term, but added erroneously, “it being the second Mondayin October, 1874,” whereas the term was fixed by law to open on the first Monday in the month. Held, that the recital was sufficient; the erroneous portion should be rejected as surplusage; the law fixes the day of the term.</p> <p>Variance — no consideration. An attempt to commit murder, and an assault with intent to commit murder, are different offenses under our statutes. If the order of the magistrate required defendants to appear and answer a certain crime, a recognizance conditioned to answer any other offense is bad. - There is no consideration for such a contract.</p>

<p> Appeal from Fvrst District, Jefferson County. </p>

The original appeal is reported ante, 59. ChuMASeeo & Chadwick and Shober & Lowry, for the motion to set aside the judgment. . This court had no jurisdiction to render the judgment. .Its powers are limited in section 378 of the Civil Practice Act. Barkley v. Logan, ante, 296. This court has no right to render an original decree after a decision has been reversed. The party against whom the reversal is ordered should have an opportunity to present his case.

The only question in this case is whether it is the province of the court or the jury to decide whether the game called “ poker ” is a game of chance. The court erred in deciding that it was the duty of the court to construe the meaning of the word. It is a question for the court and not for the jury to construe language and declare the legal and proper meaning of words used in then1 ordinary acceptation. Bishop on Statutory Crimes, §§ 862-811 inclusive.

The action was tried by Wade, J., wbo entered a judgment of nonsuit against Ford. Appellant relies solely upon tbe grammatical construction of tbe description of tbe mortgaged property. The words “ growing” and “ standing ” are not synonymous terms. They include all tbe grain at tbe date of tbe mortgage which was growing in tbe ground and not severed, or cut and standing upon tbe ground.

A corporation can- only act through its agent. ’ Appellant stood in tbe same relation to tbe corporation, and was entitled to same rights as a stranger or any other contractor doing work and furnishing supplies. Angelí & Ames on Corp., § 233; Worcester Turnpike v. Willard, 5 Mass. 85; G-ilmore v. Pope, id. 491; Phillips on Liens, § 158.

Tee judgment was rendered by Wade, J. Tbe common law of England has been adopted by this Territory, and is the rule of decision if it is not in conflict with special enactments. Ood. Sts. 888, § 1. At common law, a married woman could not hold personal property. If she had this right in Montana, it must have been conferred expressly by statute. There is no law of this kind, and such property coming to the wife after marriage becomes the property of her husband.

<p> Afypeal from Fi/rsi District, Madison Couni/y. </p>

This action was tried before Wade, J., who entered the judgment of nonsuit. A new trial must be granted. The answer admits that respondents owe the appellants $184 and interest, and judgment should have been entered for this sum. When appellants introduced the undertaking sued on, they could rest their case. The judgmeht for the return of the property was admitted, and the burden of proving that the conditions had been performed devolved upon respondents.

<p> Appeal from Third Disi/riet, Lewis and Qla/rke County. </p>

The offense described in tbe indictment was committed in Fort Benton, Cboteau county. Tbe case was tried before Wade, J., in Lewis and Clarke county, to wbicb Cboteau county is attached for judicial purposes. Tbe court erred in overruling defendant’s motion for a continuance, upon tbe agreement of tbe district attorney, that be would admit that Marshall, if present, would testify to tbe facts in tbe affidavit.

<p>Peacticb — demurrer — answer over. When a party amends his pleading on a judgment sustaining a demurrer thereto, he waives his right to call in question the action of the court in sustaining the demurrer.</p> <p>INSTRUCTIONS to jury. It was not error for the court below to refuse to give the instruction requested by plaintiff in this case. It was much too general and required a verdict for services, that, as appears from pleadings, were to be paid from trust property, and for all that appears were so paid.</p>

<p> Appeal from Thi/rd District, Lewis and Glárice County. </p> <p>This action was tried by Wade, J., without a jury.</p>

<p>Common-law offenses — in force. Section 185 of the Criminal Laws of Montana provides that all offenses recognized by the common law as crimes, and not herein enumerated, shall he punishable, etc., and classifies such crimes as felony or misdemeanor. Section 6 of our Criminal Prac tice Act confers jurisdiction of such offenses upon district courts, and section 5 of same act provides that prosecution in such cases shall be by indictment. This statute is in force and should be given its full effect.</p> <p>Nuisance — interpretation — offenses. The term offenses, as used in this statute, applies to certain acts and intentions, or acts and criminal negligence, and all such acts or omissions, as would constitute nuisance at common law, and are not enumerated in our statute, in section 147 of Criminal Law, are still indictable under section 185 of the same law. It is the act that constitutes the offense and that is punishable, and it matters nothing what name is attached to it.</p> <p>Repeal — implication. As to acts specified in said section 147, there can be no common-law nuisance, the statute having taken its place; but all other acts that constituted nuisance at common law, do so still under section 185. The common law is only so far repealed by implication, as the statute directly excludes it. ' .</p>

The orders referred to in tbe opinion were made by Wade, J. The cause was referred to W. E. Cullen, Esq., who reported findings of facts, which .were approved by the court. Appellants admit that the evidence cannot be reviewed, but claim that the sale should be set aside for fraud shown by the facts found by the referee. It is a well-settled principle that sales of real property must be conducted with scrupulous care. .

The defendant was tried and convicted in the third district under the United States laws, of the offense of selling whisky to Indians, but broke jail before sentence.

The judgment was rendered by Wade, J. Can a probate judge create an alley, except in the manner provided by the statute ? Cod. Sts. 548, § 4; Par sel v. Barnes, 25 Ark. 261; Gulick v. Grover, 33 N. J. L. (4 Yr.) 463; Green v. Beeson, 31 Ind. 7. Duties to be performed for a municipality by law must be strictly followed. If exceeded, they are not binding on the principal, and are void. Dill, on Corp., §§ 372, 749.

<p>The original case is reported, ante, 237.</p>

Game pending in TTvwd District, Lewis and Gla/rhe Counts/. This cause appears in this court upon a petition claimed to be authorized under Supreme Court Pule No. 26, to correct a statement on appeal, tbe defendant being dissatisfied with the settlement made by the judge who tried the case. The case was heard at the August term, 1875, but the opinion was not delivered till January term, 1876.

The action was tried by Wade, J., with a jury, and a judgment for Daniels was entered on the verdict. Tbe respondent moved to strike from the transcript certain parts and papers.

<p> Appeal from Second District, Missoula Gounty. </p>

<p>UNDERTAKING our appeal. Tlie undertaking on appeal must comply substantially with tie statute.</p> <p>Same — excess in penalty. An undertaking on appeal, which is executed in the penal sum of $500 when the statute fixes the same at $800, is valid.</p>

Ajypeal from Thi/rd District, Lewis and Ola/rTce County. The complaint alleged, and tbe referee found, that tbe plaintiffs were in tbe possession of certain water and were tbe prior appropriators thereof; that defendants bad unlawfully diverted tbe same to tbe great damage of tbe plaintiffs; and tbat tbe injury threatened to be continuous. Tbe plaintiffs applied to Wade, J., for tbe temporary injunction.

The judgment of nonsuit was entered by Wade, J. Tbe court erred in excluding tbe declarations of tbe driver, made at tbe time and immediately after tbe accident. Morse v. Connecticut B. B., 6 Gray, 450 ; Matteson v. N. JT. Central Co., 62 Barb. 364; Price v. Powell, 3 N. T. 325; McCormick v. Ba/rnwm, 10 Wend. 105 ; Barcla/y v. Howell, 6 Pet. 498.

<p> Appeal from Third District, Jefferson County. </p> <p>The demurrer was sustained by "Wade, J.</p>

Appeal from Third District, Lewis and Clarice Oowritry. The order appealed from was made by Wade, J. The respondent moved to dismiss the appeal.

Second, District, Missoula Oou/nt/y. The motion for a new trial was overruled by Knowles, J. The complaint does not state facts sufficient to constitute a cause of action. Tbe initial, not the full name, of plaintiff is stated. Wiébbold v. Hermann, post, 609. The complaint claims damages because appellant permitted his cattle to roam at large and break through respondent’s fence and injure his crop.

The judgment was rendered by Wade, J. Are sucking calves subject to taxation in tbis Territory 1 This is the sole question in this case. All property must be assessed in bulk, or by a specific list thereof. Cooley on Taxation, 261, 271, 272, and notes. Our statute requires a list of all taxable property from tax payers, and prescribes the form of the list and the articles it shall contain. Cod. Sts. 604, § 13; 605, §§ 14, 16.

This action was dismissed by Wade, J. The affidavit on which the case was dismissed is insufficient. Civ. Pr. Act, § 562. Had the affidavit been sufficient the order was improper. Sts. Ex. Sess. 40, § 1. The order and affidavit may be reviewed on appeal. Civ. Pr. Act, § 377. The affidavit 'was sufficient. If defective, no objection was made in the court below, and the question cannot be raised in this court for the first time.

The judgment was entered by Knowles, J. The declaratory statement is only collateral evidence in ejectment. Parol evidence of its contents or a copy is admissible. • 1 Greenl. Ev., §§ 87, 498 ; Cod. Sts. 401, § 29. The signature of the officer is only collateral to the fact that the party swore to the statement. The so-called copy was offered to prove this fact. 1 Greenl. Ev., § 86, et seq. It was not shown that the statement was not a duplicate.

<p>Practice —form of exceptions — review of evidence. I. made a motion for a new trial on the ground that the evidence did not justify the findings and decision of the court. The motion was overruled, and the clerk noted the exception of I. to the ruling, hut no hill of exceptions was prepared “ in the usual form.” Held, that the action of the clerk did not relieve I. from the duty of preparing a hill of exceptions “ in the usual form,” and that the evidence cannot he reviewed on this appeal.</p> <p>Same — time for filing statement on appeal. The statement on this appeal was filed more than twenty days after the entry of the judgment, hut within twenty days after the entry of the order overruling the motion for a new trial. I. appealed from the order and judgment. Held, that I. waived no rights by his failure to file the statement within twenty days after the entry of the judgment.</p>

Appeal'from Hirst District, Jefferson Country. BlaKE, J., rendered a judgment upon the facts appearing in a prior judgment in this action. Both parties appealed and the cases were argued together. Tbe following opinion was delivered on tbe appeal of Collier.

Third District, Meagher Oounty. The case was tried by Wade, J., with a jury. The court erred in excluding tbe evidence offered by appellant. No bond, showing on its face,' or that is proved to have been signed by some parties on condition that others were to sign it before it should be used or delivered, is legal or binding on those signing conditionally.

This action was commenced in tbe probate court and appealed to tbe district court. It was tried by Wade, J., with a jury. Tbe evidence offered and excluded was directly upon tbe issues and competent. Stodda/rd v. Onondaga Conference, 12 Barb. 575; Pr indie v. Oa/ruthers 15 N. T. 429; Robinson v. Frost, 14 Barb. 537; Oorwin v. Corwin, 9 id. 219 ; Benedict v. Seymour, 6 How. Pr. 298. Tbe denial under our system of pleading differs from tbe general issue under tbe old system.

This action was tried by Wade, J., with a jury. The following instructions are referred to in the opinion, and were given on behalf of the plaintiffs and respondents. 2. The first question which, by the pleadings in the case, we are to consider is, as to the character of the North-west Transportation Company, the plaintiffs alleging it to be a copartnership, and defendants averring it to be an incorporation.

The writ of mandate was issued by Ectowles, J. Municipal corporations act in a political character and exercise a part of tbe sovereignty of tbe State, and in a private character in wbicb they exercise powers for tbe benefit of then’ citizens. Cooley on Taxation, § 482. The legislature has no power to make a county pay or assume a debt of another.

<p>WAIVER OE MOTION TO dismiss APPEAL. The transcript on this appeal was filed at the January term, 1876, and the case was continued at the following August term hy a written stipulation, in which counsel continued all cases in which they were interested. The respondent, at the January term, 1877, moved to dismiss the appeal because the notice of appeal was served four days before it was filed. Held, that the respondent by his delay waived the right to make the motion.</p> <p>Judgment — effect of ruling requiring replication — separate trial. T. brought this action against four persons to obtain an injunction and recover damages for the diversion of water. H. answered separately and set up title to the water, and the other parties filed a general denial. The court overruled T.’s motion to strike out parts of H.’s answer, and ordered T. to reply thereto, and allowed H. a separate trial. T. refused to offer any evidence when the cause was called for trial, and judgment was entered for H. for his costs. Held, that the ruling upon the motion and replication did not injure T., and that the court properly exercised its discretion in granting H. a separate trial.</p>

This action was brought to recover the principal and interest of certain warrants of Missoula county, drawn upon the general fund. The answer denied that Higgins, the owner of the warrants, was entitled to any interest. Knowles, J., rendered judgment against the county for the principal and interest claimed in the complaint.

The judgment was rendered by Wade, J. Respondents cannot plead an equitable defense in this action unless they put themselves in a position to .finally determine the controversy and obtain a decree securing their rights. Lomme v. Kintzmg, 1 Mon. 290; 1 Tan Santv. PL (Moah’s ed.) 687; Kenr yon v. Quinn, 41 Cal. 325. The trust set up in respondents’ answer is express, and cannot be proved by oral testimony. It is not a resulting trust, as respondents paid no purchase-money.

The writ of mandamus was issued by Wade, J. The complaint is fatally defective. It does not allege that appellant refused to audit the account of respondents, or that any demand was made that he should do so. The auditor is not the auditor of his own account. He cannot issue a warrant unless he is expressly authorized by law. Cod. Sts. 381, §§ 1, 5 ; 478, §§ 9,10. Appellant had no power to audit or issue the warrant.

The order appealed from was made by Servís, J. The general rule as to costs is “that equity follows the law. Appellant recovered judgment in the court below, and the costs of tbe receiver should be taxed against the respondent. The order appealed from paid the receiver out of appellants’ property. The respondent was in fault and caused the appointment of the receiver and must suffer the consequences. The judgment should not be modified.

<p> Appeal from Second District, Deer Lodge Comity. </p> <p>Khowles, J., overruled the demurrer, and rendered the judgment appealed from.</p>