Volume 3 — Montana Reports

Knowles, J., sustained the demurrer to the complaint. Ifir-bour declined to amend the same and judgment was entered for Reeding and Gassert, the defendants. ' The Statute of Frauds has no application to a contract of the character of the one in suit, and if it did, the part performance to the extent of the performance carries it out.

This cause was tried in both courts upon an agreed statement of facts, involving only a construction of the statute. The exemption of the mine exempts the product of the same. Courts should acquiesce in the construction that heretofore has uniformly been given this act. See Sedgwick on Stat. and Const. Law, 379 ; Pennington v. Goxe, 2 Cranch, 33 ; United States v. Fisher, id. 358; Preston v. Browder, 1 Wheat. 115.

This action was tried by Wade, O: J. The subpoena was of no validity, and- the certificate of the U. S. marshal had no legal efficacy. United States v. Ensign, 2 Mon. 396. The United States marshal is unknown to our Civil Practice Act, and the service of the summons is confided to certain officers and persons. The sheriff can only serve papers in. his county and no certificate is of legal force except it be provided by law. Woods v. Nabors, 1 Stew.

This cause was tried in the court below by Blare, J. The demurrer to the indictment was improperly overruled. Neither the court nor grand jury had jurisdiction of the offense charged. The offense charged is nowhere made a crime by our laws. There is no such crime as fornication recognized, defined or provided with penalty under the statutes of Montana.

This action was tried by Know les, J. The county commissioners of Missoula county had no authority to substitute the second bond for the first one. Their duties are defined by the statutes, which do not confer this-power. Codified Statutes, 451, § 87; 452, § 90; 1 Dill. Mun. Corp. 173, § 55 ; Homiblower v. Duden, 35 Cal. 664. The county commissioners had the power to accept the new bond in lieu of the old one.

Appeal j-rom, Second District, Deer Lodge County. Tbe court below erred in admitting copy of records of Summit Yalley Mining District. There is no law authorizing copies of such district records to be received as evidence. There was no evidence of tbe copy being correct, either by the party who copied it or by any one who compared it afterward.

This action was tried by Khowles, J., without a jury. The subject of controversy was situated in the third judicial district, and the place of trial was changed by reason of Wade, C. J. being disqualified. The facts of this case warranted no conviction and the judgment below was erroneous for the following reasons : The appellant ha.d the right to enter upon the premises in question and acquire good title against all save the United States. XT. S. Rev. Sts., §§ 2257-8, 2382.

This action was brought by plaintiff to recover damages for injuries received by the upsetting of defendants’ stage coach. The action was tried at an adjourned session of the March term, 1877, of the third district court for Lewis and Clarke county. The jury gave verdict for plaintiff for $5,000 damages, from which verdict and judgment thereon this appeal was brought. 1.

<p>Tlie same questions in this case were raised and determined as in tlie case of Higley v. Gilmer et at. See ante, p. 90.</p>

The cause was tried before Blake, J. The court below erred in not striking from complaint irrelevant matter calculated to excite prejudice of the jury, and such portions as contained law, argument, hypothesis and evidence, as distinguished from fact. Green v. Palmer, 15 Cal. 414; Coryell v. Cain, 16 id. 567; Willson v. Clea/veland, SO id. 200. The court below erred further in striking out portions of answer setting up special defense as bar.

This action was tried before Ejstowles, J. The court erred in permitting B. to testify to acts similar to that charged, committed prior to November 9, 1877, as they would constitute a separate crime. 3 Greenl. Ev., § 13 ; Roscoe’s Grim. Ev., § 81; 1 Arch. Grim. Pr. 393 et seg.; Whart. Grim. Law, §§ 635, 647-650. In this offense it is not necessary to prove any intent other than what the law infers from the act itself.

Tiie facts of the caso are included in tbe opinion of the court. The probate judge under the law is trustee for occupant alone. The trust is created by act of congress and must conform thereto. U. S. Rev. Sts., §§ 23S7-2391. The act of congress was not intended to deprive a bona fide occupant of his rights. Hides v. Heed, 19 Cal. 566 ; Jones v. Petaluma, 38 id. 399; Allemany v. Same, id. 556LeHoy v. Cunningham, 44 id. 602.

The indictment should specify with certainty upon whom the offense was committed. 19 Ala. 540; U. S. Dig. Crim. Law, 650, § 21. In case of a female over ten years of age there should be evidence of resistance. People v. Morrison, 1 Park. Crim. Law, 644; People v. Abbott, 19 Wend. 192; Walter v. People, 50 Barb. 144. The court erred in instructing the jury as to what constitutes a reasonable doubt. 11 Nev. 343. The verdict did not justify the judgment. Bish. on Stat.

This action was tried by Wade, C. J. The court below vested a title in respondent to the property in controversy, and erred in not placing appellant in the condition lie was in before the suit was commenced. Appellant was not voluntarily in court, and the buggy was in possession of respondent through the process of the court. It had been taken from appellant by an officer of the law and delivered to respondent, who brought the action.

This cause was tried in the court below by Blare, J. Complaint and amendment should have been stricken from the files for want of proper verification.- Defendant’s demurrer for insufficient description of parties by name in complaint and summons should have been sustained. Wiebbold v. Hermann, 1 Mon. 609. Other causes of demurrer were well taken. There was a variance between allegation of complaint and the exhibit.

This action was tried by tbe court, EAowles, J., without a jm-y- The telegram constituted Alger an agent of the respondent and authorized him to draw the draft in suit. If respondent authorized the drawing of the draft by Alger, or authorized appellant, as a fair and reasonable party, to believe that the authority had been given, it is bound by the acts of the party acting as agent. 1 Pars, on Notes and Bills, 100, 101; Chitty on Bills, * 80, * 31.

The judgment was rendered by Knowles, J. The case of Wiebbold v. Hermann decides a pleading void for uncertainty by using initials only for Christian name. For the same reason a mortgage in the same condition should be held void. A conveyance void in part is void in toto, upon the same principle that a law unconstitutional in part is so altogether. United States v. Heed, 2 Otto, 221.

This case was tried in tbe court below, before Blare, J. 1. The indictment does not charge facts sufficient to' warrant a conviction of murder in the first degree, under our statute. 10 Ohio St. 459, 598. See Hex v. Philips, 6 East, 454; 8 Ohio St. 109, 124, and authorities cited; id. 307; 24 Wend. 518 et sey. 2. The court did not properly instruct the jury upon the subject of murder in the first and second degrees. See People v. White, 21 Wend. 51S; State v. Puans, Mo.

The judgment was rendered by Knowles, J., wbo tried the case without a jury. The recognizance is sufficient under our statute. Or. Pr. Act, §§ 108, 257, 258 ; Mendocino Go. v. Lamar, 30 Cal. 627; People v. Kcme, 4 Denio, 534; 1 Dill, on Mun. Corp. 276. The court had jurisdiction over the person of the principal in the recognizance for the crime for which he was committed in the view of the court.

<p>Construction of Revbnue Law — mortgage—record. A mortgage on real estate is only personal property, and under the Revenue Law of Montana (Codified Laws of 1871-2) can only be assessed in tlie county where found. The record of such mortgage in the recorder’s office of a county, being only a copy of the original, is not taxable personal property.</p>

Appeal-from Third District, Lewis and Clarke County. This action was before this court on another appeal. 2 Mon. 482. Isaac P. Alden, Esq., was appointed a referee to take the testimony and find the sums that were due to thejmrties. This report was confirmed by the court, Wade, C. J., and a judgment was entered against Fort. No copy of the amended and supplemental complaint was served, as required by law, on Fort, or his attorney.

<p>Pleading! —• replication — general or speciñc denial. The Civil Practice Act of Montana, 1874, prescribes what an answer shall contain, hut is silent as to replication. As to new matter contained in the answer the replication should follow the requisites of an answer, whether the denial should he general or specific.</p>

<p>The only question raised in this case is fully considered in the case of Hig-ley v. Gilmer dal., decided at this term. See ante, page 90.</p>

This is the same case, reported in 2 Mon. 605, appealed again from judgment of court below', Blare, J., overruling motion to amend, answer and try the cause de novo, after the case had been reversed and remanded for error occurring subsequent to trial.

This action was tried before Wade, C. J., who refused the motion for a new trial. The limitation of an action of trespass or waste in this Territory is two years. Cod. Sts. 516, § 8. The damages accruing during each year was a separate and distinct cause of action, and, after the expiration of each two years, a cause of action accruing during the preceding year was barred.

This cause was tried in the court below by Blare, «J., and the facts appear sufficiently in the opinion of the court. Complaint does not show that the necessary steps were taken to revoke the letters of administration. The averment “ duly revoked” is insufficient. Cod. Sts. 321, §35; 323, §49; Beach v. King, 17 Wend. 197 ; 13 How. 413; 7 Barb. 206. The proper foundation was never laid to begin the action.

This cause was tried in the court below by Wade, C. J. This was a trial under an indictment for felony. The action of the jury in separating without leave of court before having rendered their verdict in court was in violation'of section 315 of our Criminal Practice Act. See State v. Parrant, 16 Minn. 178,. under similar statute. The verdict rendered should be set aside as void. People v. Kelly, 46 Cal. 357; People v. Backus, 5 id. 275; People v. Beagle, 60 Barb. 527-546.

Apjpeal from Third District, Lewis and Clarke County. This action was tried by Wade, C. J, Fox was charged as a member of a firm, and judgment was entered against him because he was not in the firm. The complaint was not amended. Where evidence establishes a different cause of action from the one complained of, it is a total failure of proof, and cannot be cured by amendment. The allegata and probata must correspond. Code Civ.

■ This cause was tried in tbe court below by Kitowles, J. Tbe former judgment in tbe foreclosure suit was no bar to this action. 2 Pars, on Cont. (6tb ed.) 730, notep; King v. Chase, 15 N. II. 9; S. 8. R. R. Go. v. Dcmiels, 20 Gratt. (Ya.); 99 Mass. 200. Tbe plaintiff allowed evidence of fraud, without objection, and tbus waived tbe bar of tbe judgment. Megerle v. Ashe, 33 Cal. 74.

The action was tried before Wade, O. J. This is an action in equity. Appellants were in possession of the water when the action was commenced, and this should have been an action in the nature of ejectment. Equity will not interfere except in aid of such an action. Civ. Pr. Act, title Injunction; Raffetto v. Fiori, 50 Cal. 363 ; Felton v. Justice, 51 id. 529 ; Lewis v. Codes, 23 Wall. 466. This action, having been improperly brought, should be dismissed .

The cause was tried before Blaee, J. The summons in the case was radically defective in not stating the cause and general nature of the action. Defendants’ demurrer to the complaint should have been sustained for the following reasons: First, the bond was given to the Territory instead of the county commissioners. Second, it does not purport to be for the use and benefit of the county.

The judgment was rendered by Wade, C. J. TJnder the act concerning licenses, approved January 10, 1872, it was the intention of the legislative assembly to require every insurance company in the Territory to pay a license of $80 per annum. Cod. Sts. 585, § 1. In 1873, the act was amended by increasing the license from $80 to $150. The comma after the word “ company ” is omitted in the act as printed.

This cause was tried in the court below by Blake, J. Tbe deposition of Myers was improperly admitted. The notice of application for a commission did not specify the time. The title of the ease was incorrectly given. It was not taken by the party to whom the commission was issued ; does not show that the witness was sworn in the case; does not show the official character of the person taking it; is not attested by an official seal.

This cause was tried in the court below by Blake, J. . The court below erred in not finding directly upon the issue of fraud tendered by the answer and replication. Farrar v. Lyon, 19 Mo. 122; ÍU Oal. 411. The court failed to find amount of property taken, only the value. 30 Cal. 419. The findings should cover all the issues and be of facts, not legal conclusions. Bates v. Bower, 17 Mo. 550; 20 id. 262; 24 id. 343.

This cause was tried in the court below by Blake, J. The testimony adduced by defendant to prove the genuineness of appellant’s signature to the alleged receipts offered in evidence and relied upon to prove payment was incompetent, as the knowledge of witnesses was derived merely from comparison of handwritings. *Moore v. United States, 1 Otto, 270; Strother v. Lucas, 6 Pet. 763 ; Rogers v. Ritter, 12 Wall. 321; People v. Spooner, 1 Denio, 343; Titford v. Knott, 2 Johns.…

<p>Statute of Limitations — promissory note —residence of maker. A. commenced this action against B. April 1,1875, upon a promissory note made in California October 1,1869, in which B. promised to pay one day after date a certain sum m gold coin, or its equivalent, with interest. The complaint alleged that A. and B. were residents of California when the note was made, that B. resided in Nevada from May 1,1871, until June 1,1872, when he removed to Montana ; and that he has resided in this Territory since that time. B. moved to strike from the complaint these allegations and the motion was overruled. Held, that these allegations were material, and that the complaint without them would have stated a cause of action that was barred by the Statute of Limitations.</p> <p>Same — “lapse of time” in California and Montana laws. Under the laws of this Territory, an action which cannot be maintained in California upon said promissory note, by reason of the lapse of time, cannot he maintained in this Territory. The statutes of California provide that an action upon a promissory note must he commenced within four years, and that the time during which a person is absent from the State after a cause of action has accrued against him shall not he a part of the time limited for the commencement of the action. Held, that this action was not barred by the Statutes of Limitations of California or this Territory.</p> <p>Pleadings govern evidence. B.’s answer alleged that B. was a resident of California when the note was made. B. testified that he resided in Nevada when the note was made. Held, that this court must he-controlled by the facts appearing in the answer.</p> <p>Payment of promissory note by ord er. Upon the trial, B. testified that when the note was made and delivered to A., he gave him also an order upon C. for the payment of the note • that a suit was then pending between B. and C.; that B. afterward had a settlement with C., who reserved the amount of the note; and that B. did not know what became of the order or the amount so reserved. A testified that he received the order from B.; and that C. refused toacceptitandneverpaid.it. Held, that the acceptance of the order by A. did not extinguish the note, unless there was an express agreement between A. and B. that it should be received as payment. Held, also, that it was the province of the jury to determine whether the order was taken by A. in absolute payment of the note, or as collateral security.</p> <p>Return op order before judgment. A. did not account for the foregoing order, or offer to return it to B., or deliver it into court, before the entry of the judgment against B. upon said note. Held, that the judgment was properly entered without requiring the surrender of the order.</p> <p>Judgment in gold coin or its value. The jury assessed the damages of A. at $743 in gold coin of the United States, or $757.86 in legal tender treasury notes of the United States, the equivalent of the gold coin. The judgment was entered for the last-named sum. Held, that the judgment does not follow the verdict, and that the judgment should fix the amount to be paid, if paid in gold coin, and the amount to be paid, if paid in said legal tenders..</p> <p>Costs when judgment is modified. The appellant did not ask the court below to modify the judgment, and this court modified the same, upon its own motion, by prescribing the manner of satisfying it. Held, that the appellant cannot recover his costs of appeal.</p>

This canse was tried in the court below by Blase, J. The appeal was taken from the judgment of the court sustaining the demurrer to defendants5 answer. Held: in Bludworth v. Lake, 33 Cal. 258 et seq., that the remedy thus provided was not exclusive. By the terms of this statute, a notice was given to all adverse claimants to appear and contest the claims of the applicant, and upon a failure to appear the patent was granted.

<p>Appeal from, Third District, Lewis and Olarlce Cownty.</p> <p>This action was tried by Wade, 0. J., with a jury.</p> <p>While possession of property is prima facie evidence of title, such possession avails nothing if it appears that the title is in a party out of possession, unless the Statute of Limitations can be applied. In order to render the statute applicable, such possession must be adverse to the legal title. Cod. Sts. 515, § 4.</p> <p>Adverse possession must be accompanied with the claim of the fee. Tyler on Eject. 851 et seg. / Humbert v. Trinity Church, 24 Wend. 586 ; McClella/n. v. Kellogg, 17 Ill. 498; Creen v. Weal's Lessee, 6 Pet. 291; Ewing v. Burnet, 11 id. 41; Harvey v. Tyler, 2 Wall. 328.</p> <p>The fact of possession and its character are the tests. Tyler on Eject. 860, 870-872; Taggart v. Stansberry, 2 McLean, 543 ; Jackson v. Andrews, 7 Wend. 152; LaFrombois v. Jackson, 8 Cow. 609.</p> <p>It must be hostile in its inception. Tyler on Eject. 874-877 ; Turney v. Cha/mberlAn, 15 Ill. 271; Kirk v. Smith, 9 Wheat. 241; Brandt v. Ogden, 1 Johns. 156; Jackson v. Sharp, 9 id. 163; Cuy v. Moffat, 2 Bibb, 507.</p> <p>A claim or title which cannot be set up by a person while in possession cannot be set up by one who comes into possession under him. Jackson v. Harden, 4 Johns. 202; Tompkins v. Snow, 63 Barb. 525.</p> <p>A license given by the owner is a perfect answer to the claim of adverse possession set up by licensee or purchaser under him. Luce v. Carley, 24 Wend. 451; Babcock v. Utter, 1 Abb. 27; Tyler on Eject. 860, 879, 880.</p> <p>Where party is in possession in privity with the owner, nothing short of open and explicit disavowal and disclaimer of owner’s title, and assertion of title in himself, brought home to the owner will satisfy the law. Zeller's Lessee v. Eckert, 4 How. H. S.'289.</p> <p>The court erred in excluding the testimony of respondent’s grantor. Jackson v. Bard, 4 Johns. 230.</p> <p>The proof showed that respondent’s possession was not hostile in its inception, or accompanied with any claim to the fee. [Respondent entered subject to appellant’s title. Angelí on Lim., §§ 441, 442; Jackson v. Baris, 5 Cow. 123; Jackson v. M'Leod, 12 Johns. 182.</p> <p>No license was pleaded. It should have been set up in the replication if it could be made available to defeat the operation of the Statute of Limitations. Pomeroy oil Rem. 712, 734.</p> <p>Respondent does not avail herself of the possession of her grantor. She claims, by virtue of four years’adverse occupancy and never recognized the license of appellant. Angelí on Lira., §§ 313, 314; Cod. Sts. 515, §§ 3, 4, 6, 7.</p> <p>"When did appellant’s right of action accrue ? Appellant never asserted any title against respondent until a demand for possession was made in April, 1876, and respondent never recognized appellant’s title. Cod. Sts. 393, § 6; Angelí on Lim., §§ 369, 380, 384, 395, 414,439 ; Tiffany & B. on Trustees, 717; 1 Pars, on Cont. 509, 514; Addison on Torts, 395, 403 ; Wharf, on Ev. 1337, 1338 ; VansioMe v. Haines, 7 Nev. 249.</p> <p>Appellant’s right of action accrued more than three years -before the commencement of this action. Respondent’s purchase of her grantor was a notice to appellant that she claimed adversely. 1 Washb. Real Prop. 537-539 ; Smith’s Landl. & T. 217.</p>

This cause was tried in the court below by Wade, C. J. The court below improperly admitted evidence of declarations of Hall, indorser to plaintiff. Such testimony is inadmissible against one to whom it is subsequently transferred for value, though after maturity. Dodge v. Freedman's Savings and Trust Co., 3 Otto, 379 ; Whitaher v. Brown, 8 Wend. 490 ; Page v. Caywin, 7 Hill, 361; Beach v. Wise. 1 id. 612.

<p>Practice — correction of statement on appeal. After a statement on appeal has been settled by the judge who tried the cause, this court will not correct the same by receiving the affidavits of parties claiming that the testimony of witnesses has not been reported correctly.</p> <p>Case affirmed. The case of Haley. Parle Ditch Oo., 2 Mon. 498, holding that the twenty-sixth rule of this court is not applicable when the judge settles the statement on appeal according to his recollection of the evidence, affirmed.</p>

The action wag tried before Wade, C. J. Respondent was required to perform work or make improvements on the Bussell lode, annually. Upon bis failure so to do, the lode was open to relocation in the same manner as if no location had ever been made, provided work was not resumed after failure and before a relocation. U. S. Bev. Sts., § 2324. No work was dono by respondent after December, 1875, until after the location by appellant July 3, 1877.

This cause was tried in the court below by Wade, C. J., on demurrer to the so-called complaint and was appealed from tho judgment sustaining the demurrer.

The action was tried by Wade, C. J. The only claim the respondent could have to the premises in controversy is by virtue of his claim to a mill-site, and this kind of a right cannot be asserted or maintained upon mineral land. IT. S. Eev. Sts., § 2337. The land was returned as mineral land, and respondent, claiming the same under the law concerning mill-sites, must prove its non-mineral character. Copp’s Decisions, 129 ; Week’s Mining Decisions, 255, 329-331.

The special issue submitted to the jury should have included all questions of fact raised; failure to do this was a virtual withdrawal of the same. Comales v. Leon, 31 Cal. 98 ; 23 id. 282. These questions may be reviewed without motion for new trial. Allen v. LLilf 16 Cal. 113. Facts must be found expressly, not impliedly. Breeze v. Doyle, 19 Cal. 101. There was no sufficient finding upon the issue of defendant’s nnsoundness of mind.

This action was tried by Wade, C. J., without a jury. The appellants were bona fide purchasers without notice of any outstanding equities between Turner and Yial. The secret trust between these persons cannot affect appellants, who in law and equity are entitled to protection against it. Perry on Trusts, § 218 ; Prevo v. Walters, 4 Scam. 35 ; Moore v. Hunter, 1 Gilm. 317 ; Martin v. Dryden, id. 187.

The action was tried before Wade, C. J., with a jury. The recitals in the contract on which this action is brought are non-contractual and do not control the contractual part. It is signed by respondent alone, and he cannot derivo any benefit from his statements in the immaterial recitals. 1 Greenl. Ev., §§ 26, 285-287; 2 Pars, on Cont. (4th ed.) 13-19, 66, 67; 2 Whart. Ev., §§ 937-940, 1039, 1040, 1085. The evidence offered by appellants was' competent.

This action, to recover the possession of a quartz mining claim, was tried in the court below by Knowles, J. The plaintiff did not prove possession in himself in such way as to entitle him to maintain this action. Stalling a claim in the name of a company must be accompanied with evidence showing that the party so doing was agent or lessee. Overrma/ti S. M. Co. v. Am. Mining Co., 7 Nev. 312.

The action was tried before Wade, C. J., with a jury. A valid contract between the principal and payee of a note extending the time of payment for any period, without the consent of the surety, will release him. The payee must keep in a condition to proceed on the note according to its terms. If he ties up his hands without the consent of the surety he releases him. 1 Story’s Eq. Jur., § 326; Edw. on Bills, *355, 572, 573 ; 2 Am. L. C. 308, 309 ; King v. Baldwin, 2 Johns.

Defendant should have been allowed to file his amended answer, in furtherance of justice, on proper terms. Code of Civ. Proc., 1877, § 114; Kirstein v. Madden, 38 Cal. 163; Thomas v. Nelson, 69 N. Y. 119; Wormall v. Heims, 1 Moil. 630; Hartley v. Preston, 2 id. 415. Defendant’s application for a new trial, on the ground of newly-discovered evidence, was in accordance with established principles.

The suit in this case was begun before the expiration of the period of limitation provided by the statute in force at the time the cause of action arose, but after a new Statute of Limitations had gone into effect providing a shorter period of limitation. The case turned upon the application of the new statute. The case was tried by Blake, J. The notes were barred by the Statute of Limitations in force at the time suit begun. Code of Civ.

The demurrer to the complaint of O’Bannon was sustained by Wade, O. J., and judgment was entered for the defendants,. Ohumasero and.Chad wick. There is no privity of contract between appellant and Plaisted. There was no indebtedness in existence to which the promise of respondents could be collateral. The consideration for it was doing the work. It operated directly in procuring the services rendered, and would be good if it rested solely in parol.

The applicant in this case was at tbe time confined in the Deer Lodge county jail, under commitment issued by the police magistrate of Butte City in that county. The ground of the application was that such magistrate was not a legal officer and his acts were nullities. The application was first made to the judge of the second district and refused. It was then presented to the supreme court at its August term, 1879.

This is the second appeal of the action. The first appeal is reported ante, 90. The action was tried before Wade, C. J., who entered judgment on the verdict for Higley, and refused the motion for a new trial. This court cannot assume to correct or disturb the transcript, or any part which is in the bill of exceptions given by the court below.

This cause was tried in the court below by Blare, J. • The indictment, in reality, charges but a single crime, and is in accordance with long-established precedent. Com. v. Hope, 22 Pick. 1; Com. v. Tuck, 20 id. 356 ; State v. Braly, 14 Yt. 353; 1 Hale’s P. C. 560; State v. More, 12 N. H. 42; Bishop’s Crim. Law, § 687; Roscoe’s Crim. Ev. 347-9. If there are two offenses set forth, the greater includes the less, and the defendant might be convicted of either.

This is an appeal from an order of the court below granting a new trial for insufficiency of the complaint. The facts are fully set forth in the judgment. The complaint alleges a sufficient breach of contract. As to the proper construction of the terms due and owing, see Heteltas v. Myers, 19 N. Y. 231; 7 id. 478; United States v. Dank of North Carolina, 6 Pet. 29. The court will not grant a new trial for an entirely harmless error.

The statute provides that no indictment shall be quashed for any defect which does not prejudice the substantial rights of the accused upon the merits. Cod. Sts., 1872, 216, § 171. Motions of this character are not favored in law. Bishop’s Crim. Pr., §§ 452-744; People v. Jewett, -3 Wend. 314-321. The rights of the defendant are fully protected by other provisions of the statute. Cod. Sts., 1872, 221, § 206; People v. Beatty, 14 Cal. 567.

Appeal f'rom Third District, Jefferson County. This action was tried by Wade, C. J., without a jury. Appellant had a remedy at law. No appeal was taken from the judgment, and she did not attempt to interfere with it until a year after she had notice of the deficiency judgment. Loga/n v. Hillegass, 16 Cal. 200. Where a married woman fails to interpose the defense of co-verture she is estopped from availing herself of such fact after judgment to avoid the levy of an execution.

This action was tried by Blare, J. The call of the mortgage is not and does not purport to be a conveyance of the undivided half of all of the property of the Montana Flume and M. Co. It might as well be contended that it would convey an interest in the property of the company outside the county named, or this Territory, as outside of the particular section, town and range named.

The action was tried by a jury, Blare, J. It was error to permit respondent to draw the map and present it to the jury. Respondent was not a competent witness to testify respecting the value of freight from' Fort Peck to the old Crow Agency. Appellants were entitled to a credit on the judgment for $1,130. They set this up as work done in full satisfaction of respondent’s claim, yet if they fail to prove the last fact, they are not to be deprived of pay for the work.

Plaintiff, by the decree in case of Gallagher et al. v. Basey et al., was only entitled to 35 inches of water at any point above the head of the ditch — any other construction would render the decree void for uncertainty. A decree can only declare facts put in issue by pleadings. Stewart v. F. & M. Bant, 19 Johns. 505. There was no separate claim by Stafford. Wharton on Ev. 838; Bliss v. Nichols, 12 Allen, 443 ; Cook v. Bcurr, 44 N. T. 156.

This action was tried by a jury before Wade, C. J. Upon tbe first bearing of this appeal', an opinion was delivered by Hr. Justice Kkowles, and the judgment of the court below was reversed- Blake, J., concurred, and Wade, C. J., dissented. A motion for a rehearing was filed and the cause was reargued at a subsequent term upon the questions referred to in the opinion. The authorities on which the original opinion was based are contained in the appellant’s brief.

Amendments allowed were inserted in the margin of tlie original pleading, and there was no new verification. The question of taking immediate possession was a mixed question of law and fact, partly for the court and partly for the jury, and was improper to allow in a leading question. If the question is proper in itself the court will not speculate as to the effect of its answer on the jury.

Appeal from Third District, Lewis and Ola/rhe County. The facts and authorities cited will appear in the opinion. No briefs filed.

<p>Criminal law — competency of juror — opinion and prejudice. A. testified in April, 1S80, upon liis examination respecting liis qualifications to serve as a trial juror in a criminal case tliat lie liad not formed or expressed any opinion as to tlie guilt or innocence of the defendant. He was accepted as a jurqr. After the verdict had been returned, it was proved that A. had stated before the trial in June, 1879, that the defendant was guilty and that he would hang him. A. then testified that he had forgotten these statements, and that he had no prejudice against the defendant when he was sworn to try the cause. Held, that A. was not a competent juror under the laws of this Territory. v</p>

Afpeal from First District, Custer County. The complaint charges fraud on defendant, and the demurrer admits it. A promise by a wrong-doer to pay damages for injury done is a good consideration. Beadle v. Whitlock, 64 Barb. 287; 1 Addison on Torts (Deasley & Baylies’ ed.) 18 ; Chester v. Dickinson, 52 Barb. 49 ; Turner v. Jones, 1 Bans. 147 ; Law v. Fast India Co., 4 Yes. 824; Cooley on Torts, 482.