Volume 33 — Montana Reports

K. Cheadle, Judge. Action by George Pirrie against P. I. Moule and others. Prom . a final judgment in favor of plaintiff, and from an order denying a new trial, and from a special order after judgment, overruling exceptions filed by defendant Moule to the findings of fact and conclusions of law made by the court, he appeals.

<p>Mechanics’ Liens — Verification—Invalid Lien — Personal Judgment.</p> <p>Mechanics ’ Liens — Verification—Insufficiency.</p> <p>1. A verification, attached to a mechanic’s lien (section 2131, Code of Civil Procedure, as amended by Laws 1901, p. 162), and executed by the president of a corporation in its behalf, stating “that the matters and things therein stated are true, to the best of his knowledge, information and belief,” is not an affidavit and therefore insufficient for the purpose intended.</p> <p>Mechanics’ Liens — Invalid Lien — Personal Judgment.</p> <p>2. A party seeking to foreclose a mechanic’s lien may have a personal judgment in the same action against the person liable for the materials furnished and the work and labor done, though he fails to establish his lien.</p>

<p>Contracts — Construction—Supply of Water Power.</p> <p>1. ■ A contract bound plaintiff to deliver to defendant power as follows: “Dor the first five years, 5,000 horse-powers free of charge; for the second five years, 5,000 horse-powers at the annual rate of $2.50 per horse-power; and thenceforth 5,000 horse-powers at the annual rate of $5.00 per horse-power, or so much thereof as [defendant] shall consume. It is understood that if [defendant] desires further power, and the same is not being used, [plaintiff] will furnish it for the first ten years at the annual rate of $2.50 per horse-power, and thereafter at the annual rate of $5.00 per horsepower.” Ééld, that the “first ten years” used in the stipulation for extra power ran concurrently with the five-year periods for which the power rate was fixed; and their commencement was not postponed until defendant should commence using extra power, but at the expiration of ten years from the date when power was first furnished under the contract defendant was bound to pay the $5 rate for all power used by it, whether in excess of five thousand horse-powers or not.</p>

<p> Appeal from District Court, Meagher County; W. B. C. Stewart, Judge. ° </p> <p>Action by Ed. Sayre against David Johnson. From a judgment in favor of plaintiff, and from an order denying Ms motion for a new trial, defendant appeals.</p> <p>The corpus of water is not susceptible of ownership in Montana; all that an appropriator or his successor in interest can own, hold or sell is merely a usufructuary interest in the water, i. e., a right to its beneficial use, and no more. There is no proprietorship in the water. (Long on Irrigation, sec. 9. See, also, Vernon Irr. Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. R. A. 390.)</p> <p>The doctrine is established beyond dispute that a water right may be sold and transferred separately from the land for which it was appropriated; that the owner may change the place of diversion, if others are not thereby injured, and that the water may be used for purposes other than those for which it was appropriated. (17 Am. & Eng. Ency. of Law, 517; Middle Creek Bitch Co. v. Henry, 15 Mont. 558, 39 Pac. 1054; Smith v. Benniff, 24 Mont. 20, 30, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741.)</p>

<p>Forcible Entry — Complaint—Sufficiency—Nature of Action— Evidence — Variance—Self-serving Declarations — Defenses— Counterclaim — Appeal—Pleadings—Theory of Case.</p> <p>Forcible Entry — Pleadings—Sufficiency—Appeal—Theory of Case.</p> <p>1. Where the ease was tried on the theory that the complaint stated a cause of action for a forcible entry under Code of Civil Procedure, section 2080, without objection by either party, its sufficiency will be determined on this theory on appeal, although it contains some allegations more appropriate to an action in ejectment.</p> <p>Forcible Entry — Complaint—Sufficiency.</p> <p>2. A complaint alleging that plaintiff was in possession of certain described lands, engaged in cultivating them as a homestead settlement, and that defendant forcibly and without right entered thereon and by force and arms ejected plaintiff therefrom, states a cause of action for a forcible entry under Code of Civil Procedure, section 2080, subdivision 1.</p> <p>Forcible Entry — Neither Title nor Eight of Possession Issuable.</p> <p>3. In an action for forcible entry under Code of Civil Procedure, section 2080, neither the title nor the right to the possession of land may be made matters of investigation.</p> <p>Forcible Entry — Evidence.</p> <p>4. In an action under Code of Civil Procedure, section 2080, subdivision 1, for a forcible entry, evidence held insufficient to show that the entry was by violence.</p> <p>Forcible Entry — Pleadings—Proof—Variance.</p> <p>5. Where, in an action under Code of Civil Procedure, section 2080, subdivision 1, for a forcible entry, the evidence showed a peaceable entry, and a subsequent forcible turning out of plaintiff, which conduct is made a forcible entry by subdivision 2 of said section, the variance was such as to constitute a failure of proof, within section 772 of the same code, providing that when the allegation of the claim to which the proof is directed, is unproved in its general scope and meaning, it shall be regarded as a failure of proof.</p> <p>Forcible Entry — Evidence of Title — Materiality.</p> <p>6. In an action for forcible entry, evidence that before the entry plaintiff pointed out to witness the land in dispute, as part of a tract he intended to take as a homestead, tending to show a claim of homestead right merely, that is, inchoate title to the land in question, was immaterial, since the question of title could not become a material issue.</p> <p>Forcible Entry — Evidence—Self-serving Declarations.</p> <p>7. In an action for forcible entry, evidence in behalf of plaintiff, that before the act complained of, plaintiff stated that he claimed one hundred and sixty aeres, pointed out to witness the land he desired to take, and that the land pointed out was that in dispute, was incompetent, the statements so made to witness having been self-serving declarations.</p> <p>Foeible Entry — Abandonment.</p> <p>8. In an action for forcible entry, abandonment of the land by plaintiff subsequent to the wrong, furnishes no justification of the act complained of; neither is abandonment a pertinent inquiry in such an aetion.</p> <p>Forcible Entry — Findings—Verdict.</p> <p>9. Where, in an aetion for a forcible entry on certain land, the evidence showed that only part of the land was in dispute, a verdict to the effect that the jury found for plaintiff, and that he was entitled to possession of the land shown by the evidence to be in dispute, would, if the irrelevant finding as to right of possession were stricken out, allow a judgment for restitution of land not in controversy, and was ■ erroneous.</p> <p>Forcible Entry — Defense—Acts of Plaintiff After Entry.</p> <p>10. In an aetion for forcible entry, acts of plaintiff subsequent to the entry are no defense.</p> <p>Forcible Entry — Counterclaims.</p> <p>11. Under Code of Civil Procedure, sections 690-692, providing for counterclaims, a counterclaim for money in an aetion for a forcible entry cannot be availed of.</p>

W. Harney, Judge. * Action by J. W. Marshall against J. H. Trerise and ánother. From a judgment in favor of plaintiff and from an order denying his motion for a new trial, defendant Trerise appeals.

<p>Taxation — Livestock — Situs — Statutes—Amendment—Repeal.</p> <p>Corporations — Livestock—Where Assessable.</p> <p>1. Held, that where a corporation, engaged in the livestock business, grazed its cattle in T. county in which county the corporate headquarters were maintained, where its real estate was situate, and where its business manager and foreman resided, caused a large number of its livestock to be driven into L. & C. county to be winter-fed, with the intention of having it returned to the former county in the following spring, the situs of such livestock for the purposes of taxation —its home — was in the former county, and not in the latter — its temporary abode.</p> <p>Livestock — Assessment—Statutes—Amendment—Repeal.</p> <p>2. Under the provisions of section 5163, Political Code, section 3720 of the same Code, relating to the assessment of livestock, was not repealed by section 3943 as amended (Laws 1903, p. 225), the former section being part of Chapter III, Title X, treating of assessment of property generally, and the latter, part of Chapter IX, of the same Title, having to do with the collection of taxes on certain personal property.</p>

<p> Appeal from, District Court, Beaverhead Countyj M. PL. Parker, Judge. </p> <p>Action by S. M. McKnight against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from District Court, Beaverhead County; M. M. Barker, Judge. </p> <p>Action by David E. Metlen against the Oregon Short Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Clancy, Judge. Action by Edward Hickey and others against the Anaconda Copper Mining Company and another. From a judgment in favor of plaintiffs, and from an order denying them a new trial, defendants appeal. It is held by all modem decisions and text-writers that the Statute giving the right to extralateral pursuit of a vein should be liberally construed and upheld whenever possible.

Smith, Judge. Petition by William B. Pomeroy to determine his heirship to Thomas M. Pomeroy, deceased, and for an order directing a fund escheated to the state, and in the hands of the state treasurer, to be paid to petitioner. From an order granting the relief prayed for, ,the state appeals.

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p> <p>Action by Frank Coombs and others against David L. S. Barker and others. From an order annulling an execution on a judgment in favor of plaintiffs, they appeal.</p> <p>The original decree or judgment herein was entered July 18, 1903. Inter alia it included a money judgment against the moving defendants for $64,411.32 and $105 costs of suit.. On the same day, July 18, 1903, an execution was sued out by plaintiffs and levied on the property in question. On October 26, 1903, the court granted defendants’ motion for new trial so far as the said judgment for $64,411.32 was concerned. But on the same day, on plaintiffs’ motion, by a supplemental order, continued in force the levy which had been made under said execution “until the further order of the court.” On October 30, 1903, plaintiffs perfected an appeal from said order granting defendants a new trial. On November 10, 1903, defendants perfected an appeal from so much of the order of October 26th as denied their motion for new trial and from the judgment of July 18th as modified October 26th, and gave the usual undertaking on appeal for $300 and also for $210, being double the amount named in the judgment as so modified.</p> <p>The granting of the new trial had the effect to vacate the judgment of July 18, 1903, and to leave the case as though it had never been tried, so far as the money judgment therein is concerned. “Granting a new trial has the effect of vacating the judgment as well as the verdict; for the judgment rests upon the verdict and must fall with it.” (Hayne on New Trial and Appeal, see. 167, p. 498; Thompson v. Smith, 28 Cal. 534; Worden v. Murdock, 23 Cal. 549, 83 Am. Dec. 135; Martin v. Malfield, 49 Cal. 45.) “And therefore an appeal cannot be taken from the judgment after a motion for new trial has been granted.” (Hayne on New Trial and Appeal, sec. 167; Kower v. Gluck, 36 Cal. 407. See, also, Knowles v. Thompson, 133 Cal. 245, 65 Pac. 468; 14 Ency. of PI. & Pr., p. 935, and cases in note 8; Kower v. Gluck, 33 Cal. 407; Wheeler v. Kassabaum, 76 Cal. 90, 18 Pac. 120; Thompson v. Smith, 28 Cal. 524, 528; Estate of Crozier, 65 Cal. 333, 4 Pae. 109.) “When a judgment is properly set aside the execution thereon issued falls with it, without a motion to quash.” (Ballard.v. Whitlock (Va. 1868), 18 Gratt. 235; 21 American Century Digest, col. 305, see. 30 (h).)</p> <p>The case presented is, by analogy, the same as when a receiver has been appointed. The taking possession by such receiver is an equitable levy; the property is thereafter in custodia legis. .So with an execution levy the property levied upon is also in custodia legis. In the case of property so taken possession of by a receiver the rule is universal that upon perfecting an appeal drawing in question the validity of the receiver’s appointment, the receiver must restore to the defendant possession of all property received by him as receiver. (See Havemeyer v. Stiperior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 24 Pac. 136-140; People’s Cemetery Co. v. Oakland Cemetery Co., 24 Tex. Civ. App. 668, 60 S. W. 679; State v. Hirzel, Judge, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961; Farmers’ Nat. Bank v. Backus, 63 Minn. 115, 65 N. W. 255; Buckley v. George, 71 Miss. 580, 15 South. 46; Insurance Co. v. Hotel Co., 37 Wis. 125.) There is no authority under the law to retain the possession of the property levied on by giving the undertaking, had in this case. Such undertaking is not pursuant to any statutory authority, and is no defense to defendants’ demand for a restoration of their property.</p> <p>Where the court has improperly made an order directing an execution to issue, or, in this case, to keep the execution levy in force, it may on motion recall the execution, or rescind the order referred to, even though the order itself might be appeal-able, as one made after final judgment. (Buell v. Buell, 92 Cal. 393, 28 Pae. 443, which reaffirms the same principle announced in Borland v. Hanson, 81 Cal. 202, 15 Am. St. Rep. 44, 22 Pac. 552.)</p> <p>We must conclude, then, that the supplemental order of October 26, 1903, continuing in force the levy, was and is in excess of the court’s jurisdiction, and should be annulled.</p> <p>If this case is not one within the provisions named in section 1730 of the Code of Civil Procedure, the giving of the cost bond had the effect of staying all proceedings. Section 1733 of our Code is the same as section 949 of the California Code. That section has been construed in several cases in the supreme court of that state, and it invariably held that giving the cost bond stays all proceedings. (Painter v. Painter, 98 Cal. 625, 33 Pac. 483; Born v. Horstman, 80 Cal. 452, 22 Pae. 169; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383; Johnson v. Power, 93 Cal. 266, 28 Pac. 1070; McCallion v. Hibernia Soc., 98 Cal. 442, 33 Pac. 329; Anderson v. Anderson, 123 Cal. 445, 56 Pae. 61; Pennie v. Superior Court, 89 Cal. 31, 26 Pac. 617; Snow v. Holmes, 64 Cal. 232, 30 Pac. 806; Estate of Schedel, 69 Cal. 241, 10 Pac. • 334.) Hence, the proceedings are fully and effectually stayed, and the execution left in full force. The rights of the parties were preserved, and remain in the same condition- as they were at the time the motion for a new trial was granted, and the appeals taken therefrom. (Pierce v. Birlcholm, 110 Cal. 671, 43 Pae. 205; Henry v. Merguir e, 111 Cal. 2, 43 Pac. 387; Mountain etc. Go. v. Bryan, 111 Cal. 38, 43 Pac. 410; Storke v. Storke, 116 Cal. 55, 47 Pac. 869, 48 Pac. 121; Etchas v. Orena, 121 Cal. 272, 53 Pae. 798.)</p> <p>The court did not have jurisdiction or authority to release the levy. (Ex parte Oxford, 102 Cal. 656, 36 Pac. 928; Buggies v. Superior Court, 103 Cal. 125, 37 Pac. 211; Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605; Pennie v. Superior Court, 89 Cal. 31, 26 Pac. 617; Peycke v. Keefe, 114 Cal. 212, 46 Pac. 78; Owen v. Pomona etc. Co., 124 Cal. 331, 57 Pae. 71; Ford v. Thompson, 19 Cal. 119; Whifbeck v. Montana Cent. By. Co., 21 Mont. 102, 52 Pac. 1098. See cases collated in 2 Century Digest, 2559.) The plaintiffs acquired a lien on the property by their levy. The property was in the hands of the sheriff, and held by him as security. If the order granting a new trial should be reversed, the sheriff may then proceed to sell the property, under writ of venditioni exponas or an alias writ. (Freeman on Executions, secs. 32, 206, 271.) A stay of execution made by the court does not affect the lien of the levy. (Freeman on Executions, sec. 206; Bain v. Lyle, 68 Pa. St. 60; Bond v. Willett, 31 N. T. 102; Batdorf v. Focht, 44 Pa. St. 195; Dryer v. Graham, 58 Ala. 623; Griffin v. Wallace, 66 Ind. 410; Keel v. Darken, 72 Ala. 493; Duer v. Morrell, 20 111. App. 355.)</p>

<p> Appeal from District Court, Silver Bow County; Wm. Clancy, Judge. </p> <p>Action by George E. Doll against tbe Hennessy Mercantile Company. From a judgment for plaintiff and from an order denying it a new trial, defendant appeals.</p> <p>It is useless to discuss wbat tbe authority of one partner is or may have been at common law. The statute, if it means anything, is the absolute rule of law with reference to the matter. It supplants, according to the provision of the Code itself, the common-law doctrine. It renders one copartner as absolutely powerless to sell all, or that portion of the partners’ property which will render it impossible for the partnership to continue in business, as a third person or a stranger. Whether he act for himself or assume to act for the partnership, his act of claimed conveyance or sale does not, and cannot in the face of the statute, convey any title to the party who receives the property.</p> <p>The alleged sale was unwarranted, and under none of the authorities before the statute could the appellant claim to have succeeded to anything except the interest of Fleming, but, under our statute, it could not succeed as to that. It is in no position to say that it acquired any right whatever. It is in no position to say that this action should be maintained for an accounting, and that Fleming should be a party hereto, for, although it says so, had the action been brought in such a way it would have had the undoubted right to defeat it. This was recognized by this court in Waite v. Vinson, 14 Mont. 405, 415, 36 Pae. 828.</p> <p>It cannot be that the appellant can complain that the action should be to set aside the sale. The principle of caveat emptor applies. If I bring an action to set aside a sale made by a party not authorized by me to make it, and whom the law prohibits from making it, I am not to be estopped because I do not offer to return the money paid. The appellant in this case acted with knowledge and acted at its peril.</p> <p>The fact that this action is against a third party, and is not an action for accounting between the members of the partnership, shows that that was neither necessary nor proper. The fact that the plaintiff is only suing for one-half of the value of the property, to which he is admittedly, by the testimony, entitled, renders it unnecessary to discuss the question of bringing the action in the name of the firm, or joining Fleming as a party plaintiff. In support of the correctness of our position we call attention to the statute and to Steinhart v. Fyrhie, 5 Mont. 463, 473, 6 Pac. 367; Carrie v. Cloverdale etc. Co., 90 Cal. 84, 27 Pac. 58, and Coleman v. DarUng, 66 Wis. 155, 57 Am. Rep. 253, 28 N. W. 367.</p> <p>This interest which the appellant purchased was not a determined interest, not a divided interest, nor an undivided interest, but it was a determinable interest, to be determined only by an accounting and settlement of the partnership business and affairs. In order to determine the share of Fleming or Doll, and consequently the share of the appellant and respondent in this property, it became necessary to determine the original contribution of each partner, and the fact whether there was a profit or loss, and if so, how much. And in order to do this, it was necessary to form a complaint upon this theory, and to make the other partner a party plaintiff, if willing to be joined as such; if not, he should be made a defendant with appellant. (Cuyamaca Granite Co. v. Pacific Paving Co., 95 Cal. 252, 30 Pac. 525.)</p> <p>One partner cannot maintain an action against a third person. (Sindelare v. Walker, 137 111. 43, 31 Am. St. Rep. 353, 27 N. E. 59.) One partner cannot sue for Ms own share. (.Biglow v. Reynolds, 68 Mich. 344, 36 N. W- 95. See Williams v. Lewis, 115 Inch 45, 7 Am. St. Rep. 403, 17 N. E. 262.) One partner cannot maintain suit in replevin or trover against a partner; no more can one maintain such an action against a partner’s assignee or transferee. (Pomeroy on Remedies and Remedial Rights, 2d ed., pp. 266-268, 270.) A single partner cannot demand a part of the assets. (George on Partnership, pp. 152, 301; Parsons on Contracts, 4th ed., p. 260, sec. 249.) A partner’s right to partnership property is an ownership of all the assets of the firm, subject to the ownership of every other partner, all of the partners holding all of the property subject to the partnership debts. (Parsons on Partnership, 350.) It is clear, therefore, that the individual interest of one partner can only be ascertained by a settlement of the partnership. (.Bopp v. Fox, 63 111. 540; Chandler v. Lincoln, 52 111. 74; Menagh v. Whitehall, 52 N. Y. 146, 11 Am. Rep. 683.) Until plaintiffs’ actual interest had been determined, there can be no ascertainment of his damage. (Buckmaster v. Gowen, 81 111. 153; Sweet v. Morrison, 103 N. Y. 235, 8 N. E. 396.)</p> <p>Where one partner transfers property of the firm, thereby defrauding his copartner, the defrauded partner cannot maintain an action at law to recover either the property or its value. (Miller v. Price, 20 Wis. 117; Craig v. Hulschizer, 34 N. J. L. 363; Fenton v. Block, 10 Mo. App. 536; Reed v. Gould, 105 Mich. 368, 55 Am. St. Rep. 353, 63 N. W. 415; Halstead v. Shepard, 23 Ala. 558; George on Partnership, 391; Homer v. Wood, 11 Cush. 62; Farley v. Lovell, 103 Mass. 387; Weaver v. Rodgers, 44 N. H. 112; Grover v. Smith, [approving Homer v. Wood], 165 Mass. 132, 52 Am. St. Rep. 506, 42 N. E. 555.)</p>

M. Clements, Judge. Action by tbe Capital Lumber Company against John C. Barth and Louisa Schwegler. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. If the defendant Schwegler is entitled to a new trial, can the court grant the motion as to her and refuse it as to the defendant Barth? We submit that it cannot.

<p>Taxation — Banks—Stock—Exemptions—Solvent Credáts — Constitution.</p> <p>Taxation — Trust Companies — Statutes—Constitutionality.</p> <p>1. Civil Code, section 611, providing that tbe property of trust deposit and security corporations shall be assessed for purposes of taxation in the same manner as national banks, is, in view of the fact that section 5219 of the United States Devised Statutes limits the right of the state to tax such banks to the taxation of their real estate, and their stockholders, to the shares of capital stoek owned by them, repugnant to Article XII, sections 1 and 7 of the Constitution of Montana, in that it exempts the personal property of such companies from .taxation.</p> <p>Taxation — State Banks and Trust Compames — Stock.</p> <p>2. Since stocks of a state bank or trust company fall within the definition of property as given in section 17 of Article XEI of the Constitution of this state and in subdivisions 1 and 4 of section 3680 of the Political Code, they must be assessed to the owners at their full cash value, except to the extent that that value is represented in property which is assessed to the bank or trust company.</p> <p>Taxation — Banks and Trust Companies — Solvent Credits — Deduction of Just Debts.</p> <p>3. For the purposes of taxation, a state bank or trust company may deduet from its solvent credits its just debts, provided it makes the proper return to the assessor, and claims the reduction, and otherwise complies with the law; and all its remaining property is subject to taxation, the same as the property of a natural person.</p> <p>Taxation — Banks and Trust Companies — Statutory Construction — Constitution.</p> <p>4. The purpose of section 3701, subsection 6, of the Political Code, which provides for the taxation of solvent credits, less such debts as may be owing by the taxpayer, being merely to ascertain the just amount and value of property subject to taxation, in conformity with section 1, Article XII of the Constitution, does not have the efifeet of exempting from taxation property other than that enumerated in section 2 of said Article, and said section is therefore not unconstitutional.</p>

<p>Attachment — Dismissal—Sheriffs.</p> <p>Sawmills — Partnership—Individual Liability.</p> <p>1. One who furnishes logs to others who are running a sawmill in which the former has no interest, does not, by reason of the fact that the sawed lumber is divided between the owners of the sawmill, on the one band, and himself, on the other, sustain such a relation to the owners of the sawmill as to be liable for any obligation contracted by one of them.</p> <p>Attachment — Dismissal—Duty of Sheriff.</p> <p>2. Held, that, under sections 903 and 911 of the Code of Civil Procedure, on the dismissal of an attachment, the sheriff is bound to account to the successful defendant for moneys collected under the attachment from sueh defendant’s debtor.</p> <p>Attachment — Dismissal—Recovery of Property Attached — Burden of Proof.</p> <p>3. Held, that where an attachment suit against joint defendants was dismissed as to one of them, who thereupon brought suit against the sheriff to recover money collected by the latter under the attachment, the burden was on sueh defendant to show that the money belonged to himself, after which the .burden was cast upon the sheriff to show, if he could, that sueh was not the faet, but that he was entitled to hold the money to apply upon any judgment whieh the attachment plaintiff might recover against the other attachment defendant.</p>

Certiorari. Original application by the state, on the relation of Thomas Flynn, against the district court of the fifth judicial district in and for Beaverhead County, and Hon. Lew. L. Callaway, judge thereof, for a writ of review to annul an order adjudging relator guilty of contempt.

Obiginal. Certiorari by the state, on the relation of C. G. Hodgdon, against the district court of the tenth judicial district.

Action by Alexander Mackel, as trustee in bankruptcy of the estate of Frederick A. Bartlett, against Henry R. Bartlett. From a judgment of nonsuit, plaintiff appeals. The bill of exceptions does not purport to contain all of the evidence in the case, and the court cannot review the evidence or the order granting the nonsuit, for that reason. (Ramsey v. Burns, 27 Mont. 154, 69 Pac. 711; Currie v. Montana Cent. Ry.

<p> Appeal from District Court, Fergus County; E. K. Cheadle, Judge. </p> <p>Action by Charles Lehman, doing business under the firm name and style of Charles Lehman & Co., against Lottie Knapp, commonly known as Georgia Day. From a judgment for defendant, plaintiff appeals.</p> <p>The jury were told in Instruction No. 8, that the presumption that the witness tells the truth may be repelled by his appearance on the stand, and that his credibility is measured by his appearance on the stand, his intelligence or lack of intelligence and from all surrounding circumstances appearing on the trial. Such is not the law in this state. The witness through embarrassment, physical deformity, or otherwise, may present a bad appearance to the jury and.yet what he states may be absolutely true. He may appear, also, to lack intelligence and yet what he states may not vary from the truth in any particular. Tet the court here told the jury that they must take into consideration all these things in weighing the evidence of the witnesses and in determining which were the more worthy of credit and to give credit accordingly. Upon this question see Fries v. American Lead Pencil Co., 141 Cal. 610, 75 Pac. 164.</p>

<p> Appeal from District Court, Flathead County, D, F. Smith, Judge. </p> <p>Action by Ross Moore against John F. Skyles. From a judgment rendered for plaintiff on appeal' from a justice’s judgment, and from an order denying a new trial, defendant appeals.</p>

<p>District Judges — Bias and Prejudice — Affidavit—Motion for New Trial — Contempt—Certiorari.</p> <p>District Judges — Disqualification—Bias and Prejudice — Motion for New Trial' — Contempt.</p> <p>1. The affidavit imputing bias and prejudice on the part of the district judge, provided for in section 180 of the Code of Civil Procedure, as amended by Act of 1903 (Laws of 1903, 2d Extra. Session, p. 9), may be filed by attorney or client, after a trial has been had and while a motion for a new trial is pending, at any time before the day set for the hearing of such motion; and the filing thereof does not constitute contempt.</p> <p>Contempt — Certiorari—Time of Application.</p> <p>2. After an order, adjudging, one guilty of contempt and imposing punishment, has been made and entéred — the district judge thus finally disposing of the matter — an application to the supreme court for a writ of review is not premature, although execution of the order has been suspended to a day certain to allow relator to attend to business of importance.</p>

<p> Appeal from, District Court, Fergus County; E. K. Cheadle, Judge. </p> <p>Action by Katerina Chan against L. P. Slater, as sheriff of Fergus county. From a judgment for plaintiff, and from an order denying a new trial] defendant appeals.</p>

<p>Accounting — Appeal—Findings—Conclusiveness.</p> <p>1. Where it appeared, in an action for an accounting, that the parties had invested their funds jointly in a common business during a period of over twenty years, without any definite plan or arrangement, without any accounting made or demanded on either side, for many years, and with never a settlement, the district court thus being able to do no more than make a reasonably fair estimate as to the amount due from one parly to the other, its findings will not be disturbed, since it is impossible to say from the showing made that the preponderance of the evidence is against them or any of them.</p>

<p>Pledges — Conversion—Waiver of Tort — Trial by Jury — Accounting — Interest.</p> <p>Pledges — Accounting—Conversion—Election—-Waiver of Tort.</p> <p>1. Where a pledgor demanded an accounting by the pledgee, not only of the proceeds derived from the use of the property pledged, but also for the price realized from a wrongful sale thereof, and thereafter sued to recover such sums, he thereby waived the pledgee's tort in converting the property.</p> <p>Pledges — Accounting—Equity—1Trial by Jury.</p> <p>2. A suit brought by a pledgor to compel the pledgee to render an accounting of the proceeds derived from the use of the prop-, erty pledged and to recover the price realized from a wrongful sale thereof, is an action for an accounting cognizable in a court of equity, in which the defendant is not entitled to a jury trial.</p> <p>Pledges — Conversion of Pledge — Extent of Liability.</p> <p>3. Where a pledgee converted the property pledged by selling the same on credit for $2,500, without interest, taking the purchaser’s secured note, which he surrendered on payment of $2,050, the pledgor, on waiving the tort, was entitled to recover the full sale price, and was not limited to the amount which the pledgee had actually received from the purchaser.</p> <p>Pledges — Conversion—Accounting—Interest.</p> <p>4. Where a pledgee of certain property sold the same on credit, without interest, the pledgor, on ratifying the sale and suing the pledgee for an accounting, was chargeable with interest on the loan secured by the pledge at the agreed rate to the date at which defendant received payment for the property sold sufficient to discharge the indebtedness, and not merely to the date of the sale.</p>

<p>Appealable Orders — Prohibition—Motion to Quash — Demurrer.</p> <p>1. Under Code of Civil Procedure, section 1722, as amended by Session Laws, 1899, page 146, neither an order sustaining a demurrer, nor an order sustaining a motion to quash an alternative writ of prohibition is appealable..</p>

Smith, Judge. Information by the state against the Cudahy Packing Company and others. From a judgment for defendants, the state appeals.

Smith, Judge. Proceeding instituted by T. R. Pledge as an elector of Valley County, to contest the election of Walter S. Griffith, as sheriff of that county. From a judgment in favor of contestee the contestant appeals. Section 1358, Political Code, as amended by House Bill No. 59, Session Laws of 1901, pages 117 to 119, included, provides that: “No elector shall place any mark upon his ballot by which it may afterward be identified as the one voted by him.” (Sess.

<p> Appeal from District Court, Yalley County; Henry C. Smith, Judge. </p> <p>Proceeding instituted by T. R. Pledge, as an elector of Valley county to contest the election of James Tweedie, as assessor of that county. From a judgment in favor of contestee, the contestant appeals.</p>

■ Smith, Judge. Proceeding by Engene D. Coleman, as an elector of Valley county, to contest the election of John J. Kerr, as county attorney. From a judgment in favor of the eontestee the contestant appeals. Respondent contends that the ballots cannot be objected to upon the grounds that they contain identification marks under the state of the pleadings in this case.

<p>Criminal Law — Prosecuting Witness — Variance in Name— Idem Sonans.</p> <p>1. Defendant was convicted of the crime of robbery. The information stated the name of the injured person as “Drank Rex,” whereas his own testimony showed that it was “Drank Rock.” There was not any showing that he was. named, or had been known as, Drank Rex. Eeld, that, the names being unlike in sound or spelling, and the information having failed to disclose any description which made it at all certain that “John Rex” and “John Rock” were one and the same person, the variance was fatal to conviction.</p>

Bourquin, Judge. Action brought by Lavinia Hensley against the City of Butte and Ben E. Calkins, treasurer. From an order vacating a temporary restraining order and refusing an injunction pendente lite, plaintiff appeals.

Matthews, against C. Taylor, justice of the peace for South Butte Township, Silver Bow County. From a judgment of dismissal plaintiff appeals. Appellant (defendant in the court below) did not demur to the complaint, to raise a question of jurisdiction.

B. Leslie, Judge. Action by Thomas Keely against Joseph 0. Gregg and James M. Burlingame, Jr., intervener. From the judgment rendered, in so far as it was in favor of defendants, and from an order denying a new trial, plaintiff appeals. The new matter in defendant’s answer could not be made the basis of a counterclaim.

In the Matter of the estate of James Tuohy, deceased, on application of Cyril Pauwelyn, executor, for an order to sell a portion of the real estate belonging to said estate. From an order directing such sale, Daniel Shields and Thomas McLaughlin appeal.

<p>Constitutional Law — Statutes—Sheriffs—Compensation—Mileage.</p> <p>1. Appellant was elected sheriff in November, 1904. The law then in force (Pol. Code, sec. 4604) allowed the sheriff ten cents per mile actually and necessarily traveled and ten cents per mile for each person transported to the state prison, reform school and insane asylum. In 1905, after appellant had entered upon the discharge of his duties, the legislature by Act approved March 3, 1905 (Session Laws, 1905, e. 86, p. 180), amended section 4604 so as to allow sheriffs only actual traveling expenses for such transportation. Held, that section 31, Article Y, of the Constitution prohibiting the increasing or diminishing of a public officer's salary or emolument during his term of office, is not violated by Act of March 3, 1905, when applied to officers elected prior to its passage.</p>

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>Action by Z. A. Short against John F. Estey et al. From a judgment in favor of defendants and an order denying him a new trial, plaintiff appeals.</p> <p>The court erred in withdrawing the case from the jury. The evidence offered on behalf of plaintiff clearly showed a right in him to recover, in the absence of anything to the contrary. It has been held time and again by the courts of this state and is no longer an open question that upon motion for a non-suit or to direct a verdict, the testimony on behalf of the plaintiff shall be taken as true. (Gain v. Gold Mt. M. Go., 27 Mont. 535, 71 Pac. 1004; McKay v. Montana Union By. Co., 13 Mont. 17, 13 Pac. 999; Greek v. McManus, 13 Mont. 157, 32 Pac. 675; Herbert v. King, 1 Mont. 475; Gans v. Woolf oik, 2 Mont. 463; Sayer v. Water Go., 15 Mont. 1, 37 Pac. 838; Jensen v. Barbour, 15 Mont. 582, 39 Pac. 906; Mayer v. Garothers, 14 Mont. 274, 36 Pac. 182.) In Mayer v. Garofhers, last above cited, this court held that where an equitable defense is pleaded to an action of ejectment, and the court peremptorily directs the jury to find for the plaintiff, such direction is in effect a nonsuit of defendant’s defense, and, therefore, whatever defendant’s testimony tends to prove as to such defense must be taken as proved. If the testimony of the plaintiff Short be taken as' true for the purposes of these motions, and it must be so taken under the decisions of this court, his right to recover is clearly shown, and the motion for directed verdicts should have been denied.</p> <p>There is certainly a vast difference between the question of nonsuit or directed verdict in actions at law and the question of directed verdict in suits in equity. Bearing in mind that this is an equity case, it was in reality tried by the court as chancellor, the jury being merely advisory. As said by Mr. Spelling in his recent work on New Trial and Appellate Practice, “All trials in equity cases are by the court, whether a jury is interposed or not; and the verdict of the jury in an equity case, being advisory merely, does not constitute a decision until the same is adopted by the court.” (1 Spelling on New Trial and Appellate Practice, p. 644, sec. 361.) The cases cited by appellant are inapplicable for the reason that they were actions at law to recover damages for personal injuries and the like. (Leggat v. Leggat, 13 Mont. 190, 33 Pae. 5; Kleinschmidt v. Greiser, 14 Mont. 494, 43 Am. St. Rep. 652, 37 Pae. 5; Sanford v. Gates, Townsend & Go., 21 Mont. 277, 53 Pac. 749.) Under the foregoing authorities, we submit that this court, in order to reverse the judgment and order appealed from, must find that “as a matter of law” the evidence in its entirety was such as to sustain a verdict for the plaintiff only, and that there was no evidence to sustain any other verdict. The record shows that there was not only a conflict in the evidence, but that it actually preponderated in favor of the defendants. Even in cases where the amount of evidence and the number of witnesses largely preponderate in favor of the party against whom findings or verdicts are returned in the trial court, reviewing courts do not for that reason alone reverse in such cases because of the presumption in favor of the findings or verdict, due to the presence of the witnesses in the trial court and the opportunity afforded for observing their character and demeanor. (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6, and eases therein cited.)</p>

Smith, Judge. Action by Martin Bonrke against the Butte Electric and Power Co. and George T. Aiken. Judgment was entered in favor 'of plaintiff. From the judgment and from an order denying them a new trial, defendants appeal.

<p>Criminal Law — Grand Larceny — Evidence — Conspiracy — Declarations — Cross-examination—Instructions.</p> <p>Grand Larceny — Evidence.</p> <p>1. In a prosecution for grand larceny, of which defendant was charged jointly with two others, evidence which showed knowledge on the part of the defendant and his associates of the prosecuting witness’ possession of the property taken; their destitute condition at, and for some time prior to, the date of the crime; an opportunity to commit the theft; the defendant’s intimacy with his associates; the fact that one of them had pawned a watch stolen from the prosecuting witness and that defendant furnished the money to redeem it; the .deposit by the defendant of bills the same in number and denomination as those stolen; and his inability to explain satisfactorily how he came by them, held, sufficient to establish the larceny, and to go to the jury upon the question whether or not defendant was connected with it as an aider or abettor.</p> <p>Grand Larceny — Evidence—Declarations.</p> <p>2. While, after the purpose of a conspiracy has been accomplished, evidence of acts or declarations of defendant’s associates, as against the defendant, is hearsay, yet where, in a prosecution for grand larceny, information was elicited by the prosecuting witness from one of the associates of defendant, as to the whereabouts of one of the articles stolen, without being told how it came to be at the place indicated, evidence of such information was properly admitted as relevant to the inquiry whether in fact a larceny had been committed.</p> <p>Grand Lareeny; — Evidence—Harmless Error.</p> <p>3. "Where, in a prosecution for grand larceny, the principal fact— the larceny — had "been established, and the inquiry was as to the defendant’s guilty connection with the theft, the admission in evidence of statements made to the prosecuting witness by one of the defendant’s associates in the crime, as to the whereabouts of one of the articles stolen, if error, was error without prejudice, since the evidence in nowise incriminated the defendant.</p> <p>Grand Larceny — Evidence—Cross-examination—Impeaching Witness.</p> <p>4. The complaining witness in a prosecution for grand larceny was examined before a committing magistrate, his testimony reduced to writing, and signed by him. His statements at the trial showed a discrepancy between his testimony formerly given and the facts then sworn to as to certain particulars. The question was thereupon asked him on cross-examination whether his testimony at the preliminary examination was true or false. Held, that the answer to this question was properly excluded, since the purpose of the statute (Code of Civil Procedure, sections 3379, 3380) had been served by calling the discrepancy to the attention of the jury, who were the judges of the credibility of the witness.</p> <p>Grand Larceny — Instructions.</p> <p>5. Defendant in a prosecution for grand larceny may not complain on appeal that an instruction, to the effect that the question whether he was an accomplice with his associates in the crime, or either of them, was solely for the jury to determine, had not been given in the exact form requested by him, if one in substance to that effect was submitted.</p>

<p>Cities and Towns— Cattle Running at Large— Ordinances— Construction.</p> <p>Cities and Towns — Domestic Animals Sunning at Large — Ordinances—Application to Range Stock.</p> <p>1. A city ordinance which makes it unlawful for persons who own or keep certain domestic animals within the city limits, to permit such animals to run at large, has no application to range stock which may stray within the city limits.</p> <p>City Ordinances — Construction—Livestock Sunning at Large.</p> <p>2. Section 1 of a city ordinance made it the duty of persons owning or keeping certain domestic animals within the city limits to provide for keeping them within or upon their premises, and to prevent them from running at large. Section 2 of the ordinance provides for the impounding of any domestic animals found running at large within the corporate limits of the city. Held, that these two sections must be construed together, and the meaning of the tgrm “any domestic animals’’ determined by reference to section 1, which enumerates the particular kinds of domestic animals, which are prohibited from running at large.</p> <p>City Ordinances — Construction.</p> <p>3. Ordinances must be construed as a whole, every portion of them given meaning, if possible, and neither the whole nor any portion rendered ridiculous unless that result is unavoidable.</p>

<p>Negotiable Instruments — Consideration—Forbearance to Sue.</p> <p>Promissory Notes — Want of Consideration — Forbearance to Sue — Demurrer.</p> <p>1. A general demurrer to an answer in an action on a promissory note was improperly sustained, where the answer disclosed that the appealing defendant signed the note long after its execution and delivery by her codefendant, that she was not liable upon his debts represented by the note, and that she signed it only on condition that action should not be brought against her on the paper until the happening of certain contingencies; since, in order that forbearance to sue may constitute a valid consideration for a contract, the party forbearing to sue must have, as against the party to whom the favor is granted, a tona fide claim which might give rise to an action to enforce it.</p> <p>Contracts — Consideration—Forbearance to Sue.</p> <p>2. Otiter: Forbearance to sue a third person constitutes a valid consideration for a contract.</p>

<p> Appeal from District Court, Silver Bow County; E. W. Harney, Judge. </p> <p>Action by BE. J. Smith and B. Urner, doing business under the firm name and style of Smith & Urner, against William T. Perham. Judgment was entered in favor of plaintiffs. From it and an order denying defendant a new trial, he appeals.</p>

<p>Appeal — Review— Continuance — Administrators—Presentation of Claims — Rejection—Trial—Evidence—Witnesses—Briefs— Assignments of Error.</p> <p>Appeal — Amendments—Continuance—District Courts — Discretion.</p> <p>1. Under Code of Civil Procedure, section 774, it was within the court's discretion to permit an amendment to a complaint after the cause had been called for trial, and deny a motion for postponement, where it did not appear that movant was surprised by the presentation of an issue which he was not prepared to meet, or that he did not meet it with all the evidence available in any event; and, on appeal in the absence of an affirmative showing of prejudice, the assignment of error in this respect will be held without merit.</p> <p>Administrators — Claims Against Estates — Affidavits.</p> <p>2. A claim against an estate was supported by an affidavit closing with the words “to the knowledge of said claimant,'' instead of “to the knowledge of the affiant,'' the words used in section 2604 of the Code of Civü Procedure. An objection was interposed that the claim was not properly verified. Held, that when the claimant aets for himself, the word “claimant” in the affidavit accompanying the claim meets all the requirements of the statute, and that it is only when some one aets in behalf of the claimant that the statement must be “to the knowledge of the affiant.”</p> <p>Same — Claims Against Estates — Pounded on Written Instruments.</p> <p>3. A claim against an estate is not “founded on a bond, bill, note or other instrument,” within the meaning of Code of Civil Procedure, section 2607, where it appears to be due upon an oral agreement, the result of which is an account stated.</p> <p>Same — Rejection of Claim — Indorsement.</p> <p>4. The presentation of a claim against an estate at the office of the attorney of the estate, in accordance with a published notice to creditors, and the indorsement of the claim by the attorney, under the direction of the administrator, as having been “rejected,” and signing the administrator's name, sufficiently comply with Code of Civil Procedure, section 2606, which provides that when a claim is presented to an executor or administrator, “he must indorse thereon his allowance or rejection.”</p> <p>Trial — Assignment—Evidence—Rejection—Objection.</p> <p>5. An objection to testimony of an assignment of a claim against an estate, which went to any testimony as to the assignment, whereas the purpose of counsel in making the objection was to exclude oral evidence of it for the reason that it had been made in writing, was too broad, since, by sustaining the objection as made, proof of the assignment would have been impossible; while it would have been proper to limit the effect of the evidence, counsel for appellant not having so requested, he may not complain of the ruling as made.</p> <p>Witnesses — Competency—Transactions with Decedents.</p> <p>6. Under Act of 1897 (Session Laws, 1897, page 245), the assignee of a claim against an estate cannot be a witness in an action against the administrator to recover on the claim.</p> <p>Trial — Witnesses—Reception of Evidence — Motion to Strike Out.</p> <p>7. A motion to strike out the testimony of two witnesses is too broad, where the evidence of one of them was competent for a particular purpose.</p> <p>Assignment — Evidence—Sufficiency—Findings.</p> <p>8. Evidence of an oral assignment of a claim, to which no legal objection was interposed, was sufficient to justify a finding that the assignee was the owner of the claim, though there was a written assignment which had been lost, and though the best evidence was not introduced.</p> <p>Appeal — Briefs—Assignments of Error.</p> <p>9. Errors not assigned in appellant’s brief, in accordance with subdivision 3 of Rule X of the Rules of the Supreme Court, but only called to the court’s attention on oral argument, will not be considered on appeal.</p>

<p> Appeal from District Court, Lewis & Clark County; J. M. Clements, Judge. </p> <p>Action by William Clemmons against Warren C. Gillette and George K. Reeder. From an order of tbe district court refusing to dissolve an injunction pendente lite, defendants appeal.</p> <p>In tbe matter of a motion to dissolve an injunction tbe moving party takes the burden of proof. He is -tbe actor and must make an affirmative showing on bis motion. A motion to dissolve an injunction, when tbe only question involved is a question of law, is rarely, if ever, entertained by tbe court, for tbe reason that tbe same question could be raised by a demurrer to tbe petition, and it involves purely a question of law, whereas motions to dissolve injunctions always involve a question of fact. (High on Injunctions, see. 1470.)</p> <p>We concede that the land is unsurveyed; we concede that the state could not pass legal title to this land as long as it is unsurveyed; but we do maintain that when the section is so segregated as that it can be identified, the state has a right to grant a permit to occupy said land, and when it grants such a permit to occupy such land and the occupant takes possession, of it and improves it, and fences it, he is then in such a possessory right of the land as will authorize him to institute a suit against anyone trespassing upon it; otherwise a person locating upon a piece of government land which is unsurveyed, and having put improvements upon it, and fenced it, and made it productive, is liable to have it taken away from him by force simply upon the theory that might is right, and can be despoiled of his home and improvements; the same may be run over by sheep and cattle, and yet, because it is unsurveyed land, he is absolutely without a remedy; his property may be destroyed and he may be put to irreparable injury, and yet, if the position of the appellants is good, he is absolutely without recourse for the wrongs committed. Such certainly is not the law, never has been, and, we trust, never will be.</p> <p>In the Session Laws of 1895 there is an Act which provides that anyone who has put improvements upon land which turns out to be state land, or upon section 16 or 36 when unsurveyed, and when surveyed patent issues to the state, the state recognizes their prior right, and will grant to them the right to continue thereon; or in case other than the person putting such improvements on said land is deprived of the same thereafter by others bidding higher than they for the possession of said land, the state adjudicates the improvements and pays over to such person the cost of such improvements; or a stranger may bid as high as he pleases for a permit or lease of such lands and then the occupant may retain the same under a permit at the price bid by the stranger. (Pol. Code, sec. 2339.)</p> <p>The land in question is unsurveyed and a part of the public domain. Until the land is surveyed and the lines created, designating the sections, the state has not authority to lease or otherwise dispose of the land. It is held that the actual survey of the lands is necessary0 to determine their location, that the lines thereof are then created and not established as something theretofore existing. (Robinson v. Forest, 29 Cal. 325; Medley v. Robinson, 55 Cal. 398;. Finney v. Berger, 50 Cal. 248; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 369, 49 L. Ed. 604; United States v. Birdseye, 137 Fed. 516; Central Pac. R. R. Co. v. Nevada, 162 U. S. 512,. 16 Sup. Ct. 885, 40 L. Ed. 1057; State v. Central Pacific R. R. Co., 21 Nev. 94, 25 Pac. 442; Butts v. Northern Pacific Ry. Co., 119 U. S. 66, 7 Sup. Ct. 100, 30 L. Ed. 334; Wisconsin Cent. Ry. Co. v. Price Co., 133 U. S. 509, 10 Sup. Ct. 341, 33 U. Ed. 694; Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; 20th Opinions of Attorney General Ü. S., 542; Waterman v. Smith, 13 Cal. 373, 416; State v. Central Pac. R. R. Co., 21 Nev. 260, 30 Pac. 689; Middleton v. Low, 30 Cal. 605; Mahoney v. Van Winkle, 33 Cal. 448, 458; Hogaboom v. Eberhardt, 58 Cal. 233; Sherman v. Buick, 45 Cal. 656, 668; Chapman v. Pollack, 70 Cal. 487, 496; Hughes v. Wheeler, 76 Cal. 233, 18 Pac. 386; Buchanan y. Nagle, 88 Cal. 593, 26 Pac. 512; Schlosser y. Hemphil, 118 Iowa, 452, 90 N. W. 842; Illinois Steel Co. y. Budziz, 115 Wis. 68, 90 N. W. 1019; Prentice v. Miller, 82 Cal. 570, 23 Pac. 189; Linn v. Scott, 3 Tex. 67..)</p> <p>Counsel mentions Political Code, section 2339. It is sufficient to say, in reply, that the state has no authority to give any person the right to fence the unsurveyed public domain. The United States government alone has the right to dispose of the public lands. Until they are surveyed, the title remains in the government, and the state could not interfere with the United States government’s right of possession, or give any person the right to enclose or trespass upon the land.</p>

W. Harney, Judge. Action by Phil. J. Harrington against tbe Butte and Boston Mining Company and A. J. Leggat, administrator of tbe estate of John A. Leggat, deceased. From a judgment for defendants and from an order denying bis motion for a new trial, plaintiff appeals. Where the testimony of the deceased party has been preserved and may be used in evidence, the surviving party is competent to testify as to the matters included in the testimony.

<p>Railroads — Killing Live Stock — Evidence—Motion to Strike— V ariance — Instructions.</p> <p>Baiiroads — -Killing Live Stock — Evidence—Bes Gestae.</p> <p>1. In an action against a railroad company for the killing of Eve stock, brought under section 951 of the Civil Code, the testimony of a ■witness that the section boss showed him where the animal was when struck, and stated that after it was struck he kiUed it to end its sufferings, was not admissible as res gestae.</p> <p>Baiiroads — KilEng Live Stock — Evidence—Motion to Strike.</p> <p>2. Where, in an action against a railroad company for the kilEng of Eve stock, a witness was permitted, without objection, to testify to certain declarations of a section boss who witnessed the accident, and counsel for defendant thereupon cross-examined the witness, notwithstanding the evidence was clearly hearsay, and then for the first time moved to have it stricken out, the effort to exclude it came too late, and the district court properly denied the motion.</p> <p>Baiiroads — KiEing of Live Stock — Pleadings—Proof.</p> <p>3. Held, in an action against a railroad company to recover for the kiKing of Eve stock, under Civil Code, section 951, that proof of an injury to an animal which would inevitably result in its death, substantially supports an allegation of kilEng.</p> <p>Baiiroads — KilEng of Live Stock — Complaint—Proof—Variance.</p> <p>4. The complaint in an action against a railroad company to recover for cattle kiUed by it, under section 951 of the Civil Code, alleged that the company so negEgently managed its locomotive and cars as to kill the animal in question. The proof showed that whEe the animal had been fatally injured, it was aetuaEy killed by a section boss in defendant’s employ, to end its sufferings. Held, that the defendant not having been misled by the variance, and substantial justice having been done between the parties (Code of Civil Proe., secs. 770, 778), the judgment will not be reversed because of the variance.</p> <p>Baiiroads — KilEng of Live Stock — NegEgence—Instructions.</p> <p>5. An instruction given in an action, brought under section 951 of the Civil Code, against a railroad company, for the kilEng of Eve stock, to the effect that the law presumed such kilEng to have been the result of defendant’s negEgenee, correctly stated the law, even though it appeared that while the animal was fatally injured by the locomotive and cars of the defendant, the actual kilEng was done by one of defendant’s employees to end its sufferings. [Mr. Justice Milburn dissenting-]</p>

<p> Appeal from District Court, Carbon County; Frank Henry, Judge. </p> <p>Mandamus by tbe state, on tbe relation of tbe Rocky Mountain Bell Telephone Company, against tbe mayor and city council of tbe city of Red Lodge. From a judgment directing a peremptory writ of mandate to issue, the respondents in tbe district court appeal.</p>

<p> Appeal from District Court, Missoula County; F. G. Webster, Judge. </p> <p>Action by Edward H. Love against Annie Flabive and Andrew J. Lansing. From a judgment in favor of defendants, plaintiff appeals.</p> <p>A mistake or error of the Land Department in construing tbe law on account of which the lands of one are given to another entitles the real owner to a decree in equity, treating such other as a trustee, and requiring him to convey to the true owner. (Starks v. Starrs, 6 Wall. 402, 18 L. Ed. 925; Lylle v. Arkansas, 22 How. 193, 16 L. Ed. 306; Garland v. Winn, 20 How. 8, 15 L. Ed. 243; Lindsey v. Uawkes, 2 Black, 554, 17 L. Ed. 265; State v. Strauter, 21 Land Dec. 453; and especially Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485.) Hnder the statute all of Flahive’s rights were forfeited, and he was in no situation to reassert them to the premises actually enclosed and possessed by plaintiff, and if he was, he is charged with doing so before plaintiff, and a simultaneous application would be entirely insufficient. (Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485.) If both parties were guilty of laches, the failure of Flahive to file on the eleventh day of March made plaintiff in possession prior settler, and required Flahive to file, not simultaneously, but first to defeat it. It seems that under such circumstances the filing of Flahive on the 14th of June simultaneously with plaintiff was void. Whatever possession and right of possession he had on the tenth day of March were extinguished by the actual occupancy and claim of plaintiff at that time. Two things were necessary, then, to take this right from him: First, a forfeiture, and second a prior filing thereafter. Here there was a forfeiture but no prior filing. This under the law does not extinguish the rights acquired by the claim and possession of plaintiff, after forfeiture by defendant Flahive. (Turner v. Sawyer, 150 H. S. 587, 14 Sup. Ct. 192, 37 L. Éd. 1191. See, also, Hosmer v. Wallace, 97 H. S. 575, 24 L. Ed. 1130.) The second application of Love did not necessarily operate as an abandonment of his first application of April 5th. All that can be said is that if the law required a new filing, it was made; if it did not, he could rely upon his former filing after the forfeiture by Flahive. (Motherway v. Parks, 13 Land Dec. 56; Perrott v. Gonnick, 13 Land Dec. 598.) The complaint alleges the delivery of the application to enter, the possession of it for that purpose, the erroneous rejection on the fifth' day of April, its reversal on appeal, and assigns as fatal error the failure to so treat it as filed, instead of the date upon which the entry was made. Under these conditions the officers of the Land Department committed an error by not treating it filed as of that date, on account of which the patent which should have gone to plaintiff was awarded to defendant Flahivé. This error, we insist, is absolutely conclusive of the questions involved in favor of the plaintiff, under the following authorities: Duluth etc. By. Go. v. Boy, 173 U. S. 590, 19 Sup. Ct. 549, 43 L. Ed. 822; Lytle v. Arkansas, 9 How. 314, 13 L. Ed. 153; Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 524; Shepley v. Gowan, 91 U. S. 330, 23 L. Ed. 424; Motherway v. Parks, 13 Land Dec. 56; Perrott v. Gonnick, 13 Land Dec. 598; Boy v. Duluth etc. By. Go., 69 Minn. 522, 72 N. W. 794; Hosmer v. Wallace, 97 U. S. 575, 24 L. Ed. 1130; Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61; Atherton v. Flower,'-96 U. S. 513, 24 L. Ed. 732.</p>

<p>Original application for writ of mandamus by the state, on the relation of M. H. Lott, against the district court of the fifth judicial district, in and for the county of Madison, and Lew. L. Callaway, judge thereof.</p>

<p>Contempt — Interference with Judicial Proceedings — Jurisdiction — Order to Show Came — Sufficiency.</p> <p>Contempt — Interference with Judicial Proceedings — Resisting Officer.</p> <p>1. Resistenee of, or interference with, an officer while endeavoring to take property into his possession pursuant to the provisions of Code of Civil Procedure, section 843, in an action in claim and delivery, is an interference with the proceedings of the court in the cause, and constitutes a contempt within the meaning of' Code of Civil Procedure, section 2170, subdivision 9.</p> <p>Contempt — Jurisdiction—Refusal to Receive Summons.</p> <p>2. The district court may punish a defendant in an action in claim and delivery for contempt (Code of Civil Procedure, section 2170), notwithstanding, technically, it had not acquired jurisdiction over him, by reason of the fact that he had refused to receive a copy of the summons or other papers which authorized the officer to take the property in eontroversy into Ms possession, where it appeared that he knew the mission of the officer and openly announced Ms intention to prevent the officer from doing Ms duty in the premises.</p> <p>Contempt — Order to Show Cause — Sufficiency.</p> <p>3. Where defendant, in an action in claim and delivery, appeared in court in obedience to an order to show cause why he should not be punished for contempt, and where the affidavit served with the order stated a contempt, the defendant may not be heard to complain that the judgment of conviction is void in that the order required him to show cause for an unlawful interference with the process of the court, whereas he was convicted of an unlawful interference with its proceedings.</p>

<p>Appeal from District Court, Silver Bow County; Michael Donlan, Judge.</p> <p>Prohibition by the state on the relation of Simon Bank to Cornelius Taylor, justice of the peace of South Butte township, Silver Bow county. Prom the judgment in favor of plaintiff the defendant appeals.</p>

• Original application for writ of mandate by the state on the relation of Charles S. Haire, relator, against James H. Eice, as state treasurer, to compel the payment of a warrant against the State… Held: if said section stood alone, to include the lands specially granted for educational purposes by section 17, the special provisions of section 17 must be taken to constitute an exception to the general provisions of section 11.

<p>Appeal from, District Court, Flathead County; D. F. Smith, Judge.</p> <p>Action by the Kalispell Liquor and Tobacco Company against Thomas McGovern and Joseph Kipp. From a judgment in favor of plaintiff and from an order denying him a new trial, defendant Kipp appeals.</p> <p>A nonsuit will not be granted where the evidence is conflicting or leaves a question material to the case in doubt. (Simpson v. Applegate, 67 Cal. 471, 8 Pac. 39; Pacific Mutual Life Ins. Go. v. Fisher, 109 Cal. 566, 42 Pac. 154; Frank v. Atlanta etc. Co., 72 Ga. 341; Lingenfelter v. Louisville By. Go. (Ky.), 4 S. W. 185; Fellows v. Barton, 66 Barb. (N. Y.) 608; Ball Electric Light Go- v. Sanderson Bros. Steel Co., 60 Hun, 576, 14 N. Y. Supp. 429; Bumsey v. New York etc. B. B. Go., 63 Hun, 200, 17 N. Y. Supp. 672.)</p> <p>Parties to a litigation may consent to the trial of an action other than that pleaded, thus waiving the objection that the allegata and probata do not agree. Consent is inferable from the fact that evidence of the substituted cause was received without objection. (Kaufman v. Bloch, 5 Mise. Rep. 404, 55 N. Y. St. Rep. 390, 25 N. Y. Supp. 758; Frear v. Sweet, 118 N. Y. 454, 23 N. E. 910; Iselin v. Griffith, 62 Iowa, 668, 18 N. W. 302; Foltz v. Hardin, 139 111. 405, 28 N. E. 786; Akers v. Kirk, 91 Ga. 590, 18 S. E. 367; Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826; Hermiston v. Green, 11 S. Dak. 81, 75 N. W. 819; Fallon Lawler, 102 N. Y. 228, 6 N. E. 392; Daily v. Hornthal, 154 N. Y. 648, 61 Am. St. Rep. 645, 49 N. E. 56. See, also, Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369; Bio Grande etc. By. Go. v. Bubenstein, 5 Colo. App. 121, 38 Pac. 76; Murray v. Meade, 5 Wash. 693, 32 Pae. 780; Bailey v. Hornthal, supra; Adams v. Castle, 64 Minn. 505, 67 N. W. 637 Kurz v. Forquer, 94 Cal. 91, 29 Pac. 413.)</p> <p>“A promise to pay the debt of another is not within the statute of frauds, and need not be in writing, if it is based upon a valuable consideration independent of the original debt, moving between the parties to the new promise, or even from the original debtor to the promisor; and when such a consideration exists it makes no difference in regard to the application of the statute whether the original debtor remains liable or not.” (Cross v. Richardson, 30 Yt. 641; Mallory v. Gillette, 21 N. Y. 412. See, also, cases of Davis v. Banks, 45 Ga. 138; Mitchell v. Griffin, 58 Ind. 559; Ludwick v. Watson, 3 Or. 256; White v. Rintoul, supra.)</p> <p>There was no proof of a delivery of goods to the defendant Kipp nor to Kipp and McGovern jointly. There was no proof of any contract between the plaintiff and the defendant Kipp and as no guaranty was alleged in the complaint or otherwise involved in the issues we submit there was a total failure of proof. (Maul v. Shultz, 19 Mont. 340, 48 Pac. 626; Newell v. Meyerndorff, 9 Mont. 254, 18 Am. St. Rep. 738, 23 Pac. 333, 8 L. R. A. 440; Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180; Childs v. Ptomey, 17 Mont. 502, 43 Pae. 714; Finch v. Kent, 24 Mont. 274, 61 Pac. 653; Pomeroy’s Code Remedies, see. 553; Johnson v. Moss, 45 Cal. 515; Bryan v. Tormey, 84 Cal. 126, 24 Pac. 319; Uefferlin v. Karlman, 29 Mont. 151, 74 Pae. 201; Elmore v. Elmore, 114 Cal. 519, 46 Pac. 458; Talbott v. Heinze, 25 Mont. 10, 63 Pac. 624; Shirmer v. Drexler, 134 Cal. 139, 66 Pac. 180; Wortman v. Montana Gent. Ry. Co., 22 Mont. 266, 56 Pac. 316; Davis v. Pacific Tel. & Tel. Co., 127 Cal. 321, 59 Pac. 698; Westerfield v. New York etc. Ins. Co., 129 Cal. 68, 58 Pac. 92, 61 Pae. 667; Roche v. Baldwin, 135 Cal. 522, 65 Pae. 459, 67 Pac. 903.)</p> <p>If the original promisor is not released and the plaintiff has any remedy as against him, the promise of the surety is not an original promise and is void. (Brandt on Suretyship and Guaranty, 1st ed., sec. 62, p. 80; Harris v. Frank, 81 Cal. 284, 22 Pac. 856; Tyler v. Tualtin Academy, 14 Or. 485, 13 Pac. 329; Adams v. Wallace, 119 Cal. 68, 51 Pac. 14; Clay v. Walton, 9 Cal. 329.) The exceptions provided by section 3612 of the Civil Code are merely the same exceptions as have always been recognized by tbe courts, and should be construed in light of the adjudications on the subject.</p>

<p>Appeal from District Court, Silver Bow County; William Clancy, Judge.</p> <p>From an order taxing the costs of an appeal, the defendant appeals.</p>

<p> Appeal from District Court, Jefferson County; M. H. Parker, Judge. </p> <p>Action by Florence E. Ryan against James Ryan. From a judgment in favor of plaintiff, defendant appeals.</p> <p>While it is true that it is a principle of law that the state has an interest in divorce suits, which we see exemplified in the rule that judgment for divorce cannot be taken upon default without the evidence, yet in matters of pleading the same rule applies as in pleading other facts, and even if the facts are not specifically alleged, which we do not admit in this ease, the defendant waived any such defect by his failure to demur. (Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.) If the charges of cruelty are vague and indefinite, the defendant must move to have the complaint made more definite and certain, for the complaint unless wholly defective, will otherwise be considered as alleging facts sufficient to constitute a cause of action. (7 Ency. of PL & Pr. 77, 78; 2 Estee’s Pleadings, p. 294, sec. 2992.)</p> <p>The complaint alleges facts from which the jury found, and were justified from the allegations of the complaint in finding, both inflictions of bodily injury dangerous to life and also repeated infliction of grievous bodily injury; and it was for the jury to find from acts set out in the complaint, which we must presume for the purpose of this appeal were substantiated by the proof, that the defendant was guilty of at least one or both forms of extreme cruelty toward the plaintiff. (Reading v. Reading, 96 Cal. 4, 30 Pac. 803; Loiint v. Lount, 1 Ariz. 422, 25 Pac. 798; Johnson v. Johnson (Cal.), 35 Pac. 637; Irwin v. Irwin, 2 Okla. 180, 37 Pac. 548; 17 American Digest, Century ed., see. 300.)</p> <p>A pleading where a severance of so sacred a tie is prayed for, must clearly conform to all statutory regulations, and must contain positive allegations of fact necessary or essential to constitute the particular ground relied upon for relief. (2 Boone’s Code Pleading, p. 136 (Pony Series) ; Bennett v. Bennett, 28 Cal. 600; Green v. Palmer, 15 Cal. 415, 76 Am. Dec. 492.) In the complaint in this case a declaration to the effect that any of the acts of defendant, specified by her, were dangerous to life, or created grievous bodily injury is lacking, and without such allegation, the complaint is insufficient to sustain the action or uphold a judgment for divorce rendered thereon.</p> <p>That part of the judgment rendered in this cause, adjudging the defendant to pay permanent alimony, is not sustained by any allegation or proof in the case. A judgment for permanent alimony must be based on the proper allegation, and proof thereunder, of a present ability to pay. (Washburn v. Washburn, 9 Cal. 475; Feigley v. Feigley, 7 Md. 437, 61 Am. Dee. 375; Sheafe v. Sheafe, 36 N. H. 155; Eidenmullcr v. Eidenmuller, 37 Cal. 364.)</p>

Action by George Raban, as special administrator, against tbe Cascade Bank of Great Falls, Montana. From a judgment in favor of plaintiff and from an order denying it a new trial, defendant appeals.

<p> appeal from District Court, Cascade County; Jere B. Leslie, Judge. </p> <p>Action by tbe Great Falls Meat Company against J. W. Jenkins. Plaintiff had judgment, and from it and an order denying a new trial to defendant, he appeals.</p>

<p>Chattel Mortgages — Affidavits of Benewal — Liens—Foreclosure —Appeal—Statutory Construction.</p> <p>Appeal — Reversal—Erroneous Reasons for Correct Conclusion.</p> <p>1. If correct, the conclusion of a district court will not be disturbed on appeal even though its reasons in arriving at it were erroneous.</p> <p>Chattel Mortgages — Renewal—Affidavits—Statutes.</p> <p>2. The statute relative to the renewal and extension of a chattel mortgage by means of an affidavit executed and filed by the mortgagee (Civil Code, section 3866) must be strictly followed in order to acquire any right under it.</p> <p>Same — Sufficiency of Affidavit of Eenewal.</p> <p>3. Quaere: Is an affidavit of renewal of a chattel mortgage sufficient, which alleges (with respect to the provision of the Civil Code, section 3866, that it must state the amount of - the debt justly owing at the time of the filing of the affidavit or the conditions of the obligation unfulfilled), that the promissory notes and interest thereon are wholly unpaid, and which fails to state the time to which the mortgage is extended, but only the time to which the payment of the debt is extended?</p> <p>Same — Mortgage Liens — Statutory Construction.</p> <p>4. Held, under Civil Code, sections 3865, 3866 and 3867, that the time fixed in an affidavit of renewal of a chattel mortgage marks the utmost limit of the life of the mortgage lien as against attaching creditors of the mortgagor, and the sixty days of grace mentioned in section 3865 have reference only to such period of time from the maturity of the debt as fixed at the execution of the mortgage, and not to any such period after the maturity of the debt as fixed by some subsequent agreement of the parties to the mortgage.</p>

Application by tbe Helena Bar Association for tbe disbarment of Evans A. Carleton. Judgment of suspension. Before judgment of disbarment or suspension can properly be made, tbe evidence to sustain tbe charges should be of such a character as that it satisfies tbe court to a reasonable certainty that tbe charges are true.

<p>Application for. the disbarment of B. S. Thresher. Judgment of disbarment.</p>

R. C. Stewart, Judge. Action by Sadie A. Webster, against C. A. Sherman, Sheriff of Meagher county. Judgment for plaintiff. Defendant appeals from the judgment and an order denying him a new trial. At the time of the alleged sale, nothing whatever was done toward making a delivery of the cattle and horse, except to transfer the brand on the animals and have the same recorded in the name of the wife.

B. Leslie, Judge Action by Neis Nord against the Boston and Montana Consolidated Copper and Silver Mining Company. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by W. W. Beasley against Ralph Berry and C. R. McDaniels. Plaintiff had judgment. Defendant Berry moved for a new trial, and from an order granting such motion plaintiff appeals.

Leslie, Judge. Election contest by John Buckley against Frank McDonald, sheriff-elect of Chouteau county. From a judgment in favor of contestee, the contestant appeals.

<p> Appeal from District Court, Fergus County; E. K. Cheadle, Judge. </p> <p>Harry Koch was convicted of voluntary manslaughter. He appeals from the judgment and an order denying him a new trial.</p> <p>By the instruction complained of (No. 29), the court, in effect, advised the jury to find the defendant guilty of murder in the first degree, murder in the .second degree, voluntary manslaughter or involuntary manslaughter.</p> <p>The evidence on the part of the state clearly established the commission of the offense charged, and the defendant in his testimony admits all the facts established by the state but denies that he intended to commit the homicide. The only question of fact in dispute was the criminal intent, but the jury found the defendant guilty of an offense which does not involve intent; hence as to the offense named in the verdict, there was no dispute whatsoever, and the admissions of defendant in his testimony are in effect a plea of guilty as to such offense, and the jury could not ignore this evidence on the part of the state and the admissions of defendant, nor refuse to convict thereon without a palpable violation of its sworn duty. It was not error for the court to call the attention of the jury to its sworn duty. The court did not direct a verdict of guilty as to any specific offense or degree, but in effect advised the jury that on the evidence in the case admitted by the defendant, it was its duty to convict of homicide in some degree, regarding manslaughter as a degree of homicide, leaving the jury to determine the degree. (See People v. Neumann, 85 Mich. 98, 48 N. W. 290; People v. Collison, 85 Mich. 105, 48 N. W. 292.)</p> <p>Had the defendant or anyone else testified or given it as his opinion that he did not fire the shot, or that he did' not Mil the deceased, or that he did not do any one of the material things necessary to constitute homicide, -said instruction 29 would in that ease be error. But we' submit that under the peculiar facts of this ease, said instruction 29 was not error, and that the judgment should, therefore, be affirmed.</p> <p>Instruction 29 is inconsistent with various other instructions given, and cannot be reconciled with them; it is passing upon the evidence and the weight of evidence; it is in effect directing a verdict against the defendant, leaving only the degree of crime to be passed upon by the jury, thus depriving the defendant of his constitutional right and of his rights under the Codes of the state of Montana to have a jury pass upon the facts of the case for which he is being tried; and it is in itself erroneous as usurping the powers of the jury to find the facts in all criminal cases.</p> <p>Instructions which are misleading, inconsistent and irreconcilable with others given in the ease are presumed to have worked prejudicial error in the trial of the case and to have worked injury to the defendant. {State v. Shadwell, 26 Mont. 52, 66 Pac. 508; State v. Sloan, 22 Mont. 305, 56 Pac. 364; State v. Rolla, 21 Mont. 582, 55 Pac. 523; 2 Thompson on Trials, sec. 2326, and cases cited.)</p> <p>The court has no power to direct a verdict of guilty where the defendant has entered a plea of not guilty, no matter how clear and unimpeached the evidence may be. (2 Thompson on Trials, sec. 2149, and cases cited.) An erroneous instruction is presumed to have worked injury to the defendant. {State v. Johnson, 26 Mont. 9, 66 Pac. 290; State v. Mason, 24 Mont. 346, 61 Pac. 861.) Any expression of the court’s opinion upon the evidence as expressed in instructions or fairly inferable from them, upon the weight of evidence is prejudicial error from which a new trial will be granted. {People v. Matthai, 35 Cal. 442, 67 Pac. 694; State v. Fisher, 23 Mont. 555, 59 Pac. 919; Edgar v. State, 43 Ala. 312; Foster v. State, 47 Ala. 643; 2 Thompson on Trials, see. 2420.) All issues of facts in criminal cases must be tried by a jury. (Pen. Code, sees. 1991, 2105.)</p>

<p>Criminal Law — Manslaughter—Once in Jeopardy — Discharge of Jury upon Disagreement — Acquittal—Constitution.</p> <p>Criminal Law— Manslaughter — Trial Jury— Disagreement — Discharge — Qnce in Jeopardy.</p> <p>1. Defendant, charged with murder, was tried three times and at the third trial found guilty of manslaughter. The jury disagreed upon the second trial and was discharged. At the third trial the plea of once in jeopardy was interposed on the ground that the jury had been discharged at the second trial without there having existed - a necessity therefor. The district court overruled this defense. Held, that the disagreement of a jury and their consequent discharge do not operate to bring the defendant within the provision of the Constitution (Article III, Section 18) that no person shall be twice put in jeopardy for the same offense.</p> <p>Same.</p> <p>2. Where a person charged with crime, after a trial, is neither convicted nor acquitted, but owing to a mistrial the jury is discharged and the trial ended, he may again be put upon trial for the same offense, and the defense of once in jeopardy will not lie.</p> <p>Same — District Courts — Minutes.</p> <p>3. In a prosecution for murder, where the jury was discharged at the end of a mistrial, because there was "'-'a reasonable probability that the jury cannot agree,” an entry in the minutes in those words was in accordance with the provisions of the Penal Code, section 2125, and sufficient.</p> <p>On Motion for Rehearing.</p> <p>Same — Acquittal—What may Constitute.</p> <p>4. Ohiter: Where the defendant in a criminal prosecution has been arraigned and the trial has been begun upon a valid indictment or information, and he is discharged by a competent court before verdiet, an acquittal results, and the plea of once in jeopardy will lie. (Penal Code, section 2126.)</p> <p>Same — Jeopardy.</p> <p>5. In a given criminal prosecution there is only one jeopardy which continues in case of a discharge of the jury for disagreement, as also where a new trial is granted, from the beginning of the trial, after the swearing in of the first jury, until the particular same ease is finally determined.</p> <p>Same.</p> <p>6. After a verdict on a judgment of conviction or acquittal, the defendant in a criminal ease has been in jeopardy and may not be tried again for the same offense, except where a new trial has been granted or ordered.</p> <p>Same — Plea of "Once in Jeopardy” — What It Ineludes.</p> <p>7. The plea of "once in jeopardy” includes the plea of former conviction or acquittal and a judgment of conviction or acquittal.</p>

Action by George J. Kirby against W. I. Higgins and Joseph Robinson. Plaintiff had judgment, and from an order denying them a new trial the defendants appeal.

B. Winston, Judge. Action by Frank G-. and Sadie J. Brown against Margaret Daly, executrix of tbe estate of Marcus Daly, deceased. Judgment for defendant. Plaintiffs appeal. Any objections that might have been urged by defendant because of the introduction of a new cause of action in the amended complaint were waived. (1 Eney. of PI. & Pr., p. 571; Wheeler v. West, 78 Cal. 95, 20 Pae. 45; King v. Rea, 13 Colo. 69, 21 Pae. 1084; Wade v. dark, 52 Iowa, 158, 35 Am.

<p>Costs on Appeal — Notice—Due Process of Law — Statutes— District Courts — Jurisdiction.</p> <p>Taxation of Costs — Notice—Constitution-—Due Process of Law.</p> <p>1. Sentible: A statute which authorizes the taxation of costs upon the filing of a memorandum, without notice to the person liable therefor, would seem to be obnoxious to the constitutional guaranty that no person shall be deprived of life, liberty or property without due process of law (Constitution, Article IU, section 27), the phrase, “due process of law” including notice and a hearing before judgment.</p> <p>Costs — Service of Memorándum — Statutes.</p> <p>2. Held, that- the provisions of section 1867 of the Code of Civil Procedure with reference to service upon the adverse party of memorandum of the items of costs and disbursements claimed by the party in whose favor judgment is rendered are applicable to proceedings under section 1869 of the same Code, relative to costs awarded by an appellate court.</p> <p>Costs — Collection—Mode to be Pursued.</p> <p>3. The recovery of costs as such is regulated by statute and the method therein pointed out for their collection must be pursued.</p> <p>■ Costs — Taxation—Notice—Waiver—Jurisdiction.</p> <p>4. Where a party, against whom costs awarded on appeal were sought to be recovered under section 1869 of the Code of Civil Procedure, had not been served with a memorandum of such costs, his special appearance, for the purpose of submitting a motion to strike out the memorandum as a whole and also a motion to tax the cost-bill on its merits, did not give the district court jurisdiction to tax the costs, and certiorari lies to annul such order.</p>

<p>Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.</p>

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