Volume 29 — Montana Reports

<p>21ining Claim — Location — Declaratory Statement — Action to Determine Adverse Claim — Possession.</p> <p>1. In an action under Section 1310. Code of Civil Procedure, to determine an adverse claim to a quartz lode mining claim, it is error for the court to admit in evidence, over objection, tbe record on a notice of location which omits a description of the discovery shaft and a description of each corner of the claim with the markings thereon, as required by Section 3612 of the Political Code.</p> <p>2. Unless tlie record of notice.of location is in substantial compliance with the statute, the location is of no value.</p> <p>3. A locator of a mining claim, who has not filed such a declaratory statement as is required by Political Code, Section 3612, and who has not actual possession, cannot have judgment in an action under Code of Civil Procedure, Section 1310, to determine an adverse claim, though defendants have made no valid location.</p>

ActioN by Silas King and others ag’ainst John Allen and others. From a judgment for defendants for costs* and from an order disallowing certain items of costs; defendants appeal. STATEMENT OE THE CASE.

S. Thresher. ' An individual debt of administrator cannot be set off against a, debt due the estate. (Vol. 11, 2d E’d. Am & Eng’. Ehcy. Law, 931.) If the accused was owing a debt to the) estate he could not set it off against a personal claim against Mrs. Van Duesen. If deceased owed him, he could not take money collected and pay himself. It was the duty of the adlministratrix to> proceed with collection of assets, notifying creditors^, etc., and distribution of estate.

ActioN by Jamies. A. Talbott and others against the Butte City Water Company. From a judgment for plaintiffs, and from an order denying a new1 trial, defendant appeals. Statement oe the Case.

<p>Criminal Law — Extortion-—Threat to Discharge Employe.</p> <p>Under Penal Code, Section 7, providing that the words “personal property” in the Code shall include money, goods, chattels, things in action, and evidences of debt, an employe’s right to work is not property; therefore a complaint ¿.charging a foreman with extorting money from an employe by a threat to discharge him did not charge the crime of extortion defined by Penal Code, Section 911, providing that fear such as will constitute extortion may be induced by a threat to do an unlawful injury to the person or property of the individual threatened.</p>

<p>Pleading — Counterclaim — Replication — Necessity — Assignment for Benefit of Creditors — Rights of Assignee — Appeal ■ — Harmless Error.</p> <p>1. In an action for the conversion of lumber, an answer tbat defendant claimed the property as assignee for the creditors of the original owner, and that plaintiff never made any demand on defendant, but stood by, with knowledge of defendant’s claim, and allowed and induced defendant to sell the property as assignee, did not state a counterclaim.</p> <p>2. under Civil Code, Section 4521, providing that an assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor has, in respect to things in action transferred by the assignment, the assignee cannot attack a previous transfer by the assignor as in fraud of creditors.</p> <p>3. under Laws of 1899, p. 152, requiring a replication to all new matter alleged in the answer, plaintiff may have judgment without a replication if the new matter states no defense, or only such as might have been raised under a general denial contained in the answer.</p> <p>4. A transfer by a debtor of property not accompanied by change of possession is not void as against the assignee for the benefit of the debtor’s creditors, under Civil Code, Section 4491, declaring such transfer void as against any one on whom the deb'tor’s estate “devolves” in trust for the benefit of others, as the estate does not “devolve” by such assignment, but is granted by it.</p> <p>5. That a verdict is contrary to instructions which were inapplicable is not ground for reversal.</p> <p>6. In an action for the conversion of lumber, defendant, having alleged that he claimed as assignee for the creditors of the original owner, could not interpose the defense that he was a creditor of the assignor.</p> <p>7. A verdict on conflicting evidence will not be disturbed on appeal.</p> <p>8. . In an action for the conversion of lumber, a witness for plaintiff testified that the lumber was turned over to him as plaintiff’s agent by the original owner, and, in testifying, stated that a memorandum he then held in his hand showed the total amount received by him, that the different amounts ' were figured thereon, and that it was a correct statement of the amount of pieces and sizes of lumber. HeZd, that any error in admitting the memorandum in evidence was harmless, since, if it had heen excluded, witness would have been entitled to refer to it, and state the amount of lumber turned over to him.</p>

<p>Appeal from District'Gourt, Lewis and Glarhe County; Henry C. Smith, Judge.</p> <p>ActioN by S. L. Conklin against W. E. Cullen. Eroni a judgment for defendant, plaintiff appeals.</p> <p>Citing: Black on Tax Titles, Secs-. 362, 267; Blackwell on Tax Titles, 717, 398; Corning Town v. Davis, 44 Iowa, 628; Gould v. Sullivan, 20 L. B. A. 487; Price v. Mott, 5 Pa. St. 315; Eastman v. Linn, 26 Minn. 215 ; Blackwell v. First Nafl Bank, 63 Pac. 43; Early v. Doe, 16 How. 610; Roberts v. First NatT Bank, 79 N. W. 1051.)</p>

District Court, Yellowstone County; C. II. Loud, Judge. AotioN by Charles Af. Bair against Henry Struck. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. The appellant is a publics officer charged with the performance of a public duty for the public good. By express provision of law, it was made his duty to determine the proportion and mixture of materials used for dipping purpjoses.

Woody, Judge. Action- by the Empire state Mining Company against Mary E. Mitchell, executrix of Armistead II. Mitchell, deceased. Judgment for defendant. Plaintiff appeals. The authority of an attorney to make an affidavit for bis client is presumed, and neither offer nor proof of authority is necessary. (Miller v. Adams, 52 N. T. 4-09.) An affidavit which shows that the party making it is the agent, of the plaintiff is presumptively made in behalf of the plaintiff.

H. Par-leer, Judge. ActioN by Milton L. Davidson against Reese B. Wampler and others. From a judgment for plaintiff, and an order denying a. motion for a new trial, defendants appeal. STATEMENT OE THE CASE. Action by tlie plaintiff to foreclose a mortgage upon certain real estate situate in Beaverhead county. The court entered judgment in accordance with the prayer of the complaint. Defendants have appealed from the judgment and from an order denying a new trial.

II. Woody, Judge. ActioN by Pees. Powell against Albert May and others. Erom a decree in favor of defendants, and from an order denying a new trial, plaintiff appeals.

AotioN by John Yank against Thomas Bordeaux, constable. From a judgment in favor of plaintiff, and from an order overruling’ a motion for a new trial, defendant appeals.

Action by Patrick J. Hamilton against James' A. Murray. Judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Appeal jrom. District Court, Silver Bow County; John Lindsay, Judge. .Actiox by the city of Butte against L. E. Coolc and another. Eroin an' order denying' plaintiff’s motion for a new trial, after judgment for defendants, plaintiff appeals.

Action by Henry Kip]> against Ruth A. Burton and others. Judgment in favor of plaintiff. Prom an order of the court authorizing and directing the cleric to attach the seal of the court to the writ of execution theretofore issued, defendants appeal.

OeigiNau application by the state, on tlio relation of F. Augustus Heinze and Jobnstow.n Mining Company against the district- court of the- Second judicial district, and Hon. Willifim Clancy, judge thereof, to the supreme court under its- supervisory power, for an order setting aside an order of said district court permitting the inspiection and survey of the underground workings of applicants’ mine.

ActioN by Mary J'anei Agle against the Standard Drug Company. From a judgment in favor of plaintiff, defendant appeals. ■ The power given to a business manager of a corporation to transact its business, does not authorize him to bind the cor.pb-ration, as maker of a negotiable promissory note. The note in this case, not being primo, facie binding on the defendant, should have been excluded.

II. Parlcer, Judge. Action bj Herman F. .Meisner against the city of Dillon. From a judgment for plaintiff, and from an order denying’ a motion for a new trial, defendant appeals. STATEMENT OE THE CASE. Tbis action was brought by Herman F. Meisner against the city of Dillon to recover damages for personal injuries alleged to have been caused by the negligence of the defendant city.

Mandamus by tlie state, on tbe relation of tbe city of Butte, against John Weston, as county clerk of Silver Bow county, to compel'respondent to make and deliver to' the treasurer of relator a duplicate assessment book as required by Political Codej Section 4867 et seq. STATEMENT OF TUB CASE. Application for writ of mandamus. On October 17, 1903, tbe application for the writ was presented to tbe court.

<p>Appeal from District Court, Deer Lodge Countyj Welling Napton, Judge.</p> <p>ActioN by the Ancient Order of Hibernians, Division No-. 1, of Anaconda, Montana, against Obarles W. Sparrow and others. From an order dissolving an attachment, plaintiff appeals.</p>

AotioN by John W. Hefferlin and others against G. W. Karl-man and another, copartners as Nariman & Jennings. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. Every general partner is the agent of the partnership, in the transaction, of its business, and has authority to do' whatever is necessary to carry on such business in the ordinary manner. (Civil Code, Sec. 3231 et seq11 Am & Elng.

<p>Irrigation — -Water Ditch — Right of Way —- Condemnation— Certiorari to Review — Propriety — Jurisdiction of Lower Court — Remedy by Appeal.</p> <p>1. Code of Civil Procedure, Section 2210, relating to the condemnation of rights of way for water ditches, provides that all such proceedings must be brought in the county where the land is situated. Held that, after filing a complaint in the proper county, plaintiff could not change the place of trial at his own instance to another county merely by a recital in the summons that the hearing would be had there, and the order made at such hearing was without jurisdiction.</p> <p>2. Three prerequisites to the granting of a writ of certiorari are indispensable and must coexist: (1) Excess of jurisdiction in the court or judge making the order complained of; (2) absence oi the right of appeal; and (3) lack of any plain, speedy and adequate remedy other than certiora/ri.</p> <p>3. Code of Civil Procedure, Section 2214, relating to the condemnation of rights of way for water ditches, and providing that any party can appeal to the supreme court from any findings or judgment, as in other cases, precludes a resort to certiorari.</p> <p>4. "Where a resort to certiorari to review an order condemning land for a water ditch is precluded by the right of appeal given by statute, the question whether there is any third plain, speedy and adequate remedy is immaterial.</p>

<p> Appeal from District Gourt, Silver Bow County j William Clancy, Judge. </p> <p>AotioN by Cor. O. HarringtoR against tbe Stromberg-Mul-Hrs Company, a corporation. Prom a judgment for plaintiff, defeRdaRt appeals.</p>

ActioN by Dumas Taillon against J. L. Meaxs and the Judith Stage Company. From an order denying a new trial, defendants appeal. The master is not liable for the acts of the servant which are not done in fhe course of his employment. (Walker v. U. & St. J. By. Co., 121 Mo. 584; Shearman & Redfield on Negligence, See. 148; Walton v. N. Y. Cent.

Application on the relation of tbe city of Walkerville for writ of mandate to tbe district court of tbe Second judicial district, Silver Bow county, and EL W. Harney, a judge thereof.

Smith, Judge. Wilton Gr. Beown was prosecuted under Senate Bill No. 29 (Laws of 1903, Chapter 58) for unlawfully shooting and killing a turtle dove, was found guilty, and judgment was rendered against him, from] which judgment he appeals.

<p>Drkinent Domain — Condemnation Proceedings for a Railroad Right of Way — Damages for Improper Construction.</p> <p>Under Code of Civil Procedure, Sections 2221, 2222, damages accruing to adjacent property from improper construction of railroad are not allowable in condemnation proceedings for a railroad right of way.</p>

Appeal'from District Court, Powell County Felix Laydey was convicted of grand larceny, and from an order granting a new trial tbe state appeals.

<p>Appeal — Jurisdiction of Appellate Court — When Attaches— Authority to Hear and Determine — Record on Appeal— Essential Requisites — Lacle of Judgment Roll — Dismissal of Appeal.</p> <p>1. Where a notice oí appeal has been duly filed and served, and a bond has been filed according to law with the clerk oí the district court, that court is ousted of jurisdiction, and jurisdiction over the appeal is in the supreme court.</p> <p>2. Although the supreme court has jurisdiction of an appeal after notice and bond have been properly filed and served, yet, under Code of Civil Procedure, Section 1736, providing that on appeal from a final judgment appellant must furnish a copy of the notice, judgment roll, and any bill of exceptions or statement of the case, where the record is defective in any of these particulars, the appeal cannot be heard and determined.</p>

Petition by tlie state, on tlie relation of Sydney P. Morse and others, for a, writ of supervisory control to the district court of the Seventh judicial district, in and for the county of Yellowstone, and Hon. Charles H. Loud, judge thereof.

<p>On rehearing.</p> <p>STATEMENT OE TJIE CASE.</p> <p>The appeal in this action was heretofore dismissed (28 Mont. 460, 12 Pae. 972), but upon application was reinstated, the appellants! granted leave to- file an amended transcript, and the cause then heard on its merits.</p> <p>The action was brought to restrain the countyi treasurer of Silver Bow county from selling certain real estate for alleged delingnent taxes. The complaint alleges that prior to July 12, 1893, the city of Butte attempted to lay out and establish'an alleyway through Mock 31, townsite of Butte, extending from Bark street to Galena, street; that for the purpose of meeting and defraying the expense incident to such improvement the city council, on July 12, 1893, adopted a resolution levying a tax upon certain property in the city of Butte, the city council then determining that the property on which the tax or assessment was. levied was benefited by the opening of the alleyway. After designating the property affected by the levy and the amount of taxes sought to- be collected, the complaint alleges that the city hadi no right or title to the alleyway, the same being owned by private individuals; that in making the levy the city council omitted from the assessment other property situated in the same district and locality as the property assessed, and which property so omitted was benefited by the alleged opening of the alley, and should have 'borne its proportion of the expenses; that the city council adopted a frontage rule of valuation as a basis for determining the taxes to be assessed against tire property; that the lots, or parcels of land upon which the tax was levied were of an unequal depth and area., and the adop^ tion of the frontage rule resulted in omitting from, the assessment certain pieces of property which should have been taxed; that the plaintiffs appeared before the city council sitting as a board of equalization, and objected to such assessment; that on or about August 12, 1893, the city treasurer declared the several amounts, due from) the plaintiffs on account of such assessment delinquent, and certified a list of the names of the owners so assessed, including these plaintiffs, together with a description of the property and the amounts due thereon, to the county clerk of Silver Bow county, witm thereafter delivered the same to the county treasurer; and that the treasurer threatens to sell the property of these plaintiffs to satisfy such delinquent taxes, and, unless restrained, will do so. The prayer) is for an injunction restraining such sale. To this complaint the defendants interposed a general demurrer, which was, sustained, and, the plaintiffs declining to amend, judgment for costs in favor of the defendants was entered, and from that judgment the plaintiffs appeal.</p> <p>Whenever am attempt is made, to charge or devest the estate of a. citizen by statutory modes, the proceedings must strictly follow! the steps of the statute, or the attempt will fail. (Smith v. Davis, 30 Oal. 536; Bensley v. Mountain Lake Go., 13 Oal. 306; Curran v. Shattuck, 24 Oal. 427; Stanford v. Worn, 27 C'al. 171; Haskell v. Bartlett et al., 34 Oal. 281; Himmelmann v. Oliver, 34 Oal. 247; Smith v. Gofran, 34 Oal. 310'; Himmel-mann v. Steiner, 38 Cal. 175 ; Dowell v. Portland, 10 Pan 308; Chambers v. Shatterlee, 40 Oal. 524; Himmelmann v. Hoad-ley, 44 Chi. 279; Brock v. Lurning, 89 Cal. 318; Blanchard v. Beideman, 18 Cal. 261; Himmelmann v. Danos, 35 Oal. 448; Hewes v. Beis, 40 Chi. 255; Taylor v. Donner, 31 Gal. 481.)</p> <p>The acts of ministerial officers are to be tested by the law which governs them; by the record, as originally made, their acts must stand or fall. (Blackwell on Tax Titles, page 357; Dowell v. Portland, 10 Pac. 311.)</p> <p>A property owner has a vested right to be -assessed according to the method of law in force when the work is ordered, and if the levy or assessment is made according to a different method, or under a different law, by which either the amount to be paid, or the time in which payment be made, is different front that of the original law which was in force at the time the work was ordered, the levy or assessment is void and the property owner cannot be required' to1 pay ai levy or assessment so- made. (Oity of Spokane v. Broivne, 36 Pac. 26; City of Cincinnati v. Sea-songood, 21 N. E'. 630; Huston v. McKenna, 22. Oal. 550; Creighton v. Pragg, 21 Oal. 115; Todd v. Laundry, 12 Am. Dec. 480, note.)</p> <p>The fact that the city council in making the assessment omitted any lot or part of a lot, that was situated within the district benefited, renders the whole assessment void. (Peovle v. Lynch, 21 Am. Bep'ts. 677.)</p> <p>. The frontage rule of assessment is contrary to- Article XII of the Constitution of the state, which provides in substance tbat all property shall be taxed at a uniform rate, according to its value. (McBean v. Chandler, 24 Am. Bep. 308; Kertsen v. Milwaukee, 48 L. B. A. 851.)</p>

Smith, Judge. ActioN by Tbomas Micbener against W. J. Fransham. The trial court instructed the jury to bring in a verdict for plaintiff. From the judgment rendered upon the verdict of the jury brought in in pursuance of the court’s instruction, and from an order overruling his motion for a new trial, defendant appeals.

<p>Temporary< Injunction — Application to Dissolve — Use of Affidavits — Surface Water — Natural Water Course — Flowage— Accustomed Channel — Bights of Upper Proprietor — Bights of Lower Proprietor.</p> <p>1. Under Code of Civil Procedure, Section 878, where defendant’s motion to dissolve a temporary injunction is based on the complaint alone, plaintiff has no right' to file an affidavit in support of the complaint.</p> <p>2. To justify granting a preliminary injunction, the plaintiff’s right must be certain as to the law and facts.</p> <p>3. Owners of land along a natural water course are entitled to have its waters flow down upon, and depart from, their land in the accustomed channel.</p> <p>4. The allegations of a complaint upon which a temporary injunction was granted enjoining defendants from permitting certain water to flow down upon the land of plaintiff, examined, and held to be insufficient to entitle plaintiff to the injunction, whether said water was a natural water course or surface water..</p>

ActioN by William. T. Hoar against J. B. Hennessy and Mike Hennessy. From a judgment for defendants, and from ■ an order denying a new trial, plaintiff appeals. A verbal agreement between conterminous proprietors of land establishing a line between their respective estates, and that such line shall become the division line, is invalid.

<p>Appeal'from District Court, Silver Bow County j-William Clancy, Judge. ■■</p> <p>Action by Flora El Greene against Thomas Rowan and Nicholas Hughes.. From an order setting aside a judgment for defendants, they appeal.</p>

Weit of'mandate by the state, on the relation of Calvin Beach and others, against the district court, Department No. 1, Lewis and Clarke • county.

McClernan, Judge. James MaRtiN was convicted of murder in tbe first degree. From tbe judgment, and from tbe order overruling bis motion for a new trial, defendant appeals.

District Court, Deer Lodge County; Welling Napton, Judge. IN the matter of the estate of Thomas Ford, deceased. On objections by Con. Hayes, executor, to the final account of R. De B. Smith, special administrator. From an order allowing the account, executor appeals.

ActioN by Stagg & Conrad against E1. L. St. Jean. From a judgment in favor of plaintiffs, and from an order overruling a motion for a new trial, defendant appeals. Tbe language of a contract should be interpreted most strongly against tbe party who caused the uncertainty to- exist. The p-romissor is presumed to be suck party. (Civil Code, Sec. 2219; Keith v. Elec.

C. Webster, Judge. Louis H. Mott was convicted of murder in the first degree. From the judgment and from an order denying his motion for a new trial, he appeals.

W. Harney; Judge. ActioN by Timothy J~. Sbea against Patrick H. Regan, sheriff of Silver Bow county, and Lewis F. Huffman et at. Judgment in favor of plaintiff against Huffman. Prom' an order denying a motion for a new trial, defendant Regan appeals. STATEMENT OE THE CASE.

<p>Pleading — Pleas in Abatement — Misnomer—Amendment.</p> <p>Where defendant answered in abatement for misnomer, alleging its true name, it was error for the court to enter judgment on the merits against defendant, but plaintiff should have amended in accordance with the answer, its truth being conceded, or the action have been abated.</p>

Tat-tan, Judge. ActioN by Jessie Ball against Joseph Gussenhoven. From a judgment for plaintiff, defendant appeals. The respondent is not entitled to recover for the injuries sustained for the reason that she assumed the risks of the 'employment in which she engaged; there is no question of contributory negligence in the case at bar; the doctrine of assumed risks must determine the question of appellant’s liability.

W. Harney, Judge. Action by the city of Butte against School District No. 1. From a judgment for defendant, plaintiff appeals. A special assessment is not a tax, and Section 2 of Article XII of the Constitution, exempting school property from taxation, does not apply .to special assessments. (Elliott on Hoads and Streets, Sec. 549; Ford v. Delta & Pine L. Go., 164 U. S. 662; Illinois O. B. Co. v. Decatur, 147 II. S. 190; West Wis. B. Co. v. Trempeleau Co. 8., 93 IT.

<p>Contractor's Lien — Foreclosure — Pleading — Counterclaim— Setoff — Splitting Demand — Answer—Admission.</p> <p>1. under Code of Civil Procedure, Section 691, orders on the property owner to laborers, given by tbe contractor for work .done in the removal of buildings, are properly pleaded as counterclaims in an action by the contractor or his assignees to foreclose a lien for the contract price of such removal.</p> <p>2. Where a property owner contracts for the removal of buildings from his property, and on completion of the work the contractor issues orders on the property owner to the laborers assisting in the work, which the property owner refuses to pay until liens therefor are foreclosed, he is not entitled to set off the costs of foreclosure in an action to foreclose a lien for the contract price.</p> <p>3. An action to foreclose a lien for the contract price of removal of buildings is not barred, as a violation of the inhibition against “splitting demands,” where the laborers have previously foreclosed a lien for the amount due them on account of work done for the contractor.</p> <p>4. Where part of an answer does not contain sufficient allegation within itself or by reference to other parts of the answer to constitute a separate defense, but is merely a repetition of other parts of the answer, which are denied, no specific denial thereof is necessary.</p>

ill. Clements, Judge. ActioN by James Porter and others against the Plymouth Gold Mining Company. Prom a judgment entered on demurrer, and from an order’ dissolving an attachment, plaintiffs appeal.

<p>Discovery■ — Inspection of Boohs and Papers — Order—Affidavits — Sufficiency—Constitution.</p> <p>1. The constitutional guaranty contained in Article III, Section 7, that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures, cannot be disregarded under Section 1810, Code of Civil Procedure, unless such necessity for inspection exists as is contemplated by said section.</p> <p>2. under Code of Civil Procedure, Section 1810, the court, before making an order of inspection, must determine from the moving papers that an action is pending, and that the writings subject to be inspected contain competent evidence, material to the issues, or necessary to enable the moving party to prepare for trial; and hence tlie moving papers must affirmatively show that such action is in fact pending.</p> <p>3. under Code of Civil Procedure, Section 1810, the court must determine from the facts set forth in the moving papers whether any necessity exists for the order; and affidavits which do not set forth any facts, but merely affiant’s conclusion that such inspection is necessary, are insufficient.</p>

<p>PROCEEDINGS in the matter of the alleged contempt of E. W. Harney.</p>

<p>Corporations — Injunction Pendente Lite Against Disposal of Stock — Evidence-^-Sufficiency-—Appeal.</p> <p>An injunction pendente lite against a corporation and a trustee of its stock to prevent disposing of a certain portion thereof will not be interfered with on appeal, where the evidence at the preliminary hearing tends to prove the allegations of the complaint.</p>

M. Clements, Judge. L. MoKiNNey was convicted of conveying and selling milk and cream without a license, and appeals. A license charge or fee is a tax within the meaning of the term “tax” as employed in all sections of the Constitution of Montana, other than the “uniformity clause.” (State ex rel. Sam Toi v. French, 17 Mont. 54.) The exaction of one dollar per month license fee under Section 15 was made by the legislature with a view to revenue.

<p> Appeal from District Court, Silver Bow Countyj William Clancy, Judge. </p> <p>ActioN by John Hopkins and another against tbe Bntte Copper Company. From a judgment in favor of defendant, plaintiffs appeal.</p>

<p>Appeal from District Gourt, Silver Bow County; William Glancy, Judge.</p> <p>.Action by John Hopkins against the Butte Copper Mining Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>Action by John' Hopkins and another against the Butte Copper Mining Company. Prom a judgment in favor of defendant, plaintiffs appeal.</p>

Bilí, by James Forrester and Jobn MaeGinniss against tbe Boston & Montana Consolidated Copper & Silver Mining Company of Montana and others, to- restrain and cancel a transfer of all the stock of defendant corporation. From a decree declaring the transfer null and void, and from, an order granting tbe plaintiffs attorney’s fees, defendants appeal.

B. Leslie, Judge. Peecy De Wolee was convicted of grand larceny. Prom tbe judgment, and from an order denying bis motion for a new trial, be appeals.

AotxoN by John MacGrinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and another, impleaded with A. S'. Bigelow and others. From orders granting temporary injunctions, defendants separately appeal. STATEMENT OE THE CASE.

ActioN by John MacGinniss against tbe Boston & Montana Consolidated Copper & Silver Mining Co. and others, impleaded with A. S. Bigelow and others. From an order granting a temporary injunction, defendants, appeal.

AotioN by Daniel Lamm and another against the Parrot 'Silver & Copper Company and another, impleaded with C. S. Dickey and others. Prom an order granting a temporary injunction, defendants appeal.

' ■ Action by Joseph Petelin against Prank Kennedy. Prom a judgment of tbe district court affirming a judgment of a justice for plaintiff, defendant appeals.

ActioN by A. B. Wilson and others against George’0. Freeman in support of an adverse claim to a mining location. From a judgment in favor of defendant, plaintiffs appeal.

<p> Appeal from, District Court, Silver Bow County; William Clancy, Judge. </p> <p>ActioN for divorce by John B. Bordeaux against Ella E. Bordeaux. From an order allowing defendant counsel fees, plaintiff appeals.</p>

ActioN by Dave Hogan against T. L. Kelly and another. From a, judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from District Court, Sweet Grass County; Frank Henry, Judge.</p> <p>B. M. Mjelde was informed against for grand larceny, and from a directed verdict of acquittal the state appeals.</p>

L. Holloway, Judge. ActioN by Allen M. Easterly against James E:. Jackson. Erom a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. At the request of the defendant, the court gave the jury instruction No. 7.

ActioN bj Louis J. Hendrickson against William Wallace. From an order denying a new trial, defendant appeals. The appellant has proceeded in this case upon the theory that it is a case in equity, wherein the court had the right to disregard the verdict of' the jury. In this we think he is clearly mistaken. The parties were entitled to a trial by jury of .the question of damages set out in respondent’s second cause of action.

Smith, Judge. James S. Keeel was convicted of murder in the second degree. From the judgment, and from an order denying his motion for a new trial, he appeals.

<p>Kidnapping — Information—Sufficiency* — Appeal — Record— Bill of Exceptions. ,</p> <p>1. Under Penal Code, Section 2229, Subd. 1, and Session Laws 1903, p. 47, Chap. 34, tbe- original and first amended informations, and demurrers to' tbem which were sustained, and a motion to dismiss the prosecution, and order overruling it, were not a part of the appeal record, where they were not embodied in the bill of exceptions.</p> <p>2. Under Penal Code, ‘Section 2171, providing that a draft of a bill of exceptions in a criminal case shall be presented for settlement on at least two days’ notice to the county attorney, where the record on appeal does not show affirmatively that such notice was given, the bill of exceptions will not be considered.</p> <p>3. Under Penal Code, Section 380, Subd. 3, as amended by Session Laws of 1901, p. 169, providing that whoever willfully entices or by force or fraud takes away another from a place within the state, and afterwards brings such person into this state, is guilty of kidnapping, the crime is complete when these acts are done, though without intent to cause the person to be-secretly confined and imprisoned within tbe state, notwithstanding Subdivision 1, making that an element of the crime where the person is seized in this state.</p> <p>4. An objection that the concluding phrase of the counts of an information, “against the peace and dignity of the state of Montana,” etc., modifies only the last sentence preceding such words in each count is without merit.</p> <p>-5. Under Penal Code, Section 1830, providing that the rules by which the sufficiency of pleadings in criminal actions is to be determined are those prescribed by that Code, an information is sufficient where it conforms substantially to the form laid down in Section 1833, and to the rules prescribed in Section 1841, and there is no imperfection in matter or form thereof tending to the prejudice of a substantial right of the defendant on its merits (Section 1842).</p>

Application by W. P. O’Brien for a writ of habeas corpus. Counties are not municipal corporations, but at most quasi municipal corporations. (Constitution, Art. XVI, Sec. 1; Political Code, Secs. 4190, 4193; People v. Sacramento, 45 Cal. 692; People v. McFadden, 81 Cal. 491; Kahn v. Sutro, 114 Cal. 316; Storm v. School, 36 Am. St. B,ep>. 459, and note; LaTce v. Lacy, 51 Am.

<p> Appeal from District Govert, Hosebud County; G. H. Loud, Judge. </p> <p>E'lectioN contest by Clarence R. Lane against Charles W. Bailey. Judgment for plaintiff, and defendant appeals.</p>

<p> Appeal from. District Court, Rosebud County; C. H. Loud, Judge. </p> <p>ElectioN contest by Clarence E. Lane against N. J. Humph-reys. Judgment for plaintiff, and defendant appeals.</p> <p>Mr. T. J. Porter, and Mr. J. C. Lyndes, for Eespondent.</p>

<p> Appeal from District '‘Court, Silver Bow County; John B. McClernan, Judge. </p>

<p> Appeal from District Court, Leiuis and Clarke Countyj Henry C. Smith, Judge. </p>

<p>Appeal from District Court, Lewis and Clarice County; J. M. Clements, Judge.</p>

<p>Appeal from District Court, Silver Boiv County; William Clancy, Judge.</p>