Volume 30 — Montana Reports

F.-Smith, Judge. Action by F-. L. Bickford against Thomas Kirwin and others. From the judgment, plaintiff appeals. Statement of ti-ie Case. This action was. brought to recover judgment against the defendants, for the sum of $.450, alleged to. be due as rent for the three -months, beginning on August 15, and ending on November 15, 1901, under a lease by the plaintiff to the defendant Kirwin of certain premises in Kalispell, Flathead county.

Application by the state, on relation of Calvin P. Davis, an incompetent, by his. guardian, Georg'e W. Davis, for mandamus to compel the district court of the Second judicial district and E. W. Harney, judge thereof, to enter an order of substitution of attorneys.

Action by Donald Moore against James A. Murray and others. Erom a judgment in favor of defendant J ames A. Murray, plaintiff appeals. Statement of the Case.

McClernan, Judge. Victor Paltrovich was convicted of violating an ordinance. From tbe judgment, and an order denying bimi a new trial, be appeals. Tbe business of a pawnbroker is neither illegal, immoral nor against public policy. Ordinances in contravention of tbe general policy of state legislation upon tbe same subject, are void.

<p> Appeal from District Court, Granite County; Welling Nap-ton, Judge. </p> <p>Replevin by Annie M. Hynes against Frank E.. Barnes, constable. From a judgment for plaintiff, defendant appeals. Remanded, -with directions.</p>

C. Webster, Judge. Action by Charles G. Smith against George D. Shook. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. A new trial should have been granted on the ground of 'surprise, and also1 on the ground of newly discovered evidence. (Am. & Eng. Ency.

Action by John E. Bordeaux against Ella E. Bordeaux. From a judgment in favor of plaintiff, and from an order overruling a motion for a new trial, defendant appeals. As to the contention of the appellant, that the trial court erred in not making a special finding of fact as to all the allegations of the appellant’s cross-bill, it is only necessary that we look for a minute into the record.

<p>Master and Servant — Injuries to Servant — Safe Place — Assumption of Bisk — Contributory Negligence — Evidence— Burden of Proof — Nonsuit—Appeal—Bill of Exceptions— Specification of Errors — Buies of Supreme Court — Briefs.</p> <p>1. Supreme Court Rule X, Subdivision 3, does not require appellant to set out in his brief the reasons why he claims that the decision objected to is erroneous, and hence a specification that the court erred in sustaining defendant’s motion for a nonsuit is sufficient without further statement.</p> <p>2. A bill of exceptions need not contain a specification of errors of law relied upon.</p> <p>3. Code of Civil X’rocedure, Section 1173, Subdivision 3, refers exclusively to a statement of the case, and has no reference to bills of exception.</p> <p>4. Where plaintiff saved his exception to a ruling granting defendant’s motion for a nonsuit, and settled his bill of exceptions containing the testimony and exception to the ruling of the court, such exception is all that is required to be shown by the bill in order to save plaintiff’s right to urge that the court’s ruling in granting the nonsuit was erroneous.</p> <p>5. The question presented on a motion for a nonsuit is one of law.</p> <p>6. A nonsuit should be granted only when the facts are undisputed and such that “all reasonable men must draw the same conclusions from them.”</p> <p>7. While, in an action for injuries to a servant, the burden is on the plaintiff to prove that defendant was negligent, and that the injury complained of was the direct or proximate result of the negligence alleged, the burden is on the defendant to show that plaintiff was guilty of such contributory negligence as would prevent his recovery, or that plaintiff assumed the risk of the employment.</p> <p>8. Though the burden is on the master, in an action for injuries to his servant, to prove contributory negligence or assumption of risk, if the existence of such defense is disclosed by plaintiff’s witnesses, defendant is entitled to the same advantage thereof as though proven on his part.</p> <p>9. In an action for injuries to a servant, alleged to have resulted from the master’s failure to provide a safe place for plaintiff to work, evidence reviewed, and held not to justify a nonsuit on the ground that it conclusively showed plaintiff to have been guilty of contributory negligence, or that plaintiff assumed the risk.</p> <p>10. Where, in an action for injuries to a servant, the negligence alleged was defendant’s failure to provide and maintain a reasonably safe place for plaintiff to work, and there was sufficient proof of such negligence to go to the jury, a variance relating merely to the details of the occurrence by which the injury was caused did not entitle defendant to a nonsuit.</p> <p>11. Where, in an action for injuries to a servant, defendant moved for a non-suit at the close of plaintiff’s evidence, on the ground that the evidence conclusively showed that plaintiff was guilty of contributory negligence or that he assumed the risk, it could not be alleged for the first time on appeal that the nonsuit was properly granted by reason of an alleged variance between the pleading and proof.</p>

■ Appeal from, District Court, Silver Bow County; John Lindsay, Judge. Action by A. A. McMillan and others against H. L. Frank. Fromi a judgment for defendant, and from- an order overruling a motion for a new trial, plaintiffs appeal. Statement ok tiie Case.

<p>Action on Injunction Bond — Pleading—Complaint—Demurrer ■ — Pleading Over — Waiver.</p> <p>1. Objection to a complaint, raised by demurrer, that it does not state a cause of action, is not waived by pleading over.</p> <p>2. The complaint on an injunction bond, conditioned for payment of damages suffered by reason of the injunction, if it be decided there was no right thereto, must allege a failure to pay.</p>

Action by Charles E Kinman, as guardian of Fred V. Seheuer, against Isabella Schener. From an alleged judgment of dismissal and certain special orders, plaintiff appeals. The entry of dismissal in clerk’s register is sufficient under Section 1004 of the Code of Civil Procedure. No judgment of dismissal by the court was, or is, necessary when a written stipulation of both, parties is filed with clerk, and entry thereof is made.

K. Cheadle, Judge. Action by Oliver Morin against John Wells and others. Eroni a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant Frank Mosbner appeals. The notice of appeal from the justice’s court, together with' the undertaking on appeal, were filed within the period of thirty days after the judgment was rendered.

Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge. Action by the Independent Publishing Company against the county of Lewis and Clarke. From a judgment for defendant, plaintiff appeals.

Action by Ella D. Gebo against the Clarke Fork Coal Mining Company and another. Judgment for defendants. Plaintiff appeals. Statement oe the Case. This is a suit in equity, the object of which is to have the defendants (respondents here) declared to be trustees and to hold certain coal lands in trust for the use and benefit of the plaintiff (appellant, here).

Writ of review on the relation of Kate L. Cobban against the district court of the Second judicial district, in and for Silver Bow county, and William Clancy, judge thereof.

<p>Injunction — Trespass on Mining Property — Contempt Proceedings — Determination of Title — Evidence—Sufficiency.</p> <p>1. In a proceeding to punish for contempt in violating an injunction restraining defendants from working mining properties decreed to be the property of plaintiff, much of the evidence to show that the properties on which defendants worked belonged to plaintiff was speculative, and based on projections made on conclusions from facts observed in workings remote from tile points in controversy. Held not sufficient to sustain a conviction.</p> <p>2. Plaintiff in an action for an injunction to restrain trespass on a mining claim alleged tliat another cause of action, which was stricken from the complaint, was for damages for trespasses on veins lying south of the vein with reference to which injunction was sought, and the court found all the issues for plaintiff. On a subsequent proceeding to punish defendants for violation of the injunction the evidence showed that the veins with reference to which the injunction was alleged to have been disobeyed were the only ones south of the vein involved in the injunction suit, field, that the title to these veins was not determined by the injunction suit.</p> <p>¡1. Contempt proceedings for violation of an injunction restraining trespasses on mining property cannot be resorted to for the purpose of determining the title to veins, the ownership of which was not determined in the injunction suit.</p>

<p>Promissory Note — Collection Without Suit — Right to Attorney's Fees.</p> <p>1. Under Civil Code. Section 3990, as amended (Session Laws of 1899, page 124), a note made payable with reasonable attorney's fees entitles the holder to collect, such fees, where the note is not paid at maturity, and it is placed in the hands of attorneys for collection, though it is not sued.</p> <p>2. The right to collect attorney’s fees pursuant to the provisions of a mortgage note, where the note is not paid and is placed in the hands of attorneys for collection, though the note is not sued, is not controlled by a stipulation in the mortgage for such fees in case of suit.</p>

<p>Mining Claims — Location—Requirements of State Statutes— Constitutionality and Validity — Stare Decisis — Actions to Determine Adverse Claims — Nature—Suits in Equity — Effect — Estoppel—State and Federal Statutes — Other Action Pending — Abatement—Instructions—Estoppel to Object.</p> <p>1. Held, in view of the former decisions of this court, that Political Code, Sections 3610 et seq., providing additional requirements for valid locations of mining claims to those required by the Acts of Congress, are not in violation of the TJ. S. Constitution and Acts of Congress (though the court entertains serious doubts as to the correctness of its former rulings in this matter).</p> <p>2. In the absence of proof tending to impeach the truth of the facts stated in a declaratory statement for a mining claim, it is immaterial to an adverse locator that the declaration was verified on information only.</p> <p>3. That the locator of a mining claim verified the declaratory statement on information only, instead of on his personal knowledge, did not render the statement void under Political Code. Section 3612, requiring such declaratory statement to be verified by the “oath of the locator.”</p> <p>4. Defendant filed an application for a patent of a mining claim, the survey of which conflicted at different points with two locations made by plaintiff, known respectively as the “G. H.” and “G. R. H.” claims, neither of which conflicted with the other. Plaintiff filed an adverse claim on behalf of each of his claims, and afterwards brought a separate suit in support of each, and defendant, in answering the suit on the G. IT. claim, referring to the action brought on the G. R. H. claim, alleged that in that action no claim was made to any portion * of defendant’s location by virtue of plaintiff’s alleged ownership of the G. H. claim. Held, that plaintiff’s actions were separate and distinct, and therefore the pendency of the one was no bar to the other.</p> <p>5. Since U. S. Rev. St. Sec. 2326 (TJ. S. Comp. St. 1901, p. 1430), providing that an adverse claimant to a mining claim, within thirty days after filing his claim, must commence proceedings in a court of competent jurisdiction to determine the right of possession, etc., does not prescribe the form of action, the character of the suit to be brought thereunder depends on state practice.</p> <p>6. TJ. S. Rev. St. Sec. 2326, as amended by Act March 3, 1881, c. 140, 21 Stat-505 (TJ. S. Comp. St. 1901, p. 1430), providing that, if title to the ground in controversy in an action to establish an adverse claim to a mining location shall not be established by either party, the jury shall so find, does nor require that such finding should be by a jury, where the suit to determine the adverse claim is in equity.</p> <p>7. Code of Civil Procedure, Section 1310, provides that an action may be brought by any person against another, who claims an estate or interest in real property adverse to him, to determine such adverse claim; and Section 1322 declares that, in an action to determine the respective rights of claimants to the possession of a mining claim, it is immaterial which party is in possession, and that it is sufficient if it appears from the pleadings that an application for a patent has been made and an adverse claim filed and allowed, and requires the verdict or decision to find which party is entitled to possession of the premises. Held, that where the complaint in an action to determine an adverse claim to a mining location set up the filing of plaintiff’s adverse claim, as provided by Section 1322, after defendant had applied for a patent, and prayed that defendant be required to set forth the nature of his claim to the ground, and that all adverse claims of defendant might be determined by the judgment of the court, and the answer denied plaintiff's ownership and possession, and prayed that defendant be adjudged to be the owner and entitled to possession of the premises sued for, the suit was one of equitable cognizance, and not an action at law.</p> <p>8. Where, on the trial of a suit to determine an adverse claim to a mining location, a jury was not demanded by either party, and the court tried the case as a suit in equity, without objection by defendant, the latter was estopped to object for the first time on appeal that the action was one at law, and that he was entitled to the verdict of the jury as to which, if either, party was entitled to possession of the ground in question.</p> <p>9. Where, in a suit to determine an adverse claim to a mining location, defendant was estopped to deny that the suit was equitable in its character, he could not object to instructions to the jury.</p>

<p>Mining Claims — Action to Determine Adverse Claims — Issues —Judgment—Costs—Appeal.</p> <p>1. Where, in an action in support of an adverse claim to a mining location,, the only part of the surface of the ground of plaintiff’s location affected by the suit was that part which was in conflict with the surface of defendant’s location, for which a patent had been applied for, the court’s jurisdiction was limited to the extent of the conflict, and hence it was error for the court to render judgment determining the validity of a portion of plaintiff’s location outside of the points of conflict.</p> <p>2. Disbursements for filing an adverse claim to a mining location in the land office for surveying, the making of a plat, and for an abstract of title for use in the land office, were not taxable as costs under Code of Civil Procedure, Section 1866, authorizing taxation of disbursements for matters to be used in the trial of the cause.</p> <p>3. An appeal does not lie from an order taxing costs, but the error, if any, may be considered on appeal from the judgment.</p>

<p>Partition Bale- — Purchaser as Trustee — Evidence of Trust— ■ Pleadings and Findings • — ■ Verbal Agreement — Merger in Written Contract — Attorney in Fact — Signature to Contract —Effect as to Liability — Specific Performance — Statute of Frauds.</p> <p>1. Civil Code, Section 2186, provides that the execution of a contract in writing, whether required to be in writing or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied its execution, and hence evidence of negotiations and conversations immediately preceding the execution of a written contract is incompetent to show an agreement concerning its matter made by one claimed to be bound thereby.</p> <p>2. One who signs a contract only as attorney in fact for a party thereto is not bound by the contract, and it has the same effect, so far as an action against him based thereon is concerned, as if the party had signed only his own name thereto. .</p> <p>3. By agreements between defendants in partition and L., the latter agreed, by himself or agent, to buy in the property at the sale in his own name, and hold it for the former, to whom he was to reconvey the same, or a part thereof, as he should elect, on being reimbursed for the cost and expenses. One agreement was signed for one of the defendants by an attorney in fact, who afterwards bought the property at the sale in his own name, but who did not otherwise sign either agreement. Held, that the agreements did not establish a trust relation between the purchaser and L., who claimed that the property was bought for him.</p> <p>4. Pleadings alleging that a trust relation was created between parties in question by virtue of written agreements do not support conclusions of law declaring a party to be a trustee ex maleficio.</p> <p>5. Where it cannot be determined from either the pleadings or the evidence as to a contract to purchase property for another at a partition sale whether the purchaser was to furnish the money or not, or whether he was to take the deed in his own name or otherwise, neither would support a decree for specific performance on the part of the purchaser.</p> <p>6. An oral agreement by a purchaser at a judicial sale to take the deed in his own name, and convey to another, is void, as within the statute of frauds (Civil Code Section 2342).</p> <p>7. The agreement cannot be taken out of the statute, and enforced against the purchaser as a trustee eco maleficio, to prevent the perpetration of a fraud, where neither party had any interest in the property, and no money was advanced to the purchaser, or anything done towards carrying the agreement into effect.</p> <p>8. Findings not within the issue made by the pleadings will not support a decree.</p>

<p>Mines — Removal of Ore'— Action for Damages — Burden of Proof — Rebuttal—Statutes—Instructions—Defenses.</p> <p>1. The owner of a mining claim is entitled prima -facie to everything beneath the surface of his claim, and under such title may prevent the intrusion of any one not showing a paramount right to enter within the planes of- his boundaries.</p> <p>2. Code of Civil Procedure, Section 10S0, as amended by Session Laws of 1901, p. 160, provides that the party on whom the burden of the issues rests muse first produce his evidence, and the adverse party must then produce his evidence, and that the parties will then be confined to rebutting evidence. In an action by the owners of a mining claim for removal of ore from within its boundaries, the issue was the location of the point at which a certain vein departed from a side line of defendant’s location. Defendants, after plaintiffs showed a taking of ore from within their boundaries, introduced evidence that the vein departed at the point as claimed by them’, whereupon plaintiffs in rebuttal introduced evidence that the vein departed at the place claimed by them as shown by the fact that the vein was exposed in the cellar of a certain building. Held, that it was error not to • permit defendants to show in rebuttal that the vein located in the cellar was along a course or strike which would bring it out at a point other than claimed by plaintiffs.</p> <p>3. In an action for damages sustained by plaintiffs, owing to defendants having removed ore from within the boundaries of plaintiffs’ location, an instruction that if defendants had carried away ores belonging to plaintiffs, and in so doing they were mixed with other ores to which defendants were entitled, so that the amount of each could not be ascertained, plaintiffs were entitled to recover the value of all ores taken with which the ores belonging to plaintiffs were mixed, was erroneous.</p> <p>4. In an action for damages sustained by plaintiffs owing to the removal of ores from their mining location, plaintiffs having shown prima facie the amounts taken, it was then incumbent on defendants to show that they took a less quantity than plaintiffs’ proof tended to show.</p> <p>5. Code of Civil Procedure, Section 1081, provides that when, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, it may order them to be conducted there. Held, that the view is within the trial court’s discretion.</p> <p>6. Discretion of court in granting a view of premises will not be reviewed on appeal, in the absence of a clear showing of error.</p>

<p>Water Fights — Action for Unlawful Diversion — Pleading— Inconsistent. A negations — Judgments—Conclusiveness—Appeal — Contradictory Instructions — Theory of Case — Estoppel.</p> <p>1. A plaintiff cannot in a complaint take one position, and, in a replication to defendant’s answer, take another one inconsistent with the allegations of the complaint.</p> <p>2. In an action for the unlawful diversion of water by defendant, where plaintiff in her complaint admitted that defendant had allowed some of the water claimed by plaintiff to pass down to her, and that she had used it, she was not entitled to allege in her reply a plea of estoppel or res judicaty, that defendant was estopped by his answer in a previous case, and by the judgment therein, from denying that plaintiff had been prevented from using any water.</p> <p>3. In an action for the unlawful diversion of water, certain instructions reviewed and held erroneous, as inconsistent and contradictory.</p> <p>4. Where an action was brought to determine the right of palintiff’s landlord to an interest in an irrigating ditch, to establish his right to use the ditch, and to enjoin defendant from interfering with plaintiff’s use thereof, in which defendant denied the landlord’s right to the ditch, but it was subsequently determined that he was a tenant in common thereof, and an order previously issued, restraining defendants from deflecting the flow, was modified so as to allow fifty inches of water to flow to the landlord’s premises, such judgment was not conclusive, in a subsequent action by the tenant for damages to crops by reason of defendant’s alleged previous diversion, that defendant had deprived plaintiff of all the water which should have been permitted to flow on her land.</p> <p>5. Where plaintiff relied in the trial court on an estoppel arising from defendant’s admission in his answer in another suit and not on the proposition that the judgment in such suit was determinative of such facts, she could not change her position on appeal, and claim that the judgment was conclusive as to the facts on which the estoppel was based.</p>

<p>Receivers — Expenses—Fees — Excessive Allowances — Determination — Appeals.</p> <p>1. No motion lies for a new trial of issues involved in the matter of a claim for compensation and expenses of a receivership, and there can be no appeal from an order denying such a motion.</p> <p>2. An appeal lies from a judgment allowing the compensation and expenses of a receiver.</p> <p>S. A receiver cannot be allowed fees for counsel to a superintendent in charge of the corporation’s property, or for other employes.</p> <p>4. A defendant in a receivership should not have its property taken to pay expenses of a receiver unjustly and unlawfully kept in office as an officer of the court, where justice requires his discharge.</p> <p>5. Where a receiver was only in actual possession of the corporation’s property for five days, and was free to act as receiver not more than fifteen days altogether, an allowance of $200, 000 was excessive.</p> <p>G. Acts of violence exhibited towards a receiver by the agents of the corporation do not justify an excessive allowance of fees to the receiver.</p> <p>7. Where a receiver should have been discharged on a certain date, when defendant corporation offered, in Writing, to do the very things that plaintiff prayed the court to enforce, he was entitled to a reasonable compensation for services rendered prior to such date, and to be recompensed for proper and reasonable expenses incurred prior thereto, but was entitled to nothing for expenses or services rendered after that date, except, perhaps, a reasonable sum for services of a bookkeeper aiding in rendition of accounts to the court.</p> <p>Me. Justice Holloway dissenting.</p>

<p>Judges — Disqualification—Change of Venus — Motion.</p> <p>‘Code of Civil Procedure, Section 610, as amended by the second extraordinary-session of the Eighth legislative assembly, is mandatory, and the district court must change the venue in the eases prescribed, but only after a motion has been filed, and a showing made as required by the clause of the section invoked. The court cannot act of its own motion.</p>

<p> Appeal from District Court, Silver Bow County; William ■Clancy, Judge. </p> <p>Action by George H. Woody against Thomas R, Hinds and others. From a judgment for defendants, plaintiff appeals.</p>

Writs of prohibition by the state, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company and another, against William Clancy, judge of the district court of the S'econd judicial district, and the district court of the said district of Silver B'ow county, and by the state’ on the relation of the same company, against E’.-W. Harney, judge, and another.

<p>State Officers — Salaries — Appropriations hy Legislature— Mandamus — State Board of Examiners — Powers.</p> <p>1. Mandamus is a discretionary writ and will be allowed only in furtherance of justice upon a proper case presented.</p> <p>2. The writ of mandate will not be allowed to compel the state treasurer to pay a warrant issued by the state auditor, when the money particularly appropriated by the legislature for such purpose has been exhausted.</p> <p>3. The state board of examiners eánnot increase an appropriation made by the legislature for a specific purpose, by adding thereto moneys which the legislature appropriated for entirely different purposes.</p>

<p>Mines — Action Pending — Inspection and Survey — Expense— Payment ■ — ■ Constitution — Taking Property Without Compensation — Inspection of Books and Papers — Order—Modification.</p> <p>1. Where an action was brought to have defendant declared a trustee for the benefit of plaintiff of an interest in mining property, and, after an application for inspection had been filed, plaintiff amended his complaint, without changing the theory of the cause of action or the issues, except that the particulars of the negotiations and the resulting agreements by which plaintiff acquired rights in the property were in some respects different from those stated in the original complaint, the amendment did not necessitate that the proceeding for inspection should be begun de novo.</p> <p>2. Where defendant appeared and resisted a motion for an inspection on its merits, without objecting that the required formalities of demand and notice had not been fully complied with, and it appeared that the action in which the evidence sought was to be used was then pending, and that such evidence was not in plaintiff’s possession, but was under defendant’s control, and related to the merits of the action, defendant could not object that the order for such inspection was prematurely, made.</p> <p>3. Where, in an action to have defendant declared a constructive trustee of an interest in mining property, plaintiff applied for an inspection of certain books and papers, together with defendant’s workings of the mine, and defendant appeared at the hearing and filed a counter affidavit which controverted none of the statements contained in plaintiff’s affidavit as to the existence of the letters and other documents, defendant’s possession thereof, or that they related to the merits of the action, but only denied that defendant was in possession of such records, etc., “within the state of Montana,” it was no objection that the affidavits on which plaintiff’s application was based were on information and belief.</p> <p>4. Where, on an application for inspection of books and papers, it appeared that the evidence sought was desired for use in a pending action, and that it was in defendant’s possession, and related to the merits of the action stated by plaintiff, it was not a prerequisite to the granting of such application that plaintiff should also show that the evidence could not be obtained from other sources.</p> <p>5. Under Code of Civil Procedure, Section 1810, declaring that an inspection of evidence shall be had within a specified time, an order granting an inspection is defective, where it fails to fix the time at which the inspection shall begin and when it shall be completed.</p> <p>6. Where an order directed defendant to permit plaintiff to inspect original letters in defendant’s possession, a further provision that plaintiff should also be entitled to examine “letterpress copies of such letters” was erroneous.</p> <p>7. Where, in an action to have defendant declared a constructive trustee of a certain interest in mining property, plaintiff claimed that he had been deprived of the same by reason of a fraudulent conspiracy by defendant and certain others, by means of which defendant acquired title to the property, an order for inspection of defendant’s books and papers with reference to such property should have been limited to such of the correspondence between defendant’s executive officers and its agents through whom the purchase of the property was made as related to the acquisition of the title to such property.</p> <p>8. An order granting inspection of the underground workings of a mining claim should determine and fix the means of access, and strictly limit the examination to the workings of which it is necessary for plaintiff to have knowledge in order to make surveys and maps to elucidate the issues in controversy.</p> <p>9. Under Code of Civil Procedure, Section 1317, requiring plaintiff to pay the cost of an inspection of the underground workings of mining property in controversy, an order granting such an inspection, and arbitrarily fixing the amount to be paid by plaintiff to defendant for lowering and hoisting plaintiff’s agents engaged in such inspection at a certain sum, without hearing any evidence as to the actual cost, was erroneous.</p> <p>10. Under Code of Civil Procedure, See. 1317, requiring the applicant' for an inspection of mining property to pay all the expenses of examination, etc., an order requiring defendant to use its appliances to lower and raise plaintiff’s agents in making such inspection, and providing the amount to be paid therefor, was not objectionable as taking or damaging defendant’s property without just compensation.</p>

<p>Municipal Corporations — Taxation —■ Street Improvements— Special Assessments Upon Property Specially Benefited— Due Process of Law.</p> <p>1. Session Laws 1897, p. 219, Section 30, providing that when a street improvement is made the city council shall enact by ordinance that the ex-</p> <p>. pense shall be paid by the entire district created as previously provided, according to area, is not unconstitutional as depriving the property owner of his property without due process of law, in that such provision is a legislative declaration that all property in the proposed district is benefited by the improvement, and to the same extent.</p> <p>2. In the absence of proof that the burden imposed on a property owner by a municipal assessment is altogether out of proportion to the benefit actually ' accruing to the property, he cannot assert that his property is thereby taken without compensation.</p> <p>3. Where a certain lot was assessed for municipal improvements for its entire area, the fact that only half of such lot was included in the description in the resolution creating the assessment district was immaterial.</p> <p>4. An alleged protest to street paving, filed by abutting owners, stating the reasons why they did not desire the paving done during the year 1898, and stating that they were willing to have the street paved during the year-1900, and that payment therefor should be required in three annual installments was not an unqualified protest to the paving required by Session Laws of 1897, p. 219, Section 31.</p>

<p>Mortgage — Deed Absolute on Face — Release—Equity Jurisdiction — Limitations — Laches — Findings—Application of . Payment — Theory of Complaint — Appeal.</p> <p>1. Where a deed absolute on its face is given as security for a debt, and the grantee gives bond for a reconveyance on payment of the debt, the transaction is a mortgage, which the debtor is entitled, on payment of the debt, to have released by reconveyance.</p> <p>2. Where a deed absolute on its face was given as security for a debt, in an action to redeem the court of equity will determine plaintiff’s right of possession, where the defendant makes no claim to possession except under the deed.</p> <p>.3. Under the express provision of Code of Civil Procedure Section 558, the objection that an action was not’ commenced within the time limited by law can be taken only by answer.</p> <p>4. Code of Civil Procedure, Section 518, providing that an action “for relief not hereinbefore provided for” must be commenced within five years, does not apply to actions concerning real estate.</p> <p>5. Under Civil Code, Section 3780, providing that a party having an interest in property subject to a lien may redeem at any time after the claim is due and before his right of redemption is foreclosed, where no proceedings were ever instituted for foreclosure of a mortgage, the mortgagor, in bringing an action to redeem four years after the mortgagee went into possession, was not guilty of such laches as to deprive him of the right to relief.</p> <p>.6. Under the express provision of Code of Civil Procedure, Section 1114, no judgment can be reversed on appeal for want of a finding at the instance of a party who has not requested the findings, nor in eases of defects in the findings, unless exceptions have been made in the trial court as provided in Section 1115.</p> <p>.7. Under Civil Code, Section 2006, providing that where a debtor makes a payment which is equally applicable to two or more obligations it shall be applied according to the intention expressed by the debtor, or, if no such application is made, then the creditor may apply it to the extinction of any obligation, where several written instruments relating to the same indebtendess contained no provision for the order of payment, parol evidence was competent to show what application of a payment was agreed on.</p> <p>8. Where a complaint alleged that a deed was given as security for a debt with certain chattel mortgages, and bond given for reconveyance on payment of the debt, that the transaction was a mortgage, and that the debt had been paid, and asked that the mortgage be canceled and satisfied by reconveyance of the property, a decree requiring a reconveyance was not a departure from the theory of the complaint, as awarding specific performance of the bond, since the bond merely constituted a part of the transaction with the other instruments.</p> <p>9. The error in a finding that a deed was executed December 16, 1893, where, under the facts admitted, it was executed “on or about April 19, 1893,” was harmless.</p>

<p>Appeal — A'ffvrmmice.</p> <p>Where the instructions fairly presented to the .iury the questions involved, and the evidence is conflicting and is amply sufficient to sustain the verdict, and no reversible error is apparent, the case will, on appeal, be affirmed.</p>

<p>Corporations- — Action Against Officers and Directors — Condition Precedent — Complaint—Powers—Ultra Vires — Minority Stockholders — Estoppel — Laches — Ratification —■ ByLavjs — Legality—Salaries of Officers — Powers of Directors —Statutes — Evidence — Sufficiency — Admissibility— Equity.</p> <p>1. Tbougb a corporation is necessarily made a party to an action against its officers for fraudulently diverting and misappropriating its funds, and though the action is brought in the name of the plaintiffs, who are minority stockholders, it is in reality on behalf of the corporation.</p> <p>2. Demand on the officials of a coroporation to bring suit for fraud of officers and directors in misappropriating its funds is not a condition precedent to action by the minority stockholders.</p> <p>3. Though the allegations of the complaint in an action against the officers and directors of a corporation for fraudulently diverting and misappropriating its funds are not sufficient to entitle the action to be considered as brought on behalf of others than plaintiffs, who are minority stockholders, its sufficiency as an action in plaintiffs’ own behalf is not impaired by averments that they bring it for others as well as themselves.</p> <p>4. A court of equity, having obtained jurisdiction of an action for one purpose, may retain that jurisdiction for all purposes necessary to the complete protection of the plaintiff’s rights.</p> <p>5. In an action by minority stockholders against the officers and directors of a corporation for fraudulently diverting and misappropriating its funds, evidence examined, and 7ie7d sufficient to charge the president and secretary with knowledge of all expenditures made, to whom they were made, and for what purpose.</p> <p>6. Where a statute authorizes the organization of corporations thereunder for general mining purposes, but does not specify as one of the objects donations for political purposes, such donations are ultra vires.</p> <p>7. Though the majority stockholders of a corporation sanction the acts of its directors and officials in illegally making expenditures of the corporate funds, so as to bind themselves by estoppel, yet such acts are not binding on stockholders who neither took part in the proceedings, nor sanctioned, by act or acquiescence, the making of the expenditures.</p> <p>8. In the absence of power emanating from the stockholders, from statute, or from by-laws legally, adopted, directors of a corporation have no authority to vote a salary to any of their number.</p> <p>9. A resolution- of four directors of a corporation voting three of their number salaries, and giving them back pay, predicated on by-laws previously passed by five directors, including the first mentioned four, is void, under Civil Code, Sections 2970-2976, providing that in all matters connected with his trust a trustee is bound to act in the highest good faith toward his beneficiary, and declaring that every violation of the provisions of the article is a fraud against the beneficiary.</p> <p>10. Compiled Statutes of 1887, Fifth Division, Section 449, provides that, if a . company is organized under that chapter for the purpose of carrying on any part of its business outside the state, the certificate shall so state, and shall also name the locality in the state where its principal place of business is located. .Held, that the removal of the entire official business of a domestic corporation beyond the state, and acts of the directors in attempting to hold regular monthly meetings and to sit as the board of directors in another state, are ultra vires.</p> <p>11. In an action agaainst the officers and directors of a corporation for fraudulently diverting and misappropriating its funds, it appeared that, during a period of time in which the official business of the company had been removed from the state without authority of law, stockholders’ meetings were held annually in the state for the purpose only of electing directors, at which a majority of the stock was represented. At each of these meetings a resolution was passed approving all acts of the directors and officers for the past year. None of the acts of which plaintiffs complain were presented at these meetings. The board of directors, after the suit was brought, at a regular meeting held in the state, passed a resolution ratifying the acts done without the state; some of the defendants voting for and causing its adoption. Held insufficient to show a ratification of the ultra vires acts.</p> <p>12. Where a series of illegal acts by a corporation’s officers and directors, continuing over a period of several years, is pursued till the commencement of an action against the officers and directors therefor by minority stockholders, laches cannot be predicated of the plaintiffs’ delay in bringing suit.</p> <p>13. Minutes of a stockholders’ meeting, consisting of separate sheets of paper pinned to the leaves of a record book, are insufficiently identified to make them admissible.</p> <p>14. Under Code of Civil Procedure, Section 3130, providing that, when part of a writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, the act of plaintiffs, in an action against the officers and directors of a corporation for fraudulently diverting and misappropriating the corporate funds, in first introducing some insufficiently identified by-laws, though denying the legality of their adoption, renders the others admissible on behalf of the defendants.</p> <p>15. Where the secretary of a corporation, who is unlawfully paid a salary by the directors, is not a director, and is connected in no way with the fraudulent transactions of the directors in misappropriating and diverting the corporate funds, he cannot be held liable in an action by minority stockholders against the officers and directors for relief against the fraudulent acts, but the officials who caused the money to be paid to him must account therefor.</p>

<p>Evidence — Receipts—Parol Explanation — Appeal — Findings of Fact — Review.</p> <p>1. In an action on an assigned demand there was admitted in evidence on behalf of plaintiff a so-called “duplicate” written assignent, but on appeal by defendant it did not appear from the record whether the original or duplicate assignment was delivered to plaintiff by the assignor, or whether the paper admitted in evidence was merely a copy of the original. Held, that it was not shown that error was committed, even if the original or duplicate should have been produced instead of a copy.</p> <p>2. Plaintiff claimed that she deposited with defendant money to be applied on the price of furniture, on an understanding that, if the sale should rot be consummated, the money should be returned, and defendant claimed there was a sale and part payment. Held, that it was proper to admit testimony on behalf of plaintiff to explain the purpose and meaning of a receipt given by defendant to plaintiff.</p> <p>3. Findings of the trial court, based on conflicting evidence, will not be disturbed on appeal.</p>

<p>New• Trial — Surprise—Newly Discovered Evidence — Insufficiency of Evidence — Discretion of Court — Appeal.</p> <p>1. The granting or refusing of a new trial upon the ground of surprise or newly discovered evidence rests largely in the discretion of the trial court, and its ruling will not he disturbed in the absence of an abuse of such discretion.</p> <p>2. Where there is evidence to sustain the findings of the trial court, and the evidence is conflicting, the findings and decision will not be disturbed on appeal.</p>

<p>Divorce — Custody of Children — Powers of Court.</p> <p>Under Civil Code, Section 192, providing that in an action for divorce the court may, before or after judgment, give such direction for the custody of the children, as may seem necessary or proper, and may at any time vacate or modify the same, the court should, of its own motion, where the parents make no petition, inquire into the facts and make the necessary order for the custody of the children, and must do so when moved by either party, irrespective of whether such party was in default, or not, in the suit, or whether he or she was the guilty party; and, if a mistake is made in the first instance, the court should remedy the same, on a proper showing, as soon thereafter as possible.</p>

<p>Appeal from District Court, Granite County; Welling Nap-ton, Judge.</p> <p>Action by Peter S. Musigbrod and another against James Hartford and others. From'a judgment and order-refusing defendants costs on a dismissal of the action, they appeal.</p>

Action by Ruth A. Burton against Henry Kipp. From an order granting a new trial after judgment of nonsuit, defendant appeals. Statement of the Case. This action was brought, under Section 1310 of the Code of Civil Procedure, to have determined an adverse claim asserted by defendant to lot 12 in block 5 of the city of Butte, of which plaintiff claims to be the owner.

<p> Appeal'from District Gourt, Yellowstone Gountyj G. H. Loud, Judge.' </p> <p>Action by George A. Miller against the Northern .Pacific Railway Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>VVcvter Rights-A ction~s-Fa'rties--New Tri&~-Grounds-Notice of Intention.</p> <p>1. In an action under Civil Code, Section 1891, to settle the relative priorities and rights o~ the parties to the use o~ the waters of a stream, every party to the suit is an antagonist of every other party.</p> <p>2. Under a notice of intention to move for a new trial, specifying as grounds the insufficiency of the evidence to justify the decision of the court as regarded plaintiff, the appealing defendant could not urge an objection to the sufficiency of the evidence to sustain the decision in favor of another defendant.</p>

<p>Municipal Corporations — Officers — Bonds — Conditions Money Received by City Treasurer — Illegality of Collection —Failure to Account — liability of Sureties — Actions—Evidence- — Reports of Treasurer.</p> <p>1. The official bond of a city treasurer, as contemplated by the Political Code, is within the purview of Article IX thereof, and must be conditioned in accordance with Section 1057.</p> <p>2. A city treasurer receipted for moneys collected by officers and agents of the city from gambling houses and brothels, and also included such receipts in his monthly reports to the couocil. Held, that the money so received was received by the treasurer by virtue of his office, and his failure to pay over the money to his successor in office was a breach of his official bond, for which his sureties were liable, though the money was collected illegally and without authority.</p> <p>3. Reports of a city treasurer to the city council of moneys received and disbursed during the month, which he is required to make by Political Code, Section 47S8, may be given in evidence against the sureties on his official bond, and are prima facie true, and, when not contradicted by the sureties, are binding on them.</p>

M. Clements, Judge. Statement’ oe the Case. This action was commenced by Joseph Longtin, plaintiff, against Thomas B. Persell and W. E. Persell, copartners doing business as the Persell Limestone Company. The plaintiff owns, is possessed of, has his residence and lives on, lot 13, block 553, original townsite of Helena.

Action by the Butte Mining & Milling Company against W. B. Kenyon and others. Judgment for defendants.

<p>Master and Servant — Safe Place to Work — Railroad Employes —Negligence — Contributory Negligence — Assumption of Risk — Questions for Jwry — Trial—Nonsuit—Presumptions —Directed Verdicts.</p> <p>1. It is the duty of an employer to use all reasonable care, considered in relation to the kind of business, to provide a safe place in which the employe may perform his service.</p> <p>2. A railroad employe engaged in switching is entitled to rely on the presumption that the railroad has properly constructed its line and appliances.</p> <p>3. On motion for a nonsuit, every fact will be deemed proved which the evidence tends to prove.</p> <p>4. The fact that a railroad employe went in and out of the yards in which he was employed during a period of three months, and that immediately before the accident he threw switches, was not conclusive on the question of .notice to him of the proximity of the switch stand to the track.</p> <p>5. A railroad is not an insurer of the safety of its employes, but is required only to exercise all reasonable care to provide and maintain safe, sound and suitable machinery, roadway structures and instrumentalities.</p> <p>6. Where a railroad negligently maintained a switch stand so near its track as to imperil the safety of its employes, and an injured employe testified that he did not know of such dangerous proximity, and had never thrown the switch prior to the day of the accident, and up to that day had never done any switching in the portion of the yard in which such switch stand stood, it could not be said, as a matter of law, that he was guilty of contributory negligence in attempting- to mount an engine near the switch.</p> <p>7. Where a servant assumes the risk, the question of his contributory negligence is immaterial.</p> <p>8. While the occupation of a freight brakeman is a perilous one, and those who engage in it must be held to have anticipated its dangers, and to have assumed the risks ordinarily incident thereto, yet they assume only the ordinary risks of the employment, and not extraordinary ones, unless they are aware of such at the time of their employment, or, on learning of their existence, they continue in the employment after the lapse of a reasonable time for the defects to be remedied or removed.</p> <p>9. Whether a freight brakeman engaged in switching, and who was injured while mounting an engine by coming in contact with a switch stand placeo near the track, knew or should have known of the dangerous proximity of such switch stand to the track, so as to have assumed the risk of injury therefrom, held, under the evidence, a question for the jury.</p> <p>10. No case should be withdrawn from the jury unless the conclusion necessarily follows from the facts as a matter of law that no recovery could be had on any view which could reasonably be drawn from the facts which the evidence tends to establish.</p>

<p>Telephones — Bight to Use Streets — Power of Municipal Corporation — Mcmdamus.</p> <p>1. Civil Code, Section 1000, authorizes telephone corporations to construct their Iones along and upon the streets of cities, since the term “public roads” includes “streets” of cities.</p> <p>2. Civil Code, Section 1000, applies as well to foreign corporations which have complied with the statute prescribing the conditions on which foreign corporations may do business in the state, as to domestic corporations.</p> <p>3. Civil Code, Section 1000, being a general law passed in pursuance of Constitution, Art. XY, Sec. 14, is not modified or limited by the laws relating to the government of cities.</p> <p>4. Civil Code, Section 1000, is not in conflict with, nor amended by, subsequent enactments granting the power to cities to regulate and prevent the use or obstruction of city streets, sidewalks and public grounds.</p> <p>5. Under Civil Code, Section 1000, municipalities can only reasonably regulate the construction of telephone lines within their limits, they cannot entirely prohibit such construction as is named in the statute, hence, where a city council refuses to designate the location of poles for a telephone line, and requires the wires to be laid in conduits four feet under the streets, the proper remedy is by mandamus to compel the council to designate the location of the poles.</p> <p>6. That a city is charged with the duty of keeping its streets in repair, and that the cost of maintaining them is raised by public taxation within the city, does not give it jurisdiction over them exclusive of that of the legislative assembly.</p>

Action by John W. Hefferlin and others against Gr. Wi Nariman and M. Jennings, copartners as Nariman & Jennings. From a judgment for plaintiffs* and the denial of a new trial, defendants appeal.

<p>Building and Loan Associations — Maturity of Contract — Withdrawal of Shareholder — -Settlement—Effect—Insolvency of Association — Actions Against Shareholder — Evidence— P leadings — D enia l — Sufficiency.</p> <p>1. Where affirmative matter is pleaded in an answer, a replication thereto stating that plaintiff “has no knowledge or information concerning the allegations thereof sufficient to form a belief,” is insufficient as a denial, and said allegations of the answer must be deemed admitted.</p> <p>2. In an action to foreclose a building and loan association mortgage the member’s certificate of stock, and the by-laws and statements printed thereon, constituting the contract between the association and such member, were properly admitted in evidence.</p> <p>3. In an action to foreclose a building and loan association mortgage it was immaterial, on the question of the admissibility of matter which purported to be the by-laws of the association, whether it in fact constituted such bylaws or not, where it constituted a part of the written contract existing between the shareholder and the association, and was given to him by the association as the by-laws.</p> <p>4. The by-laws of a building and loan association made the secretary the custodian of its books and records, and charged him with the transaction of business relative to the issue and cancellation of stock. About the time of the maturity of A.’s stock, the secretary wrote to B., acknowledging the receipt of dues, and stated in the letter that the five-year stock (which was the kind that A. had) contained certain burdensome conditions, and that other longer term stock had been issued, which was more advantageous to the shareholders, all but six of whom had made the exchange. Held, in an action to set aside a release of A.’s mortgage and to foreclose the mortgage, that the letter was admissible to show that the company was at the time transacting business, and that a definite five-year contract existed between the association and its original shareholders.</p> <p>5. Since building and loan associations do not ordinarily have outside creditors, as do general corporations, a deficiency of assets does not render them insolvent, in the proper sense of the word, but merely indicates a loss of capital stock and security, and depreciation of the stock held by the members.</p> <p>6. Insolvency is a question of fact to be proved by evidence, and is not presumed.</p> <p>7. Where a certificate of stock in a building and loan association provided that the association would pay to a shareholder the sum of ¡JS100 for each share represented thereby at the end of five years, on condition that the shareholder complied with the terms and conditions thereof, and other literature provided that the stock at maturity should cancel the mortgage, the debt of a borrowing member, who complied with all the terms and conditions of his contract, was canceled, and the mortgage which he executed to</p> <p>° secure his loan released, at the expiration of five yeqrs.</p> <p>8. Where a member of a building and loan association has made full settlement, and withdrawn therefrom, such settlement and withdrawal cannot be set aside by the association without showing fraud or bad faith in some form.</p> <p>9. Where the contract oetween a borrowing member and a building and loan association has been completed, and the member has withdrawn, it is immaterial whether the contract was one which the association had the power to make.</p>

<p>Continuance — Engagements of Counsel — Affidavits — Sufficiency.</p> <p>Where it appeared from the record that defendant had three counsel, two of whom -were partners, an affidavit for a continuance until after a certain date, which stated that counsel who was to try the ease was to be engaged in the supreme court on the day set for trial and the two following days, but which failed to show any reason why his partner could not attend to the business in the supreme court, or why the other counsel could not try. the case, was insufficient to show error in the refusal of the continuance.</p>

<p>New Trial — Motion,—Bill of Exceptions — Transcript of Evidence — Notes of Official Stenographer —■ Notes of Private Stenographer.</p> <p>1. In making up statements or bills of exceptions, litigants are under no obligation to use only the transcript of the evidence furnished by the official stenographer. They may for that purpose use the notes of any person which furnish a correct narrative of the proceedings.</p> <p>2. A bill of exceptions or statement once settled and filed becomes a part of the record, not subject to correction, except upon a showing that some mistake has been committed, in which case it should be corrected, and not stricken from the files.</p>

<p>Bankruptcy — Fraudulent Transfers — Bona Fide Purchasers— Good Faith. — Present Consideration — Insolvency of Debtor— Presumptions- — Findings — Appeal — Specification- of Errors —Insufficiency of Evidence — Errors of Law- — Sufficiency of Specification — Briefs—Trial—Order of Testimony — Discretion of Trial Court — Reopening of Case — Offers to Prove.</p> <p>1. Under Code of Civil Procedure, Section 1173, a specification in the statement that the court erred in making a certain finding, “there being insufficient evidence to justify said finding, and the evidence being insufficient to support the same, and said finding is contrary to the evidence, and wholly unsupported thereby,” is not a proper specification of the insufficiency of the evidence.</p> <p>2. Where the notice of intention to move for a new trial bases the motion on the ground of insufficiency of the evidence to support certain findings, the movant cannot, on appeal, change his position, and claim that the making of the findings was an error at law.</p> <p>3. Under Code of Civil Procedure, Section 1173, a specification in the statement that the court erred in making a certain finding of fact, “there being insufficient evidence to justify said finding, and the evidence being insufficient to support the same, and said finding is contrary to the evidence and wholly unsupported thereby,” is insufficient to charge error in law.</p> <p>4. Under Code of Civil Procedure, Section 1173, a statement which does not specify the insufficiency of the evidence as a ground of the motion must, at least so far as the insufficiency of the evidence is concerned, be disregarded.</p> <p>5. Under Code of Civil Procedure, Section 1114, requests for findings made after the filing of the findings and conclusions of law are presented too late, and the want of such findings cannot be made a ground for reversal.</p> <p>6. Under Bankruptcy Act of July 1, 1898, a sale by a bankrupt, though made to hinder and defraud creditors, is not void as against a purchaser who did not participate in the fraudulent act of the bankrupt, or have knowledge of such intent or of the bankrupt's insolvency, and who bought not for a cancellation of an antecedent debt or a payment of a merely nominal price, but one which, under the circumstances, was present and fair.</p> <p>7. Under Bankruptcy Act of July. 1, 1898, the insolvency of a debtor, to avoid a transfer, must be one existing at the date thereof, and not one arising thereafter.</p> <p>8. In proceedings by a trustee in bankruptcy to recover property of the bankrupt sold within four months prior to the filing of the petition, where the pleadings contained no allegation of insolvency at the date of the transfer of the property, and the record did not disclose any facts tending to show the same, the supreme court will presume that on the date of the transfer the debtor, subsequently adjudged a bankrupt, was solvent.</p> <p>9. Where, at the time of a sale of property, debtors were presumably solvent, and a person, in good faith and for a valuable consideration, purchased certain property of them, and possession was turned over to him, as required by the state statutes, the sale was not null and void as against the creditors of the debtors by the laws of the state; and hence the property could not be recovered under Bankruptcy Act of July 1, 1898, for the benefit of the debtors’ creditors, on the debtors being subsequently adjudged bankrupt.</p> <p>10. In proceedings by a trustee in bankruptcy, to recover property sold by the bankrupt within four months prior to the filing, of the petition, where the court found that the property was purchased in good faith, without any intent to hinder, delay or defraud creditors of the bankrupt, the purchaser paying therefor in cash a certain sum, and found, as a conclusion of law, that he was a bona fide purchaser for a present fair consideration, a further finding of fact as to whether the purchase was made for a present fair consideration was unnecessary.</p> <p>11. In proceedings by a trustee in bankruptcy to recover property sold by the bankrupt within four months prior to the filing of the petition, a finding of fact as to whether the property was sold within four months preceding the date of the adjudication in bankruptcy was unnecessary, where it was undisputed on the trial that the sale was made on June 2d, and that the adjudication was made on July 18th of the same year.</p> <p>12. An offer to prove is not sufficient, without having the witness present and calling him, or asking leave to call him, or without affirmatively showing that the offer is made in good faith, and with the means of doing or trying to do what is desired.</p> <p>13. The reopening of a party’s case, after he has closed it, for the purpose of admitting further testimony, is in the discretion of the court below, and will not be disturbed on appeal unless abuse of discretion is shown.</p> <p>14. Where counsel for defendant had, in his case in chief, introduced evidence bearing on the connection of plaintiff with the fraudulent acts of a debtor, it was his duty to have completed his showing in that regard before he closed his case, and it was proper to refuse to allow him to reopen it for the purpose of introducing further evidence on that subject.</p> <p>15. The mere fact that an objection made to an offer of proof Is not good does not prevent the court from exercising its discretion and refusing to allow the offered proof.</p> <p>16. In proceedings by a trustee in bankruptcy to recover from the purchaser property sold by the bankrupt within four months prior to the filing of the petition, testimony that the bankrupt secreted the money he received from the sale for the purpose of defrauding his creditors, being in reference to a transaction occurring after the sale, and payment of the money, in which it was not claimed that the purchaser participated, was not competent for the purpose of showing any participation by him in the fraudulent intent of the bankrupt, or that he had knowledge of such fraudulent intent at the timé of the sale. .</p> <p>17. Where a finding on the value of property in dispute was made, and not objected to, and the sufficiency of the evidence is not brought before the supreme court for consideration, that court will presume that the finding was sustained by the evidence, and will not consider- a contention that the judgment is excessive.</p> <p>18. Under the Rules of the Supreme Court, errors not specified in the brief will not be considered.</p>

<p>Water Rights — Ownership—Burden of Proof — Appurtenances —Evidence.</p> <p>1. Where plaintiffs, in an action to recover damages for the diversion o£ water adjacent to their mining claim, allege ownership of their right to use the water, the burden of proof is on them to show ownership, on denial of the allegation by defendant.</p> <p>2. Mere proof of ownership of an interest in a placer mining claim is insufficient to show an ownership of the right to use the waters adjacent thereto.</p> <p>3. No water right can become appurtenant to lands unless the ownership of the water right and the ownership of the lands was in the same person or persons.</p> <p>4. In an action to recover damages for the diversion of water adjacent to plaintiffs’ mining claim, testimony tending to show that the claim could not be worked as a placer mining claim successfully without sufficient volume of water to enable hydraulic mining to be done on it is immaterial, in the absence of proof of ownership by plaintiffs of the right to use the water.</p> <p>5. Where plaintiffs, in an action to recover damages for the diversion of water adjacent to their mining claim, offered to show, by the person who obtained the patent from the government for the claim, that he described in his application, as one of the improvements entitling him to a patent, a ditch, ■which was the same as that in which the water involved in the action was located, to which objection was made and sustained, whereupon plaintiffs offered a certified copy of the patent, they thereby waived any error in the exclusion of the testimony.</p> <p>6. Where plaintiffs, in an action to recover damages for the diversion of water adjacent to their placer mining claim, offered in evidence a certified copy of the application for a patent to the claim, -which was excluded, the ruling of the court in excluding it cannot be considered on appeal in the absence of the application from the record.</p> <p>7. The lease of a placer mining claim including the right to use thereon “the Mammoth ditch and water right, and all water and water rights heretofore used with or appurtenant to said premises,” has no tendency to show that the Mammoth water right was appurtenant to the leased premises.</p> <p>8. The testimony of a witness on a former trial is inadmissible in the absence of a showing that it was given in an action between the same parties relating to the same matter.</p>

<p>Statute of Frauds — Sale of Personalty — Part Performance— Appeal — Findings—Review'.</p> <p>1. Where the • record on appeal does not disclose that any findings were requested by either party, or that any were made, all findings necessary to support the judgment are implied.</p> <p>2. Where the evidence is conflicting, the supreme court on appeal will not disturb the findings of the trial court.</p> <p>3. Under Civil Code, Section 2340, declaring invalid a sale of personalty for $200 or more, not in writing, unless the buyer accepts and receives part of the thing sold,, the acceptance and receipt need not be concurrent with the purchase.</p> <p>4. Under Civil Code, Section 2340, making valid a sale of personalty, for $200 or more, though not in writing, if the buyer accepts and receives part of the thing sold, such acceptance and receipt by one who assumes the buyer’s contract is sufficient.</p>

<p>Public Lands — Pre-emption—Entry—Contest—Cancellation— Vested Rights — Bona Pide Purchasers — Patents—Equity.</p> <p>1. Held, that a certain pre-emption entry was never canceled, so as to entitle the contestant to the preferential right to enter the land given to a successful contestant by Act of Congress, May 14, 1880, c. 89, Section 2.</p> <p>2. The preferential right given to a successful contestant by Act of Congress, May 14, 1880, c. 89, Section 2, was not a property or vested right, nor a right which could be enforced against the government, but a mere privilege of becoming the first entryman.</p> <p>3. Congress, by the passage of Act March 3, 1891 (26 Stat. 1098), providing for the confirmation of contested pre-emptions in the hands of bona fide purchasers, cut off the rights of successful contestants under Act of Congress, May 14, 1880.</p> <p>4. The land department’s finding on the issue as to whether certain persons are bona fide purchasers of contested pre-emptions is conclusive on the state courts.</p> <p>5. The title conveyed by a patent will not be disturbed where the proof of its invalidity is not clear and convincing.</p> <p>6. In an action for the purpose of having a patentee declared plaintiff’s trustee for the land, before plaintiff can prevail, he must not only show that the patentee was not entitled to the patent, but also that he is.</p> <p>7. Plaintiff in a suit in equity to declare .bona fide purchasers of a pre-emption to be his trustees, praying that they be decreed to execute and deliver to him a deed therefor free from all incumbrances, predicated on his contest of the original entry', has no equity which will prevail over the title of defendants, where he never made a declaration of homestead as to the contested pre-emption, nor paid any fees for the land, and his good faith in bringing the suit is questionable.</p> <p>Me. Justice Milbubn dissenting in part.</p>

<p>Bailment — Duty of Bailee for Hire — Burden of Proof — Appeal — Record—Instructions.</p> <p>1. In the absence of a special contract with reference to the bailment, ordinary care only is required of a bailee for hire.</p> <p>2. In an action against a bailee for hire for failure to redeliver the article as agreed, it having been lost, he has the burden of showing he used ordinary care.</p> <p>3. outer: Where the bailor alleges negligence on the part of the bailee as the basis of the bailor’s right to recover, the burden is on the bailor to prove such allegation.</p> <p>4. A pasture, in which a bailee for hire of horses put them, and from which they escaped, is in law not inclosed at all, it not being wholly inclosed by a good and sufficient fence.</p> <p>5. Instructions not being made part of the judgment roll are not open to review.</p>

<p>Trial by Referee — Erroneous Admission of Evidence — Appeal —Conflicting Evidence.</p> <p>1. Admission of immaterial evidence in an action tried by a referee is not ground for reversal, there being sufficient competent evidence to sustain the judgment.</p> <p>2. The judgment, so far as it depends on findings of fact, will not be disturbed on conflicting evidence.</p>

<p>Injunction — Operation of Ore Vein — Counter Injunction— Multiplicity of Actions — Equity—Jurisdiction.</p> <p>1. Where, in a suit to quiet title to a vein of ore and for damages for a trespass on the vein, defendants did not seek an injunction restraining plaintiffs from operating the vein, they were not entitled to such an injunction in a subsequent suit by them, proceeding for such relief having been open to them in the former suit.</p> <p>2. Where, in a suit for an injunction restraining the operation of an ore vein, the injunction was denied,- complainants might not, after dismissing the suit, institute another on the same ground, and again apply for an injunction for the same purpose.</p> <p>3. Plaintiffs sued for damages because of the trespass on an ore vein, for an injunction restraining defendants from operating the vein, and for the quieting of plaintiffs’ title to the vein, the issue being whether the apex of the vein was within the boundaries of plaintiffs’ or within the boundaries of defendants’ location. An injunction was granted, and subsequently defendants commenced various suits against plaintiffs, for trespass, etc., on the vein, the question in all the actions being the location of the apex of the vein. Held, that plaintiffs were properly- awarded in their original suit an injunction restraining defendants from bringing any action or interfering with the removal of ores from the vein until the final determination of plaintiffs' suit.</p> <p>4. When a court of equity takes jurisdiction of a controversy between parties, its jurisdiction is full and complete, and it may render a final judgment in relation to all matters involved in and growing out of that controversy.</p>

<p>Appeal — Record on Appeal — Bills of Exceptions — Service— Waiver — Appeal from Judgment — Notice of Intention to Move for a New Trial — Natural Watercourse — Flood Waters of a< River — Surface Water — Obstruction.</p> <p>1. Objection that the bill of exceptions was not served in the manner provided by Code of Civil Procedure, Section 1831, is waived by the presenting of amendments to the proposed bill.</p> <p>2. The fact that the notice of intention to move for a new trial is not in the record is no ground for dismissal of the appeal from the judgment.</p> <p>3. Flood waters of a river, which become severed from the main current, or leave it never to return, and spread out over lower ground, become surface water; but if they form a continuous body with the water flowing in the ordinary channel, or if they depart therefrom presently to return, they are to be regarded as still a part of the stream, subject to the law as to obstruction thereof.</p> <p>4. Under the common law overflow waters of a stream which still form part of the stream may not be obstructed by a railroad company by a fill along its right of way without openings, so as to injure the property, of another.</p>

<p>Deeds — Delivery — Escrow — Evidence — Burden of Proof— Appeal — Transcript —■ Manner of Showing Error — Sufficiency — Mortgages.</p> <p>1. A grantor in a deed placed in escrow, to be delivered in a specified time on the performance of certain conditions, brought suit to set aside the deed. At the close of plaintiff’s case, defendant’s motion for a nonsuit was granted. Pleadings and evidence examined, and hel&j that the motion for a nonsuit was rightly granted, since, under the pleadings, the burden- of proof was on the plaintiff to prove his material allegations, and this he had failed to do.</p> <p>2. Proof that a mortgage is of record is not proof that the mortgagee procured it to be recorded.</p> <p>3. The phrase “deed of release,” as used in Civil Code, Section 3845, means a writing, duly subscribed and acknowledged by the mortgagee, whereby he absolves the mortgaged property from the lien of the mortgage.</p> <p>4. "Where one appears of record to be the owner in fee of real estate, one alleging the contrary must prove the same by clear and convincing proof.</p> <p>5. The transcript on appeal must show error directly, and not by way of inference or presumption.</p>

<p>Courts — Supreme Court — Supervisory Control Over District Courts — Exercise—Remedy by Appeal — -Adequacy.</p> <p>1. By a rule of tile district court of Silver Bow county, all matters of a criminal nature were to be heard in Department 3 of that court. An accusation under Penal Code, Section 1531, was filed in Department 1, and the judge of that department denied an application for the transfer of the cause to Department 3. Held, that the supreme court would not issue a writ of supervisory control to compel the removal of the case to Department 3, where it did not appear that, if Department 1 should proceed to a determination of the accusation, accused would suffer any injury for which an appeal would not furnish an adequate remedy.</p> <p>2. The supervisory control power was vested in the supreme court, not for the purpose of interfering at every stage of the proceedings in the district court and directing the conduct of the business there, but only under extraordinary circumstances, where there is no other remedy and a party litigant is, by some wrong committed by the court, liable to suffer irreparable injury.</p>

<p>Specific Performance — Complaint—Adequate Remedy at Law —Tender—Amendment — Appeal — Technical Objections— Harmless Error.</p> <p>1. Where a complaint alleged breach of a contract to convey land described therein, it was sufficient to raise the presumption that pecuniary compensation would' not afford adequate relief, within Civil Code, Section 4410, Subd. 2, though there was uo allegation of special circumstances showing that plaintiff had no adequate relnedy at law.</p> <p>2. In an action for specific performance of .a contract to convey land, it was not necessary that the complaint should allege that defendants were the owners of the land at the time the contract was made, since, if defendants were not the owners, or had placed themselves in such a position that they could not perform their contract, such facts were matters of defense.</p> <p>3. In a suit for specific performance, an answer alleging that, since the contract was made, defendants had conveyed the land in controversy to another, constituted an admission that defendants were the owners of the land at the time the contract was made.</p> <p>4. Under Code of Civil Procedure, Section 778, a technical objection to a complaint in a suit for specific performance not affecting the substantial rights of the parties is not available after judgment.</p> <p>5. Where, in a suit for specific performance, it was alleged that defendants had withdrawn the deed from escrow, and it appeared that a tender of the balance of the price would not have been accepted and would have been of no. avail, and plaintiff tendered the money in court, paid the same to the clerk, and demanded a deed, defendants having removed from the state and being absent at the time plaintiff desired to make payment, it was no objection that the complaint failed to allege a tender of the balance of the price before suit brought.</p> <p>G. Where, in a suit for specific performance, defendant admitted the making of the contract, and relied on a defense other than the statute of frauds to defeat the action, such statute was not available as a defense unless specially pleaded.</p> <p>7. ' Where, in a suit for specific performance, plaintiff pleaded a breach of the contract, and defendant alleged that plaintiff had failed to perform within the time prescribed, whereupon defendant had sold the land to W., but did not allege whether the sale to W. was before or after the commencement of the action, nor state any facts with reference to the consideration paid . by W., and his notice of plaintiff’s equity, the answer did not set up sufficient new matter to require replication.</p> <p>8. In a suit for specific performance, plaintiff, pending a motion for judgment on the pleadings, applied for leave to amend the complaint by adding an allegation of tender of the unpaid purchase price, and a demand for a deed, and by making an allegation of readiness and willingness to perform more specific. Held* that the application was properly granted, defendants having declined the court’s offer to postpone the hearing to the next term.</p> <p>9. Where, after a trial amendment, the case proceeded and was .tried upon the issues formed by me amended complaint and answer, and it appeared that defendants were afforded every opportunity to present their entire case, the fact that the amendment was not- formally incorporated in the complaint was not reversible error.</p>

<p>Attorneys — Disbarment—Reinstatement.</p> <p>Where an attorney was suspended lor a specified time, with a provision that he might at the expiration of that time be restored to the privileges of an attorney, on proper petition, supported by satisfactory evidence of good conduct meantime, and at the expiration of that time he petitioned for reinstatement, filing a certificate, signed by nearly every member of the bar of the city where he resided, to the effect that he had conducted himself as, and was, a man of good moral character, he will be reinstated.</p>

IF. Ilarney, Judge. Action by G. Gordon Clark against tlie Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Held: in accordance with the general rule; that a party after invoking the. jurisdiction of the district court to try a case, anew on the merits, could not object to- or deny such jurisdiction, and that no appeal would lie from a default judgment.

McOlernan, Judge. Suit by Janies A. Murray and others- against Thomas R. Hinds, as treasurer of Silver Bow county, and others. From a judgment for defendants, and from an order denying- a motion for a, new trial, plaintiffs appeal.

<p> Appeal from District Court, Flathead County; D. F. Smith, Judge. </p> <p>Action by tbe state of Montana against N. P. Lagoni and W. F. Stnfft. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>Mines — Owner of Surface — Presumption of Ownership of Ores Beneath the Surface — Evidence to Overco'me — Sufficiency— Preliminary Injunction — Discretion of Court:</p> <p>1. The presumption that an owner of the surface is also the owner of ores found beneath the surface is not overcome by the opinion of an engineer that, if a vein having its apex in ground owned by another continues to dip at the same angle as it dips where it is exposed in upper levels, it will reach the point where the owner of the surface is conducting operations.</p> <p>2. The granting of an injunction pendente Míe is within the discretion of the trial court, and, in the absence of a clear abuse of it, the supreme court will not interfere.</p>

M. Clements, Judge. Suit by Otis R. Allen against the Aj ax Mining Company and others. Erolm a judgment in favor of plaintiff, defendants appeal. It is evident that the lower court in granting the injunction complained of herein had in mind and followed the decision of this court in Forrester v. Boston cG Montana, Gonsol. Min.

Affeal from District Court, Silver Boiu County; E. W. Harney, Judge. Action by Carl J. Capell and others against Joseph B. Fagan.

<p>Bobbery ■ — ■ Information — Charging One- Under Aliases — Evvdence- — Admissibility — Letters — Jurors — Competency— Ownership of Stolen Property — Insanity.</p> <p>1. Where an information was against one as George Howard, alias James Howard, alias Joe Kirby, a contention that the information did not conform to the. requirements of Sections 1832 and 1834, Penal Code, is without merit; the information having charged his prior conviction, and the different names being for the purpose of identifying him as the person previously convicted.</p> <p>2. An information ton a prosecution for robbery which charged that the property was taken by means of force and putting in fear, and that it was taken from the person and possession and from the immediate presence of a specified person, did not charge more than one offense.</p> <p>3. The granting or refusing of a motion for a continuance in a criminal case is within the sound discretion of the trial court.</p> <p>4. The action of the trial court in refusing or allowing a continuance will not be interfered with on appeal unless there has been an abuse of discretion.</p> <p>5. Where jurors state on their voir dire examination that they were prejudiced against the defense of insanity, but upon further examination say that they would treat it like any other defense; would follow the court’s instructions thereon, and, if the instructions should in any manner differ from their own ideas, they would follow the instructions, they have qualified themselves as competent jurors.</p> <p>O. Where a venireman in a criminal case stated on his voir dire that he had read the newspaper accounts of the alleged robbery, and had formed an opinion, but not a fixed one, and on re-examination he said he could entirely discard the opinion thus formed, and give the defendant as fair a trial as if he had never heard of the case, he was competent.</p> <p>7. Where defendant, while engaged in attempting to rob the safe on a. train, robbed a mail clerk, on a prosecution for the robbery of the mail clerk it was proper to admit evidence as to all the details of the attempted robbery of the train, and a conspiracy therefor.</p> <p>8. Where, on a criminal prosecution, the state offeied in evidence a letter claimed to have been written by accused, and a witness testified that he was familiar with defendant’s handwriting, and that the letter looked like his writing, and that the signature was his signature, there was a sufficient identification of the letter as one written by defendant.</p> <p>9. Where a letter improperly admitted was immaterial, and the only defense made in the case was insanity, the admission of the letter was harmless error.</p> <p>10. In a criminal case, error in the admission of evidence, to secure a reversal of a judgment of conviction, must be prejudicial to the defendant.</p> <p>11. Where the warden of the penitentiary testified that defendant had been confined in the penitentiary, and there was admitted in evidence a commitment against him, and it appeared that the date of his commitment and release corresponded with the requirements of the commitment, and other witnesses testified that they knew defendant • when he was in the penitentiary, an objection that defendant was not identified as the man to whom the commitment referred was of no merit.</p> <p>12. The proper manner of proving a prior conviction is not by the introduction of the commitment, but by the record of the judgment. (Code of Civil Procedure, Sec. 3193.)</p> <p>13. Where, on a prosecution for robbery, a witness on direct examination testified that he had been confined in the penitentiary, and that he had known the defendant for about fifteen months, and had observed his demeanor at the penitentiary, and that he thought defendant insane, questions put to him on cross-examination for the purpose of showing that he was a member of the conspiracy which resulted in the robbery were not improper, as exceeding the proper limits of cross-examination.</p> <p>14. Where a witness for defendant had testified that he had been in the penitentiary, and that he was then in jail, a question put to him on cross-examination as to whether he was not in jail on a charge of holding up a saloon was not erroneous, as tending to degrade the witness.</p> <p>15. The question was not prejudicial, as not proper cross-examination.</p> <p>16. On a prosecution for robbery, the fact that the money taken was in iirosecutor’s possession is sufficient evidence of ownership to sustain a conviction.</p> <p>17. On a prosecution for robbery, the question whether defendant was, by reason of insanity, incapable of having the criminal intent necessary to the commission of the crime, was raised by a plea of not guilty.</p> <p>18. On a prosecution for robbery, the question whether defendant was, by reason of insanity, incapable of having the criminal intent necessary to the • commission of the .crime, was a question of fact for the jury.</p> <p>19. Penal Code, Section 2521, provides that when an action is called for trial, or at any time during a trial, or when the defendant is brought up for judgment, if a doubt arises as to the sanity of defendant, the court must order the question as to his sanity to be submitted to a jury. Hold, that the doubt mentioned in the statute is one arising in the. mind of the judge, and one which he must determine. . . .</p>

Application by the state, on the relation of the Anaconda Copper Mining Company, for a writ of prohibition against the Second judicial district court and William Clancy, judge thereof.

APPLICATION by the state, on the relation of Millie Durand, for a writ of prohibition against the Second judicial district court for Silver Bow county, Montana, and Hon. E. W. Harney, judge thereof.

L. Holloway, Judge. Action by tbe Western Iron Works against the Montana Pulp & Paper Company and others. From a judgment in favor of plaintiff, and from an order overruling a motion for a new trial, defendant Union Bank & Trust Company appeals.

L. Holloway, Judge. . Bill by F. W. Traphagen and another against Thomas Kirk. From a decree in favor of defendant, plaintiffs appeal. It was not necessary for tbe plaintiff to allege that it had no remedy at law, it being presumed that it conld not obtain adequate relief in pecuniary compensation and the contract being one which either of the parties could have compelled the other to perform. (Ide v. Leiser, 10 Mont. 5 on p. 15; Civil Code.

<p>Disbarment proceeding.</p>