Volume 32 — Montana Reports

<p>Writ of Supervisory Control — Contempt—Decree—Pleading—■ Demurrer.</p> <p>1. A petition for an order to show cause why S. should not be punished for contempt of court in violating a decree, and affidavits in its support having been filed in tbe district court, they were demurred to upon tbe ground that they did not state facts sufficient to eoxxstitute contempt. Tbe demurrer was sustained. Relators applied for writ of supervisory control. Beld, that tbe question whether the decree alleged to have been violated was sustained by the pleadings and the evidence, could not be considered by. the district court on the demurrex-, it having had jux-isdietion of the parties and the subject matter-, and the writ ordered issued directing the district court to set aside and vacate the order sustaining the demurrer and fix a date for the hearing of the petition.</p>

<p>Mandamus proceedings on tbe relation of Peter Breen against Joseph K. Toole, Governor.</p>

<p>Mandamus — Abatement—Expiration of Official Term — Judicial Notice.</p> <p>Elections — Board of Canvassers — Mandamus—Abatement. '</p> <p>1. Mandmnus proceedings, instituted against the state treasurer and the attorney general, as a majority of the state board of canvassers, to compel them to reconvene and certify certain votes cast for the relator for the office of district judge, dismissed as abated, where prior to the hearing the terms of such officers had expired, so that they could not perform the mandate of the writ if issued, where their successors had not been given notice of the proceedings and where no demand had been made upon them to perform the duties the performance of which was sought by the writ.</p> <p>Supreme Court — Judicial Notice — State Officers — Mcmdamus—Terms of Office.</p> <p>2. The supreme court will take judicial notice of the fact that on a certain date the persons sought to be coerced into action by mandamus were no- longer state treasurer and attorney general, respectively, and that their successors had been elected, qualified and inducted into office.</p> <p>Mcmdamus — Dismissed as Abated — When.</p> <p>3. Where a mandamus proceeding has abated because of the expiration of the terms of office of the officials against whom it is directed, it will be dismissed, although the question of abatement has not been raised by counsel on either side.</p>

<p>Habeas Corpus — Exdent of Relief — District Court — Jurisdiction.</p> <p>Habeas Corpus — Its Object.</p> <p>1. The only object sought, and the only relief that can be granted, in habeas corpus proceedings, is the release of the complainant from unlawful custody.</p> <p>District Courts — Habeas Corpus — For What Purpose It may not be Used.</p> <p>2. The district court may not use the writ of habeas corpus for the purpose of reviewing the action of a committing magistrate in applying a deposit, in lieu of bail, to the payment of a fine assessed against complainant; nor has it jurisdiction to determine, under the writ, who is entitled to the money, or direct the city treasurer, to whom it had been paid, to refund it to complainant.</p>

Certiorari by tbe state, on tbe relation of tbe Boston and Montana Consolidated Copper and Silver Mining Company, to review an order of tbe district court of tbe second judicial district for tbe county of Silver Bow taxing certain costs against relator in an action against it by tbe Montana Ore Purchasing Company.

Clancy, Judge. Action by George S. Lander, doing business as tbe Lander Furniture and Carpet Company, against Pat Sbeeban. Prom a judgment for defendant and an order denying a new trial plaintiff appeals.

Original application by the state on the relation of Henry G. Dougan, for a writ of. supervisory control against the district court of the eighth judicial district and Honorable Jerry B. Leslie, judge thereof.

<p>Pleadings —New Matter■ — Failure to Reply — Motion for Judgment on Pleadings — Dismissal by Plaintiff — Appeal from Judgment — M andamus.</p> <p>Pleadings — Answer—Contributory Negligence — Special Defense.</p> <p>1. In an action for damages for injury of person, the plea of contributory negligence on the part of the plaintiff is a special defense which must be pleaded in defendant’s answer.</p> <p>Pleadings — Negligence—Fellow-servant—Special Defense.</p> <p>2. Quaere; Is the defense of negligence of a fellow-servant in an action for damages for injury of person, a special defense which must be pleaded?</p> <p>Pleadings — Answer—Contributory Negligence — New Matter — Failure to Eeply — Complaint—Anticipatory Denials.</p> <p>3. Under Code of Civil Procedure, section 720, as amended by Session Laws of 1899, page 142, allegations in the answer of contributory negligence, in an action for personal injuries, constitute new matter, the truth of which is admitted by failure of plaintiff to reply thereto, and any mere anticipatory denials in the complaint of the facts constituting such new matter are insufficient.</p> <p>What may Constitute a “Trial.”</p> <p>4. The argument and submission to the district court of a motion for judgment on the pleadings, on the ground that defendant’s answer contained allegations of new matter which were admitted by plaintiff’s failure to reply, is a “trial” within Code of Civil Procedure, section 1004, subdivision 1, providing that an action may be dismissed or judgment of nonsuit entered by plaintiff “at any time before trial.”</p> <p>Dismissal Without Prejudice — When too Late.</p> <p>5. Where a motion for judgment on the pleadings has been made by defendant, under the provisions of Code of Civil Procedure, section 722, as amended by Session Laws of 1899, page 142, on plaintiff’s failure to reply to an answer setting up new matter, which motion has been argued and submitted to the court for decision, the application of plaintiff for dismissal of his action without prejudice comes too late, such argument and submission constituting a “trial” within Code of Civil Procedure, section 1004, subdivision 1.</p> <p>Dismissal Without Prejudice — Not Final Judgment — Minutes—Appeal.</p> <p>6. The mere entry in the minutes of the court of an order, under Code of Civil Procedure, section 1004, that an action “is dismissed without prejudice, as per praecipe filed” by plaintiff, is not a final judgment from which an appeal lies, but is simply an order upon which a judgment of dismissal and for costs could have been entered.</p> <p>Dismissal of Action — Mandamus—Reinstatement of Cause.</p> <p>7. Held, that where, after defendant’s motion for judgment on the pleadings had been argued and submitted, the court dismissed the action without prejudice on plaintiff’s motion, mandamus will lie to require the court to reinstate the cause, and determine defendant’s motion, as an appeal from a judgment of dismissal, if available, would be inadequate in that it would not present for the determination of the appellate court the question as to whether or not the district court should pass upon the motion for judgment on the pleadings.</p> <p>Mandamus — Remedy—Plain, Speedy and Adequate.</p> <p>8. If the remedy by appeal, or any other method than mandamus, is not plain, speedy and adequate, mandamus will lie, the case otherwise being a proper one.</p> <p>Mandamus — When It Will not Lie.</p> <p>9. Obiter: Where a district court has acted in a given particular, mandamus will not lie to correct the error in so acting.</p>

<p> Appeal from District Court, Custer County; C. H. Loud,. Judge. </p> <p>Action by the Caledonia Insurance Company against the-Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>At the common law, interest can never be allowed in an action of tort for unliquidated damages. (Isaacs v. McAndrew, 1 Mont. 454; Randall v. Greenhood,- 3 Mont. 512; Palmer v. Murray, 8 Mont. 185, 19 Pac. 553; Railway Co. v. Conway, 8 Colo. 1, 54 Am. Eep. 537, 5 Pae. 151; Railway Co. v. Moynahan, 8 Colo. 56, 5 Pac. 811; Kennie v. Railway Co., 63 Mo. 99; Atkinson v. Railway Co., 63 Mo. 367; 'Meyer v. Railway Co., 64 Mo. 542; De Steiger v. Railway Co., 73 Mo. 33.)</p> <p>When, in an action for the negligent destruction of property it is, by statute, left with the jury to say whether interest on the damages shall be allowed, or withheld, it can only be upon the principle that in some cases negligence is attended with circumstances of aggravation which warrant the recovery of additional damages for it. (See 2 Greenleaf on Evidence, secs. 253-273; Fay v. Parker, 53 N. H. 342, 16 Am. Eep. 270; Stewart v. Maddox, 63 Ind. 51; Murphy v. Hobbs, 7 Colo. 541, 49 Am. Eep. 366; Smith v. Holcomb, 99 Mass. 552; Austin v. Wilson, 4 Cush. 273, 50 Am. Dec. 766, and note; Boyer v. Barr, 8 Neb. 68, 30 Am. Eep. 814; Detroit Daily Post Co. v. McArthur, 16 Mich. 447; Welch v. Ware, 32 Mich. 84; Durfee v. Newkirk, 83 Mich. 522, 47 N. W. 351; Pegram v. Stortz, 31 W. Va.-220, 6 S. E. 485; Spokane Truck Co. v. Hofer, 2 Wash. 45, 26 Am. St. Eep. 842, 25 Pac. .1072, 11 L. E. A. 689.)</p>

<p>Appeal — Dismissal—Jurisdiciion—Administrators—Final Account — Distribution—Satisfaction of Judgment before Appeal.</p> <p>Judgment — Satisfaction—Appeal.</p> <p>1. When a judgment has been paid, it ceases to be reviewable on appeal.</p> <p>Administrators — Distribution—Appeal—Jurisdiction—Dismissal.</p> <p>2. Where tbe distributees of a decedent’s estate executed receipts for their respective shares under the decree of distribution, which was thereupon satisfied and the administrator discharged, the receipts reciting that they were not intended to cover any money or property referred to in the decres not yet discovered, thus implying that this exception was the only reservation made by the distributees as to the liability of the administrator, and thereafter appeal from such decree, the supreme court will dismiss such appeal for lack of jurisdiction.</p>

<p>Water Bights — Appropriation —Validity — Statutes — Evidence — Sufficiency—N onsuit.</p> <p>Water Rights — Appropriation—Statutory Requirements — Evidence.</p> <p>1. In an action for damages for using the water of a certain river, and for an injunction to prevent interference with the alleged rights of plaintiff therein, evidence examined, and held to warrant a nonsuit for failure of the plaintiff to comply with the requirements of Compiled Statutes, fifth division, sections 1250,, 1251, 1256 and 1257, in making his alleged appropriation, in that he never diverted the water claimed to have been appropriated, or constructed any dam, ditch, flume, or work of any kind to convey water to any place for a beneficial purpose, or owned the land described in his notice, or any mine, mill, smelter, ranch or property to which the water right was appurtenant, and on which the water could be utilized.</p> <p>Water Eights — Appropriation—User.</p> <p>2. Until a claimant is himself in a position to use the water of a stream subject to appropriation, the right to the water, or water right, does not exist in such sense that the mere diversion of the water by another is a ground of action either to recover the water, or for damages for its diversion.</p>

<p>Master and Servant — Injuries to Servant — Mines—Explosions —Vice-principal—Safe Place to Work — False Information —Contributory Negligence.</p> <p>Nonsuit — Appeal—Presumptions.</p> <p>1. On appeal from' a judgment sustaining defendant’s motion for a nonsuit made at the close of plaintiff’s evidence, every fact which, the evidence tends to prove will be deemed proved.</p> <p>Master and Servant — Mines—Explosions—False Information — Vice-principal — Negligence.</p> <p>2. Where, in an action for injuries to a miner by the discharge of a blast, it appeared that B. had charge of the operating department of the entire mine for defendant, and was authorized to hire and discharge men, and that he directed them where, when, and how to work, and that his supervision of the mine was supreme, except that defendant directed when new work was to be commenced, and B. falsely stated to plaintiff before he went into the mine that a blast by which plaintiff was injured had been discharged, B. was a vice-principal, and not plaintiff’s fellow-servant, for whose negligence defendant was liable.</p> <p>Mines — Master and Servant — Safe Place to Work — False Information by Vice-principal.</p> <p>3. The rule that a master is not bound to provide and maintain a safe place for his servants to work, where they are creating the place, and when it is constantly being changed in character by their labor, and becomes dangerous solely by their negligence, did not justify a vice-principal in giving false information to plaintiff, a miner, to the effect that an unexploded blast in the mine, left by a former shift of workmen, had been exploded before plaintiff went into the mine at the time he was injured.</p> <p>Mines — Master and Servant — Vice-principal—False Information — Negligence.</p> <p>4. Reid, that plaintiff, a miner, in an action for personal injuries, was entitled to rely on the information of the person in charge of the operating department of the mine — a vice-principal — that a charge of dynamite in a certain hole had been exploded, when in fact it had not, and was not guilty of negligence in working in the mine on the assumption that the explosion had taken place.</p>

<p>Receivers — Wrongful' Receivership — Actions for Damages— Executors — Survival of Action — Measure of Damages — Evidence — Loss of Accounts — Presumptions—Instructions— Appeal — Harmless Error — Reviewable Objections — Actions — Survivorship.</p> <p>Wrongful Procurement of Deceiver — Executors—Survival of Action.</p> <p>1. Under Code of Civil Procedure, section 2733, a cause of action for damages for wrongfully procuring the appointment of a receiver survives against the executor of the decedent wrongdoer.</p> <p>Evidence — Objections—Supreme Court — Appeal.</p> <p>2. An objection to the admission of evidence raised for the first time in the supreme court will not be considered.</p> <p>Deceivers — Wrongful Appointment — Evidence—Supreme Court Opinion.</p> <p>3. In an action for damages for wrongfully procuring the appointment of a receiver for a going and solvent corporation, where the theory of the trial was that plaintiff could not recover without showing malice or want of probable cause, it was proper to admit as introductory evidence the opinion of the supreme court in the receivership proceedings, reversing the order appointing the receiver, though the invalidity of the appointment was admitted by the defendants.</p> <p>Documentary Evidence — Admissibility.</p> <p>4. An objection to a series of documents as a whole is not well taken if some of them are admissible.</p> <p>Evidence — Admissibility—Pleadings—Harmless Error.</p> <p>5. The admission of evidence in proof of matters admitted by the pleadings is not reversible error.</p> <p>Evidence — Corporations—Books—Appeal.</p> <p>6. Where the books and papers of a corporation were admitted in evidence without objection, it cannot be claimed on appeal that the admission of one of such papers constituted error.</p> <p>Offer of Proof — Dejection—Appeal.</p> <p>7. The rejection of an offer of proof will not be reviewed on appeal where the party making the offer did not state and have placed on the record w'hat he intended to prove.</p> <p>Deceivers — Wrongful Appointment — Evidence—Damages—Accounts.</p> <p>S. In an action for damages for wrongfully procuring the appointment of a receiver for a going and solvent corporation, plaintiff may show as an item of damage the amount of a good and collectible account which was lost by mason of the receivership.</p> <p>Deceivers — Wrongful Appointment — -Evidence—Damages—Accounts.</p> <p>9. In an action for damages for wrongfully procuring the appointment of a receiver for a going and solvent corporation, evidence of the loss of an account through the receivership and the statute of limitations, is admissible, although no trial of the question in the courts had been had.</p> <p>Deceivers — Wrongful Appointment — Liability for Damages.</p> <p>10. Persons who wrongfully procure the appointment of a receiver for a going and solvent corporation become, after the appointment is judicially declared void, trespassers ab initio, and liable for the damages caused by their wrongful acts.</p> <p>Deceivers — -Wrongful Appointment — Damages—Pleadings.</p> <p>11. In an action for damages caused by the -wrongful appointment of a receiver for a going and solvent corporation, where plaintiff did not claim either interest, prospective profits, or exemplary damages, allegations of the complaint concerning the extent of the business of the company, and the conduct of defendants tending to show fraud, oppression, or malice, must be treated as surplusage.</p> <p>Deceivers — -Wrongful Appointment — Measure of Damages — Presumptions.</p> <p>12. The measure of damages for wrongfully procuring the appointment of a receiver for a going and solvent corporation is, under Civil Code, sections 4270, 4330, 4333, and 4334, the amount which will afford compensation for the detriment proximately caused by defendants’ -wrongful act, which, in case of the wrongful conversion of personal property, is presumed to be the value of the property at the time of conversion, with interest from that time, or the highest market value of the property at any time between the conversion and the verdict, without interest, and a fair compensation for the time and money properly expended in pursuit of the property.</p> <p>Deceivers — -Wrongful Appointment — Malice—Probable Cause — Evidence.</p> <p>13. It is not necessary, in order to recover damages for wrongfully procuring the appointment of a receiver for a going and solvent corporation, to show that the appointment was procured maliciously, and without probable cause.</p> <p>Conversion — -Measure of Damages — Election.</p> <p>14. Under Civil Code, section 4333, providing for two measures of damages for the wrongful conversion of personal property, the party injured must elect under which of these two options he will claim, and he may not be permitted to rely upon both in the same case.</p> <p>Conversion — Measure of Damages — Election—Instructions.</p> <p>15. Where a party in his complaint and by his evidence seeks to recover damages for the wrongful conversion of personal property under one of two measures granted by the statute, an instruction authorizing the assessment of damages according to the other standard is erroneous.</p> <p>Instructions — Pleadings—Evidence.</p> <p>16. Instructions must be warranted by the pleadings and evidence.</p> <p>Conversion — Conflicting Instructions — Measure of Damages — Harmless . Error.</p> <p>17. The giving of instructions authorizing the jury to award damages for the wrongful conversion of personal property under both the measures provided for under Civil Code, section 4333, only one of which options could be taken advantage of by the injured party, was harmless error, where there was no evidence warranting the assessment of damages in accordance with one of the standards, and there was no claim that the amount of the verdict was excessive, or that the evidence was insufficient to justify the verdict.</p> <p>Presumptions — Accounts.</p> <p>18. Under Code of Civil Procedure, section 3266, subsection 32, providing that it is presumed that a thing once proved to exist continues to exist as long as is usual with things of that nature, accounts which are shown to have once been good and collectible are presumed to so continue.</p> <p>Receivers — Wrongful Appointment — Measure of Damages — Attachment.</p> <p>19. The fact that accounts and bills belonging to a corporation, which were not collected owing to the wrongful institution of receivership proceedings by defendants, were taken possession of by an attachment to- satisfy an indebtedness of the corporation, does not affect the measure of the corporation's damages for the wrongful receivership.</p> <p>Instructions — Names of Attorneys Subscribed — Harmless Error.</p> <p>20. The giving of instructions bearing the names of the attorneys of the parties, while not a commendable practice, is not reversible error.</p>

B. Leslie, Judge. Action by Howard S. Greene, as trustee in bankruptcy, against tbe Montana Brewing Company. Erom an order denying defendant’s motion to set aside a default and permit defendant to answer, it appeals. It was tbe duty of appellant’s counsel to keep themselves advised with respect to tbe proceedings in this case.

Clancy, Judge. Action by J. E. Oppenheimer against P. H. Began, as. sheriff of Silver Bow county. Erom a judgment in favor of plaintiff, and from an order denying defendant a new trial, he appeals. Statement oe the Case.

B. C. Stewart, Judge. . Suit by N. S. Campbell against William and Ida B. Flannery. From a judgment granting a motion for nonsuit, plaintiff appeals. Tbe respondents, being tenants in common with the appellant, cannot commit waste upon .a ditch in which they are such tenants in common, and an injunction will lie to prevent it, both upon the ground of preventing repeated trespasses on the part of the respondents and on the ground of insolvency.

<p>Habeas Corpus — Judgment Nunc Pro Tunc — Special Terms.</p> <p>Habeas Corpus — Authority of Sheriff.</p> <p>1. Where petitioner in habeas corpus is legallyin custody, it is immaterial when the officer got his authority to hold him, if he obtained it before he made return, and the authority appears in the return.</p> <p>Habeas Corpus — Oral Judgment — Judgment Nunc Pro Tunc — Special Terms.</p> <p>2. Under Penal Code, section 2753, providing that the court, if the time during which a party may be legally detained in custody has not expired, must remand him if he is detained in custody under final judgment of any competent court of criminal jurisdiction, or of any process issued on such judgment, where a petitioner for habeas corpus was convicted of murder, and oral judgment was rendered, confining him to prison for twenty-five years, without any record being made, but at a special term, after notice to petitioner and his counsel, the minutes were corrected to show the judgment as rendered, and on the judgment thus entered a commitment was issued, the petitioner was legally in custody, for the purposes of the judgment, and not entitled to his discharge.</p>

<p>Appeal from District Court, Cascade County; J. B. Leslie, Judge.</p> <p>Action by S. H. Carman against tbe Montana Central Eailway Company. Erom a judgment for plaintiff, defendant appeals.</p>

Clancy, Judge. Action by Michael A. Hickey and others against the Parrot Silver and Copper Company. On motion of plaintiff, Arthur P. Heinze, Thomas McLaughlin was appointed receiver of the property involved in the litigation, and from an •order fixing his compensation, and allowing him a certain amount for counsel fees, said Heinze appeals.

<p>'Divorce — Suit Money■ — Counsel Fees — Refusal to Allow — Prejudice — Findings—Implied—Supplemental Transcript — Appeal — Review—Condonation—Evidence.</p> <p>Divorce — Suit Money — Counsel Fees — Denial—Harmless Error.</p> <p>1. Defendant in an action for divorce moved, before trial, for suit. money and counsel fees; the application, however, was heard during its progress. No request for continuance was made on any ground. It appeared that she had spent about $1,000 in preparing the case, and that she owed $900 of this sum. She was represented by eminent counsel during the entire trial, and the record failed to show that she did not have all the witnesses she desired or all the information concerning plaintiff’s witnesses necessary to conduct her defense successfully. Held, that under such circumstances, a denial of attorneys’ fees and a refusal to allow more than $200 suit money was not prejudicial error, if error at all.</p> <p>Implied Findings — Request—Exceptions—Appeal.</p> <p>2. Under the doctrine of implied findings, a judgment will not be reversed for want of findings, unless the party aggrieved shall have requested them in writing, caused such request to be entered in the minutes of the court, and. made and saved exceptions to the action of the court, in accordance with the requirements of section 1114 of the Code of Civil Procedure.</p> <p>Appeal — Supplemental Transcript — Certificate—Findings.</p> <p>3. A supplemental transcript containing findings rejected by the trial court, which formed no part of the judgment roll, or of the statement on motion for new trial, or of any bill of exceptions settled by the court, authenticated only by a certificate of the clerk, will be disregarded on appeal.</p> <p>Divorce — Condonation—Special Defense — Pleadings.</p> <p>4. While, generally speaking, condonation in an action for divorce is a special defense not available unless pleaded, yet when, though not pleaded, the issue has been contested in the evidence without objection, and it clearly appears that the offense alleged in the complaint has been condoned, the divorce will be denied.</p> <p>Findings — Supreme Court — Will Make Its,Own Conclusions — When.</p> <p>5. Under Act of 1903 (Laws 1903, 2d Extra. Session, p. 7), making it the duty of the supreme court to determine questions of fact, unless for a good reason a new trial or the taking of other evidence in the district court be ordered, the supreme court will hesitate to overturn findings based on substantially conflicting evidence which would justify an inference in favor of either party; but where the conflict is trifling or unsubstantial, or where the evidence preponderates decidedly against the findings, the supreme court may examine the facts, make up its own conclusion, and declare upon the rights involved accordingly.</p> <p>Divorce — Condonation—Evidence—Sufficiency.</p> <p>6. In divorce, evidence considered, and held sufficient to show that the offense charged in the complaint, if committed, had been condoned.</p>

Smith, Judge. Action by Maxy Raymond against Petex Raymond and others. From an order of the district court overruling a motion to dismiss an appeal to that court from a judgment of a justice of the peace, plaintiff appeals.

W. Harney, Judge. Action by Nora Driscoll, as guardian of John Joseph Driscoll, a minor, against William A. Clark. From a judgment for plaintiff, defendant appeals. The general rule undoubtedly is that one is under no duty to a mere trespasser to keep his premises safe, but there are certain well-defined exceptions to this rule, among which is numbered the doctrine of the “turntable”- and similar cases within which the case at bar unquestionably falls.

<p>Water Eights — Irrigation—Appropriation—Priorities—Tenancy in Common — Abandonment—Conveyance of Eights— Prescription — Pleadings—Motion for Judgment — Cross-examination.</p> <p>Judgment on Pleadings — Complaint—Denials—Proof.</p> <p>1. Where denials contained in the answer required proof on the ' part of the plaintiff as to some of the material allegations of his complaint, plaintiff’s motion for judgment on the pleadings was properly overruled.</p> <p>Water Rights — Title to Corpus of Water — Prescription.</p> <p>2. Under Civil Code, section 1880, giving the right to appropriate the waters flowing in a stream, the title to the corpus of such waters cannot be acquired so that a prior appropriator, who has all the water that his necessities require, cannot question the right of another to use the remainder of the water, nor maintain an action against him on account of such use, and the latter cannot, so long as the former’s enjoyment of all the water that he needs remains unimpaired, acquire a, prescriptive right to use any given quantity of the water to the detriment of the former’s appropriation.</p> <p>Water Rights — Abandonment—Intent.</p> <p>3. Abandonment is a matter of intention, and consists in the giving up of a thing absolutely without reference to any particular person or purpose.</p> <p>Water Rights — Joint Notice of Appropriation — Abandonment.</p> <p>4. A joint notice, filed by successive appropriators of water, stating that they have a claim and right to use a given quantity of water on certain described lands, and that they appropriated the water as to one .ditch in one year and as to another ditch in another year, does not of itself constitute or show an abandonment of prior appropriations, and the initiation of a new right and appropriation.</p> <p>Water Rights — Tenancy in Common — Unity of User.</p> <p>5. To constitute a tenancy in common in a water right, there must be a right to unity of user of the water, and if such right is destroyed, the common tenancy ceases to exist.</p> <p>Water Rights — Notice of Appropriation — Effect.</p> <p>6. Prior to March 12, 1885, no notice of the location or record of the appropriation of a water right was required. The Act of that date (Compiled Statutes of 1887, fifth division, section 1258), requiring persons who had theretofore acquired water rights to file a written declaration with the recorder, by its terms protected prior appropriations. Held, that the recording by previous appropriators of a notice in accordance with the Act did not of itself constitute an appropriation, nor affect, as between the appropriators, their respective rights to the water, but merely constituted notice to the world of their, claims under their appropriations.</p> <p>Water Rights — Joint Notice of Appropriation — Tenancy in Common.</p> <p>7. Plaintiff’s predecessors in interest appropriated waters for irrigation in 1866'. Defendant made a subsequent appropriation in 1871 or 1874. In 1874 the parties, by oral agreement, and during that season only, used the water alternately. During one season in the early ’80’s there was a scarcity of water, and they used the same half and half. In 1885 plaintiff and defendant filed a joint notice of their appropriation, which stated that the appropriation of each amounted to two hundred inches. Plaintiff in no manner waived or abandoned at any time his prior appropriation. Meld, that none of the things specified constituted a conveyance by plaintiff to defendant of any interest in the former’s prior appropriation, that they were not evidence that one-half the water was not sufficient for plaintiff’s use, that there was not any unity of possession in the ditches, land, date of appropriation, use of the water, or the right of its use, and hence there was no tenancy in common.</p> <p>Water Rights — Rights of Prior and Junior Appropriators.</p> <p>8. Under Civil Code, section 4605, requiring one to so use his own rights as not to infringe the rights of another, one who has a prior right to the use of the waters of one creek cannot let those waters run to waste, and use the full amount of his appropriation of the waters of another creek to the detriment of a junior appropriator on the latter creek; but such junior appropriator cannot, as of right, compel the prior appropriator to exhaust his rights in the former creek before resorting to the use of the latter creek.</p> <p>Water Rights — Evidence—Cross-examination.</p> <p>9. Where a notice of appropriation of water filed by a party and testimony given by him are both before the court, it is not permissible to bring out, by a cross-examination of the party, discrepancies between his testimony and the contents of the notice.</p>

<p>Building Contract — Performance—Judgment by Subcontractor Against Principal Contractor — Res Judicata — Evidence — Sufficiency—Corporation—Authority of Trustees— Ratification — Burden of Proof — Answer—Failure to Deny A negations — Effect.</p> <p>Building Contracts — Subcontractor—Judgment—Res Judicata — Owner.</p> <p>1. Where a subcontractor did the painting of a building for the contractor who had undertaken the construction of the entire building, a judgment in favor of the subcontractor, in a suit by him against the principal contractor to recover on account of the work done, is not res judicata as to the owner, so as to bar litigation of the question, between the owner and the principal contractor, whether the painting was done in accordance with the principal contract.</p> <p>Corporations — Trustees—Powers.</p> <p>2. A corporation is not liable on an agreement made by one or two-of its trustees, in the absence of authority to bind the corporation having been delegated to such trustees, or ratification of the agreement by the corporation.</p> <p>Action on Building Contracts — Corporation—Liability—Burden of Proof.</p> <p>3. In an action to recover an alleged balance due on a contract for the construction of a building for a corporation, in which plaintiff sought to establish the liability of the defendant corporation for money paid in excess of a specified sum for work done by a particular person at the request of the architects, by showing consent of one or two of the defendant’s trustees to the agreement, the burden was on-plaintiff to show the authority of the trustees, or ratification of ’the-agreement by the corporation.</p> <p>Action on Building Contract — Lien—Pleadings—Answer—Replication.</p> <p>4. Where a building contract provided that the owner might protect itself against any lien which might be filed on the building by withholding from the contractor a sum sufficient to liquidate the same, and in an action by the contractor to recover an alleged balance due-on the contract, the defendant alleged in its answer that a lien was filed for a certain sum and was paid by the defendant, the failure of the plaintiff to deny the allegations by his replication entitled the defendant to a deduction from the contract price in the amount of the lien discharged.</p>

<p>Injunctions — Action on Bond — Complaint—Insufficiency.</p> <p>1. A complaint in an action on an injunction bond is fatally defective where it fails to state that the damages claimed by plaintiffs, have not been paid.</p>

Clancy, Judge. Action by Clinton C. Clark against Robert Wall and others. From an order refusing to issue an injunction, plaintiff appeals. The agreement stated in plaintiff’s complaint contains all the elements which constitute a lease or tenancy at will, and is of a character and for purposes common to mining regions of this state.

<p>C ontracts — A ccount Stated — A ction — C onsideration — Pleading and Proof — Statutes — Contingency—Uncertainty— Parties — Administratrix—Complaint—Allegation of Official Capacity — When Unnecessary — Admissions—Judgment— Forbearance to Sue — Evidence—Admissibility— Instructions — Limitations.</p> <p>Contracts — What may Constitute.</p> <p>1. An instrument arising from, and based upon, transactions had between the parties at its date, acknowledging an indebtedness, and promising to pay it, is a contract.</p> <p>Accounts Stated — Agreements—Past Transactions — Conclusive Between Parties.</p> <p>•2. An instrument which is the result of an agreement relating to past transactions, acknowledging an indebtedness and promising to pay it, is, in effect, an account stated, on which an action may be based, and, in the absence of fraud, error or mistake in its execution, specifically alleged in the answer is conclusive between the parties.</p> <p>Action on Contract — Consideration—Presumptions—Burden of Proof.</p> <p>3. Under Civil Code, sections 2169 and 2170, providing that a written instrument is presumptive evidence of a consideration, and that the-burden of showing its want lies with the attacking party, in an action on an instrument acknowledging an indebtedness and promising to, pay it, a consideration need not be averred or proven independently of the proof of the contract itself.</p> <p>Action on Contract — Contingency—Uncertainty.</p> <p>4. In an action on an instrument acknowledging an indebtedness, and promising to pay it on the happening of a certain contingency, the actual occurrence of the contingency renders untenable a contention that the contract is void for uncertainty.</p> <p>Contracts — Merger of Oral into Written Contract — Consideration—Liability.</p> <p>5. A promisor may bind himself by merging an oral agreement into a written contract, and he cannot escape liability merely because the consideration had passed to him prior to the execution of the written contract.</p> <p>Administrators — Allegation of Official Capacity — When Unnecessary.</p> <p>6. Where an administratrix is, by order of court, made a party to a suit commenced by her decedent, no allegation'of her official capacity is required.</p> <p>Nonsuit — When Properly Overruled — Contracts—Pleadings.</p> <p>7. A motion for nonsuit was properly overruled where, in an action on an instrument acknowledging an indebtedness and. promising to pay it on the happening of a certain contingency, the answer admitted the execution of the instrument, its assignment to the plaintiff, the happening of the contingency, and nonpayment.</p> <p>Contracts — Forbearance to Sue — Consideration-—Sufficiency.</p> <p>8. Forbearance to sue is a sufficient consideration to sustain a written contract.</p> <p>Parol Evidence — Contracts—Consideration—Forbearance to Sue.</p> <p>9. Parol evidence is admissible to show that the consideration for a written contract was forbearance to sue.</p> <p>Contracts — Consideration—Forbearance to Sue — Instructions.</p> <p>19. Where a sister of a decedent makes a claim in behalf of the decedent ’s estate, and her right to recover was disputed by the alleged debtor, the settlement of the claim, or the agreement to forbear suing thereon, was a sufficient consideration for the execution of a contract between the sister and the alleged debtor, and in an action thereon it was not necessary to determine whether the sister, decedent’s father and mother surviving, could have successfully maintained the claim against the alleged debtor, and an instruction to that effect was properly refused.</p> <p>Contracts — Contingency—Limitations.</p> <p>11. Where a contract was made to become due on the happening of a certain contingency, a suit brought within eight years after the happening of the contingency, but more than eight years from the date of the execution of the contract, was not barred.</p>

<p>Receivers — Compensation—For What Period — Law of the Case.</p> <p>1. Where a receiver’s appointment was valid, and the supreme court on a former appeal held that he should be retained pending the appeal, unless the district court otherwise ordered, and, in ordering the discharge of the receiver, reversed the order of appointment without prejudice to the receiver’s right to be reimbursed out of the trust estate for any amounts he may have properly expended or become liable to pay, and to be compensated for his services, such decision constituted the law of the ease, and entitled the receiver to payment for services for the time he was actually engaged in efforts to obey the directions of the district court, when not stayed by the supreme court, and for services when actually in possession of the property, together with a nominal amount for the time during which his efforts were stayed, and for the time he was in office after he turned the property back to the owners, notwithstanding he should have been discharged on a former date, when defendant offered in writing to comply with plaintiif’s demands in the suit in which the receiver was appointed.</p>

<p> Appeal from District.Court, Silver Bow County; E. W. Harney, Judge. </p> <p>Action by Emma Trerise against Mary H. Bottego, Thomas M. Hodgens, and others. Erom a judgment for plaintiff and an order overruling his motion for a new trial, defendant Hod-gens appeals.</p> <p>.Constructive notice from the record, being dependent upon purely statutory provisions, it naturally follows' that such effect will not be given to any and every recorded instrument, but only to such as fall within the statute. If an instrument has not been executed or acknowledged in the manner provided by law, to entitle it to record, then its record will be a mere nullity and will not operate to give constructive notice. (Ency. of Law, vol. 24, p. 142; Ency. of Law, vol. 1, pp. 489, 490.) Without an acknowledgment, or with one that is defective, the record of the deed is unauthorized, and is not constructive notice. (Jones on Law of Beal Property, vol. 2, par. 1442; Parret v. Bhaubhut, 5 Minn. 323, 80 Am. Dec. 424; Reid v. Eleyensteuber et al. (Ariz.), 60 Pac. 879; Main v. Alexander, 9 Ark. 112, 47 Am. Dec. 732.)</p> <p>Where the use of the seal is required, an instrument purporting to be a mortgage, but not executed under seal, is not entitled to be recorded, and if it be copied in the records, it does not impart notice to subsequent purchasers or encumbrancers. (Jones on Conveyances, vol. 2, par. 1439; Recouillai v. Bansevain, 32 Cal. 376; Arthur v. Bcreven, 39 S. C. 77, 17 S. E. 640.) If a statute requires the officer taking the acknowledgment to certify the same under his seal, a certificate not under seal is not sufficient to- admit the deed to record, and the record of such deed is not notice of it. (Jones on Conveyances, vol. 2, p'. 329; Buell v. Irvin, 24 Mich. 150; Hayden v. Westcott, 11 Conn. 129; Hall v. Redson, 10 Mich. 23.) If there is anything whatever in the way of an acknowledgment attached to the mortgage in question, it is clearly and only the acknowledgment of John B. Bottego, a stranger to the title. (Threadgill v. Bicker staff, 7 Tex. Civ. App. 406, 26 S. W. 742.)</p> <p>The defect in the acknowledgment could not be corrected upon the trial of the case at bar by parol testimony, and it would be clearly an evasion of the law, relative to recording, to permit an acknowledgment to be shown by such testimony, after the rights of an innocent purchaser for value have attached. (Hayden v. Westcott, 11 Conn. 129; Ency. of Ev., vol. 1, p. 196.)</p> <p>The mortgage, the subject of the action, being recorded, gave constructive notice to the subsequent purchaser, the appellant here. (Civil Code, secs. 1640, 4667; Code of Civil Proc., sec. 3465.) Under the statutes of Montana pertaining to conveyances, no subscribing witnesses are required to a deed when the same is properly acknowledged. A deed may be entitled to record by proof of witnesses without acknowledgment. .When by either method it is once recorded, it is good notice to third parties. {Belle v. Meagher et al., 3 Mont. 65; approved in Middle Creek Ditch Co. v. Henry, 15 Mont. 579, 39 Pac. 1054.) One knows what he sees is the copy of an instrument purporting to have been made by the grantor to the grantee. Good faith requires that he shall prosecute further inquiry, and, if he negligently or willfully neglects to do so, he is held to have known all the facts to which that inquiry would have lei. {Woods v. Garnett, 72 Miss. 78, 16 South. 390.) Courts will refer to the body of an instrument to support a defective acknowledgment. {Frederick v. Wilcox, 119 Ala. 355, 72 Am. St. Pep. 925, 24 South. 582; Madden v. Floyd, 69 Ala. 221; Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513; Chandler v. Spear, 22 Yt. 388; Phillips v. Ruble, 16 Ky. 221; Wise v. Postlewait, 3 W. Ya. 452; Northwestern etc. H. Bank v. Rauch, 5 Idaho, 752, 51 Pac. 764, 765; Am. & Eng. Ency. of Law, vol. 1, 546; Carpenter v. Dexter, 8 Wall. 513; Nelson v. Graff, 44 Mich. 434, 6 N. W. 872; Chase v. Whiting, 30 Wis. 544; Owen v. Baker, 101 Mo. 407, 20 Am. St. Pep. 618, 14 S. W. 175; Gregory v. Kenyon, 34 Neb. 640, 52 N. W. 685; Brewster on Conveyancing, sec. 267.) Where words have been omitted by an evident clerical error, they may be supplied by intendment after an inspection of the certificate in connection with the deed. ' {Basshor v. Stewart, 54 Md. 376; Brewster on Conveyancing, see. 267; Magness v. Arnold, 31 Ark. 103; Sanford v. Bulkley, 30 Conn. 344; Milner v. Nelson, 86 Iowa, 452, 41 Am. St. Pep. 506, 53 N. W. 405; Picket v. Doe, 5 Smedes & M. 470, 43 Am. Dec. 523; Wilcoxson v. Osborn, 77 Mo. 621; Livingston v. Kettelle, 6 111. 116; Donahue v. Mills, 4tl Ark. 4:21; Belcher v. Weaver, 4:6 Tex. 293, 26 Am. Rep. 267; Schley v. Car Co., 120 H.S. 575,7 Sup. Ct. Rep. 730.) Where one word is inserted for another through clerical error, the certificate is sufficient. (Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937; Calumet & Chicago etc. Co. v. Bussell, 68 111. 4:26; Gorman v. Staunton, 5 Mo. App. 585; Durst v. Daugherty, 81 Tex. 650, 17 S. W. 388.)</p>

<p>Appealable Order — Dismissal of Appeal from a Justice’s Court — Failure to Demand Judgment — Dismissal of Case.</p> <p>Appeal from Justice’s Court — Dismissal—Nonappealable Order.</p> <p>1. An order sustaining a motion to dismiss an appeal from a justice’s court is not appealable. (Session Laws of 1899, p. 146.)</p> <p>Appeal from Justice’s Court — Failure to Demand Judgment — Dismissal of Case.</p> <p>2. Where more than six months had elapsed after an order made sustaining a motion to dismiss an appeal from a justice’s court, and respondent had neglected to demand and have entered a judgment in accordance with such ruling, as required by Code of Civil Procedure, section 1004, subdivision 6, it was error to deny a motion to dismiss the ease and to render judgment dismissing the appeal.</p>

<p>Appeal — Briefs—Dismissal—Action Against County — -Attorney General — Attorney of Record.</p> <p>Appeal — Briefs—Points Relied upon — Failure to State — Affirmance.</p> <p>1. Where the brief of the appellant fails to show on what he relies for a reversal of the judgment, and the applicability of the propositions discussed in the brief cannot be determined without an independent investigation by the supreme court, the case stands as if no brief had been filed, and the judgment will be affirmed.</p> <p>Attorney General — Attorney of Record — Transcript—Briefs—Service.</p> <p>2. The attorney general is by law (Political Code, section 460) the attorney of record in all causes pending in the supreme court to which a county may be a party, and as such he is entitled to be served with a copy of the transcript and brief.</p> <p>Actions Against Counties — Attorney General — Transcript—Briefs—Service — Dismissal.</p> <p>3. An appeal by plaintiff in an action against a county may be dismissed for failure to serve the attorney general with a copy of the transcript and appellant’s brief, and such dismissal, unless done with- ■„ out prejudice, will be in effect an affirmance of the judgment. (Code of Civil Proe., see. 1741.)</p>

<p>Prohibition — District Courts — Departments—Pules for Distribution of Business — Effect—Prejudice of Judge — Change of Venue — Application—Time—Probate Proceedings — Statutes.</p> <p>District Courts — Departments—Hules—Jurisdietion.</p> <p>1. The several departments of a district court, presided over by different judges, constitute but one court; and the assignment of any portion of the business, by virtue of its rules, to any department, still leaves it pending in the district court, and jurisdiction is not lost by the fact that it may theretofore have been pending in another department or before another judge.</p> <p>District Courts — Rules—Force and Effect.</p> <p>2. After the district court has adopted rules, under the limitations prescribed by Code of Civil Procedure, section 111, they have the force of statutes, and become binding upon it and litigants.</p> <p>District Courts — Rules—To be Enforced — When.</p> <p>3. Rules of district courts should be enforced, except when the court, for good cause shown, relaxes them in order that justice may be done.</p> <p>District Courts — Departments—Distribution of Business — Order Binding.</p> <p>4. After a district court, consisting of two or more departments, has distributed its business among the several departments by an order, concurred in by all the judges, such order should be held binding, even in the absence of rules, until revoked or modified by the authority that made it.</p> <p>Statutes — Fair Trial — Bias and Prejudice — Judges—Disqualification— Probate Proceedings.</p> <p>5. The provisions of section 180 of the Code of Civil Procedure, as amended by Act of 1903 (Laws 1903, Second Extra. Session, p. 9) ; declaring that no judge shall continue to preside in any action or proceeding after an affidavit of bias or prejudice on his part has been filed, are applicable to probate proceedings.</p> <p>What Constitutes a “Hearing.”</p> <p>6. A “hearing” includes the trial of the case, a hearing on a motion, or a hearing in a proceeding of any character.</p> <p>Action — Proceeding—What is Included in Terms.</p> <p>7. The words “action” and “proceeding” include all intermediate steps to be taken in an action or proceeding.</p> <p>Motion — Step in Case.</p> <p>8. A “motion” is but a step or proceeding in a case.</p> <p>Statutes — Fair Trial — Judges—Disqualification—Affidavit—When to be Filed.</p> <p>9. Under Code of Civil Procedure, section 180, as amended by Laws of 1903 (Second Extra. Session, page 9), providing that no judge shall act in any civil action or proceeding in which an affidavit of disqualification has been filed at any time before the day fixed for the trial or hearing, such affidavit is not effective to interrupt a hearing after the day fixed for it, no matter whether it be a final hearing or trial, or merely a step taken in the case involving a decision of some controverted matter.</p> <p>Statutes Open to Abuse — How to be Construed.</p> <p>10. Where a statute is open to much abuse, it will be strictly construed according to its express terms, and its provisions will not be broadened by implication so as to include conditions not clearly within them.</p> <p>District Courts — Referees—Findings and Recommendations — Setting Aside.</p> <p>11. Quaere May a trial court disregard the findings and recommendations of a referee, under an order of reference contemplating the report of a final decree settling an account in accordance with the findings of fact and conclusions of law of the referee?</p> <p>Prohibition — Judges—Disqualification—Fair Trial.</p> <p>12. Prohibition does not lie to stay a district judge from proceeding, further in the hearing of a motion made in a probate proceeding, where an affidavit of disqualification was not filed before' the day fixed for .the hearing of such motion. (Laws of 1903, Second Extra. Session, p. 9.)</p>

F. Smith, Judge. Suit by Obarles A. Lyncb against Fred Herrig and another. From a judgment for plaintiff, Herrig appeals.

Smith, Judge. S. O. Kent was convicted of violating an ordinance of the city of Helena, and he appeals from the judgment and from an order overruling a motion for a new trial. Mr. Justice Milburn, dissenting. Municipal corporations derive their powers from legislative grant.

<p>Chattel Mortgages — Requisites—Affidavit of Good Faith — Renewal — Effect of Affidavit.</p> <p>Chattel Mortgages — Statutory Requirements to be Strictly Followed.</p> <p>1. The statutory requirements intended to protect the lien of the mortgagee on the mortgaged property against attaching creditors must be strictly followed.</p> <p>Chattel Mortgages — Affidavit of Good Faith.</p> <p>2. A chattel mortgage of property left in the possession of the mortgagor is void as against attaching creditors, where it is not accompanied by the affidavit of the mortgagee, required by Civil Code, section 3861, that the same is made in good faith and without design to hinder, delay or defraud creditors.</p> <p>Chattel Mortgages — Proper Affidavit of Renewal will not Validate Void Mortgage.</p> <p>3. An affidavit of renewal of a chattel mortgage, filed under Civil Code, section 3866, stating the necessary facts, does not validate a mortgage which was originally void as to attaching creditors because of the absence of the affidavit of good faith required by section 3861 of the same Code, although such mortgage is good and valid between the parties to it.</p>

<p>Statutory Construction — Railways of Commerce — Street Railroads.</p> <p>Railways of Commerce — Street Railroads — Statutory Construction.</p> <p>1. Section 707, fifth division, Compiled Statutes of 1887, providing that a judgment against any railway corporation for an injury to person or property, or for material furnished to, or work or labor done upon the property of such corporation, shall be a lien prior and superior to the lien of any mortgage or trust deed, being a part of the Act of March 3, 1887, which treats exclusively of railways of commerce, has no application to street railroads.</p> <p>Statutory Construction — Intent of Legislature — Context—Object and Remedy.</p> <p>2. When the words of a statute are not explicit, the intention of the law-making body is to be collected from the context, from the occasion and necessity for it, from the mischief felt and the object and remedy in view.</p> <p>Statutory Construction — Doubt—How Resolved.</p> <p>3. Where doubt arises as to the true meaning of a term as used in a statute, that doubt must be resolved not merely by its popular definition, but from the general legislation respecting the same subject matter, having in mind the evident purpose to be accomplished by the legislation.</p>

H. Loud, Judge. Action by William Ettien against U. B. Drum. Erom an order denying him a new trial, defendant appealed. The title to the cattle in question passed to respondent when the brand was transferred to him by delivery of the bill of sale. The ownership of cattle running upon the common range is determined by the ownership of the brand.

<p>Master and Servant — Injuries to Servant — Vice-principal— Fellow-servants — Evidence — New Trial ■■— Statement — Specification of Errors — Headings—Insufficiency of Evidence.</p> <p>Appeal — New Trial — When Order Granting It will be Affirmed.</p> <p>1. Where an order granting a new trial is general, it will be affirmed if either of the grounds assigned in support thereof is sufficient.</p> <p>Appeal — New Trial — Specifications—Headings.</p> <p>2. While, in a statement on motion for new trial, specifications of error should be arranged separately under appropriate headings so as to avoid confusion and lessen the labor of re-examination in the trial and appellate courts, still such headings, or any headings, are not absolutely necessary to entitle the moving party to a hearing.</p> <p>Appeal — Action for Injuries — New Trial — Specifications.</p> <p>3. All the errors specified in a statement on a motion for a new trial, in an action to recover damages for personal injuries, were under the heading, “Specifications of Errors Occurring at Said Trial.” The first specification was that there was no evidence that the defendant, or any officer thereof, failed to provide suitable appliances, or provided unsafe apparatus, so as to cause the injury alleged in the complaint, nor was there any evidence that a certain witness was other than plaintiff’s fellow-servant, etc. Then followed three other assignments questioning the sufficiency of the evidence, followed by others directed at the instructions. Held, that the first four specifications of error were not fatally defective, in that they were designated by the title as errors occurring at the trial, while in fact they were assignments of particulars wherein the evidence was insufficient to sustain a finding, as provided by Code of Civil Procedure, section 1173.</p> <p>Appeal — Action for Injuries — New Trial' — Statement.</p> <p>4. Where, in an action for injuries to a servant, the principal controversy was whether defendant was guilty of any negligence in providing suitable appliances, and its liability rested on the question whether A was a fellow-servant or was acting for the defendant as a vice-principal, a specification of error in the statement for new trial that there was no evidence that A was an officer of defendant, that he stood in any other relation than that of fellow-servant to plaintiff, or that defendant was in any wise bound by his conduct in making an alleged change of a rope and snatch-block attached to the hoisting apparatus, the breaking of which caused the injury, sufficiently pointed out wherein the evidence ivas insufficient, as required by Code of Civil Procedure, section 1173.</p> <p>Action for Injuries — Evidence—Negligence—Eellow-servant.</p> <p>5. In an action for injuries to a servant, evidence held insufficient to show that A, by whose alleged negligence plaintiff was injured, was acting for the defendant as a vice-principal, and not as plaintiff’s fellow-servant.</p> <p>Appeal — Request for Additional Instructions.</p> <p>6. Where the instructions of the court fairly cover the case, and are correct, the judgment will not be reversed because all the phases of the case are not covered by them, where no additional instructions covering the particular point are requested.</p>

F. Smith, 'Judge. Action by W. J. Adlam and another, copartners as Adlam & Thompson, against J. W. McKnight. Judgment for plaintiffs. Defendant appeals from the judgment and an order denying his motion for a new trial.

Action by Miles Finlen against F. Augustus Heinze and others. From an adverse decree on a counterclaim and from an order overruling his motion for a new trial, plaintiff appeals. Mr. Chief Justice Brantly dissenting. The facts are too indefinite to justify specific performance. In all cases of specific performance, the evidence must be clear, conclusive, and satisfactory.

Original application for writ of prohibition by the state, on the relation of E. Augustus Heinze, against the district court of the second judicial district, in and for the county of Silver Bow, and George M. Bourquin, a judge thereof. Mr. Justice Holloway dissents.

<p>Mines and Mining — Adverse Claims — Suits to Determine— affect of Judgment — Parties.</p> <p>Mines — Adverse Suits — Government not Party — Effect of Judgment.</p> <p>1. Under Revised Statutes of the United States, section 2326, the government is not a party to a suit to determine an adverse claim, except in so far as it has agreed to accept the judgment therein rendered as conclusive of the right of possession as between the contending claimants; and such judgment is not conclusive on a subsequent patentee from the government of land embraced therein, who was not a party, or privy to a party, to the suit in which the judgment was rendered.</p> <p>Public Lands — Action Against Government.</p> <p>2. One may not have his right to public land, as against the government, determined by the courts in an action against the government.</p> <p>Public Lands — Mining Claims — Adverse Suits — Effect of Judgment.</p> <p>3. The adjudication in a state court in an adverse suit is not conclusive of the prevailing party’s right to the property in controversy as against the government, nor sufficient to devest the government of the title; neither is it of itself sufficient to entitle the prevailing party to a patent.</p>

<p>Appeal from District Court, Flathead County; D. F. Smith, Judge.</p> <p>Action by J. D. Farrell against the Gold Flint Mining Company. From an order granting a new trial, defendant appeals.</p>

<p>Receivers — Ex parte Appointment — Existence of Exigency — • Burden of Proof — Mode of Showing — Verified Complaint..</p> <p>Accounting — Complaint—Injunction—Deceivers.</p> <p>1. Obiter: Where the complaint in an action for an accounting fails to state a cause of action, the ancillary relief of injunction or the' appointment of a receiver will be denied. ,</p> <p>Receivers — Appointment—Exigency—Burden of Proof — Appeal—Record.</p> <p>2. Under Code of Civil Procedure, section 951, authorizing the ex parte appointment of a receiver only when there is immediate danger of the removal, loss, or destruction of the property or fund, the burden is on the applicant to show that such an exigency exists as to authorize the appointment ex parte and when the ease is brought before a court of review, such showing must affirmatively appear from the record.</p> <p>Receivers — Complaint—Verification.</p> <p>3. An ex parte order appointing a receiver cannot be based on the complaint alone, unless it satisfies the requirements of an evidential affidavit by a verification on affiant’s own personal knowledge. A verification upon “knowledge, information and belief” is insufficient.</p> <p>Receivers — Appointment—Emergency.</p> <p>4. The appointment of a receiver is an extraordinary remedy, to be resorted to only in cases of emergency.</p>

Smith, Judge. Action by tbe Missouri River Power Company, a corporation, against W. L. Steele, treasurer of Lewis and Clark county. Prom an order granting plaintiff’s application for an injunction pendente lite, defendant appeals. The tax is illegal and not authorized by law. Section 3698, Political Code of Montana, is unconstitutional, and all proceedings thereunder are unlawful.

R. G. Stewart, Judge. A. 0. Jones was convicted of rape, and appeals. Statement oe the Case, bt the Justice Delivering the Opinion. Defendant was convicted of the crime of rape, and appeals from the judgment and the order of the district court refusing his motion for a new trial.

Action by William Cornisb against William W. Woolverton and others. From a judgment for plaintiff, defendants appeal. The paper in snit is non-negotiable because it provides that if not paid when due, both principal and interest shall bear an increased rate of interest. (Stadler v. Bank, 22 Mont. 190, 200-206, 74 Am. St. Rep. 582, 56 Pac.

W. Harney, Judge. Action by tbe Montana Ore Purchasing Company against James Maher, county treasurer of Silver Bow county. Prom a judgment in favor of plaintiff, defendant appeals.

<p>Filing and, Serving Briefs — Attorney General — Rules—Record — A Iteration — Dismissal.</p> <p>Rules — Supreme Court — Filing Briefs.</p> <p>1. Supreme Court Rule X, subdivision 5 (30 Mont, xxxix), which provides that where an appellant is in default in filing his brief the case may be dismissed on motion, will not be relaxed where counsel was not prevented from observing it by press of other professional duties, or interruptions caused by illness or the like.</p> <p>Practice — Record on Appeal — Alteration Without Order of Court — Dismissal.</p> <p>'2. ■ Where counsel for appellant was allowed by the clerk of the supreme court to take the record from his office, and thereafter the record was rearranged in certain particulars, and changes made by incorporating in it a certificate of the trial judge settling the bill of exceptions and the notice of appeal, and by adding an entirely, new certificate of the clerk of the district court, bearing date a month later than the supreme court file-marks, the appeal will be dismissed, though counsel, after notice of motion to dismiss, filed a suggestion of diminution of the record and asked for an order directing the clerk of the district court to correct the defects and supply the omissions, theretofore attempted to be done without such order.</p>

W. Harney, Judge. Action by Samuel Ayotte against Peter Nadeau. Prom an order denying a new trial, defendant appeals. Statement of the Case, by the Justice Delivering the Opinion.

<p>Personal Injuries — Compulsory Physical Examination — Physicians and Burgeons — Witnesses—Privileged Communications — Waiver of Privilege.</p> <p>.Personal Injuries — Compulsory Physical Examination — Physicians and Surgeons.</p> <p>1. In an action lor personal injuries, the district court, in the absence of legislation, may not compel the plaintiff to submit to a physical examination by physicians and surgeons appointed by the court.</p> <p>Witnesses — Privileged Communications — Physicians—Waiver of Privilege.</p> <p>2. Under Code of Civil Procedure, section 3163, providing that a licensed physician or surgeon, without his patient’s consent, cannot be examined in a civil action as to any information acquired in attending the patient which was necessary to enable Mm to prescribe, where plaintiff on cross-examination admitted that a certain physician had attended and treated her for the injuries complained of, without detailing any conversation with Mm or telling of the character or extent of Ms treatment, it was proper to refuse to permit defendant to examine the physician as to plaintiff’s condition at the time he attended her.</p>

<p>Water Bights — Appurtenances — Conveyance — Parol Contract — Specific Performance — Probate Courts — Jurisdiction — Presumptions — Homestead — Apportionment—Public Use of Water — Adverse Use.</p> <p>Probate Courts — Homestead—Apportionment—Petition.</p> <p>1. Where a homestead was set apart to a widow by the probate court, under Compiled Statutes 1887, Second Division, sections 134, 137, it was immaterial whether it acted on petition or on its own motion.</p> <p>Homestead — Apportionment—Conveyance—Appurtenances—Water Eights.</p> <p>2. Where a homestead was set apart to a widow by the probate court, under Compiled Statutes 1887, Second Division, sections 134, 137, she had a right to convey the same, and her grantee became vested with the fee and such conveyance vested him with -whatever right she had to the use of water appurtenant thereto, together with the means of using same.</p> <p>Deeds — Water Eights — Appurtenances.—-Extrinsic Evidence.</p> <p>3. Where a deed to certain land does not specify the particular appurtenant water right alleged to have been conveyed by it, extrinsic evidence may be resorted to to establish such right.</p> <p>Probate Courts — Conveyances—Executors—Parol Contracts — Specific Performance — Statutes.</p> <p>4. Query: Under the provisions of the Organic Act, could the legislature by Compiled Statutes, Second Division, section 230, clothe probate courts with jurisdiction to direct specific performance of a parol contract, by which decedent in his lifetime agreed to convey certain water rights to his wife?</p> <p>Probate Courts — Jurisdiction.</p> <p>5. Probate courts, or district courts sitting in probate, have but a special and limited jurisdiction, and their powers are such as are expressly granted by the statute, or necessarily implied to give .effect to those expressly granted.</p> <p>Probate Courts — Administrators—Specific Performance — Presumptions.</p> <p>6. Where a petition, filed by an administrator, under Compiled Statutes, Second Division, section 236, to enforce a contract by deceased to convey certain water rights, did not show on its face that the contract was in writing, but rather implied the contrary, it could not be presumed, in support of the probate court’s decree enforcing specific performance, that the contract was in writing, and that the court, therefore, had jurisdiction to enforce the same.</p> <p>Probate Courts — Specific Performance — Void Decree — Curative Acts.</p> <p>7. Where a decree of a probate court for specific performance of a contract by decedent in his lifetime to convey certain water rights to Ms wife was void for want of jurisdiction in the court at the time of its rendition, it was not validated by Session Laws 1899, p. 145, subsequently passed, to validate judicial sales by executors and administrators, etc.</p> <p>Water Eights — Tenants in Common — Interest of Each — How Measured.</p> <p>8. Where parties acquired certain land in separate parcels from the owners of a water right appurtenant to the land, they each became vested with an interest in the water measured in amount by the requirements of each, whether they were tenants in common or not.</p> <p>Water Eights — -What may Constitute an Original Appropriation.</p> <p>9. Where the owner of certain land had used water from a main irrigation ditch through a lateral from the date it was decreed toller by the probate court, such use constituted an original appropriation, though such decree was void for want of jurisdiction.</p> <p>Water Eights — Evidence—Adverse Use.</p> <p>10. In a suit to determine water rights sf the owners of certain land, evidence held insufficient to support a finding that plaintiff had acquired a right to the use of all of the waters of the stream by adverse use since 1888.</p> <p>Eeal Estate — Prescription—Adverse Use.</p> <p>11. A right by prescription against the owner of real estate may be acquired only by an open, notorious, exclusive and adverse holding, under a claim of right during the full statutory period — -the-use must be such as to constitute an invasion of a right which the owner may at any time assert, but fails to exercise until the full statutory period has passed.</p> <p>Waters — Public Use — Manner of Use.</p> <p>12. The use of the waters in streams being declared by tne Constitution, Article III, section 15, to be a public use, every citizen is entitled to divert and use them so long as he does not infringe the rights of some other citizen who has acquired a prior right by appropriation, on condition that he restore the waters to the channel of the stream on the cessation of his necessity.</p> <p>Waters — Adverse Use — Prescription.</p> <p>13. If a use of water becomes and continues adverse and exclusive-for the full period described by the statute, and the owner suffers the-consequent deprivation, such use ripens into a right by prescription.</p>

W. Harney, Judge. Action by Thomas F. Brazell against Louis S. Oohn and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant Cohn appeals. The court erred in overruling the objection that the complaint did not state facts sufficient to constitute a cause of action, in that the assignee of the contract never duly or at all performed the obligations in the said contract on him binding.

<p>Claim and Delivery — Pleadings—Complaint—Sufficiency— Presumptions — Verdict — Findings — Judgment — Description of Property.</p> <p>Claim and Delivery — Pleadings—Sufficiency of Complaint.</p> <p>1. A complaint alleging that defendant at divers times prior to and’ within one year before a certain date wrongfully and without plaintiff’s consent took certain cattle from his possession; “that on the-10th day of March, 1902, plaintiff was, ever since has been, and now is the owner of the following described cattle * * * of the value of $1,200”; that before the commencement of the action on March 10,. 1902, plaintiff demanded of defendant possession of the cattle; and that defendant still unlawfully withholds them from plaintiff’s possession — was good as against a general demurrer.</p> <p>Appeal — Presumptions—Evidence—Support of Verdict.</p> <p>2. On appeal from a judgment in claim and delivery for cattle converted by defendant, the court must presume, in the absence of the-evidence, that such evidence supported the verdict, which found that plaintiff was the owner of only part of the cattle claimed, and placed a value upon the part, averaging more per head than the sum claimed for all averaged per head.</p> <p>Claim and Delivery — Verdict—Implied Findings.</p> <p>3. A general verdict for plaintiff in claim and delivery implies a. finding on each material issue, and it is not necessary that there be an express finding that the plaintiff was the owner or entitled to the possessioh of the property at the time of the commencement of the action.</p> <p>Claim and Delivery — Judgment—Description of Property — Sufficiency.</p> <p>4. In an action for claim and delivery, the jury found hy general verdict that plaintiff “is the owner and entitled to the possession of the following described animals: Twenty-sis steers branded-]-] on the left side, and fish or dove tail earmarks; * * * ten heifers, branded •]]- on the left side, and fish or dove tail earmarks. * * *” The-judgment ordered that plaintiff have and recover the property described in the verdict. Held, that the judgment was not so vague and uncertain in the description of the property as to render it impossible to identify the animals and enable defendant to make a return thereof.</p>

K. Cheadle, Judge. Action by J. L. Mears, as trustee of the Deerfield Mercantile Company, a bankrupt, against Thomas M. Shaw, sheriff of Fergus county. From a judgment for plaintiff, and from an -order denying a new trial, defendant appeals.

Original application for a writ of supervisory control by the state, on the relation of F. Augustus Heinze, against the district court of the second judicial district and George M. Bourquin, a judge thereof.

W. Harney, Judge. Action by Dora Osmers against James B. Durey, J. H. Steele and others. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial.

Original application for writ of review by tbe state, on the relation of W. B. Jenkins, against the district court of the second judicial district and Hon. John B. McClernan, judge, to set aside an order changing the place of trial.

Original application for writ of mandate directed to John W. Tattan,' judge of the district court of Valley county, commanding said judge to enter petitioner Herron’s name as counsel for one Malcolm charged with the crime of murder.

<p>Appeal from District Court, Silver Bow County; E. W. Harney, Judge.</p>