Volume 31 — Montana Reports

<p>Appeal from District Court, Silver Bow County; John B. McCleman, Judge.</p> <p>Joe Rogers was convicted of burglary, and he appeals.</p>

<p>Municipal Corporations — Defective Sidewall's — Personal Injuries — Action—Demand—Nonsuit-—Appeal—Decord.</p> <p>1. Where defendant’s motion for new trial was denied, and he appealed from the judgment alone, assignments of error referring to instructions, not in the record as a part of the judgment roll, but in the statement on motion for new trial, cannot be considered.</p> <p>2. Political Code, Sections 4811, 4812, requiring ail accounts and demands against a city to be presented to the council, itemized and accompanied by affidavit with necessary vouchers, etc., within one year from the date tne same accrued, and barring claims not so presented, do not apply to a claim for damages arising from personal injuries.</p> <p>3. Where an appeal is from the judgment, and not from the order overruling the motion for new trial, the court will not determine the sufficiency of the evidence, but only determine whether there is any evidence to support the judgment.</p> <p>4. On appeal the court will not consider the question of alleged variance between the proof and complaint, not called to the attention of the court below.</p> <p>5. Upon a motion for nonsuit, everthing is deemed proved which the evidence tends to prove.</p>

<p>Landlord and Tenant — Lease — Abandonment — Warranties— Obligation to Repair — Statutes—Application — Evidence— Extension of Lease — Act's of Attorney — Written Authority— Statute of Frauds — Appeal.</p> <p>1. Leaving the key to a leased building at the lessor’s place of business over his protest, and in spite of his refusal to accept a surrender of the premises demised, is not such an acceptance by the lessor as will relieve the lessee from the payment of rent.</p> <p>2. In the absence of statute or agreement, there is no implied warranty that leased premises are suitable for the purpose for which they are demised.</p> <p>3. In the absence of statute or agreement, there is no implied warranty that the lessor will keep the leased property in repair.</p> <p>4. Civil Code, Sections 2620, 2621, providing that, where a leased building is intended for the occupation of human beings, the lessor must, in the absence of agreement to the contrary, put the same in a condition fit for habitation, and repair subsequent dilapidations, etc., does not apply to business property, but is limited in its application to property used for dwelling-house purposes.</p> <p>5. Where there was nothing contained in the description of property in a lease by which it could be determined from the lease itself whether it was intended for occupation by human beings or not,, which was one of the issues made by the pleadings, parol evidence was admissible to explain the purpose for which the property was leased, together with its condition and description.</p> <p>6. A letter written subsequent to the beginning of an action for rent, which did not by its terms ratify any previous act of one of the lessors, was inadmissible for the purpose of showing authority on his part to make a previous agreement with the lessee on behalf of the other lessors.</p> <p>7. A letter written by It. and B., two lessors, to the third lessor, to the effect that they had concluded that It. should go to the place where the third resided, and agree concerning the leased premises, was inadmissible to show that It. had authority to extend the lease as agent of B.</p> <p>S. Where one of several lessors of a building had no written authority to sign an extension agreement containing an agreement for a conveyance of the' land, for one of the other lessors, as required by Civil Code, Section 218b, Subdivision 5, such extension agreement, which was for more than a year, was invalid.</p> <p>9. Where it did not appear that the appeal record contained all the evidence introduced at the trial, or the substance thereof applicable to the errors assigned, the supreme court could not review the sufficiency of the evidence to sustain the verdict.</p>

<p>Pleading — Complaint — Claim and Delivery — Conversion— C ontract — Breach—A ction s.</p> <p>1. Plaintiffs alleged that, being owners of certain capital stock in defendant company, they deposited it with the company, to be sold by defendant, and the proceeds used in paying its debts, in consideration of an agreement that plaintiffs should hold the offices of vice president, trustee and general manager and treasurer of the defendant until its business should be in successful operation; that defendant violated its agreement, and'ejected plaintiffs from said offices, and had sold and issued the stock to others, and refused and failed to deliver it to the plaintiffs, or to pay plaintiffs the value thereof, though requested to do so. The prayer was for recovery of the possession of the stock, or its value in case delivery could not be had. Held, that the complaint did not state a cause of action in claim and delivery, as the statement that defendant had disposed of the stock showed that, at the commencement of the action, defendant did not wrongfully retain possession of the property from plaintiffs.</p> <p>2. The complaint did not state a cause of action in conversion, as it did not show a general or special ownership in the property and a right to Immediate possession at the time of the wrongful taking by defendant.</p> <p>3. Plaintiffs could not recover as on a contract, as the alleged contract was illegal, under Civil Code, Section 431, requiring directors of the corporation to be elected annually by the stockholders or members, and Section 2240, declaring that unlawful which is contrary to an express provision of the law.</p> <p>4. Plaintiffs could not recover as on a disaffirmance of an illegal contract, as the complaint showed performance on their part, and reliance on the contract.</p>

<p> Appeal from, District Court, Deer Lodge County; Welling Napton, Judge. </p> <p>Proceedings by Eelix Murphy against Newton E. Levengood. Erom a judgment for defendant, plaintiff appeals.</p>

F. Smith, Judge. Action by tbe state, on relation of Fannie E. Chenoweth, against Rebecca Acton. From a decree in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Action by William Lutey and another against W. A. Clark and another. Eróm a judgment in favor of defendants, plaintiffs appeal. In this case the defendants had no lien upon the money, for two reasons, first, for the reason that the Thornton-Thomas Mercantile Company had no interest in the fund; second, the defendants could not create a lien by causing a writ of attachment to be issued and notice of garnishment served upon themselves.

<p> Appeal from District Court, Chotean Countyj John W. Tat-tan, Judge. </p> <p>Consolidated actions by Charles W. Handley against Robert L. Sprinkle. From judgments in favor of plaintiff, and from an order overruling a motion for a new trial, defendant appeals.</p> <p>As consolidation merges the several actions into one, and they thenceforth constitute but a single action, but one judgment must be rendered, and the more so if they are heard together, decided and are in one transcript. (4 Am. and Eng. Encv. Pleading and Practice, p. 705; Capron v. Adams Co., 43 Wis. 614; Mills v. Paul, 30 S. W. 395; Mills v. Paul, 30 S. W. 559 ; Hiscox v. Staats Zeitung, 23 N. T. S. 683 ; Blahe v. B. R. Co., 17 Howard Pr. 228.)</p> <p>There are but two judgments in the two actions. It was the duty of the clerk to enter one of these judgments, and it was the duty of the court to enter the other. The fact that several suits are consolidated does not change the rules of pleading, nor the rights of the parties. The rights must still turn upon the pleadings, proof and proceedings in the respective causes. (4 Ency. PI. and Pr. 691; Moivry v. Davenport, 6 Lea. (Tenn.) 82; Brevard v. Summar, 2 Heisk. (Tenn.) 105; Lofland v. Goward, 12 Heisk. (Tenn.) 546.)</p> <p>The mode of consolidation at law is not by uniting the several actions in one entire record. (Burnham v. Dailing, 16 N. I. Eq. 310.)</p> <p>In equity an order of consolidation has no other effect than to hear the cases thus consolidated at the same time. The issues remain precisely on the pleadings as they were before, and between the same parties, and are to be determined exactly as if the cases were heard separately. (4 Ency. PI. and Pr. 695.)</p> <p>We think the correct practice in the case of consolidations of actions is to make a separate motion for new trial in each ease upon the grounds peculiar to that case alone, and then prepare separate bills of exceptions and present separate appeals, and let each case stand on its own record. The purpose of the consolidation is simply that of trial in the court below. (Harmon v. San Francisco & San Raphael R. R. Co., 86 Cal. 617.)</p> <p>Counsel complain of separate judgments for costs being entered. In consolidating several actions, the taxing of the costs is to be determined in the exercise of a sound judicial discretion. This is the rule, both at common law and by statute. (4 Ency. PL and Pr. 699.)</p> <p>Where cases are consolidated for trial, the causes of action remain distinct to the extent of requiring separate verdicts. (4 Ency. Pl. and Pr. 703.)</p> <p>In the case of Land Commissioners v. Reily, Dali. (Tex.) 381 (referred to in above citation), it is said: “The rendering of one general judgment on a number of separate actions is an anomaly in the history of judicial proceedings.” (Mutual Life Ins. Go. v. Hillmon, 145 U. S. 285.)</p> <p>Where the record shows separate verdicts and judgments, it would seem that for the purposes of an appeal they must be treated as separate and distinct trials. (Mills et al. v. Paul el al, (Tex.) 23 S. W. Rep. 189.)</p> <p>Where cases are consolidated, upon the rendition of verdicts the order of consolidation is, ipso facto, dissolved. (Mills v. Paul, 30 S. W. Rep. 242; Puphe v. Meador, 72 Ga. 230.)</p> <p>The fact of separate judgment being entered would be no cause for granting a new trial. All informalities in judgments are capable of being corrected under the direction of the appellate court. (Duigncm v. Montana Club, 16 Mont. 189.)</p>

W. Harney, Judge. Action by Samuel D. Martin against F. Aug. Heinze. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. An account stated dispenses with items, and the defendant in an action upon such an account is not entitled to a bill of particulars.

Holloway, Judge. Action by Joseph A. Hays against Walter Buzard and another. From a judgment for defendants, and an order denying his motion for a new trial, plaintiff appeals. Hp to the time that William Herron deeded to Joseph Herron he was in exclusive possession and occupancy of the three 160-acre tracts, claiming and using the water upon them. The 200 inches of water had not been divided, but was in the nature of an easement in gross.

<p>Appeal from District Court, Silver Bow Countyj E. >7. Harney, Judge.</p> <p>Action by Sophie Sathre against Christina Rolfe and others. From a judgment for plaintiff, defendants appeal.</p>

Action by David Potter against Fred Lohse. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. This action is tlie old action óf trover, although it is referred to here as an action for conversion. In such an action plaintiff must prove: (1) A right of property either general or special; and (2) possession or immediate right to the possession of the property at the time of the alleged conversion.

<p>Mortgages — Nature — Interest of Mortgagee — Cancellation— Release — Effect — Fraudulent Conveyances — Evidence— Sufficiency.</p> <p>1. A mortgage itself does not create or alienate an .estate in real property, but is a mere security for the payment of a debt or the discharge of an obligation. (Section 3810 et seq.3 Civil Code.)</p> <p>2. While a mortgage is a conveyance (Section 1.042, Civil Code), it is a conveyance of only a chattel interest.</p> <p>3. A mortgage being a mere lien executed for the benefit of the mortgagee, it may be canceled or released by him at any time with or without consideration, and with or without the consent of the mortgagor.</p> <p>4. The purchaser of mortgaged real estate does not thereby become personally liable for the indebtedness.</p> <p>5. When a mortgage is released, a bona fide purchaser holds the premises free of the mortgage, whether the purchase was made prior or subsequent to the release.</p> <p>6. Under Civil Code, Section 2170, one attacking the release of a mortgage, which was given to him and released by himself, in the manner prescribed in Civil Code, Section 3845, assumed the burden of showing the existence of facts sufficient to warrant a court of equity in setting it aside.</p> <p>7. One who had a mortgage on lands securing his debt discharged the same of record, and subsequently sued at law on the note which was secured by the mortgage, attached the land which had been mortgaged, and purchased it at judicial sale, the land having before the discharge of the mortgage been conveyed by the mortgagor to a third person. Held, in a suit by such person to quiet title, that a finding that the mortgage was not a lien on the property at the time the suit to quiet title was commenced was warranted.</p> <p>8. Mere inadequacy of consideration is not of itself sufficient cause to invalidate a conveyance, except in extreme cases.</p> <p>9. The mere fact that a conveyance of land is from a daughter to her mother, or vice versa> is not sufficient to stamp it with fraud.</p> <p>10. Where the owner of land conveyed the same to one to whom the owner was indebted for advances, the real consideration being $2,100, and between $800 and $1,200 having been paid on the execution of the deed, the balance being covered by the advances, though the nominal consideration in the deed was only $1, such conveyance was not fraudulent as to creditors.</p>

<p>Notaries — False Certificates — Actions for Damages — Proximate Cause — Questions for Jury — Burden of Proof — Appeal from Judgment — Statement Used on Motion for New Trial.</p> <p>1 Under Code of Civil Procedure, Section 1736, on an appeal from a finai judgment, it will be presumed, in the absence of a showing to the contrary, that a statement disclosed by the record before the supreme court as prepared, settled and filed according to law was actually used upon the motion for a new trial, where it also appears that a decision on the motion was made.</p> <p>2. Under Code of Civil Procedure, Section 1736, on an appeal from a final judgment any question of law which is raised in the statement, if otherwise properly presented, will be considered and passed on by the supreme court; and thus, while it cannot consider the question of the insufficiency of the evidence to support the verdict or decision, it can determine the question of law as to whether there is any evidence to support such verdict or decision.</p> <p>3. There can be no recovery in damages against a notary for falsely certifying to an acknowledgment unless the person seeking such recovery relied upon the statements contained in the notary’s certificate, so that the damages to him were proximately caused by the notary’s wrongful act.</p> <p>4. In an action against a notary for falsely certifying to an acknowledgment of a mortgage, on the security represented by which plaintiff advanced money, the measure of damages was the value of the security which plaintiff would have received, had the mortgage been valid, not exceeding the amount loaned by plaintiff, and not the value of the property desciibed in the mortgage.</p> <p>5. In an action against a notary for falsely certifying to an acknowledgment of a mortgage, on the security represented by which plaintiff advanced a loan, the burden was on plaintiff to show the value of the security which he would have received had the mortgage been valid.</p>

<p>Trial by Court — Findings — Sufficiency — Implied Findings— Request for Findings — Water Rights.</p> <p>1. A party litigant is entitled to a specific finding on each material issue, but he cannot be heard to complain where no finding is made unless he has complied with the statute in requesting the same.</p> <p>2. Where the court stated that it would make findings of fact, defendant was relieved from making any request for findings, and the submission of written findings had the effect of requesting findings in writing on the material facts involved.</p> <p>3. Where affirmative matter is set up in the answer, no finding can be implied as to such independent issue, where a specific finding was requested thereon.</p> <p>4. Where affirmative matter is' set out in the answer, and a request made for a finding thereon, a finding that all the material allegations of the complaint are true, and directing that judgment be entered for plaintiff, is insufficient.</p> <p>5. The mere fact that water has its source on land owned by a person does not of itself necessarily give him the exclusive right thereto, so as to prevent others from acquiring rights therein under the laws of this state.</p>

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. ■ </p> <p>Action by John E. Spencer against M. E. Hersam and others. Erom a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal.</p>

<p>Money Paid — Mistalce of Law — Recovery—Variance.</p> <p>Civil Code, Section 23 28, provides that a court of equity will relieve against a mistake of law when it arises (1) from a misapprehension of the law by all parties by supposing that they knew or understood it. and by making substantially the same mistake, or (2) a misapprehension of the law by one party of which the others are aware at the time of contracting, but which they do not rectify. Ilcldj, that where plaintiff brought suit under the second subdivision to recover an 'overpayment made on a repurchase of property sold under foreclosure, and alleged that she made the payment under misapprehension as to her legal right to redeem, and that the payment was caused to be made through the fraud, conspiracy and deceitful practices of the defendants, but the proof showed that whether plaintiff had a right of redemption at the time >vas a mooted question of law, and that defendants acted in good faith in their contention that her right of redemption was barred, there was a fatal variance.</p>

<p>Appeal from District Court, Silver Bow County; William Clancy. Judge.</p> <p>Action by George II. Cotter against tlie Bntte & Rnby Valley Smelting Company. From an order granting plaintiff a new trial, tlie defendant appeals.</p> <p>As a proposition of law, appellant maintains that the instructions must be considered as a whole, and if contradictory instructions are to be found, some of which state the law and some of which do not, then those instructions which set forth the law correctly are to be considered as the law of the case, and a verdict brought in in accordance therewith cannot be Said to be against law; in other words, if contradictory instructions are given, the whole charge must be considered together, and that construction must be adopted which will harmonize the different parts, if possible; or, if several instructions are given, some of which state the law, and some of which do not, then those instructions which set forth the correct law are to be considered as the law of the case. (Ilayne on New Trial, Sec. 123.) *</p> <p>The certificate is not stock, but merely a convenient representative of it. It is only the indicia of title and the issuance of the certificate is not a necessary preliminary to constitute one a stockholder. (Columbia Electric Go. v. Dixon, (Minn.) 49 N. W. 244; Mitchell v. Beclcman et al., (Cal.) 28 Pac. 110; Pacific Fruit Go. v. Goon, (Cal.) 40 Pac. 542; Gal. 8. Hotel Go. v. Gallender, (Cal.) 29 Pac. 859, 861; Marson v. Deither, 52 N. W. 38.)</p> <p>Mr. Cotter is not in a position to demand certificates for the ten thousand shares; neither is he in a position to ask for certificates representing the amount with which he is credited, for his contract or agreement with these parties called for ten thousand shares, and for which he has not fully paid. It is one contract and is indivisible. (Johnson v. Albany 8. R. R. Go., 54 N.. Y. 416.)</p> <p>The verdict of the jury must conform to the issue submitted to them, and in this case a verdict for any amount other than six thousand dollars would be in violation of this instruction given at plaintiff’s request, and would certainly be against law. (Dixon National Bank v. Spielman, 43 111.. App. 475.)</p> <p>A verdict for any other amount than the amount directed by these instruction would be set aside. (Bowers v. Qourad, .19 Mise. Bep. N. Y. 268.)</p> <p>A motion for a new trial, in so far as it is based upon errors of law occurring at the trial, presents a question of law and is not addressed to the discretion of the court. ( TJ. 8. v. Trabring et al., 68 Pac. 8.21.)</p> <p>An order granting a new trial is an appealable order which indicates that the trial judge who grants a new trial must not act arbitrarily but upon facts showing a legal ground. (Brats-worth v. Aikem et al., 49 N. W. 419; Clifford v. Denver, etc. R. R. Co., 20 Pac. 335; Rowe v. Matthews, 18 Fed. 132.)</p> <p>The lower court having once granted a new trial, and thereafter having vacated that order, its jurisdiction ended, and it could not again open up the matter and allow another motion, upon any grounds which were presented, or might have been presented, in the first instance. The motion of plaintiff demanded a rehearing of a matter once determined and which was res adjudicata. (Egan v. Egan, 27 Pac. Bep. 22.) •</p>

<p>Master and Servant — Explosion in Mine — Injury to Servant— Negligence — Proximate Cause — Burden of Proof — Duty to Adopt Buies — Nonsuit—Appeal—Evidence—Review.</p> <p>1. In an ordinary case of negligence, the burden of proof is upon plaintiff to show by competent evidence the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff’s injury.</p> <p>2. To justify reversal on appeal from a nonsuit in an action for personal injuries, the evidence must not leave either the negligence of defendant, or that it was the proximate cause of the injury, to conjecture; and, if it is equally consonant with some theory inconsistent with either of these facts, it does not tend to prove them, within the rule that whatever the evidence tends to prove will on such an appeal be taken as established.</p> <p>3 In an action against a mine owner for injuries to a miner caused, by an explosion, evidence held not to justify submission of the issue of defendant’s negligence.</p> <p>4. While a master is bound to use reasonable diligence to provide and maintain a safe place to work, such rule does not apply to a case where servants are creating the place of- work, when it is constantly being changed in character by their labor, when it only becomes dangerous by the carelessness or negligence of the workmen, when the dangers which arise are very short-lived, or when by the negligence of the workmen the place is rendered unsafe without the master’s fault or knowledge.</p> <p>5. Mere failure of a master to adopt rules to prevent injury to a-servant is not proof of negligence, unless it appears that the master, in the' exercise of reasonable care, should have foreseen the necessity for such precaution.</p>

<p>Mortgages — Deed Absolute on Its Face — Existence of Debt— Evidence — Nonsuit.</p> <p>1. No conveyance absolute on its face can be a mortgage unless made to secure the payment of a debt or tbe performance of a duty.</p> <p>2. A lease and option to purchase was assigned to secure a debt, the assignee to collect and account for the rents. Later the assignor deeded to the assignee, for a consideration much larger than the original debt, all her right and title to the property, the assignee agreeing to reassign if the assignor should pay him the consideration expressed in the deed before exercise of the option, and to reassign thereafter on payment of a larger sum. Held, that the deed was not a mortgage, there being no debt secured.</p> <p>3. In an action to have a deed declared a mortgage the court may, on defendant’s motion for a nonsuit, decree the instrument to be a deed, though there is no technical nonsuit in an equitable action.</p> <p>i. In an action to have a deed decreed a mortgage, an agreement executed concurrently with the deed, whereby the grantee agreed to reconvey on certain conditions, was properly admitted in evidence.</p>

<p>Executors and Administrators — Sales—Nature—Discretion—■ Vendor and Purchaser —■ Objections to Title — Estoppel— Statute of Frauds — Declarations of Trust — By Whom Signed —Limitations—Written Instruments — Accrual of Actions— Set-Off — Date of Credit.</p> <p>1. Under Revised Statutes 1879, p. 233, Section 209, providing that, when authority is given in a will to sell property, the executor may sell without the order of the probate court, but must malee a return of such sales as in other cases, and that no title passes until the sale is confirmed by the court, a private sale by an executrix under a power in the will to manage the estate as she should deem best, and for that purpose to sell any portion or the whole thereof, which is afterwards confirmed by the court, is not a judicial sale, but a sale under the power.</p> <p>2. A will authorizing the executrix to manage the estate as she should deem best, and to sell any portion or the whole thereof, and to invest the proceeds as she should deem fit, empowered the executrix to convey real property to a trustee, who was to hold for a syndicate, which was to plat the same, and under the terms of which sale the purchase price, secured by a lien on the property, was made payable in installments.</p> <p>3. In the ordinary contract of purchase and sale there is an implication that the conveyance to be made thereunder will transfer the title to the property, but, in the absence of any special agreement, it is incumbent upon the vendee to examine the title for himself, and to point out any objections he may have to the title tendered him by the vendor.</p> <p>4. Beneficiary vendees under a trust agreement, who assented thereto for years, entered into possession, sold portions of the property, made payments on the price, and in all respects ratified the transaction between the purchasing syndicate, of which they were members, and the vendor, until sued for the balance of the price, were estopped from claiming that they received no title to the property, or that the sale, which was one by an executrix under a power, was irregularly made. .</p> <p>5. Under Compiled Statutes 1887, p. 651, Section 217, providing that no trust or power concerning lands shall be created or declared, unless by act of law or by deed or conveyance in writing subscribed by the party creating or declaring the same, and Section 219 (page 652), providing that contracts for the sale of lands shall be void unless some note or memorandum expressing the consideration be made in writing and subscribed by the party to whom the sale is to be made, where a trust in land was declared on behalf of the members of a syndicate by the grantee of the land to secure the payment of the price to the grantor, such grantee, in signing the declaration, acted as the agent of the parties to the syndicate, and they were bound by the declaration, although they did not sign it.</p> <p>6. Under Compiled Statutes, Section 41, as amended by Session Laws 1889, p. 172, providing that an action on any contract or liability founded upon an instrument in writing shall be commenced within eight years, an action to enforce a liability evidenced by a declaration of trust, in which a complaint was filed within eight years after a certain payment under the declaration became due, was commenced in time.</p> <p>7. An action on a trust agreement, which authorized the trustee to sell the interest of a defaulting party at public auction and apply the net proceeds of the sale upon the payment of the amount due from such defaulting party to plaintiff, and giving plaintiff an action against such defaulting party for the balance remaining due after such application, accrued when the trustee sold the property under the terms of the declaration of trust.</p> <p>8. A setoff, made up of different items, should be credited as of the dates of the respective items.</p>

<p> Appeal from District Court, Deer Lodge County; Welling Napton, Judge. </p> <p>Action by James A. Murray against the city of Butte. From an order granting plaintiff a new trial, defendant appeals.</p> <p>We concede that an order granting or refusing a new trial on the ground of the insufficiency of the evidence will be reversed only for an abuse of discretion on the part of the trial court. (Chauvin v. Valiton, 7 Mont. 584; Landsman v. Thompson, 9 Mont. 189; Kilby v. Baker, 9 Mont. 399; Falk v. Brown, 13 Mont. 126; Mattock v. Qoughnour, 13 Mont. 301; Eaggin v. Saile, 14 Mont. 80.) And that such an abuse must be clearly shown. (Murray v. Eeinze, 17 Mont. 356.) But at the same time we submit that conclusions of fact reached by a jury should have great weight, and should not be lightly cast aside by judicial action. (Constitution, Art. Ill, Sec. 23.)</p> <p>Plaintiff must recover, if at all, on the strength of his own title, and not because of the weakness or want of title in defendant; and the burden rests upon the plaintiff to prove the title he asserts. (10 Am. and Eng. Ency. of Law, 2d Ed., 481; 17 Am. Dig., Century Ed., 1963; Newell on Ejectment, 354; Farley v. Parker, 4 Ore. 269.)</p> <p>It is a well established rule in the action of ejectment that where both parties assert title from a common grantor and no other source, it is not usually necessary for the plaintiff to go back of the common source in order to prove title upon which he can recover. It is enough that he shows a better title through the common source than the defendant can show through the same source. (10 Am. and Eng. Ency. of Law, 2d Ed., 491, and cases cited.)</p> <p>Possession is presumptive evidence of right and ownership. (Sail v. Cittings, (Md.) 2 Har. & J., 112; 'Robertson v. Smith, 1 Mont. 415 ; Mason v. Park, 4 111. (3 Scam.) 532.)</p> <p>A grantor cannot, as against his prior grantee, convey more than such grantor has at the time of the conveyance, and the United. States in this respect differs from no other grantor. (.Murray v. Gity of Butte, 7 Mont. 68.)</p> <p>The grant under which the defendant claims is the highest evidence of title. (Northern Pac. By. Go. v. Majors, 5 Mont. Ill; Murray v. City of Butte, 7 Mont. 67.)</p> <p>The burden of proving the legal title to the premises was on plaintiff. (Fuller v. Worth, (Wis.) 64 N. W. 995; Rowland v. JJpdike, 28 N. J. L. (4 Dutch.) 101; Davis v. Davis, 68 Miss. 478, 10 So. 70; Hulsey v. Wood, 55 Mo. 252; Bohman v. Bishop, 23 S. C. 96; Bynum v. Gold, 103 Ala. 427, 17 So. 667; Bodenheimer v. Ghesson, 111 Ala. 539, 20 So. 364; Rush v. French, (Ariz.) 25 Pac. 816; Wurts v. Mullen, 6 Colo. 576; Howard v. Lock, (Ky.) 22 S. "W. 332; Owensboro, etc. R. R. Go. v. Barker, (Ky.) 22 S. W. 444; Murray v. Boisier, (La.) 10 Mart. (O. S.) 293; Mason v. Park, 4 111. (3 Scam.) 532; Daudt v. Harmon, 16 Mo. App. 203; Martin v. Kelley, (Ky.)-30 S. W. 612; Farley v. Parker, 4 Oregon, 269.)</p> <p>Defendant’s present possession of the ground thus dedicated to public travel is presumptive evidence of ownership and right. (.Robertson v. Smith, 1 Mont. 415; Mason v. Park, 4 111. (3 Scam.) 532.)</p> <p>There is no doubt that public user — such as was commensurate with the needs and necessities of the inhabitants of Butte— of the ground covered by the streets and alleys in controversy prior to the inception of plaintiff’s title, namely, April 16, 1875, was a sufficient acceptance under the congressional act of 1866 to preclude the passage of the legal title to the ground so covered by the streets and alleys to the grantees of the patent under which plaintiff claims. (Murray v. Gity of Butte, 7 Mont. 61; Gity of Oincinnati vv White’s Lessees, 6 Pet. 431; Smith v. Town of Flora, 64 111. 93; New Orleans v. United States, 10 Peters, 661; Elliott, Roads and Streets, 2d Ed., Secs. 147, 149.)</p> <p>"Weighing all the testimony in this case and the presumptions and deductions in defendant’s favor, it cannot be said that the jury was guilty of any irrational inference in arriving at its conclusions of fact. (Griffith v. Dickens, 2 B. Mon..20; Paterson v. Hansel, 67 Ky. (4 Bush.) 661; Wall v. Hill's Heirs, 40 Ky. (1 B. Mon.) 290; Orr. v. Haskell, 2 Mont. 228.)</p> <p>It devolved upon appellant to show by pleading and to prove by a preponderance of evidence that the streets and highways claimed by them came within the purview of said act of congress; that is, that they were constructed upon public land not reserved for public use. It being necessary to prove this, they must allege it, and not having alleged it, they could not prove it, and the objection of respondent was improperly overruled (Robinson v. Smith, 1 Mont. 410.)</p> <p>Tó come within the purview of the act of congress relied upon at the time the streets or highways were constructed, the land over which they were .located must have been public land not reserved for other purposes. If the land had been located as placer, it was not public, and the fact that it Avas afterwards abandoned and was public Avhen the Smokehouse Avas located, would make no difference. The character of the land at the inception of the right claimed is determinate of the question, and the principle announced by this court, and the supreme court, in the case of Belle v. Meagher, applies here with equal force. Land is not public land Avhile there is a Adalid location existing upon it, and any rights attempted to be initiated Avhile such location is in ease are void. (3 Mont. 65, 104 U. "W. S. 279; Robinson v. Smith, 1 Mont. 410.)</p> <p>Photos are competent evidence, and they constitute the best possible evidence of the physical appearance of conditions that have ceased to exist. (Denver Elec. R. Co. v. Rolley, (O. A. A.) 100 Fed. 738; Kansas City R. Co. v. Smith, 24 Am. St. Eep. 753; Bach v. Iowa Cent. B. Co., 112 Iowa, 241; Williams v. Brooklyn El. By. Co., 32 N. Y. St. Eep. 702.)</p> <p>'A verdict given in the face of the instructions is contrary to law. (King v. Lincoln, 26 Mont. 157; Murray v. Ileinze, 17 Mont. 353.)</p> <p>Where a motion for a new trial is made on the g'round of the insufficiency of the evidence to sustain the verdict, the motion is addressed to the discretion of the trial judge, and where there is a substantial conflict even, his order will not be disturbed. (State v. Schnepel, 23 Mont. 523.)</p>

<p>Bankruptcy ■— Preference, — Chattel Mortgage — Validity — Statute.</p> <p>1. Under .Civil Code. Section 4491, a mortgage oí personalty and transfer thereunder are void against a trustee irf bankruptcy where the mortgage was made more than fourteen months prior to the transfer.</p> <p>2. In an action by a trustee in bankruptcy to recover property of the. bankrupt alleged to have been fraudulently transferred to defendant, where it appeared that the transfer was made within four months of the time the debtor was adjudged to be a bankrupt, and under a chattel mortgage having no validity under the laws of the state where the transfer was made, the trustee was entitled to judgment under Bankruptcy Act July 1, 1898, c. 541, Section CO, cl. “a,” 30 Stat. 562 : it appearing that the transfer was not to secure a present loan or advance, but one to pledge the. payment of an old obligation, the effect of which was to enable the defendant to obtain a greater proportion of his debt than .any oilier creditor of the bankrupt.</p> <p>1. In an action by a trustee in bankruptcy to recover property of the bankrupt alleged to have been fraudulently transferred to the defendant, under a chattel mortgage executed more than fourteen months prior to such transfer and good between the parties to the instrument, where it appeared that the transfer was made within four months of the time when the debtor was adjudged a bankrupt, the trustee was not entitled to judgment under the provisions of the Bankruptcy Act of July 1, 1898 (Chapter 541, Sec. 60, cl. a, 30 Stat. 562), the delivery to, and taking by, defendant of the goods not having been unlawful under the laws of this state nor an unlawful preference under the Bankruptcy Act.</p> <p>2. A mortgage not executed in manner and form as prescribed by law, is good between the parties.</p> <p>Z. There not being in this state any restriction placed by. law upon the mortgaging of any species of personal property, all such mortgages are exempted from the operation of Section 4491 of the Civil Code, which provides that a transfer of certain personal property áhd every lien thereon, other than a mortgage “when allowed by law,” is conclusively presumed to be fraudulent under certain circumstances, and the words “when allowed by law” are therefore superfluous.</p> <p>4. In all matters pertaining to a construction of the United States Bankruptcy Act, the holdings of the Supreme Court of the United States are conclusive.</p>

<p>Libel — Construction of Language — Justification — Answer— Complaint —■ Sufficiency — Malice — Damages — Jury Question — Evidence ■ — • Admissibility — Instructions — Appeal —Constitutional Law.</p> <p>1. .To publish by a written unprivileged charge of an individual falsely that he is a common liar is libelous per se.</p> <p>2. In arriving at the sense in which alleged libelous language is emx)loyed it is proper to consider the cause and circumstances of its publication and the entire language used.</p> <p>3. "Where an imxmtation complained o£ is a conclusion from certain facts, a plea of justification averring the existence of a state of facts which warrants the inference of the charge is sufficient.</p> <p>4. When the publication is libelous per se, the plaintiff may recover general damages without allegations or proof of special damages.</p> <p>5. Under Section 75], Code of Civil Procedure, when the words are unequivocal in their import and obviously defamatory, it is not necessary to employ colloquium or inmiendo to explain their application and meaning; but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts, it is necessary to allege the meaning intended, or set forth such extraneous facts by proper averments.</p> <p>6. To say of a school teacher that he is “noted,” though used in an invidious sense, and, referring to a particular district, “has done more damage and less good than any other teacher,” and, referring to his application for a position as teacher of its school,. “this district knows when it has had enough, so it turned the gentleman down,” cannot be said to impeach him in any of those qualities which are essentials of an accomplished school teacher, and is not libelous per se.</p> <p>7. In an action for libel, the existence of malice is not a necessary ingredient to entitle plaintiff to recover.</p> <p>8. In an action for libel malice becomes material only as a circumstance affording a basis for increasing or diminishing the amount of recovery and in cases involving the defense of privileged publication.</p> <p>0. In an action for libel, where malice is shown, exemplary damages may be added to the compensatory damages.</p> <p>10. Malice is an inference of fact, which the jury may draw from a libelous publication alone.</p> <p>11. In an action by a school teacher fbr libel, evidence that defendant, after the publication of the alleged libel, had tried to have the certificate of plaintiff as a school teacher revoked, is admissible to show malice, but not as a basis for extra compensation.</p> <p>]2. In an action by a school teacher for libel, proof of statements made by defendant after the institution of the suit to the effect that he would take away plaintiff’s license as a teacher is admissible to show malice, but not as a basis for extra compensation.</p> <p>13. In an action for libel it is not error to allow the defendant, as a witness, to. be interrogated with respect to his motive in using certain language in the article alleged to be libelous, and to permit him to explain statements therein — whether they were true, and as to the source of his information with respect to their truth — where such facts are involved in the issues presented by the pleadings.</p> <p>14. Where the instructions given incorporate the substance of those requested, it is not error to refuse to adopt them.</p> <p>15. An instruction setting forth a clear and concise statement of the nature of the case and the issues to be determined is not objectionable.</p> <p>16. In an action for libel where there is no suggestion in the complaint that plaintiff was damaged as an individual, but only that the injury was to him in respect to his profession, there can be no recovery of damages to plaintiff as an individual.</p> <p>17. Where a false and unprivileged publication possessing the ingredients that stamp it as libelous per $e is established, injury is presumed to ensue therefrom, and affords ground for the allowance of at least nominal damages.</p> <p>IS. While the Constitution, Article III, Section 10, provides, among other things, that in all suits and prosecutions for libel the jury shall determine the law as well as the facts, under the direction of the court, yet, it being the duty of the court to give the jury a correct declaration of the legal principles involved, an erroneous instruction to the prejudice of plaintiff is cause for reversal.</p> <p>Mn. Justice Wilburn dissenting in part.</p>

<p>Appearance — Premature Action — Waiver of- Objection — Elections — Right to Place on Official Ballot.</p> <p>1. An objection that tbe proceeding is prematurely brought is waived by counsel of respondent appearing and asking that tbe rights of the parties be adjudicated.</p> <p>2. Where there were contending factions of the democratic party in a certain county, and the state convention admitted the delegates of both factions into the convention, and gave to each delegation the right to cast one-half the vote of such county, but no nominations had been made at the time the state convention was held by either of such county factions, the state convention, while it had the power to admit both contesting delegations, could not lawfully decide in advance that the nominees at subsequent conventions of either faction should be considered the regular nominees of the democratic party of such county, and entitled to have their names on the official ballot as “democratic.”</p> <p>3. Session Laws 1901, amending the election law to the extent of removing the circle from the head of each ticket, thereby preventing a voter from voting a straight ticket by marking in the circle, in no wise amends the rule that only one ticket shall appear on a ballot under a particular party designation.</p> <p>4. The county committee of a political party duly called a convention at a certain time and place. The convention regularly organized, and placed in nomination candidates. A contesting delegation claimed that they were excluded from participation in the convention, and thereupon nominated certain other nominees, which they claimed were entitled to the party designation on the official ballot. The county convention was regularly called to order, and opportunity given to contestants to present their credentials. The contesting delegates made no attempt to be admitted by presenting their credentials, but proceeded to organize another convention. Held, that the nominees of the independent convention were not entitled to have their names placed on the official ballot instead of the nominees of the regular convention.</p>

<p>Application by the state, on tbe relation of Albert 3. Galen, against George M. Hays, as secretary of state, for a writ of mandate.</p>

<p>Elections — Nominations — Mass Convention — Power of Committee.</p> <p>1. A call for a mass convention of electors stated that the object was to organize central committees opposed to corporate rule, and to give the voters of the state an opportunity to vote for men free from corporate control, and did Dot state that the convention was to assemble to nominate candidates for any office whatever. Held not a call of the electors of the state to assemble and select candidates for public office.</p> <p>2. Under Political Code, Section 1310, a mass convention of electors can make nominations of candidates for public office only where such convention was called for that purpose.</p> <p>3. If a mass convention of electors could not make nominations for public offices because the call of the convention did not set forth such purpose, a committee appointed by such convention could not make such nominations.</p> <p>4. Under Political Code, Section 1314, where the same committee appointed by a mass convention nominated two tickets, composed of different persons as candidates for the same offices, both tickets were void, and neither can appear on the official ballot. s b</p>

<p>Railroads — Killing Livestock — Fences—Pleading and Practice.</p> <p>1. Civil Code, Section 950, applies only to livestock belonging to the owner or one in possession of land along or through which the railroad passes, which has been killed or maimed by the engines or cars of the railroad company upon that part of its road, said road being unfenced, or insufficiently fenced.</p> <p>2. In an action against a railroad under Civil Code, Section 950, it is necessary that the petition allege plaintiff’s ownership or possession of land along or through which the railroad rurs, and that the stock was killed at such place.</p> <p>3. In an action against a railroad under the statute, failure to deny an allegation of the answer that the place where the killing occurred was a public station amounted to an admission of such fact.</p> <p>4. In an action under Civil Code, Section 950, no allegation of negligence in the operation of the train is necessary.</p> <p>5. The statute does not require a railroad to fence at a station.</p> <p>6. Where in an action against a railroad under Civil Code, Section 950, the only evidence was that the animals were found near the track, one dead and the other injured so that it had to be killed, and no showing was made as to the character of the injuries except that one had its legs broken, such evidence was insufficient to show that the animals were killed by an engine or cars of defendant.</p> <p>7. Want of evidence to support a judgment may be relied on and considered upon an appeal from the judgment.</p>

<p> Appeal from District Court, Lewis and Clarice County; J. M. Clements, Judge. </p> <p>Action by the Helena Water Works Company against tlie city of Helena and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p> Appeal from District Court, Cascade County; D. F. Smith, Judge. </p> <p>Action by Prank Sbeldon against Prank E. Powell. Prom a judgment for plaintiff, defendant appeals.</p> <p>Citing: Hull v. Diehl, 21 Mont. 71; Le Neve v. Le Neve, Ambler, 436; Shotwell v. Harrison, 22 Mich. 425; Smith v. Yule, 31 Cal. 180; Fair v. Stevenot, 29 Cal. 490; Scheerer v. Cuddy, 85 Cal. 270; Pell v. McElroy, 36 Cal. 268; Emeric v. Alvarado, 27 Pac. 356; Civil Code, Secs. 1641, 1644, 1651; Brown v. Vollcening, 64 N. Y. 76; Page v. Waring, 76 N. Y. 465; Crossen v. Oliver, (Ore.) 61 Pac. 885 ; Godfrey v. Dishro, Walker’s Oh. Reports, 265; Ativood v. Bearss, 47 Mich. 72; Ely v. Wilcox, 20 Wis. 551.</p> <p>The possession of the grantee' under a prior deed is notice of the title under which he claims. (Tiedeman on Real Property, Sec. 1819.) This rule arises from the common-law feoffment and livery of seisin.</p> <p>Where a party has an equity and also actual possession of the property, a purchaser of the legal title from the grantor out of possession is bound to take notice of the equity; and the result should he the same whether the possession is deemed to impart potiee per se, or is treated as evidence of notice. (Stoneseifer v. Kilburn, 122 Cal. 659; Hyde v. Mangan, 88 Cal. 319; Haddock v. Wilmarth, 5 N. H. 188.)</p> <p>Open, notorious and exclusive possession of real estate is sufficient to put a purchaser upon inquiry as to the interest, legal or equitable, held by the possessor. (Dutton v. Warschauer, 21 Cal. 609; Bcheerer v. Cuddy, 85 Cal. 270.)</p> <p>“The actual possession of land, with the exercise of the usual acts of ownership, operate in law as constructive notice to all the world of the claim of title under which the possessor holds.” (Talbot v. Singleton, 42 Cal. 391; Pritchard v. Brown, 17 Am. Dee. 431; New v. Wheaton, 24 Minn. 406; Brown v. Gaffney, 28 111. 149.)</p> <p>“One who purchases and obtains a conveyance of land at the time in the open and notorious possession of another who has a prior deed, takes notice of the title under the unrecorded deed.” {Landers v. Bolton, 26 Cal. 393; Daubenpeck v. Platt, 22 Cal. 330; Poland v. Torey, 24 Pac. 191.)</p> <p>“Open and notorious and exclusive possession of a prior grantee in an unrecorded deed is sufficient to put a subsequent purchaser whose deed is first recorded upon inquiry, and such possession is sufficient evidence of notice unless a subsequent purchaser make due inquiry and fails to attain knowledge of the unrecorded deed.” {Pair v. Btevenoi, 29 Cal. 486.)</p> <p>“And the failure to make inquiry places the second purchaser in no better light than if he had ascertained the real claim of the occupant.” ' {Bcheerer v. Cuddy, 85 Cal. 273; Hyde v. Mangan, 88 Cal. 319.)</p> <p>“The presumption of knowledge can only be rebutted on the part of the second purchaser or those claiming under him by explicit proof of diligent and unavailing effort by the vendee to discover or obtain actual notice of any legal or equitable rights of the.party in possession.” {Pell v. McPlroy, 36 Cal. 269; O’Rourke v. O’Connor, 39 Cal. 447; Bank of M. v. Baker, 82 Cal. 117, commenting on Fair v. Sterenot, 29 Cal. 490; Scheerer v. Cuddy, 85 Cal. 273.)</p> <p>“One who purchases land in the possession of a third person has no right to rely upon the record title alone in making- the Xmrcliase, but is bound to look beyond the record title for the purpose of ascertaining what right and equities, if any, the party in possession has in the premises.” (Security Loan & Trust Co. v. Wilamette Steam Mills, 99 Cal. 636; Brighton v. Doyle, 25 Atl. 694.)</p> <p>That the testimony and evidence does tend to prove the contention of the xilaintiff is beyond a question of doubt. Our statute, Section 488, Code of Civil Procedure, indicates what is possession under a paper title. “The burden of proof of inquiry is upon the second purchaser.” (Scheerer v. Cuddy, 85 Cal. 270; Wallace v. Moody, 26 Cal. 387; Hernán v. Levy, 55 Cal. 118; Pell v. McElroy, 36 Cal. 268; Havens v. Dale, 18 Cal. 359.)</p> <p>“Whatever will put one on inquiry is enough.” (Sigourney v. Munn, 7 Conn. 324; Troup v. HurTbert, 10 Barb. 354; Sec. 4667,’ Civil Code of Montana; McAdow v. Black, 6 Mont. 601-608.)</p> <p>The ajipeal is from the judgment, and not from an order overruling a motion for a new trial, and therefore the evidence is not before the court as to its sufficiency. (Emerson v. Eldorado Ditch Co., 18 Mont. 257; Withers v. Kemfer, 25 Mont. 432; Largey v. Sedman, 3 Mont. 476; Hloyd v. Sullivan, 9 Mont. 589.)</p>

<p>Appeal from District Court, Gallatin County; IF. B. C. Stewart, Judge.</p> <p>Writ oe review in tbe name of the state, on the relation of F. E. Grissom and another, against W. Y. Smith, justice of the peace, to review proceedings in defendant’s court wherein A. L. Love was plaintiff and E. E. Grissom and another were defendants. From the judgment rendered, defendant Smith appeals.</p>

<p>Statute of Frauds — Promise to Pay Debt of Another — Original Objection — Evidence —■ Admissibility — Sufficiency—Harmless Error.</p> <p>1. A promise by partners to pay an existing debt of a corporation to another in consideration of such other person giving them an agency for sale of his coal is an original obligation, which, under Civil Code, Section 3612, Subd. 3, •need not be in writing.</p> <p>2. Evidence in an action for commissions for selling coal held sufficient to sustain a finding that plaintiff, in consideration of his agency for defendants, agreed to pay a debt owing them by another.</p> <p>3. Evidence in an action for commissions held sufficient to sustain a finding that plaintiff’s indebtedness to defendants equaled the amount of the commissions.</p> <p>4. Where defendants claim that a certain contract was made with plaintiff’s firm, which plaintiff denies, and according to defendants’ claim it was made with both members of the firm, evidence as to whether plaintiff authorized his partner to enter into the contract for the firm is immaterial.</p> <p>5. Any error in allowing plaintiff on cross-examination to be asked how a certain account stood is harmless, he having answered that he did not know.</p> <p>6. Defendants who, in an action against them for commissions earned by a firm, claim that for a valuable consideration the firm agreed to pay the debt of an insolvent corporation to them, may testify that they received nothing from the assignee of the corporation.</p> <p>7. Defendants, for the purpose of showing that the promise of plaintiff’s firm to pay a debt owing them by a corporation was for a valuable consideration, and so not within the statute of frauds, may show the value of the business of the agency they gave on condition of such promise.</p>

<p>New Trial — Newly Discovered Evidence — Diligence—Abuse of Discretion — Appeal.</p> <p>Affidavit in support of a motion for a new trial on the ground of newly discovered evidence, examined and held insufficient to show diligence required by Code of Civil Procedure, Section 1171.</p>

<p> Appeal from District Court, Silver Bow County; E. W. Harney, Judge. </p> <p>Action by P. ,T. Bropliv, doing business as P . J. Brophy & Co., against the Id alio Produce & Provision Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.</p> <p>The proposal of defendant was not accepted by plaintiff, and the letter from plaintiff, dated September 14, 1901, was a rejection of defendant’s offer. (Clark on Contracts, Hornbook Series, par. 19, pp. 36, 37, 38, 39; Clark on Contracts, par. 27, pp. 52, 53, 54; Brown on the Statute of Frauds, Sec. 371; 21 Am. and Eng. Ency., pp. 455-456 and notes; 3 Am. and Eng. Ency., pp. 852-853 and notes; Brechenridge v. Crocker, 78 Cal. 529; Meux v. Hogue, 91 Cal. 442; Wristen v. Bowles, 82 Cal. 84; McCotter v. The Mayor, 37 N. Y. 325; Potts v. Whitehead, 23 N. J. Eq. 512 ; Bruce v. Pearson, 3 Johnson Bepts. 534; Baker v. Holt, 14 N. W. 8; Clay v. Bickerts, 23 N. W. 755; Weaver v. Burr, 8 S. E. 743; Eggleston, v. Wagner, 46 Miclx. 610; Johnson v. Stevenson, 26 Miclx. 62; Martin y. N. W. Fuel Co., 22 Peel. Rep. 596; Crabtree y. St. Paul Opera House Co., 39 Eed. 746; Ortman v. Weaver, 11 Fed. 358; First Nafl Bank v. Hall, 101 IT. S. 43; TJtley v. Donelson, 94 IT. S. 29; Minn. <£ St. Louis Ily. Co. y. Columbia Bolling Mill Co., 119 IT. S. 149; Eliason v. Henshaw, 4 "Wheaton, 225; Carr v. Duval, 14 Peters, 77.)</p> <p>Even if it be conceded that the letter of plaintiff to defendant, dated September 18th, was a sufficient acceptance under the authorities (which we do not adxxiit), the same was not within a reasonable time, there being both mail axxd telegraphic communication betweexx the points where the parties did business. (:Trouistine v. Sellers, 11 Pac. Rep. 441; Minn. Poi Company y. Collier Whitelead Company, 17 Fed. Oases, p. 447, No. 9,635.)</p> <p>The judgment appealed fronx was exxtered in this case upon the pleadings axxd the testixnoixy oxx behalf of plaiixtiff and respondent Bropliy — the defendant corporation declixxed to offer any testimony whatever in the case, axxd submitted the actioxx to the court upon the testimony of plaintiff. The actioxx of defendant and appellant in declinixxg to offer any testixnony was, in effect, a nxotioxx for ixonsuit. “When all the evidexxce offered by the plaintiff has beexx given, axxd a motion for a nonsuit is interposed, a questioix of law is presented whether the evidexxce before the jury tends to prove all the facts involved in the right of actioxx and put iix issue by the pleadings — all that the evidence, in axxy degree, texxds to prove, xxxust be received as fully proved; every fact that the evidence, and all reasoixable inferences fronx it, coixduces to establish, nnxst be taken as fully established.” (Ellis v. Ohio Jj. Ins. Go., 4 Ohio St. 645.)</p> <p>The xxxotioxx for a xxonsxxit is deexxxed to adxxxit the truth of all the evidence introduced by the plaiixtiff; accordingly every fact which the evidence tends to prove, and all reasonable deductions therefrom must be conceded to have been fully established for the purpose of deciding the motion, and all conflicting inferences or presumptions arising from the evidence must be resolved in favor of the plaintiff. (6th Ency. of Practice, pp. 942 and 943, and cases cited; Boyer v. Great Falls Water Go., 15 Mont. 1; State v. Benton, 13 Mont. 306.)</p> <p>On motion for a nonsuit, the court is bound to give the evidence the most favorable construction for the plaintiff which it ■will possibly bear. (Inhoff v. Chicago Railroad Go., 22 Wis. 684; Jensen v. Barbour, 15 Mont. 582; Holier Lumber Go. v. Firemens Ins. Go., 18 Mont. 282; Stale ex rel. Harmon v. Oonroiv, 19 Mont. 104; Cummings v. II. & L. S. R. Go., 26 Mont. 434.)</p> <p>This testimony not only tends to show, but does show conclusively, that not only was Mr. Brophy satisfied to accept the terms made by the Idaho Produce & Provision Company, but, as a matter of fact, did accept the same, and honored the draft made upon him, the honoring of which draft was made by defendant the only condition asked by it as to further shipments of potatoes under the contract conceded by it to have been entered into. Defendant itself has construed the correspondence in evidence and by its pleadings concedes that it understood its effect to be a contract for the sale of ten carloads of potatoes at sixty cents per hundred weight, and, under such circumstances,; the court will not disturb the conclusion reached by the parties themselves. (King v. Dahl, 84 N. W. 131; Fairmount Glass Worhs v. Grunden-Martin Woodenvjare Go., 51 S. W. 196.)</p>

<p>Appeal from District Gourt, Silver Bow County; William Clancy, Judge.</p> <p>AATiit oe review in the name of the state, on the relation of Maurice Reagan, against Timothy Harrington, justice of the, peace. There was judgment for relator, and defendant appeals.</p>

<p>Mines — Lease—Option Purchase — Quieting Title — Pleading— Contracts — Appeal—"Adverse Party."</p> <p>1. In an action by plaintiffs against their lessee and defendant to quiet title to mining property, 7seld, that, under the particular circumstances, the lessee was not an “adverse party” (within the meaning oí Code of Civil Procedure, Section 1724) on whom defendants were required to serve notice of appeal.</p> <p>2. The alleged insufficiency oí the evidence cannot be (considered on appeal where the record does not show that it contains all,- or the substance of all, ■ the evidence.</p> <p>3. . Under Code oí Civil Procedure, Section 1003, providing that the court may grant relief consistent with the complaint, a prayer for such other and further relief as may be meet and agreeable to equity and good conscience warrants the granting of any relief to which plaintiff is entitled on the allegations and proof.</p> <p>4. Under Code of Civil Procedure, Section 1310, providing that an action may be brought by any person against another who claims an interest or estate in land adverse to him, to determine such adverse claim the complaint need only allege that plaintiff is the owner, and that defendant claims some adverse right, and a complaint is not objectionable because it alleges defendant’s claim to be different from that set up in the answer.</p> <p>5. An action seeking to remove as a cloud on plaintiffs’ title defendant’s claim under a contract giving them an option to purchase, which plaintiffs had declared forfeited before commencement of the action, is not an action to declare a forfeiture.</p> <p>6. Where plaintiffs gave a lessee an option to purchase, and the lessee gave defendant an option to purchase from him, pursuant to which defendant made a payment to the lessee, who turned it over to plaintiffs, they were not required to return it to defendant in order to maintain a suit against defendant to remove its claim as a cloud on the title.</p> <p>7. Where plaintiffs gave an option to purchase their mining property by the payment of the price in installments at certain dates, time being of the essence, they were not required, on declaring a forfeiture for failure to pay the price as required, to return an installment paid.</p> <p>8. Time is of the essence of an option to purchase mining property.</p> <p>9. Where a lease of mining property for royalties gave the lessee an option to purchase by paying in installments, and the time for payment of some installments was extended by an agreement which provided that the extension applied only to the payments for purchase, and did not affect the original contract in any other respect, the lease was not extended.</p> <p>10. A contract leasing and giving an option to purchase mining property provided for the payment of royalties and of the price in installments if the option should be exercised, and declared that, if the lessee should not perform all the conditions, the agreement should be “void ab initio.’’ An extension of time for the payment of installments was given, the supplemental agreement granting it providing that, if the lessee should fail to comply with the contract as modified, such failure should cause a forfeiture. Held, that this modified the provision of the original contract that failure to perform should render it void ab initio.</p>

<p>Appeal from District Court, Beaverhead County; M. H. Parlcer, Judge.</p> <p>Action by IT. A. Bond against C. S. Huid, From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Pleading — Complaint — Sufficiency — Answer —Waiver of Objections to Complaint.</p> <p>1. Code of Civil Procedure, Section 570, requires every action to be prosecuted in the name of the real party in interest. A count of a complaint alleged that plaintiff granted to defendant the privilege of selling certain articles at a specified race track for a certain time, and that defendant used the privilege for such time, that it was reasonably worth a specified sum, that plaintiff owned the claim against defendant, and that defendant refused to pay. Ilcldj that the count was not subject to an objection that it did not state a cause of action, on the ground that it did not allege that plaintiff was the owner of the privilege granted, that there was no allegation of value, and that it was not alleged that the sum claimed had not been paid.</p> <p>2. Where the complaint in an action to recover a sum alleged to be due plaintiff for a privilege granted defendant to sell certain articles in a certain territory was defective with reference to an allegation of nonpayment by defendant, the defect was cured by defendant's answer admitting nonpayment.</p> <p>3. Whatever is necessarily implied from an express allegation in a pleading need not otherwise be averred.</p>

<p>Appeal from District' Court, -Silver Bow County; William Clancy, Judge.</p> <p>Action by Emanuel Gallick against Tbomas ,T. Bordeaux and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p> <p>The court erred in refusing to allow defendants to interrogate the witness ITeilbronner in re-direct examination. The defendants had the unqualified right under the statute (Code of Civil Procedure, Sec. 3378) to re-examine the witness after his cross-examination by the plaintiff’s attorney. In the cross-examination he was examined as to new matter which was not mentioned in his direct examination. Such right is not dependent upon the discretion of the court; the court had no discretion in the matter. (Hamilton y. Miller, 46 Kan. 486; Gray v. Gooper, 65 N. Oar. 183 ; State v. Hopkins, 50 Yt. 316; Commonwealth v. Dill, 158 Mass. 226; Merritt v. Campbell, 79 N. Y. 625; Nay v. Curley, 113 N. Y. 575; Howe V. Schweinberg, 4 Mise. Rep. 73; Goodman v. Kennedy, 10 Neb. 270; Bassham v. State, 37 Texas, 622; Farmers' .etc. Bank v. Young, 36 Iowa, 44; People v. Smallman, 55 Oal. 185; Roberts v. Roberts, 85 N. Oar. 11; Cabiness v. Martin, 4 Dev. (N. C.) 106; Alderton v. Wright, 81 Mich. 279; Dally v. Emery, 79 Hun. 560; Walsh v. Porterfield, 87 Pa. St. 276; Somerville, etc. R. R. Co. v. Doughty, 22 N. J. Law, 495 ; Todd v. Vaughn, 90 Hun. 70; Taylor v. Commonwealth, (Ky.) 34 S. AY. 227; Fairchild v. Cal. Stage Co., 13 Oal. 606; Tyler v. Healey, 51 Cal. 191; Schutzel v. Huron, 6 S. Dak. 140; State v. McClellan, 26 Mont. 538; People v. Fultz, 109 Oal. 258; 8 Ency. PL and Pr. 123, 124, and cases cited; Robinson v. Dugan, (Oal.) 35 Pac. 902.</p> <p>The court erred in its instructions. (Savacool v. Boughion, 5 AYend. 170; Fuller Disk Co. v. McDade, (Oal.) 45 Pac. 694; 1 Ereeman on Executions, 2d Ed., 218, 220; Caldwell v. Center, 30 Oal. 540; Wastl v. Montana Union Ry. Co., 17 Mont. 217; Compiled Statutes of Montana, 1887, p. 653, Sec. 226; Kipp v. Silverman, 25 Mont. 297; Grum v. Barney, 55 Oal. 256; Stephens v. Halstead, 58 Oal. 193; Humphreys v. Ilarkey, 55 Oal. 283; Gallick v. Bordeaux, 22 Mont. 479 ; Oivil Code of Montana, Secs. 3861-5; Compiled Statutes of Montana, p. 269, Sec. 805; p. 270, Sec. 806; Oode of Oivil Procedure, Sec. 1661.)</p> <p>The evidence was insufficient to sustain the verdict of the jury. (Ghiradelli v. Bourland, 32 Cal. 588-89; Sam Yuen v. McCann, 99 Oal. 499; 15 Ency. Pl. and Pr. 118, VII; Huston v. Hagar, (Ky.) 1 Due. 24.)</p> <p>The mode of examination of a witness is subject to the reasonable control of the court. (Code of Civil Procedure, Secs. 3372, 3373; Swetser v. Dobbins, 2 West Coast Rep. 143; 1 Rice on Evidence, p. 601; Jaspers v. Laño, 17 Minn. 296; Brumagin v. Bradshaw, 39 Cal. 24, 28.)</p> <p>The court did not err in its instructions. (1 Ereeman on Executions, p. 221, Sec. 101; Galliclc v. Bordeaux, 22 Mont. 447; Noble v. Holmes, 5 Hill, 195; Hootman v. Bray, 3 Mont. 409; Ford v. McMaster, 6 Mont. 240; Marcum v. Coleman, 8 Mont. 196; Palmer v. McM aster, 10 Mont. 390; 1 Ereeman on Executions, Secs.- 155, 156; O’Gara v. Lowry, 5 Mont. 427, 436; Dodge v. Jones, 7 Mont. 121-146; Cady v. Zimmerman, 20 Mont. 225; 2 Rice on Evidence, p. 954; Gaines v. White, (S. Dak.) 47 N. W. 524; Wilson v. Harris, 21 Mont. 374, 415; 14 Am. and Eng. Ency. of Law, 2d Ed., p. 487; Hinds v. Keith, 57 Eed. 10; Angelí v. Paclcard, 61 Mich. 561; Bern v. Kendall, 55 Neb. 583; Casey v. Leggett, 125 Cal. 664; Williams v. Borgwardt, 119 Cal. 80; Jones v. Simpson, 116 H. S. 609; Boss v. Wellman, 102 Cal. 1, 4; Civil Code, Secs. 4492, 4493; 2 Ereeman on Executions, Sec. 270; Briggs v. Gleason, 29 Yt. 78; 1 IVade on Attachment, Sec. 239; Barrett v. White, 3 N. H. 210; Campbell v. Johnson, 11 Mass. 184; Malcom v. Spoor, 12 Mete. 279.)</p> <p>Execution sales are held void when made to raise a greater sum than is authorized by the judgment. (Eleber on Yoid Judicial Sales, Sec. 336; 8 Ency. PI. and Pr. pp. 428, 430; Ereeman on Yoid Judicial Sales, Secs. 25, 34; Dawson v. Litsey, 10 Bush. 408; Hastings v. Johnson, 1 Nevada, 613 ; Gathwright v. Hazard, 10 B. Mon. 557; Blalcey v. Abert, 1 Dana, 185; Patterson v. Carnead, 3 A. K. Marsh, 618.)</p> <p>The character of the instrument being conceded to be a mortgage, a mortgagee in possession may defend his title just as any absolute owner may defend, and can not be deprived of it by levy of an execution or attachment; and if the officer succeeds in taking the property, the mortgagee may sue him for conversion and recover the value of the property, or the value of his interest in the goods. After the mortgagee has taken possession by virtue of his mortgage, the mortgagor has no longer any interest in the property which can be seized upon execution; the property can not be taken from the mortgagee without there being first tendered to the mortgagee the amount of the mortgage debt. (Jones on Chattel Mort. Secs. 462, 557; Wise v. Jefferis, 51 Fed. 641; Pike v. Corbin, 67 111. 227; Marsh v. Lawrence, 4 Cow. 461; Moore v. Murdock, 26 Cal. 515; Worthington v. Ilanna, 23 Mich. 530; Becker v. Dunham, 27 Minn. 32; Palmer v. Forbis, 23 111. 301.)</p> <p>It is not error to refuse an instruction requested when the same is covered by an instruction given. (Hayes v. Union Merc. Co., 27 Mont. 264.) In construing the charge, it must be taken together. (KennonY. Gilmer, 5 Mont. 257.) "When an instruction, standing alone, is erroneous, but when, in connection with other instructions, the law is correctly stated, the error is harmless. (Fitschen v. Thomas, 9 Mont. 52.)</p> <p>Defendants cannot now raise the point, that the verdict is not supported by the evidence, for the first time in the supreme court. (Campbell v. Great Falls, 27 Mont. 37; Chas. Schatzlein Paint Co. v. Passmore, 26 Mont. 500.)</p>

<p> Appeal from District Court, Deer Lodge County; Welling Napton, Judge. </p> <p>Action by Pat Duane against John Molinaic A judgment was rendered in favor of defendant on appeal from a justice’s judgment in favor of plaintiff, and the latter appeals.</p>

<p>Appeal from District Court, Gallatin County; W. B. C. Stewart, Judge.</p> <p>Action by T. B. Story and others against W. W. Woolverton and others, and Angie Beynolds and the state intervened. From a judgment against the state as intervener, it appeals.</p> <p>The position of the appellant and intervener is that on February 5, 1868, the president of the United States had the right, and did, set aside certain lands for the purpose of the Fort Ellis military reservation; that as soon as the lands so set aside were occupied by the military forces, the military forces began the construction of buildings, and the use of Avater for the conveniences of the post; that from the particular stream from which it took its Avater, Bear Creek, the government of the United States had yielded no prior claim or right to any of these waters; that the waters were necessary for military, domestic and agricultural purposes at the fort, and were so used by the government up to the time the land was conveyed-to the state of Montana; that the paramount idea in the Act of 1891, February 13, was to grant to the state of Montana a portion of said military reservation for the purpose of a camp ground for the state militia; that the land was so conveyed for that particular use, and the particular piece of land that was conveyed was the land upon which the buildings were situated, so that the state might have a permanent place for a state militia camp ground; in this grant it conveyed everything that was essential to0carry out the purposes of the grant; the Avater was necessary and essential to perfect the purposes of the grant, and while the law does not expressly provide the conveyance of water, yet the grant itself carries with the land and buildings the water, just as much as it carries anything connected with the camp ground, and the grant carried with it sufficient water to put the ground in such shape that the intent and purpose of the grant should be fulfilled to the highest degree. It would be rather novel to say that the federal government made a grant of land to the state of Montana for the purposes of a military camp g'round, and in such a grant by its silence in reference to the water, excluded the water, which exclusion would amount to putting the grant in such condition as to defeat the intent and purposes of the grant. Such cannot be a fair construction of this grant. {Smith v. Denniff; 24 Mont. 20; Gave v. Grafts, 53 Oal. 140;' Philbricle v. Eiving, 97 Mass. 134; Mack’s Pomeroy on YVater Rights, ¡3. 98.)</p> <p>It is never contemplated in any federal, state or individual endowment, or gift, or conveyance, to make an endowment, grant, gift or conveyance, and then defeat the gift, grant, endowment or conveyance by withholding essentials and inseparable incidents or appurtenances of the gift, donation, conveyance or grant, which by such withholding would make the gift, conveyance, grant or endomnent worthless- or invaluable. If the question resolves itself into whether or not certain things are intended in a grant to go'with a gránt, the inquiry always is, where the act does not express and directly mention all the essentials, that the essentials go with it; otherwise the grant would be invaluable. It is only when there is an express exclusion of a beneficial appurtenance or incident in the grant that it can be said that the incident or appurtenance is excluded from the grant. It would be a strange construction of the Act of Congress of February 13, 1891, to say that the federal government conveyed to the state of Montana 640 acres of ground for a military camp ground, or to be used for other public purposes,. but that it excluded from the grant the use of any water that was previously used upon the ground, or that it did not convey the water by such grant but returned the water to the public so that it could be appropriated as against tbe state and the usefulness of the grant destroyed.</p> <p>The correct construction of said grant to the state of Montana is this: The federal government conveyed to the state of Montana 640 acres of ground to be selected by the agent of the state, and the use of everything was conveyed that was made use of by the federal government while it occupied the land that was granted, so long as the things that the government used were essential to the uses and purposes of the grant. This interpretation is reinforced by the language of the act itself, because in making the grant the federal government did not convey the land to the state of Montana because of the value of the land from a monetary point of view, or to add to the wealth of the land grants of the state, or to increase the treasury of the state of Montana, but for the express and limited purpose of a camp ground and for public purposes, reserving the right in congress to cancel the grant at any time when the purposes for which the grant was made were not being carried out. The purposes for which the grant was made cannot be carried out if the grant did not convey the water with the land. Suppose this was done, could it be then said that if the federal government forfeited the grant and desired to use the granted lands for federal military post again that the water that was essential to the maintenance of a military post upon this one section was lost to the federal government, and that it could not assert a right to the water ?</p> <p>The state of Montana having accepted the terms of .the grant, became vested with the title conveyed by said grant, and the state of Montana, having taken immediate possession, made its selection and occupied and used said grant as the terms of the grant directed, is entitled to the exclusive and peaceable possession of the land and sufficient water from Bear creek to make useful the land as the federal government intended it should be used. The federal government, being the owner of the water and the land, used the same from 1868 down to February 13, 1891, and had an uninterrupted use of the water until all that portion of the military reservation other than section 15 and forty acres in section 10 was thrown open to settlement and surveyed. The state of Montana took possession February 13, 1891, or immediately thereafter, and has, up to the present time, continued to occupy section 15 and forty acres in section 10, which it selected under the grant and has used the land for the purposes mentioned in the grant and the water to carry out the purposes of the grant. For thirty-six years the waters of Bear creek have been used by the federal and state governments-for public purposes as a branch of the federal and state governments. There has been no period of time since February 15, 1808, to the present time when the federal government relinquished any portion of the water that- was essential for military purposes at Fort Ellis, and there is no period of time from February 13, 1891, to the present when the state has failed to use the water for the purposes of the grant.- There has been an unbroken and uninterrupted possession in the federal and state governments to the waters of Bear creek for thirty-six years, against which no claim could be asserted by any private individual.</p> <p>The essential elements of a right of “appropriation” are a prior, continued and beneficial use of water. It is rights'to the use of water which by “priority of possession” have become vested under local customs and laws that are acknowledged and confirmed by the act of 1866. That act does not waive any right of the government to exercise the privileges of using the water of any stream which it may subject to a beneficial use. So long as the water of a stream is used by the government, or its successor in interest, no “priority of possession” thereof could be obtained by an individual, and, consequently, no right could be initiated so as to be entitled to recognition under said act.</p> <p>To be entitled to initiate a right of appropriation it is necessary only that the appropriator be in the possession of riparian land or of land to which he has a right of way for the necessary ditch from the stream. (Smith v. Denniffj, 24 Mont. 20.)</p> <p>There is no express restriction of the privilege of appropriation to individuals to the exclusion of the government or any other body politic; and it is insisted that, from the nature of the right, none conld fairly be implied. (Krall v. United States, 24 C. O. A. 543, 79 Fed. 241, 48 U. S. App. 351.)</p> <p>In the case of Smith v. Denniff, supra, this court, in an opinion by Mr. Justice Pigott, after making an exhaustive examination of the subject, concludes that where an owner of land acquires by appropriation or purchase a water right and uses the same on his land, the title to the water right, which he shows is appurtenant to the land, passes under a grant of the land unless expressly reserved in the deed.</p> <p>The complaint in intervention of the state of Montana alleges the continuous use by the government on the Fort Ellis reservation of the water appropriated by it in 1870 up to the time of the grant to the state of Montana. The right to its use was, therefore, appurtenant to the land, and, not being reserved from the grant, passed by it to the state of Montana.</p> <p>So long as the state of Montana remains in the, possession of the Fort Ellis reservation under its grant, it therefore will be in the position to enjoy all the rights of a tenant in fee simple. The effect of the qualifications attached to the grant, that said reservation shall be used as a militia camp ground or for such other uses as may be prescribed by the legislature, is that if such uses shall at any time cease, the government will be in a position to assert its reversionary right. Manifestly, however, these qualifications do no more than define what shall entitle the United States to assert its right of reversion, and do not constitute, so far as third persons are concerned, any limitation or restriction upon the use which may be made by the state of the Fort Ellis reservation. So far as the respondents in this case are concerned, it is immaterial what use the state is making of this land, so long as the United States does not interfere. (Bybee v. Oregon & Gal. B. B. Go., 139 U. S. 675; Schulenberg v. Harriman, 21 Wall. 44; Van Wych v. Xneavals, 106 U. S. 360.)</p>

<p>Probate Proceedings — Appealable Orders.</p> <p>Under Code of Civil Procedure, Section 1722, Subdivision 3, as amended by Laws of 1899, page 146, which enumerates the specific instances in which an appeal may be taken to the supreme court from a district court in probate proceedings, orders refusing to vacate a decree of distribution and settlement of final account, and refusing to vacate an order settling an administrator’s account and discharging him, which are not among the judgments or orders enumerated in the statute, are not appealable.</p> <p>On Motion ¡fob Rbheabikg.</p> <p>(Decided January 23, 1905.)</p> <p>The term “final judgment” as used in Code of Civil Procedure, Section 1722, Subdivision 2, refers only to those judgments known at common law as final judgments, and has no application to the statutory determinations and orders termed “orders or judgments” in probate proceedings.</p>

<p> Appeal from District Court, Carbon Countyj Frank Henry, Judge. </p> <p>Action by James H. McAllister against the Rocky Fork Coal Company of Montana. From a judgment for plaintiff, and from an. order overruling a motion for a new trial, defendant appeals.</p>

<p> Appeal from District Court, Missoula County; F. C. Webster, Judge. </p> <p>■ John Tully was convicted of murder in the first degree. From the judgment, and from the order overruling his motion for a new trial, he appeals.</p> <p>The court is bound to take judicial notice of the public official records of the executive department of the United States with reference to the establishment and boundaries of the Fort Missoula Military Reservation. (Code of Civil Procedure, Sec. 3150; Sen. Ex. Doc. Yol. VI, 1881-82, Executive Doc. 167; Sen. Ex. Doc. Vol. YI, 1885-86, Executive Doc. 79; Sen. Ex. Doc. Yol. XI, 1887-88, Executive Doc. 258; see also Yol. XIX, Opinions.of Attorneys General, p. 370.) A military reservation is an act of the president, under authority of Jaw, withdrawing so many acres of the public domain from the immediate administration of the commissioner of the public lands, that is, from sale at public auction, and by pre-emption or general private entry, and appropriating it, for the time being, to some special use of the government. (Ter. v. Burgess, 8 Mont. 73.) The Fort Missoula Military Reservation was created by the executive orders of February 8, 1877, and of Auguslj 5, 1878, which are presumed to have been made by authority of the president of the United States. (Wilcox v. Jackson, 13 Pet. 498; U. S. v. Stone, 2 Wall. 537; 26 Am. and Eng. Ency. Law, p. 225, note 2.) The limits of the reservation are determined by the descriptions contained in said executive orders, and not by the occupancy of the military. (U. S. v. Stone, supra.)</p> <p>It will be observed that the reservation was created before the post buildings were erected, the land being described by reference to section numbers. If the occupation by the military constituted a reservation of the land for .military purposes, there would be no necessity for an executive order or action by congress for that purpose; hence, no necessity for the recommendations made by the secretary of war to congress upon that subject. In August, 1878, it came officially to the knowledge of the war department that most of the buildings of the post were located on the east half of section 36, twp. 13 N., R. 20 W., a school section, by reason of which the secretary of war at four different times requested of congress legislation setting aside the said east half of said section 36.</p> <p>It is admitted by counsel for the appellant that the offense was actually committed on section 36, a school section, but in evasion of the real question counsel says: “We do not see why section 36 could not be occupied aud used by the military at Fort Missoula the same as any other portion of the public lands.” For the purposes of the argument it may be admitted that it could be used and occupied, but not righfully so unless congress or the executive department of the United States had first set it aside as a military reservation; but the fact remains that such action was not taken either by congress or the executive department, and without action by one or the other section 36 remains as much outside of the reservation as does the land upon which the state capitol building is erected. The officer in command of the troops at Fort Missoula might, under certain imaginable circumstances, bring his entire command to Helena and establish a camp upon the capitol grounds. While such grounds were so rightfully occupied by him they would probably be under the “military jurisdiction,” for the time being at least, of the commanding officer, just as Major Torrey stated that the portion of the school section occupied by the United States buildings was under his military jurisdiction. But the state capitol grounds would not thereby be added to the Fort Missoula reservation, and pass under the jurisdiction of the United States courts. In other rvords, the question of what is the Fort Missoula reservation is not one of occupancy and use by United States, troops, but one rather of title, of boundaries as fixed by. executive order, of due establishment by law. The land and only that land included in the executive orders of 1877 and 1878 constitutes the Fort Missoula military reservation, whether actually occupied by troops or not, and the fact that the buildings of the post are upon other lands not included in such orders does not give the United States jurisdiction of offenses committed upon such other lands, nor deprive the state courts of jurisdiction of such offenses.</p> <p>I3y Section 1 of Article II of the Constitution of Montana, exclusive jurisdiction of the United States is conferred over the military reservation of Fort Missoula “as now established by law.” (See also, par. 17 of Section 8 of Article I, Const. U. S.) The construction of reservation buildings upon section 36 is not an establishing of the reservation upon that section in the sense in which that term is used in the Constitution, but, as heretofore stated, it can only be established by proper executive order or by act of congress. The war department recognizes that “the only right that the military department possesses to the occupied portion of section 36 is that of occupancy,” and “that this right of occupancy is sustained by the post commander.” There is a very broad distinction between this so-called “military jurisdiction,” and.the exclusive jurisdiction vested in the United States courts over military reservations. Military jurisdiction is for military purposes only, and in times of peace is always subordinate to the civil power. (20 Am. and Eng. Ency. Law, p. 619.)</p>

<p>Apfeal from District Court, Silver Bow County j E. ~W. Harney, Judge.</p> <p>Action by J. A. Riddell against George L. Ramsey and another. From a judgment in favor of plaintiff, and from an order overruling a motion for a new trial, defendants appeal.</p>

<p>Appeal from District Court, Silver Bow County; E. 17. Harney, Judge.</p> <p>. Action by Lee Mantle against George II. Casey and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Administrator s Account — Sufficiency — Attorney’s Fees — ■ Amount.</p> <p>1. An administrator cannot charge the estate with expenses incurred in advising with counsel with respect to interests and demands antagonistic to the claims of the heirs when he knows that such counsel is representing the antagonistic interests.</p> <p>2. Where attorneys were retained generally, and represented the estate in all litigation for several years, the administrator’s account for the amount paid such attorneys is sufficiently itemized by giving the dates of the commencement and close of such services, with the gross amount.</p> <p>3. Evidence in support of an administrator’s account held sufficient to sustain the allowance to an attorney for the estate of $12,500 for two and one-half years’ services.</p> <p>4. The purpose of the intermediate accounts of an administrator being to inform the court and persons interested as to the receipts, disbursements and changes in property, if any, the administrator need not charge himself therein with the appraised value of the entire estate.</p>

<p>On Motion to Dismiss Appeals.</p> <p>Appeal from District Court, Fergus County; E. K. Cheadle, Judge.</p> <p>Action by T. J. Johns against Clarence E. Barnes. Erom an adverse judgment and order, plaintiff appeals.</p>

<p>Original application by tbe state, on tbe relation of William D. Clark, for a writ of prohibition to tbe Second Judicial District Court and to tbe Honorable E. W. Harney, district judge.</p>

<p>Administrators — Persons Entitled to Administer — Public Administrator — Appointee of Decedents Brothers and Sisters.</p> <p>Held, that under Section 2430, Code of Civil Procedure, Section 2434 of die same Code as amended (Session Laws 1899, p. 137), and Section 1867 of the Civil Code, the district court properly denied the request of a public administrator for letters of administration, and did not commit error in granting such letters to a resident of the state, whose appointment as administrator had been ashed by decedent's non-resident brothers and sisters, the law contemplating that those most interested in the administration of the estate, though non-residents, shall have the right to nominate some person whom they may deem trustworthy, to act in that capacity for them.</p>

<p>Supplementary Proceedings — Subjection of Chose in Action— Order — Directing Debtor to Malee Payment — Validity of Order — Habeas Corpus — Offi.ee of Remedy — .Jurisdiction.</p> <p>1. In supplementary proceedings -it appeared tliat defendant was the owner of an order on a certain society, which she had forwarded to it for payment ; and it was ordered that, on receipt of the amount of the order, defendant pay to the cleyk of the court therefrom a sum sufficient to satisfy the judgment. I-Iold, that the order was unauthorized, and the court should have appointed a receiver to collect the order and apply it to the judgment.</p> <p>2. Where in supplementary proceedings the court erroneously ordered that defendant satisfy plaintiff’s judgment out of the proceeds of an order on a certain society payable to defendant, instead of appointing a receiver to collect the order and make the application, and defendant was committed for contempt for failing to comply with the order, the court having had jurisdiction of the supplementary proceedings and of the person of defendant, defendant could not obtain release from custody on habeas corpus, irrespective of any question as to the appealability of the order.</p>

<p> Appeal from District Court, Silver Bow Countyj E. W. Harney, Judge. </p> <p>Action by the Western Loan & Savings Company against the Silver Bow Abstract Company. Erom a judgment in favor of defendant, plaintiff appeals.</p>

<p> Appeal from District Oourt, Silver Bow Oounty; E. W. Harney, Judge. </p> <p>Action by Pollock Mining & Milling Company, a corporation, against Lee Davenport. Erom a judgment in favor of plaintiff, defendant appeals.</p>

<p> Appeal from District Court, Silver Bow County; B. W. Harney, Judge. </p> <p>Action by Glengarry Mining & Milling Company, a corporation, against Lee Davenport. From a judgment in favor of plaintiff, defendant appeals.</p>

B. Leslie, Judge. George Hliboka was convicted of murder in the first degree, and was sentenced to be hanged. Erom the judgment, and from an order denying his motion for a new trial, he appeals. The information is insufficient to sustain a verdict or judgment of murder in the first degree.

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>Petition by Frederick Sclieuer to probate an alleged lost will of diaries Colbert, deceased. Objections were filed thereto by the state and others, and from a judgment denying the probate thereof and from an order denying a new trial, the petitioner appeals.</p> <p>The contestant is not called upon to submit any evidence in support of his contest or protest until after a case has been made by the proponents of the will. (Collyer v. Collyer, 110 N. Y. 481; Idley v. Bowen, 11 Wend. 227; Holland v. Ferris, 2 Bradf. 333; Neiuell v. Homer, 120 Mass. 277; Harris v. Harris, 10 Wash. 555; Perry v. Perry, 49 N. Y. S. R. 291; Hatch v. Sigman, 1 Dem. 519; Behrens v. Behrens, 47 Ohio St. 323; Miner v. Guthrie, (Ky.) 4 S. W. 179 ; Jaques v. Horton, 76 Ala. 238.) The burden of proof is on the propounders of a lost or destroyed will to show that ithvas in existence at the death of the alleged testator, or was destroyed in his lifetime ■without his consent or knowledge, in order to overcome the presumption of revocation. (Clark v. Turner, 38 L. R. A. 434, note B, and cases cited; In re Marsh, 45 Hun. 107; Betts v. Jackson, Brown, 6 Wend. 173; Idley v. Boiuen, 11 Wend. 236; Knapp v. Knapp, 10 N. Y. 276; In re Nichols, 40 Hun. 387; Buckle’s Estate, 3 Pa. Dist. R. 16; Mercer v. Mercer, 87 Ky. 21.) The testimony of each and all of the witnesses fox the proponents of the alleged lost will was to the effect that the alleged lost will was always in the possession of the testator, Charles Colbert, and the last seen of it was in his possession. The presumption is therefore conclusive that he destroyed and revoked the same prior ,to his death. This is so universally held that it would hardly be necessary to cite authorities in addition to what have already been given. (In re Kennedy’s Will, 62 N. Y. Supp. 1011; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 N. Y. 653 ; Hard v. Ashley, 88 Hun. 103, 34 N. Y. Supp. 583; In re Nichols, 40 Hun. 387; Betts v. Jackson, 6 Wend. 173; Colvin v. Fraser, 2 Hagg. Ecc. 266; 3 Phillim. Ecc. 126, 462, 552; 1 Swab. & Tr. 32; 32 Law J. Prob. 202; 36 Law L Prob. 7; 7 El. & Bl. 886.)</p> <p>On the trial, the contestant was plaintiff and had the affirmative of all issues raised by the contest. (Code of Civil Proc. Sec. 2340; Barney v. Hayes, 11 Mont. 99; Estate of Dalrymple, 67 Cal. 444; In re Burrell, ’IH Cal. 479, 481; Estate of Wooten, 56 Cal. 322, 325; Estate of Collins, (Gal.) Myrick’s Rep. 73.) The burden of proof was on the contestant. (Code of Civil Procedure, Sec. 3290; Scott’s Estate, 128 Cal. 57, 60 Pac. 527; In re Latour’s- Estate, (Cal.) 73 Pac. 1070.) Where a will leg’ally executed has been offered for probate, the onus is upon the contestant to prove its revocation. The presumption of law is that this will continued in existence and unrevoked by the testator at the time of his death. (Sugden v. Lord St. Leonards, 1 Probate I)iv. 154, reported in Moak’s English Reports, Yol. 17, p. 453; Page v. Maxwell, 118 111. p. 576, is a strong case to the same effect; Harris v. Knight, 15 Pro. Eiv. 170, reported in Abbott’s Cases on Descent, IVills and Administration, page 479; Tynan v. Paschal, 27 Tex. 386; Davis v. Sigourney, 8 Mete. (Mass.) 487; Minhler v. Minhler, 14 Vt. 125; Elizabeth Smith’s Will, 3 Houst. (Del.) 335.) Declarations of the testator are admissible to show that he believed, his will to be in existence at the time of his death. (Behrens v. Behrens, 47 Ohio St. 323; Sugden v. Lord St. Leonards, supra; Whitely v. King, 17 C. B. (N. S.) 756; Keen v. Keen, L. E. 3 P. & D. 105; Collagan v. Burns, 57 Me. 465 ; Lawyer v. Smith, 8 Mich. 412; Smock v. Smoch, 11 N. I. Eq. 157; Smiley v. Cambill, 2 Head. (Tenn.) 164; Bedñeld on Wills, Secs. 322, 323; In re Croot’s Will, 9 N. V. Supp. 471.)</p> <p>It is proper to prove the contents of a will by witnesses who had seen and read the will and were acquainted with its contents. (Code of Civil Procedure, Sec. 2371; Sugden v. Lord St. Leonards, supra; Johnson’s Will, 40 Conn. 588; Southworth v. Adams, 11 Biss. 256; Page v. Maxwell, 118 111. 576; Harris v. Knight, 15 Pro. Div. 170; Tynan v. Paschal, 27 Tex. 386; Davis v. Sigourney, 8 Mete. (Mass.) 487; Minhler v. Minhler, 14 Vt. 125; Elizabeth Smith’s Will, 3 Houst. (Del.) 335; Foster’s Appeal, 87 Pa. St. 67; In re Soule’s Will, 15 N. T. Supp. 934; Dan v. Brown, 4 Cowen, (N. Y.) 483; Fetherly v. Wag-goner, 11 Wend. (N. Y.) 602; Rankin v. Crow, 19 111. 624; Cook v. Hunt, 24 111. 535 ; In re Camp’s Estate, (Cal.) 66 Pac. 227, 228; I Underhill on Wills, Sec. 274, p. 374; Morris v. Swaney, 7 Heisk. (Tenn.) 591; Everitt v. Everitt, 41 Barb. (N. Y.) 385; Codington v. Janner, 57 N. J. Eq. 528, 41 Atl. 874.) The acts and declarations of the testator may be proved by witnesses, to show that the will had not been revoked and the contents thereof. (Reeves v. Booth, 2 Mill. (S. 0.) 334, 12 Am. Dec. 679 ; Chisholm v. Ben, 7 B. Mon. (Ky.) 408 ; Durant v. Ashmore, 2 Rich. (S. C.) 184; Johnson’s Will, supra; Sugden v. Lord St. Leonards, supra; Hatch v. Sigman, 1 Dem. (N. Y.) 519; Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738; In re Camp’s Estate, supra; Page■ v. Maxwell, supra; Foster’s Appeal, supra; Behrens v. Behrens, 47 Ohio St. 323; Whitely v. King, 17 O. B. (N. S.) 756 ; Collagan v. Burns, 57 Me. 449; Lawyer v. Smith, 8 Mich. 412; Smoch v. Smoch, 11 N. J. Eq. 157; Eedfield on Wills, Secs. 322, 323; 1 Underhill on Wills, Sec. 277; In re Valentine’s Will, (Wis.) 67 N. W. 12; In re Steinke’s Will, (Wis.) 40 N. W. 61, 62; McDonald v. McDonald, (Ind.) 41 N. E. 337, 344; Pickens v. Davis, 134 Mass. 252; Betts v. Jackson, 6 Wend. (N. Y.) 173, 188; Beadles v. Alexander, 9 J. Baxter, 604, 2 Am. Prob. Eep. 173.) When a subscribing witness forgets or is hostile, the fact may be proven by other witnesses. (lUnderhill on Wills, Secs. 210-213; Gillis v. Gillis, 96 Ga. 1,15, 23 S. W. 107; Mays v. Mays, (Mo.) 21 S. W. 921, 922; Harp v. Parr, (111.) 48 N. E. 113, 115 ; Beadles v. Alexander, supra; Garrison v. Garrison, 15 N. J. Eq. 266, 268, 270; Jauncey v. Thorne, 2 Barb. Oh. (N. Y.) 40.)</p>

Smith, Judge. Action by tbe Silver Gamp Mining Company and another against Ferdinand Dickert. From a judgment for plaintiffs, defendant appeals. Appellant contends that an action for the specific performance of a .contract is an action in personam, not in rem, and that substituted service, as by publication or personal service without the state, can be had so as to bind the property which is the subject of the action only in actions in rem, not in actions in personam.

H. Loud, Judge. Action by the Orient Insurance Company of Hartford, Connecticut, against the Northern Pacific Railway Company, to recover insurance paid to owners of wool stored in a warehouse ignited by sparks from defendant’s engines and burned. Judgment for plaintiff. Defendant appealed.

<p>Supervisory Control — Contempt—Divorce—Order to Pay Alimony — Modification—Appeal.</p> <p>Contempt — Alimony—Modification of Order — Supervisory Control.</p> <p>1. One ordered to pay alimony, to protect himself from contempt proceedings for noncompliance therewith because of stress of circumstances, should apply for revocation or modification of the order, and, upon failure of such application to the district court, the writ of supervisory control will not lie to relieve him from punishment for noncompliance with such order.</p> <p>Divorce — Alimony—Revocation or Modification of Order.</p> <p>2. Until a suit for divorce is finally determined, or until the order granting alimony therein is revoked or modified by the court which made it, a wife is entitled to alimony.</p> <p>Divorce — Alimony—Appeal—Contempt—Jurisdiction.</p> <p>3. An action for divorce is still in the district court, notwithstanding pendency of an appeal, so as to authorize that court, by contempt proceedings, to compel obedience to its order for payment of alimony.</p>

Action by J. W. Watson et al. against tbe Colusa-Parrot Mining & Smelting Company for damages arising out of injury to lands and crops by reason of the discharge of poisonous and deleterious matter into a stream. Prom a judgment and an order denying a new trial, defendant appeals.

Appeals from District Court, Cascade County; J. B. Leslie, Judge.

<p>On Rehearing-.</p>

Smith, Judge. Action by William A. Chessman against Robert S. Hale for damages to plaintiff’s land caused by defendant discharging mining tailings and debris upon said land, and for an injunction. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Any right or privilege conferred by statute ór even by Constitution may be waived, save in matters involving the public interest. (28 Ency.

W. Harney, Judge. Action for partition by Mary Ann Hurley against Patrick O’Neill. Prom an interlocutory decree, and from an order overruling motion for new trial, defendant appeals. There being a substantial conflict in the evidence upon the question as to whether respondent ever had any actual notice of the existence of the alleged oral agreement for partition of the lot, the findings and decree of the district court must be sustained.

M. Clements, Judge. Action by James McKelvey against W. T. Perjiam. ’Erom' a judgment for plaintiff, and fin order denying him a new trial, defendant appeals. The defendant ivas entitled to have its motion for a nonsuit granted in this case for the reason that the plaintiff, having retained the bill óf lading for some purpose of his' own, re: tained the jus disponendi of the property.

McClernan, Judge. Judicial proceedings iii the estate and guardianship of Frederick Y. Sclieuer, a mental incompetent. From an order for a sale of so much of his real estate as had been in the possession of his guardian, Charles E. Ilinman, from his appointment until an order of restoration of capacity, Sclieuer appeals.

IF. Harney, Judge. Action for personal injuries by Sarah A. Prior against the city of Walkerville. Prom a judgment for plaintiff, defendant appeals. It was incumbent on the plaintiff to allege and prove that she was in the exercise of ordinary and proper prudence in going across the sidewalk, and was thus free from any contributory negligence.

McClernan, Judge. In the matter of tbe. estate of Thomas E. Courtney, deceased. From an order revoking letters testamentary granted to Dennis C. Courtney, and from an order settling the semiannual account of'said Courtney, he appeals. Letters testamentary will not be revoked because of any error-of judgment on a doubtful question or mistake of the executor as to his legal rights. (Sparrow’s Succession, 39 La.

<p>Wills — Probate—Revocation— Contest — New Trial — Instructions — Judgment Roll — Special Findings — Dissenting Jurors —Opinion Evidence.</p> <p>Wills — Probate—Settlement of Estates — Statutes.</p> <p>1. The probate of wills and the settlement of estates are not governed by the general law relating to actions, proceedings and judgments, but are, in the main, provided for by statute, and, in so far as the statute has spoken, its declarations are final.</p> <p>Wills — now Contested and Set Aside.</p> <p>2. Where there is a proper subject-matter, neither the order admitting a will to probate, nor the order of final distribution, is void, and neither can be contested or set aside except in the manner and within the time fixed by statute.</p> <p>Wills — Contests—In Whose Favor Operative.</p> <p>3. The successful contest of a will, after probate and distribution of the estate, by a minor on coming of age, operates only in his favor, and not in favor of those heirs who have lost their right to contest by a failure to institute proper proceedings within the time allowed by Section 2366 of the Code of Civil Procedure.</p> <p>Executors — Distribution—Acquiescence—Estoppel.</p> <p>4. An heir who has acquiesced in the settlement and final distribution of an estate, is estopped to call such settlement and distribution in question, or to compel the return of, or an accounting for, the property thus parted with by the executor or administrator in good faith.</p> <p>New Trial — Newly Discovered Evidence — Affidavit.</p> <p>5. Refusal of new trial, asked for on the ground of newly discovered evidence, is not error, in the absence of an affidavit showing that the evidence was not known to movant at the time of the trial.</p> <p>Instructions — Judgment Roll — Appeal.</p> <p>6. Unless instructions given, and those requested and refused, are made part of the judgment roll, they will not be considered on appeal.</p> <p>Jury — Findings—Dissenting Jurors — Affidavits.</p> <p>7. Special findings acquiesced in by the required two-thirds of a jury may not be set aside by reason of affidavits made by dissenting jurors that, in their opinion, the conclusion of the majority was reached by giving a wrong construction or too much weight to a part of the evidence.</p> <p>New Trial — Jury—Fraud—Undue Influence — Evidence.</p> <p>8. In the absence of a statute, and in order to secure freedom of thought, thorough discussion, and independence of action, as well as to prevent undue influence and fraud, the construction or weight given by the jury to evidence submitted to it, is not a subject of inquiry upon a motion for a new trial.</p> <p>Findings — Issues—Harmless Error.</p> <p>9. The submission of issues not raised by the pleadings is harmless, when the findings thereon, in view of the authorized findings, are immaterial, so far as the ultimate rights of the parties are concerned.</p> <p>Verdict — Findings—Evidence—Conflict—Appeal.</p> <p>10. Where there is a substantial conflict in the evidence a verdict or finding will not be disturbed on appeal.</p> <p>Wills — Insanity—Non-Expert Witness — Opinion Evidence.</p> <p>11. A non-expert witness, who detailed the circumstances relative to the mental condition of the testator for six months prior to the date of the will, upon which he based his conclusion that the decedent was not mentally competent to malre a will, may give his opinion as to testator’s competency.</p> <p>Court Records — Best Evidence — Former Action.</p> <p>12. The court records are the best evidence on the question of the disposition of a former action or proceeding.</p>

<p>Original — Injunction pending appeal.</p>