Volume 34 — Montana Reports

<p> Appeal from, District Court, Gallatin County; W. B. C. Stewart, Judge. </p> <p>Action by Claude A. Palmer against A. A. Spaulding. From an order dismissing an appeal from a judgment of a justice’s court, defendant appeals.</p>

<p> Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Action by Charles Helbert against Benjamin H. Tatem. From a judgment in favor of defendant plaintiff appeals.</p>

Nellie Kremer was convicted of the crime of grand larceny, and appeals from the judgment of conviction and from an order denying her a new trial.

<p> Appeal from, District Court, Silver Bow County, Michael Donlan, Judge. </p> <p>Mu,eh Fuller was convicted of murder of the first degree. From the judgment and from an order denying him a new trial - he appeals.</p> <p>A seizure which would tend to the production of evidence against appellant is an unreasonable seizure within the meaning of the Constitution. (Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 et seq.; Gounselman v. Hitchcock? 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110 et seq.; Brown v. Walker, 161 IT. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819 et seq.; United States v. Wong Quong Wong, 94 Fed. 832.) A confession wrung from the appellant- by force or putting in fear would have been excluded. Is it not reasonable to say that by analogy testimony secured by the use of articles of personal property taken by force from the possession of appellant should likewise be excluded and that its admission was error? To hold otherwise would be to say that officers may deprive a person of his property without due process of law and may aggravate the offense by using the same in an endeavor to deprive him of his life or liberty. This cannot be. (State v. Rambo, 69 Kan. 777, 77 Pac. 563, 564.)</p> <p>In commenting upon the evidence the court invaded the province of the jury. The jury are the judges of the facts and of the effect or value of the .evidence. (Pen. Code, 2105, 2078; Code Civ. Proc., 3390, 3123; Gallick v. Bordeaux, 31 Mont. 328, 78 Pae. 583, 584; Yoder v. Reynolds, 28 Mont. 183, 196, 72 Pac. 417; State v. Hurst, 23 Mont. 484, 492, 59 Pac. 911.) And in commenting upon the weight of the testimony the court committed error. (Yoder v. Reynolds, 28 Mont. 183, 196, 72 Pae. 417.) Remarks made by the judge during the progress of the trial, if immaterial and improper, may, when properly excepted to and brought into the record, constitute prejudicial and available error. (Kirk v. Territory, 10 Olda. 46, 60 Pae. 797, 801 et seq.; Wilson v. Territory, 9 Okla. 331, 60 Pac. 112; State v. Crotts, 22 Wash. 245, 60 Pac. 403; State: v. Taylor, 7 Idaho, 134, 61 Pae. 288; State v. Lucas, 24 Or. 168, 33 Pae. 538, 540; Mathias v. State, 45 Fla. 46, 34 South. 287; State v. Allan, 100 Iowa, 7, 69 N. W. 274, 275; Bradshaw v. State, 44 Tex. Cr. App. 222, 70 S. W. 215; Wastl v. Montana Union Ry. Go., 17 Mont. 213, 217,-42 Pac. 772.)</p> <p>The remark that the evidence was “Let in for what it was worth” has been held error, the reason being that the expression was liable to be taken by the jury as an intimation that in the opinion of the court the evidence was of little consequence. (Howland v. Oakland etc. By. Co., 115 Cal. 495, 47 Pac. 255, 257, 258.) And the error cannot be cured by instructions. (State v. Taylor, 7 Idaho, 134, 61 Pae. 289; People v. Kindleberger, 100 Cal. 367, 369, 34 Pac. 852.) The record in question was the official return of the coroner relating to the proceedings had and the testimony taken at the inquest held over the body of the decedent, and every presumption was in favor of its verity.</p>

<p> Appeal from District Court, Gallatin County; W. B. C. Stewart, Judge. </p> <p>Lu Sing was convicted of murder of the first degree. He appeals from the judgment and from an order denying him a new trial.</p> <p>The word “deliberatedly” has no meaning whatever, whether legal or otherwise, and as deliberation is an essential element of murder in the first degree, the information does not support the judgment of conviction in this case. (People v. Doyell, 48 Cal. 85.)</p> <p>Again, section 1947 of the Penal Code provides and implies that the defendant may be convicted of an offense necessarily included in the offense charged. If the information, then, is insufficient as to the main offense, no lower degree of the crime charged is included by our statute. At most the defendant could only be convicted of murder in the second degree. {People v. Callaghan, 2 Idaho, 156, 9 Pac. 414, and eases cited.)</p> <p>Purported confessions of the defendant do not go to the weight of the testimony, but it is a question for the court. {People v. Ah How, 34 Cal. 218. See, generally, State v. Kilburn, 16 Utah, 187, 52 Pac. 277; Greenleaf on Evidence, see. 214; State v. Buster, 23 Nev. 346, 47 Pae. 194.) The latter lays down the same rule, and while in that case the court held that if the confession is corroborated by other witnesses, the error was harmless, but in this case the testimony of witness Williams as to the statement of defendant to him on the way to jail was not corroborated by anyone, and the testimony of Robertson, and Williams as to the statements of defendant at the jail were not corroborated by anyone else, and they do not testify alike in that respect.</p> <p>In view of the fact that the court gave instruction No. 23 on the subject of motive, it was error for that reason, if for no other, to refuse to give the requested instruction. The state impliedly conceded in instruction 23 that there was no motive shown by the testimony, and while if there had been none given by the state on the question of motive, it might well be doubted whether the defendant was entitled to have the requested instruction given, but inasmuch as instruction 23 was given, and no other instruction was given as the equivalent of the refused instruction, it is well settled that it is error for the court to refuse to give it. {State v. Foley, 144 Mo. 600, 46 S. W. 733; Clough v. State, 7 Neb. 344; Vaughan v. Commonwealth, 85 Va. 672, 8 S. E. 584; Hughes’ Instructions to Juries, sees. 264, 781.) The refusal to give said instruction was error in any view of the case, and this court can review the same, regardless of the evidence in the cause. {State v. Mason, 24 Mont. 340, 61 Pae. 861; People v. Levison, 16 Cal. 98, 76 Am. Dee. 505.)</p>

C. Webster, Judge. K. F. W. Beesskove was convicted of murder of tbe first degree. From the judgment of conviction and from an order denying him a new trial, he appeals.

B, C. Stewart, Judge. Action by Mack Friel against the Kimberly-Montana Gold Mining Company. From an order granting plaintiff a new trial, defendant appeals.

<p>Appealable Orders — Default—Vacation—Judicial Notice — Discretion — Attorneys—Presumptions.</p> <p>Default — Vacation—Appealable Order.</p> <p>1. Under section 1722 of the Code of Civil Procedure, as amended by Session Laws of 1899, page 146, an order, made before final judgment, refusing to set aside a default is not appealable.</p> <p>District Courts — Rules—Judicial Notice.</p> <p>2. The supreme court will not take judicial notice of the provisions of rules of the district court.</p> <p>Default — Vacation—Discretion—Appeal.</p> <p>3. The granting or refusing to grant a motion to set aside a default being within the sound legal discretion of the trial court, the burden rests upon appellant to show a manifest abuse of such discretion by the court in denying a motion of this character.</p> <p>Default — Motion to Vacate — Grounds.</p> <p>4. To justify the granting of a motion to vacate a default, defendant must show that he proceeded with diligence; that the default occurred through his excusable neglect; that the judgment, if permitted to stand, will affect him injuriously; and that he has a defense to plaintiff’s cause of action on the merits.</p> <p>Default — Motion to Vacate — Attorneys—Press of Business.</p> <p>5. Affidavits submitted on an application to open a default, showing merely a press of business engagements on the part of defendant’s attorney, which called him out of his office a great deal of the time, and caused him to mistake the day on which he was required to make his appearance, cannot be said to establish excusable neglect.</p> <p>Default — Affidavit of Merits — Practice—Demurrer.</p> <p>6. A default will not be vacated merely to permit the defendant to file a demurrer to the complaint, but the application must be accompanied by an affidavit showing a defense to the plaintiff’s cause of action upon the merits.</p> <p>Default — Affidavit of Merits — Answer.</p> <p>7. Quaere: May an answer, when properly identified, sufficient in form and offered for that purpose, perform the office of an affidavit of merits requisite to an application to open a default?</p> <p>Default — Affidavit of Merits — Answer—Presumptions.</p> <p>8. Where, on appeal from an order denying a motion to open a default so as to permit defendant to file a demurrer to the complaint, the bill of exceptions recited that the motion had been heard upon the complaint, motion and affidavits, it will not be presumed that a proffered answer, which was neither identified nor referred to as a paper offered in support of the motion, was considered by the court as an affidavit of merits.</p> <p>Appeal — District Courts — Bulings—Presumptions.</p> <p>9. Every presumption in favor of rulings of the district court will be indulged in the appellate court.</p> <p>Appeal — Error—Presumptions.</p> <p>10. Error will not be presumed: it must be made to appear affirmatively.</p>

M. Clements, Judge. Mandamus by the state, on the relation of W. H. Crumb, against the mayor and city council of the city of Helena, to compel respondents to designate places for the erection of poles for a telephone system. From a judgment of dismissal, the relator appeals.

Elizabeth Morrison was convicted of the crime of manslaughter. She appeals from the judgment of conviction and from an order denying her a new trial.

E. Loud, Judge. Action by Christian Yegen against tbe board of county commissioners of Yellowstone county and others. From an order refusing a temporary injunction, plaintiff appeals.

<p>Judgments of Dismissal — Effect—Res Adjudicata — Presumptions — Statutes of Limitations.</p> <p>Judgment on Pleadings — Dismissal—Effect—New Action — Presumptions.</p> <p>1. Where the district court entered judgment on the pleadings in favor of defendant in a suit for money had and received, upon the presumption that a judgment of dismissal in a former suit on the same cause of action had been rendered on the merits and that, therefore,, the second action was barred, the judgment-roll in the first action not being before the court at the time, it erred in that, under section 1007 of the Code of Civil Procedure, a judgment of dismissal is not, a bar to a new action unless rendered on the merits, which fact must, be expressly declared upon the face of the judgment or appear from the judgment-roll.</p> <p>Judgment of Dismissal — Affirmance—New Action — Limitations.</p> <p>2. Where, in a suit for money had and received, a judgment of dismissal on the pleadings had been affirmed on appeal, it was terminated by such affirmance in a manner other than those mentioned in section 547 of the Code of Civil Procedure, and a second suit on the same cause of action, brought within a year after such termination, was not barred.</p>

Original application by the state, on the relation of A. Ruef, as executor of G. F. Deletraz, for a writ of prohibition restraining the district court of the twelfth judicial district and the Honorable Jere B. Leslie, presiding in place of the resident judge who was disqualified, from hearing the contest of a will.

<p> Appeal from District Court, Silver Bow County; J. B. MeClernan, Judge. </p> <p>Action by T. F. Hickey & Co. against Jake Kaufman and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p>

Certiorari by the state, on the relation of Peter Breen, against the district court of Silver Bow county and Michael Donlan, a judge thereof, to review an order adjudging relator guilty of contempt. Order annulled.

<p>Justices of the Peace — Appeals—Filing and Serving Notice— S tatutes — Jurisdiction—Prohibition.</p> <p>Prohibition — Justice of the Peace Courts — Appeal—Requisites—Statutes— Jurisdiction.</p> <p>1. A notice of appeal from a justice of the peace to the district court was served on counsel for the opposite party on one day and not filed in the justice’s court until three days later. A motion to dismiss the appeal on the ground that it had not been filed and served in accordance with the provisions of Code of Civil Procedure, section 1760, was overruled by the district court. Held, on application for writ of prohibition, that under this section the filing of the notice in the justice’s court must precede, or be contemporaneous with, the service thereof on the adverse party or his counsel, and that by the failure of the appellant to observe the mandate of this section, the district court was not invested with jurisdiction of the cause.</p> <p>Appeals — Justice of the Peace Courts — Statutes.</p> <p>2. Appeals from justice of the peace to district courts are matters of statutory regulation, and the provisions of the law relative to the method to be pursued in taking such appeals must be strictly followed in order to divest the former of, and invest the lattef with, jurisdiction.</p>

E. Erickson, Judge. Action by Ed. Tanner against J. R. Bowen. From a judgment for plaintiff and from an order denying Mm a new trial, defendant appeals. That Devlin would have a right of action against either Tanner or Bowen for the negligence of the latter in driving or earing for the horse in question with Tanner’s consent and in the course of Tanner’s business, is too well settled to require citation of authorities.

B. Loud, Judge. Action by the Musselshell Cattle Company against Alex. Woolfolk and another. From an order refusing to dissolve a temporary injunction, defendants appeal.

Appeal• from District Court, Beaverhead County; Lew L. Callaway, Judge. Action by Beaverhead Canal Company against the Dillon Electric Light and Power Company and others. From a judgment in favor of plaintiff for less than the relief demanded, it ippeals.

<p> Appeal from District Court, Dawson County; C. H. Loud, Judge. </p> <p>Action by W. E. Case and another against M. L. Kramer. From an order granting a new trial to plaintiff after verdict and judgment for defendant, he appeals.</p> <p>The contract sued on made by Courtney as an agent for Kramer was in writing. Courtney did not have any written authorization of agency. The value of the property involved in the alleged contract is sufficient to bring tbe contract under the provisions of sections 2185 and 2340 of the Civil Code and section 3276 of the Code of Civil Procedure. The contract was one required to be in writing and the authority of the agent to enter into the contract under section 3085 of the_ Civil Code was required to be in writing.</p> <p>Upon the uncontradicted evidence in this case, it is for the court to determine whether there was in fact an agency, either actual or ostensible, and the burden of proof was upon the plaintiffs, the parties affirming the relation, and it is required that the proofs be clear and specific in order to bind the principal. (Am. & Eng. Ency. of Law, 2d ed., 968, cases cited; Booker v. Booker, 208 111. 529, 100 Am. St. Rep. 250, 70 N. E. 709; Montgomery v. Pacific Coast Land Bureau, 94 Cal. 284, 28 Am. St. Rep. 122, 29 Pac. 640; Herbert v. King, 1 Mont. 482; Brophy v. Idaho Produce etc. Co., 30 Mont. 279, 78 Pac. 493.)</p> <p>Courtney had no authority, either express or implied, to accept a check as part payment of the purchase price of the cattle in question. “No ruling in law is better established than that, in the absence of express authority otherwise from his principal, the agent cannot bind his principal by accepting payment in any other medium than money. The agent has no implied authority to receive payment in drafts, bills of exchange, or checks.” (See statement of rules and authorities cited in 22 Amerieanand English Encyclopedia of Law,second edition,522.) The principal may, it is true, so act that he will be held to have waived objection to such payment or to have ratified the agent’s act, and thus be bound thereby. (Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 730; Jackson v. National Bank, 92 Tenn. 154, 36 Am. St. Rep. 81, 20 S. W. 802, 18 L. R. A. 663; Tiedeman on Sales, p. 465, sec. 269. See Civil Code, see. 3072.) Courtney’s authority, being in its nature limited, its scope must not be exceeded, and his authority must be strictly pursued, and if it is not, the principal will not be bound. (Meehem on Agency, sec. 288, and numerous cases there cited; Strickland v. Council Bluffs Ins. Co., 66 Iowa, 466, 23 N. W. 926; Davis v. Robinson, 67 Iowa, 355, 25 N. W. 280; Saginaw etc. By. Go. v. Chappell, 56 Mich. 190, 22 N. W. 278; Gilbert v. Deishon, 107 N. Y. 324, 14 N. E. 318.) And an agent is not permitted to depart from the usual manner of effecting what he is employed to effect. (Story on Agency, see. 60; Helena Nat. Bank v. Bocky Mountain Teleph. Go., 20 Mont. 391, 63 Am. St. Rep. 628, 51 Pac. 829.) It is the duty of a person dealing with an agent to inquire into the nature and extent of his authority and deal with him accordingly, and they deal with him at their peril. (1 Am. & Eng. Ency. of Law, 2d ed., p. 994; Roberts v. Rumley, 58 Iowa, 301, 12 N. W. 323; Martin v. Farnsworth, 49 N. Y. 555.)</p> <p>And one is not permitted to trust to mere presumption of authority, or to any mere assumption of authority by the agent, and reasonable prudence must be exercised, and if there is 'anything about the agent’s pretension of authority which is unusual or improbable, one should inquire before dealing with an agent. {Dyer v. Duffy, 39 W. Ya. 148, 19 S. E. 540, 24 L. R. A. 339; Mechem on Agency, secs. 289, 290; Leu v. Mayer, 52 Kan. 419, 34 Pae. 969; Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388.)</p> <p>In this there is an important distinction between a general and a special agent. The one dealing with a special agent is held to the strictest inquiry; nothing is to be assumed or presumed. (Parsons on Contracts, 39; Anderson v. Coonley, 21 Wend. 279.)</p>

<p> Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge. </p> <p>Action by John M. Hardesty against the Largey Lumber Company. Judgment for plaintiff. Defendant appeals from the judgment and an order denying it a new trial.</p> <p>It was not the duty of defendant to use reasonable care to provide plaintiff with a safe place to work, where the prosecution of the work itself, the construction of the mill, made the place, and created its attending dangers. (Davis v. Trade Dollar C. M. Co., 117 Fed. 122, 54 C. C. A. 636; Shaw v. New Year Gold M. Co., 31 Mont. 138, 77 Pac. 515; O’Connell v. Clark, 22 App. Div. 466, 48 N. T. Supp. 74-76; Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Randall v. Baltimore etc. R. R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L.- Ed. 1003.)</p> <p>Plaintiff, by reason of his employment as a carpenter in the construction of plaintiff’s mill, assumed the risks incident to dangers attending the temporary piling of plank, and other lumber intended for use in the construction of said mill. (Crown v. Orr, 140 N. T. 450, 35 N. E. 648; Dresser on Employers’ Liability, 433-437; Labatt on Master and Servant, 645; Kohn v. McNulta, 147 U. S. 238, 241, 13 Sup. Ct. 298, 37 L. Ed. 150; Hull v. Northern Pac. Ry. Co., 136 Fed. 153, 156.)</p> <p>If the method of piling lumber adopted by the defendant, Largey Lumber Company, for use in the construction of its planing-mill was the customary and usual method of piling lumber for immediate use in buildings and constructions in course of erection, then it makes no difference whether or not it would have been safer if the piles of lumber had been stripped. (1 Labatt on Master and Servant, 85, and cases cited.)</p> <p>The burden rests upon plaintiff to prove that the defendant was negligent, and that such negligence was the proximate cause of the injury. Negligence is not presumed, but must be proved. (6 Thompson on Negligence, par. 7695, and cases cited.) If the evidence on behalf of plaintiff shows the injury to have been directly caused (either in whole or in part) by his act, the burden is immediately upon him to prove that he was exercising ordinary care at the time. (Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Cummings v. Helena etc. Co., 26 Mont. 434, 442, 68 Pae. 852.) If the evidence on plaintiff’s behalf establishes beyond question that his own omission to use ordinary care contributed to or itself caused the injury, the court should, on motion, direct a verdict, or grant a nonsuit. (Cummings v. Helena etc. Co., supra.) The mere fact that the accident happened, and that the injury occurred to plaintiff, raises no presumption whatever of any negligence on the part of the defendant. (Patton v. Texas etc. By. Co., 179 U. S. 658, 21 Sup. Ct. 275, .45 L. Ed. 361.) Sections 2660, 2661 and 2662 of the Civil Code, substantially given at the request of plaintiff in instructions 3 and 4, are misleading, and given without comment or explanation are erroneous and prejudicial to the. rights of the party defendant. The court, in effect, in these two instructions, eliminated from the consideration of the jury any negligence or carelessness on the part of the plaintiff himself. Under these instructions, if the servant in any manner in the course of his employment suffers any loss or damage, even though such loss or damage be the direct result of his own carelessness and negligence, yet the jury are bound to find a verdict for the plaintiff. The instructions are further erroneous for the reason that thereby the court suggests to the jury that in some manner or by some means the employer in the ease at bar gave to the servant an unlawful instruction or direction; and that the defendant in this case has been in some manner a violator of the law. The language of the Code is not always a safe and sure means of conveying thought,- or of stating the law to a juror. (State v. Shafer, 26 Mont. 11, 66 Pae. 463; State v. Felker, 27 Mont. 451, 71 Pae. 668.)</p>

<p>Free County High Schools — Board of Trustees — Taxation—Injunctions — County Commissioners.</p> <p>Free County High Schools — Trustees—Taxation—Injunction.</p> <p>1. The complaint in an action by a taxpayer to enjoin the trustees of a free county high school — claimed to have been established contrary to law (Laws 1899, p. 59; Laws 1901, p. 6) — from presenting to the board of county commissioners an estimate of the tax rate required to raise the funds necessary for buildings, teaehers and apparatus, alleged that if permitted to certify such rate to the board of commissioners it would levy the same on all taxable propeily in thu county which in effect would constitute a lien on such property, including plaintiff’s. 3eld, that a general demurrer was properly sustained in that it did not appear that the plaintiff was suffering or was about to suffer any injury for which he had not an adequate remedy; that the action was prematurely brought, inasmuch as the commissioners had not assumed to levy the tax, and that if they should proceed to act, plaintiff would have a remedy by appeal to the district court.</p> <p>Same — Board of Trustees — Not Part of Taxing Power.</p> <p>2. The board of trustees of a free county high school (Laws 1899, p.'59; Laws 1901, p. 6), required by law to certify to the board of county commissioners an estimate of the tax rate necessary to raise the funds for the establishment thereof, is not by such requirement made a part of the taxing power.</p>

M. Clements, Judge. Action by Edward Grindrod against the Anglo-American Bond Company. Judgment for plaintiff, and defendant appeals. Where the party claiming to have been deceived investigates for himself, or the means are at hand to ascertain the truth or falsity of the representations, reliance upon the representations, however false they may be, affords no ground for action.

<p>Master and Servant — Personal Injuries — Railways—Assumption of Risk — Contributory Negligence — Instructions.</p> <p>Appeal — Dismissal—New Trial — Motion—Record.</p> <p>1. Where it appears from an order denying a motion for a new trial, that two defendants joined in the motion, while the notice of appeal indicated that only one defendant made such motion, and where there is not anything in the reeord to show which defendant did so, the supreme court will, on its own motion, dismiss such appeal.</p> <p>Appeal — Joint Appellants — Errors Considered.</p> <p>2. On a joint appeal, errors not common to both appellants may be considered.</p> <p>Joint Appeal — Errors Which will not be Considered.</p> <p>3. On a joint appeal, one appellant will not be permitted to assume a position antagonistic to that of the other.</p> <p>Appeal — Assignments not Argued — Waiver.</p> <p>4. Assignments of error not argued or discussed by counsel on appeal will be deemed waived.</p> <p>Nonsuit — What Facts Deemed Proved.</p> <p>5. lipon a motion for a nonsuit those facts will be deemed proved which the evidence tends to prove.</p> <p>Master and Servant — Personal Injuries — Knowledge of Danger — Question for Jury.</p> <p>6. The plaintiff, employed as a brakeman on a railroad, was injured, while engaged in the performance of his duties, by being struek by a bridge erected over a spur track. He had never been on this spur before. The bridge was about eight feet above the. track. The pla'tform of the gondola car on which he was standing was three and one-half or four feet above the track. Plaintiff was a man of five feet and ten inches in height. There were no telltales or other devices for warning employees of the railroad of their approach to the bridge. Plaintiff was struek while endeavoring to release a defective brake. Held, that the question whether plaintiff knew or ought to have known of the danger incident to riding under this bridge while standing on the platform of a car was a question for the jury; and that, therefore, a motion for nonsuit was properly overruled.</p> <p>Same — Railroads—Contributory Negligence — Instructions.</p> <p>7. An instruction, in an action for personal injuries brought by a brakeman who was struck by a low bridge while performing his duties as such, which announced the principle that the servant, with knowledge of an existing danger, may be excused from what would otherwise be contributory negligence, if it appeared that an emergency arose by reason of which, while engrossed in the performance of his duties, he forgot the danger or did not appreciate his close proximity to it, was properly given, the testimony showing that plaintiff was injured while endeavoring to release a defective brake after the train had started, and that his attention was absorbed by his duties for the time being.</p> <p>Same — Assumption of Risk.</p> <p>8. Quaere: Is the doctrine that a servant, knowing of an existing danger, is excusable where he was injured while engrossed in the performance of his duties, by reason of an emergency which absorbs his whole attention, so that for the time being he forgets the danger or his close proximity to it, applicable against the defense of assumed risk?</p> <p>Appeal — Invited Error — Instructions.</p> <p>9. Where the district court at the request of appellant gave an in- • struction announcing an erroneous rule of law, but amended it in a</p> <p>particular which did not make it any more erroneous, the appellant may not complain.</p> <p>Master and Servant — Railroads—Low Bridges — Duty of Master.</p> <p>10. An instruction — in an action for personal injuries against a smelting company jointly with a railway company, by a brakeman who, while on cars which were being taken from the smelter over a spur track, was struck by a bridge constructed over the track and maintained by the smelting company — to the effect that if the employees of the railway company were taking out the ears from the smelter at the invitation, express or implied, of the smelting company, it owed to them the duty to keep the premises, as far as the bridge was concerned, in a reasonably safe condition, a violation of which would render it liable, states a correct rule of law.</p> <p>Master and Servant — Railroads—Low Bridges — Negligence—Question for Jury — Instructions.</p> <p>11. Whether the construction and maintenance of a bridge by a smelting company, jointly sued with a railway company, over a spur track so low as to cause a brakeman while performing his duties to be injured by coming in contact with it, constituted negligence on the part of the defendant smelting company, was a question for the jury, even though the bridge had a draw which could be removed and so rendered harmless; and a requested instruction charging, as a matter of law, that under such circumstances verdict should be for defendant smelting company, was properly refused.</p> <p>District Courts — Requested Instructions — Refusal to Correet.</p> <p>12. The district court is not bound to correet a requested instruction by striking out a sentence announcing an erroneous rule of law and then to give it as corrected; while it may do so, error cannot be predicated upon its refusal.</p> <p>Master and Servant — Railroads—Duty of Master — Instructions.</p> <p>13. Where, in an action for personal injuries, instructions relative to the duty of a railway company to its employees were couched in such language that any one of a number of different conclusions might have been drawn by the jury, the supreme court will not say that they selected one substantially correet and rejected those which were erroneous.</p> <p>Master and Servant — Duty of Master — Railroads.</p> <p>14. The duty which a railway company owes to its employees with respect to its roadway and appliances is to exercise ordinary care to furnish reasonably safe roadways and appliances, and to use ordinary care and diligence to keep them in a reasonably safe condition.</p> <p>Personal Injuries — Instructions—Contributory Negligence — Knowledge of Danger.</p> <p>15. An instruction, in a suit for personal injuries, that it was incumbent upon defendant to show that plaintiff, a brakeman, injured by coming in contact with a bridge maintained over a railroad track, knew of the existence of the bridge before the defense of contributory negligence could become available, was erroneous in that, if as a reasonably prudent man he ought to have known of the danger incident to the existence of. the bridge, he was chargeable with such knowledge.</p> <p>Personal Injuries — Railroads—Instructions—Assumption of Risk — Knowledge of Danger.</p> <p>16. To charge the jury, in a personal injury case, that the plaintiff, a brakeman, injured by coming in contact with a bridge erected over a railway track, must have had actual knowledge of the fact that the bridge was so low that he could not safely pass under it while standing on the platform of a car, before the defense of assumption of risk could be said to be established was error, since he could not recover if, as a reasonably prudent man, he ought to have known and comprehended the danger.</p>

<p>Ejectment — Public Lands — Proceedings in Land Office — Witnesses — Fraud—Findings.</p> <p>Ejectment — Findings—Public Lands — Proceedings in Land Office — Preventing Witnesses from Testifying.</p> <p>1. A finding of the district court, in an action in ejectment, that plaintiff had prevented defendant from producing a certain witness in the hearing of a contest, for the land in question, in the United States land office, was not supported by the evidence, which showed that plaintiff had brought the witness some distance to the place of hearing to testify for him, but upon inquiry found that he would not testify as expected, and therefore sent him home, saying that he did not want his opponent to get hold of him, a party not being under any obligation to reveal the existence of evidence to his adversary to his own detriment.</p> <p>Same — Preventing Witnesses from Testifying — Evidence.</p> <p>2. The district court committed error in finding in an action in ejectment, that plaintiff procured another to cause the arrest and imprisonment of two persons so as to prevent their evidence from being secured by defendant in a contest for the land in question, in the land office of the United States, where it appeared from the evidence that while plaintiff and the persons causing the arrest were intimate and were witnesses at the trial of the contest and at the trial of the persons arrested, there was nothing to show that plaintiff had instigated the arrest or that the motive of him who caused it was to aid plaintiff.</p> <p>Same — Fraud—Conspiracy-—Evidence—Findings.</p> <p>3. Evidence in a suit to recover possession of certain land, that plaintiff and another were on a friendly footing and that the latter aided the former to establish his claim to the land in question in the United States land office, did not warrant the district court in finding that they had entered into a conspiracy to defraud the defendant of the land.</p> <p>Same — Powers of Land Department — Review of Decisions.</p> <p>4. If the officers of the federal Land Department, to which tribunal is confided the power to determine rights growing out of settlements upon the public lands, err in the interpretation of the law applicable to the facts presented, or a fraud is practiced by one claimant upon another, or fraudulent practices are resorted to by the officers themselves, by reason of which title is granted to a party not entitled thereto, their action may be reviewed and annulled by a court of equity; but for mere errors of judgment upon the weight of the evidence produced before them in a given case, the only remedy is by appeal to the proper officer of the department, and the rulings then made are final and conclusive upon all courts.</p> <p>Same — Witnesses—False Testimony at Contest — Fraud—Courts—Immaterial Findings.</p> <p>5. A finding made in an action in ejectment that plaintiff and other witnesses swore falsely at the trial of a contest in the federal land office over the land in question in the ejectment suit, is immaterial, since in.order to justify a court in interfering with a conclusion.reached by that department, the fraud in respeet to which relief was sought by defendant by way of equitable counterclaim, must have been extrinsic and collateral to the matter tried by it and not in a matter tried upon its merits and upon which the decision was rendered.</p> <p>Publie Lands — Settlement—Noneompliance with Law — -Who may Complain. 6. Where the federal government is willing that one -who obtained' land from the publie domain without strict compliance with the law and the rules of the Land Department, should retain it, the individual citizen has no right to complain.</p>

Original application by tbe state, on relation of Mary A. Eakins, for writ of review to annul an order of tbe second judicial district court, Honorable Michael Donlan, a judge thereof, presiding, made in a probate proceeding.

Original. Certiorari by tbe state, on relation of George H. Pew, against the district court of' the first judicial district in and for the county of Lewis and Clark, and Honorable Henry C. Smith, judge of department 1 thereof, to review an order enjoining relator from using the waters of a creek for irrigation purposes.

H. Loud, Judge. Action by tbe Donovan-McCormick Company against Charles W. Sparr. From a judgment in favor of defendant, plaintiff appeals. The error in instructions 6, 7, 9, 10 and 11 is that they introduced an issue which was not presented by the pleadings or involved in the case, and the jury were thereby misled to the prejudice of the plaintiff. It is a well-established principle and rule of procedure that the instructions must be warranted by the pleadings and evidence.

E. Erickson, Judge. Edward B. Trueman was convicted of the crime of manslaughter, and appeals from the judgment of conviction and from an order denying his motion for a new trial.

Original application by tbe state, on tbe relation of Gr. E. • Pool and another, for writ of review to tbe ninth judicial district court of tbe state, in and for tbe county of Broadwater, and tbe Honorable W. R. C. Stewart, judge thereof, to annul its judgment convicting relators of contempt.

<p> Appeal' from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Action by the Palatine Insurance Company, Limited, of Manchester, England, against the Northern Pacific'Railway Company. From a judgment in favor of the defendant, plaintiff: appeals.</p> <p>The Act of March 11, 1901 (Laws 1901, p. 157), was an enrolled bill, was signed by the proper presiding officers, was approved by the governor, and was deposited and filed with the Secretary of State. These facts appear upon the face of the bill. From these facts arises the conclusive presumption of regular enactment. The omission from the Senate journal of a statement' that the bill was passed and of the names of the members voting cannot be used to rebut such presumption. (State v. Long, 21 Mont. 26, 52 Pac. 645, approved in Durfee v. Harper, 22 Mont. 354-362, 56 Pac. 582.)</p> <p>In the case first cited this court adopted the rule declared by the supreme court of Washington in State ex rel. Beed v. Jones, 6 Wash. 452, 34 Pae. 201, 23 L. R. A. 340, and by the supreme court of Missouri. Little can be added to the forceful logic of the opinions in the Washington and Missouri cases, re-enforced, as each is, by the array of authorities and the reason of the thing. We suggest, however, as a further reason why the rule should be followed, that if courts may go behind an enrolled bill to ascertain whether the provisions of section 24 of Article Y were complied with, then manifestly courts must go behind such a bill to ascertain whether it was referred to a committee, or whether returned from a committee, or was printed for the use of the members, each of which is required by section 22 of Article Y of the Constitution. (Held v. Clark, 143 IT. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; Yolo County v. Colgan, 132 Cal. 265, 84 Am. St. Rep. 41, 64 Pac. 403; People v. Harlan, 133 Cal. 16, 65 Pac. 9-12, and the eases cited in State ex rel. Beed v. Jones, supra.)</p> <p>The repealing clause of an Act repeals all prior laws and parts of laws inconsistent with its provisions, although those prior laws are not mentioned by title or number. (Application of By an, 20 Mont. 64, 50 Pac. 129; Cooley’s Constitutional Limitations, 183; Compagnie v. State Board of Health, 51 La. Ann. 645, 72 Am. St. Rep. 458, 25 South. 591, 56 L. R. A. 796, 801, notes; State v. Massey, 103 N. C. 356, 9 S. E. 632, 4 L. R. A. 309, and notes; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; People v. McCollum, 1 Neb. 182; Mayor etc. v. Trigg, 46 Mo. 288; 23 Am. & Eng. Eney. of Law, 283, and notes; District of Columbia v. Hutton, 143 U. S. 18, 12 Sup. Ct. 369, 36 L. Ed. 60.) Nor does it matter whether the new statute by its title or in the body of the Act is assumed to be amendatory or not; it is enough if it clearly has that effect. (23 Am. & Eng. Eney. of Law, 282; Smaile y. White, 4 Neb. 353; Sovereign v. State, 7 Neb. 409; Strichlett v. State, 31 Neb. 674, 48 N. "W. 820; In re House Roll, 31 Neb. 505, 48 N. W. 275.) Statutes of limitation must be taken to act prospectively and not retrospectively. As to causes in existence when the new statute takes effect, the statute commences to run when the cause of action is first subjected to its operation, unless the statute itself, by express language or necessary implication, declares the legislative will to be otherwise. (Gillette v. Hibbard, 3 Mont. 412; 1 Wood on Limitations, secs. 9-13.)</p> <p>While the rule in Gillette v. Hibbard, 3 Mont. 412, is undoubtedly the rule in a number of states, it is by no means true that it is the universal rule, even in the absence of such a statute as section 3456. On the contrary, many decisions can be found that statutes of limitations affect all causes of action, whether in existence when the statutes are enacted or not, and whether such statutes are by their terms made to act retrospectively or not, the sole condition being that a reasonable time be allowed in which suit may be begun. (Osborne v. Lindstrom, 9 N. Dab. 1, 81 Am. St. Rep. 516, 81 N. W. 72, 46 L. R. A. 717, See, also, Lamb v. Powder River Live Stock Co., 132 Fed. 434, 67 L. R. A. 562, 65 C. C. A. 570; Gilbert v. Ackerman, 159 N. T. 118, 53 N. E. 753, 45 L. R. A. 118; Relyea v. Tomahawk Paper Co., 102 Wis. 301, 72 Am. St. Rep. 878, 78 N. W. 412; Smith v. Packard, 12 Wis. 371; Parker v. Kane, 4 Wis. 11, 65 Am. Dee. 283; Pollard v. Tait, 38 Ga. 439; Holcombe v. Tracy, 2 Minn. 241; Bradley v. Norris, 63 Minn. 156, 65 N. W. 357; O ’Brien v. Gaslin, 20 Neb. 347, 30 N. W. 274; Marston v. Seabury, 8 N. J. L. 435, 4 Am. Dee. 409; State v. Clark, 7 Ind. 468; Sampson v. Sampson, 63 Me. 328; Watson v. Forty-second St. etc. By. Co., 93 N. Y. 522; Boyce v. Surd, 24 Yt. 620; McQuesten v. Morrill, 12 Wash. 335, 41 Pac. 56; Pierce v. Tobey, 5 Met. 168; Acker v. Acker, 81 N. Y. 143; Clark v. Gibbons, 83 N. Y. 108.)</p> <p>The three-year period of limitation is to be reckoned from the date of the accrual of the cause of action. This being so, the only question is whether the period thus allowed between March 9, 1903, and January 21, 1904, was a reasonable period. Clearly, we think it was. This period was ten months and twelve days. In Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566, this court held a period of a little less than thirteen months to be a reasonable period. We give below a list of cases from other states with the time which in each of them was held to be reasonable under such circumstances: Terry v. Anderson, 95 U. S. 625, 24 L. Ed. 365 (nine and one-half months); Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854, 27 L. Ed. 808 (eight and one-half months); Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659 (six months); Turner v. New York, 168 IT. S. 90, 18 Sup. Ct. 38, 42 L. Ed. 392 (six months); Stine v. Bennett, 13 Minn. 153, Gil. 138 (four and one-half months); Russell v. Akeley Lbr. Co., 45 Minn. 376, 48 N. W. 3 (six months); Bigelow v. Bemis, 2 Allen, 496 (five months); Smith v. Packard, 12 Wis. 371 (eight and one-half months); Cameron v. Louisville etc. B. B. Co., 69 Miss. 78, 10 South. 554 (one year); Sorbach v. Miller, 4 Neb. 31 (four and one-half months); Myers v. Wheelock, 60 Kan. 747, 57 Pae. 956 (six months); Power v. Bitching, 10 N. Dak. 254, 88 Am. St. Eep. 691, 76 N. W. 737 (seven months).</p>

M. Bourquin, Judge. Action by John C. Dolan and another against Charles S. Pass-more and another. Judgment for plaintiffs. Defendants appeal from the judgment and from an order denying them a new trial.

<p>Personal Injuries — Municipal Corporations — Sidewalks—Pleadings — Parent and Child — Instructions—Presumptions—Trial —Special Pindings.</p> <p>Personal Injuries — Pleadings—Complaint.</p> <p>1. To support a judgment, in an action for personal injuries, in favor of plaintiff, the complaint must state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff.</p> <p>Same — Complaint—Parent and Child.</p> <p>2. Under Code of Civil Procedure, section 578, the complaint, in an action brought by the mother of a child to recover damages for personal injuries sustained by the latter, must set forth that the father was dead or had deserted his family at the time the action was commenced, and in the absence of such allegation the complaint fails to state a cause of action in favor of the mother of the child.</p> <p>Same — Cities and Towns — Defective Sidewalks — Instructions.</p> <p>3. An instruction, given in an action to recover damages from a city for personal injuries alleged to have been sustained by reason of a defective sidewalk, telling the jury that it was the duty of the city to see to it that its streets and sidewalks are kept in a safe condition, and, failing in this, it becomes liable to persons injured by reason of such failure, was erroneous, in that it practically made the city an insurer of the safe condition of its streets and sidewalks, whereas it is only compelled to keep its thoroughfares in a reasonably safe and good condition for travel.</p> <p>Instructions — Error—Prejudice—-Presumptions.</p> <p>i. In the absence of anything to show that prejudice could not reasonably have followed the giving of an erroneous instruction, and the error appearing, prejudice will be presumed.</p> <p>Pindings — Actions at Law — District Courts.</p> <p>5. In an action at law the findings of the jury are binding upon the court.</p> <p>Trial — District Courts — Setting Aside Special Pindings.</p> <p>6. Under Code of Civil Procedure, section 1101, providing that, where a special finding of fact is inconsistent with the general verdict, the former controls and the court must give judgment accordingly, it may not set aside a special finding and enter judgment on the general verdict, but must enter judgment on the special finding, leaving it to the defeated party to pursue his remedy by a motion for a new trial.</p>

M. Bourquin, Judge. Action by E. J. Bartels against Yernie A. Davis and another. From a judgment for plaintiff, defendants appeal. The life of the note extends for eight years after its maturity, unless sooner extinguished by payment, or merged in a judgment. The life of the Bartels agreement to reeonvey extends for eight years after- its date, the time .within which an action could be maintained thereon, or until said agreement had been merged in a judgment.

R. C. Stewart, Judge. Action by E. Y. Blankenship and P. J. Davies against Minnie P. Decker and others. Prom a judgment in favor of plaintiffs and from an order denying their motion for a new trial, defendants appeal.

Original application by the state on the relation of John R. Cotter and another, for writ of review to annul an order of the district court of the second judicial district and Honorable Michael Donlan, a judge thereof.

<p>Original application by tbe state, on the relation of John R. Cotter and another, for writ of review to annul an order of the district court, of the second judicial district and Honorable Michael Donlan, a judge thereof. Dismissed.</p>

<p> Appeal from District Court, Ravalli County; F. C. Webster, Judge. </p> <p>Action by Elisba B. Martin against George Corseadden. From a judgment for plaintiff and an order denying defendant’s motion for a new trial, be appeals.</p> <p>The only legitimate object of reading a criminal docket in evidence is to prove the termination of the prosecution in favor of the accused, and when that much of it is read the reading must end. It is not even evidence of lack of probable cause. (Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Apgar v. Woolston, 43 N. J. L. 57; Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788; Israel v. Brooks, 23 111. 575; Philpot v. Lucas, 101 Iowa, 478, 70 N. W. 625; Frye v. Wolfe, 8 Pa. Super. Ct. 468; Thompson v. Beacon Yal. Rubber Go., 56 Conn. 493, 16 Atl. 554; Heldt v. Webster, 60 Tex. 207; Cleveland etc. Ry. Co. v. Jenkins, 75 111. App. 17; McGuire v. Goodman, 31 111. App. 420; Granger v. Warrington, 8 111. 299; Casey v. Sevatson, 30 Minn. 516, 16 N. W. 407; Coble v. PLuffines, 132 N. C. 399, 43 S. E. 909; Tumalty v. Parker, 100 111. App. 382; Anderson v. Keller, 67Ga. 58; Chapman v. Dodd, 10 Minn. 350; Hinson v. Powell, 109 N. C. 534, 14 S. E. 301; Dempsey v. State, 27 Tex. App. 269, 11 Am. St. Rep. 193, 11 S. W. 372; Fletcher v. Chicago etc. Ry. Co., 109 Mich. 363, 67 N. W. 330; Bays v. Herring, 51 Iowa, 286, 1 N. W. 558.)</p> <p>Individual opinions of character are incompetent and immaterial. Character evidence must always be confined to general repute. Plaintiff had the right to prove his general reputation prior to the arrest but he availed himself not of it. But he had no right to introduce the individual opinion of the justice, who seemed to be a friend. (Dempsey v. State, 27 Tex. App. 269, 11 Am. St. Rep. 193, 11 S. W. 372.)</p> <p>Evidence of theft confessed by plaintiff to a witness is admissible in an action of this kind, as tending to show whether or not defendant had probable cause to believe plaintiff guilty of the criminal act charged and as going to the good faith and belief of defendant in regarding plaintiff as a criminal and having him arrested and as refuting the allegation of malice. It shows larcenous proclivities. (Newell on Malicious Prosecution, pp. 465-469; 3 Elliott on Evidence, see. 2478; Thelin v. Dorsey, 59 Md. 539; Lamb v. Galland, 44 Cal. 609; Sherwood v. Reed, 35 Conn. 450, 95 Am. Dec. 284; Israel v. Brooks, 23 111. 575; Barron v. Mason, 31 Vt. 189.)</p> <p>Even though advised and but partially influenced by counsel,, an honest belief in plaintiff’s guilt negatives malice and is sufficient. (Goldstein v. Faulkes, 19 R. I. 291, 36 Atl. 9; McGuire v. Goodman, 31 111. App. 420; Ehrman v. Hoyt, 3 Ohio Dec. 308; Hitson v. Simms, 69 Ark. 439, 64 S. W. 219; Miles v. Salisbury, 21 Ohio C. C. 333; Lyon v. Hancock, 35 Cal. 372; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102; Eolka v. Jones, 6 N. Dak. 461, 66 Am. St. Rep. 615, 71 N. W: 558; Biddle v. Jenkins, 61 Neb. 400, 85 N. W. 392.)</p> <p>It is a question of law for the court to say whether or not the facts presented constitute probable cause and the court must decide that question and cannot delegate it to the jury. The jury can decide whether or not certain facts áre proven by the evidence. It is wholly for the court to say whether or not those facts, if proven, constitute probable cause. (Potter v. Seale, 8 Cal. 217; Grant v. Moore, 29 Cal. 644; Harkrader v. Moore, 44 Cal. 144; Emerson v. Skaggs, 52 Cal. 246; Eastin v. Stockton Bank, 66 Cal. 123, 56 Am. Rep. 77, 4 Pac. 1106; Fulton vA Onesti, 66 Cal. 575, 6 Pae. 491; Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; Atchison etc. By. Co. v. Watson, 37 Kan. 773, 15 Pac. 877; Bell v. Matthews, 37 Kan. 686, 16 Pae. 97; Sweeney v. Perney (Kan.), 40 Kan. 102, 19 Pac. 328; Ball v. Bawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pae. 937; Lacey v. Porter, 103 Cal. 597, 37 Pae. 635; Smith v. Ins. Co., 107 Cal. 432, 40 Pae. 540; Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 78; Hess v. Oregon Ger. Baking Co., 31 Or. 503, 49 Pac. 803; Markley- v. Kirby, 6 Kan. App. 494, 50 Pac. 953; McClay v. Hicks, 119' Mich. 65, 77 N. W. 636; Clark v. Folkers (Neb.), 95 N. W. 328; Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754, 71 S. W. 921; Boush v. Fidelity & D. Co., 100 Ya. 735, 42 S. E. 877;. Leahy v. March, 155 Pa. St. 458, 26 Atl. 701; Meysenberg v. Engelke, 18 Mo. App. 346; Lytton v. Baird, 95 Ind. 349; Angelo■ v. Faul, 85 111. 106; Lewton v. Hower, 35 Fla. 58, 16 South. 616; Chrisman v. Carney, 33 Ark. 316; Newell on Malicious Prosecution, pp. 14, 276-279.)</p> <p>The law only requires defendant to disclose to counsel all of the facts within his knowledge. When he does that, the law exonerates him. (Dunlap v. New Zealand etc. Ins. Co., 10D Cal. 365, 42 Pac. 29; Hess v. Oregon G. B. Co., 31 Or. 503, 49 Pac. 803; Holliday v. Holliday (Cal.), 53 Pac. 42; Levy v. Brannan, 39 Cal. 485; Biddle v. Jenkins, 61 Neb. 400, 85 N. W. 392; Pawlowski v. Jenks, 115 Mich. 275, 73 N. W. 238; Potter y. Seale, 8 Cal. 217; Burris v. North, 64 Mo. 426; Steed v. Knowles, 79 Ala. 446; Mesher v. Iddings, 72 Iowa, 553, 34 N. W. 328; 3 Elliott on Evidence, sec. 2480.)</p> <p>Absolute belief in guilt is not necessary to a prosecution, but if the prosecutor has good grounds to strongly suspect the guilt of the accused it is sufficient. (Newell on Malicious Prosecution, pp. 27, 28, sec. 21, p. 252, sec. 1; Angelo v. Paul, 85 111. 106; Gardiner v. Mays, 24 111. App. 627; Cole v. Curtis, 16 Minn. 182; Whit-field v. Westbrook, 40 Miss. 311; Harpham v. Whitney, 77 111. 32; Bacon v. Towne, 4 Cush. (Mass.) 217; Sisk v. Harst, 1 W. Ya. 53; Blunk v. Atchison By. Co., 38 Fed. 311; Plassan v. Louisiana Lottery Co., 34 La. Ann. 246; Scott v. Shelor, 28 Gratt. (Ya.) 891.)</p> <p>Malice is a material allegation of plaintiff’s complaint to be proven by a preponderance of the evidence and not to be presumed from any one thing alone. (Newell on Malicious Prosecution, p. 247, see. 13; Brown v. Willoughby, 5 Colo. 1; Harkrader v. Moore, 44 Cal. 144; Rogers v. Mahoney, 62 Cal. 611; Griswold v. Grisivold, 143 Cal. 317, ■ 77 Pae. 672; Wright v. Hayter, 5 Kan. App. 638, 47 Pac. 546; Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788; Tandy v. Riley, 26 Ky. Law Rep. 98, 80 S. W. 776; Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474; Fugate v. Miller, 109 Mo. 281, 19 S. W. 71.)</p> <p>Reasonable ground for suspicion is sufficient cause for having a man arrested; and the prosecutor may not and does not have to believe the person arrested guilty. It is sufficient if he have good ground to strongly suspect guilt. (Williams v. Kyes, 9 Colo. App. 200, 47 Pae. 839; Scrivani v. Pondero, 138 Cal. 31, 60 Pac. 463; Brown v. Willoughby, 5 Colo. 1; Murphy v. Hobbs, 7 Colo. 541, 49 Am. Rep. 366, 5 Pac. 119; Gurley v. Tompkins, 17 Colo. 437, 30 Pac. 344; Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Stewart v. Sonneborn, 98 IT. S. 187, 25 L. Ed. 116; Emerson v. Skaggs, 52 Gal. 247; Ball v. Bawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Cottrell y. Cottrell, 126 Ind. 181, 25 N. E. 905; Sweeney v. Perney, 40 Kan. 102, 19 Pac. 328; Johns v. Marsh, 52 Md. 323; Rankin v. Crane, 104 Mich. 6, 61 N. "W. 1007; Whitfield v. Westbrook, 40 Miss. 311; Meysenberg v. Engelke, 18 Mo. App. 352; Bulkeley v. Smith, 2 Duer (N. Y.), 272; Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93; Briggs v. Burton, 44 Vt. 124.)</p> <p>An instruction in an action for malicious prosecution cannot ignore the element of lack of probable cause. If it does, it is fatal. (Sweeney v. Bienville Water Co., 121 Ala. 454, 25 South. 575; Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800; Talbott v. G. W. P. Co., 86 Mo. App. 558; Miles v. Salisbury, 21 Ohio C. C. 333; Low v. Greenwood, 30 111. App. 184; Morrell v. Martin, 17 IR. App. 336.)</p> <p>Neither can it omit the element of malice without fatal error. (Greenwade v. Mills, 31 Miss. 464.)</p> <p>A judicial record is always admissible to prove itself, and as the plaintiff’s cause of action is based upon the commencement and termination of the prosecution against him in a court of justice, he must' necessarily be both allowed and required to prove such commencement and termination by the best evidence. (Olmstead v. Partridge, 16 Gray, 381; Winn v. Peck-ham, 42 "Wis. 493; Mass v. Meire, 37 Iowa, .97; Ames v. Snider, 69 IU. 376; Sweeney v. Perney, 40 Kan. 102, 19 Pae. 328; Cooper v. TJtterbach, 37 Md. 282.) There.are a few decisions which declare that the discharge of the accused is not admissible as evidence of probable cause, and that the effect of such discharge is limited to proving that the prosecution has terminated; bnt the majority of the decisions upon the subject affirm that the failure of the examining magistrate to commit or the grand jury to indict the accused is admissible, not merely, as evidence that there was no sufficient proof to warrant indicting him or holding him to answer, but further, that the prosecutor did not have probable cause for his prosecution. This being true, then the whole record, and not a part thereof, was admissible for that purpose. (Sharpe v. Johnston, 76 Mo. 660; Bornholdt v. Souillard, 36 La. Ann. 103; Bigelow v. Sickels, 80 Wis. 98; Frost v. Holland, 75 Me. 108; Vinal v. Core, 18 W. Va. 42; Jones v. Finch, 84 Va. 204, 4 S. E. 342; Nicholson v. Coghill, 9 Dowl. & R. 13; Johnson v. Chambers, 10 Ired. 287; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Cooper v. TJtterbach, 37 Md. 282.)</p> <p>Though the plaintiff must be prepared to defend his general reputation, he is not required to meet charges of specific offenses. (Gregory v. Thomas, 2 Bibb, 286, 5 Am. Dee. 608.) The facts and circumstances upon which the defense relies as evidence of probable cause must tend to show the commission of the crime charged. It is not sufficient that they existed and tended to prove, or proved, a wrongful or criminal act, if it was not the act charged. Hence probable cause for the prosecution for larceny is not shown by evidence that the facts upon which the defendant proceeded tend to prove that the property had been converted. (Turner v. O’Brien, 5 Neb. 542; Fdlvey v. Faxon, 143 Mass. 284, 9 N. E. 621; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611.)</p>

<p>Criminal Law — Forgery—Bounty Certificates — Information— Statutory Construction — Constitution—Habeas Corpus.</p> <p>Statutes — Constitutionality—Title—Penalty Clause.</p> <p>1. A penalty clause may be incorporated in an Act without being designated in its title, and such provision is not in violation of the constitutional inhibition (Constitution, Art. V, sec. 23) that no bill containing more than one subject shall become a law, which subject shall be clearly expressed in the title of the bill.</p> <p>Statutory Construction — Legislative Intent.</p> <p>2. In construing a section or sections of a statute, the intention of the legislature is to be gathered from the entire Act, irrespective of its division into sections, made for convenience only.</p> <p>Bounty Certificates — Forgery—Statutes—Title—Penalty Clause.</p> <p>3. Held, that sections 3078 and 3079 of the Political Code, providing in substance, respectively, that a person falsely making, altering, forging or counterfeiting a bounty certificate shall be' guilty of forgery, and that one doing certain acts with relation to such certificates with intent to defraud the state, shall be guilty of a misdemeanor, each section providing penalties, together constitute the penalty clause of the Act entitled "An Act to Provide a Bounty on Certain Stock Destroying Animals and a Fund for the Payment Thereof” (Pol. Code, secs. 3070-3080), and that, since a penalty clause may be incorporated in an Act without being designated in its title, the legislation is not invalid because the provisions of section 3078 were not particularly set out in the title of the statute.</p> <p>Same — Statutes—Validity—Title—Constitution.</p> <p>4. Act of March 6, 1903 (Laws 1903, p. 166), amendatory of sections 3070-3073 of the Political Code relative to bounties on certain stoek-destroying animals, and which sought to amend section 1124 of the Penal Code, also referring to bounties, but theretofore repealed (Laws 1897, p. 249), while of no effeet as to the attempted amendment of repealed section 1124, is valid and not unconstitutional, for the alleged reason that its title contains more than one subject.</p> <p>Same — Statutes—Validity—Title.</p> <p>5. The Act of March 6, 1903 (Laws 1903, p. 166), amending sections 3070-3073 of the Political Code relative to bounties on wild animals, and providing for bounty inspectors to examine the hides and issue the certificates, whereas in the former Act the county clerk was the officer to do so, is not invalid, in that it provides an entirely new set of officers to administer the law and therefore is broader than the original Act and broader than its own title — since the provisions of the amendatory Act are germane to the subject treated in the original Act, and under its title any provision could be inserted relative to officers to carry out its provisions which might have been incorporated in the original Act under its title.</p> <p>Same — Forgery—Statutes—Who may not Raise Questions of Validity.</p> <p>6. A person appointed to act as bounty inspector under the provisions of Act of March 6, 1903 (Laws 1903, p. 166), and who, while acting as such, was charged with forgery of bounty certificates, he having thus been at least a de facto officer, will not be heard to raise the question of the invalidity of the Act on the ground that it imposes duties upon district judges, in the selection of three representative stockgrowers to appoint bounty inspectors, not judicial in character.</p> <p>Bounty Inspectors — Appointment—Constitution—District Judges.</p> <p>7. Since bounty inspectors, provision for whose appointment is made in Act of March 6, 1903 (Laws 1903, p. 166), are not officers whose appointment is "otherwise provided for” in the Constitution (Const., Art. VII, sec. 7), the legislature had the power to delegate the selection of three stockgrowers in each county to appoint bounty inspectors to the district judges.</p> <p>Forgery — Bounty Certificates — Information—Sufficiency.</p> <p>8. An information which charged that accused feloniously did falsely make, forge and counterfeit a bounty certificate in that, while acting as bounty inspector under Act of 1903 (Laws 1903, p. 166), he made and delivered to a bounty claimant a certificate setting forth that such claimant had exhibited the skins of certain wild animals to him (defendant), had filed the necessary affidavits, and that defendant, as such inspector, had examined and marked the skins as required by law, whereas these precedent conditions to the issuance of the certificate had not been fulfilled, the defendant knowing that the statements so made were false, states a public offense under Political Code, section 3078, which provides that any person who shall falsely make, forge, etc., a bounty certificate shall be guilty of forgery.</p> <p>Same — Bounty Certificates — Statutes—Information.</p> <p>9. The offense of forgery charged, under Political Code, section 3078, to have been committed by a bounty inspector in falsely making a bounty certificate, is not committed by making the false statements of fact in the certificate, but by making the certificate when certain conditions precedent to its issuance, with the fulfillment of which he is charged (Laws 1903, p. 166), have not been performed, and does not, therefore, necessarily fall within Penal Code, section 294, which declares that any public officer who makes a certificate containing statements which he knows to be false is guilty of a misdemeanor.</p> <p>Same — Bounty Certificates — Information—Sufficiency.</p> <p>10. The crime of forgery charged against a bounty inspector under Political Code, section 3078, is purely statutory, and it is, therefore, not necessary to allege in the information extrinsic facts to show wherein or whereby the certificate charged to have been falsely made might apparently be of legal effieaey or the foundation of a legal liability.</p> <p>(Mr. Justice Milburn dissenting.)</p>

<p> Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Proceedings in the estate of Anthony Dougherty, deceased. From an order settling the accounts of Annie Dougherty, administratrix, to the allowance of which certain of the next of kin of the deceased who are entitled to share in the estate made various objections, and striking out certain credits on account of an allowance theretofore made to her, she appeals both as administratrix and in her individual capacity.</p>

<p>Certiorari — Probate Proceedings — Executors—Order of Sale-Real Estate — Powers of Probate Court.</p> <p>Certiorari — Probate Courts — Order of Sale — Staying Execution.</p> <p>1. The district court, sitting in probate, made an order of sale of certain real property to satisfy claims of creditors of the estate. Subsequently one of the devisees filed a petition that the property specifically devised to him be distributed to him. The court thereupon made an order requiring all persons interested in the estate to appear and show cause why the order prayed for should not be made, upon the execution by petitioner of an undertaking conditioned to pay his proportion of the debts of the estate,.and directed the executor to postpone the sale until after hearing of the petition. Held, on certiorari, that the court had jurisdiction of the matter, and in determining it, to inquire into the condition of the estate and see whether a necessity for the sale still existed, and make its order accordingly, and that therefore the writ will not lie.</p> <p>District Courts — Control of Process.</p> <p>2. The district court has power to control its own process within just limits, and so to protect the rights of parties and prevent arbitrary and unwarranted action by its officers.</p>

Application by the state of Montana, on the relation of Cyril Pauwelyn, as executor of the estate of James Tuohy, for a writ of prohibition against the district court of the second judicial district of the state of Montana, and Michael Donlan and Geo. M. Boarquin, as judges thereof.

M. Clements, Judge. Action by tbe state, on tbe relation of Cascade connty, against tbe connty of Lewis and Clark and others. Judgment for respondents, and relator appeals. Tbe district court of Cascade connty determined and certified that tbe costs of tbe trial of State v. Keerl, were $5,150.75. This finding cannot be collaterally attacked.

<p>Life Insurance — Mutual Benefit Associations — Change of Beneficiary- — By-laws—Waiver—Agency—Mail.</p> <p>Life Insurance — -Mutual Benefit Associations — Change of Beneficiary.</p> <p>1. A member of a benefit life insurance association has a right to change the beneficiary named in Ms certificate of insurance, by complying with the by-laws of the association governing the subject.</p> <p>Same — By-laws—Waiver.</p> <p>2. Any waiver of a strict compliance with the by-laws of a benefit life insurance association governing a change of beneficiary, must have occurred during the lifetime of the insured, and when so waived the former beneficiary upon the death of the insured cannot take advantage of a noncomplianee with the rules covering the matter.</p> <p>Same — Payment of Insurance Money into Court — Effect.</p> <p>3. By paying into court the money due on a life insurance policy issued by a fraternal benefit association, the association waived the failure of insured to comply strictly with the by-laws of the" order governing a.change of beneficiary, but such waiver could not impair rights of the beneficiary whieh became vested on the death of the insured.</p> <p>Same — Change of Benefieiary — Requirements.</p> <p>4. With respect to mutual benefit insurance, it is a general rule that in making a change of beneficiary, the insured must proceed in accordance with the regulations contained in the policy and by-laws of the association, and any material deviation from the course therein indicated will invalidate the transfer.</p> <p>Same — Change of Beneficiary — Mailing—Agency.</p> <p>5. The by-laws of a fraternal life insurance association provided that a change of benefieiary should take effect upon delivery to the loeal record-keeper of a written request for such change. The insured placed his written request for change of beneficiary in the mail for delivery into the postoffice of the place where the record-keeper resided. Before delivery, insured died. Held, that by depositing the paper in the mail the insured constituted it his agent and assumed the risk of failure of delivery, or that it would not be made until a date too late to be of any effect, that the failure of the agent was his failure, and that therefore the contemplated change was not effectuated.</p> <p>Same — Change of Benefieiary — Receipt of Application After Death of Insured — Effect.</p> <p>6. The fact that a written request for a change of benefieiary in a poliey of insurance issued by a mutual benefit association, the bylaws of which provided that such change should take effect only upon delivery to the loeal record-keeper of a request in writing therefor, had been placed in the mail for delivery and was actually received within about six hours after the death of the insured, could not affect the interest of the beneficiary named in the policy, whose title to the amount called for in it attached instantly upon the death of the insured.</p> <p>Same — Change of Beneficiary — Receipt of Application After Death of Insured — Equity.</p> <p>7. Held, that the doctrine that a court of equity will decree that to be done which ought to be done, did not apply where a member of a benefit life insurance association had, in an attempt to comply with its by-laws relative to a change of benefieiary, placed a written request for such change in the mail but, before delivery thereof in the postoffiee of the place of residence of the loeal keeper of records, the insured died, he, by failure of his agent to deliver the request in time, not having done all that was incumbent upon him to do to make the change effectual.</p>

E. Erickson, Judge. Action by L. H. Faust against the Rustler Mining and Milling Company and others. From an order appointing a receiver, and from an order refusing to vacate the appointment, defendant the Rustler Mining and Milling Company appeals.

M. Bourquin, Judge. Action by William Thomas against the Boston and Montana Consolidated Copper and Silver Mining Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Instruction No. 11 failed to state that the plaintiff had a right to rely upon the assumption that the master had discharged his duty in using reasonable care to provide reasonably safe appliances and a reasonably safe place to work.

Bourquin, Judge. Action by Jefferson McCauley against David Jones. From a judgment for defendant, plaintiff appeals. The first deed was void — it was prematurely issued and delivered. If the sheriff could deliver the-deed one hour before the year expired, he could deliver it six months or the day after his sale, or coincidentally with his certificate of sale.

<p> Appeal from District Court, Lewis and Ciarle County; J. M. Clements, Judge. </p> <p>Action by the state against the Aetna Banking and Trust Company. From a judgment in favor of defendant, plaintiff appeals.’</p>

M. Bourquin, Judge. Action by W. A. Clark and another for injunction against James Maher, treasurer of Silver Bow county and another. From a judgment in favor of defendants, plaintiffs appeal.

B. C. Stewart, Judge. A. W. Allen was convicted of the crime of grand lareeny, and appeals from the judgment of conviction and an order denying Ms motion for a new trial.

Callaway, Judge. Sidney Houk was convicted of murder in tbe second degree, and appeals from tbe judgment of conviction and from an order denying bim a new trial.

<p> Appeal from District Court, Silver Bow County; Michael Donion, Judge. </p> <p>sshabin Farriss was convicted of assault in the first degree. He appeals from the judgment -and from an order denying him a new trial.</p>

M. Bourquin, Judge. Mandamus by the state of Montana, on the relation of Peter Teague, against the board of county commissioners of Silver Bow county, Montana, W. D. Clark, and others. From a judgment of dismissal, relator appeals.

<p> Appeal from District Court, Silver Bow County; Geo. M. B our quin, Judge. </p> <p>Action by Mrs. G. A. Alexander, Jr., against Great Northern Railway Company and Montana Central Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p> Appeal from District Court, Custer County; C. E. Loud, Judge. </p> <p>T. J. Newman was convicted of the crime of forgery, and appeals from the judgment of conviction and from an order denying him a new trial.</p>

<p>■Attorney’s Lien — Foreclosure—Pleading and Practice — Evidence — Exclusion—Statutes.</p> <p>Attorney’s Lien — Foreclosure—-Prior Mortgage — Tender—Complaint.</p> <p>1. The complaint in a suit to foreclose an attorney’s lien on property upon which a prior mortgage was outstanding need not allege that tender of payment of the mortgage lien had been made to the mortgagee, since such tender is not a condition precedent to the bringing of a suit in foreclosure of the attorney’s lien.</p> <p>Same — Pleading and Practice — Evidence—Exclusion.</p> <p>2. In an action by an attorney to foreclose an attorney’s lien which he had acquired on certain lands, one of the defendants answered, affirmatively setting forth that she - had a prior mortgage on the premises and asking that it be foreclosed. Plaintiff filed a reply alleging that defendant had had the use of the property and had received rents and profits from it to the amount of $1,000. On the trial the answering defendant offered proof that she had only received $450 in rents. Plaintiff objected on the ground that defendant’s pleading was a eross-complaint, and that his reply was an answer which required a reply, and that by her failure to file such reply the receipt by her of $1,000 in rents had been admitted. Held, that the only pleading of facts permitted under the Code on the part of defendant being an answer, on the part of plaintiff thereafter a reply, any new matter in which is deemed denied, the court erred in excluding the offered testimony.</p> <p>Counterclaim — Pleading—Statutes.</p> <p>3. Held, that section 981 of the Code of Civil Procedure, providing that where -a defendant interposes a counterclaim and demands affirmative relief against the plaintiff, his right to the relief is the same as in an action against the plaintiff directly, -and that the defendant shall be deemed plaintiff and the plaintiff the defendant, is applicable only to Title VII, which has to do with provisional remedies in civil actions and not with questions of pleading, controlled by Title VI of that Code.</p>

M. Clements, Judge. Mandamus by the state, on relation of M. H. Bray, to compel W. M. G. Settles, as county treasurer of Lewis and Clark county, to issue a liquor license to relator. From a judgment dismissing the proceedings, he appeals. It was not the intention of the legislature that these petitions for liquor licenses should be presented every six months. In construing a statute all of the language should be given effect if possible. (State ex rel.

<p>Notaries — False Certificate — Evidence—Instructions—Beading Law to Jury — Failure of Proof.</p> <p>Notaries — False Certificate — Evidence—Cross-examination.</p> <p>1. In an action against a notary and the sureties on his official bond, for falsely certifying an acknowledgment to a mortgage on the security of which plaintiff had advanced money, plaintiff was asked on direct examination whether he had any interest in the note and mortgage, both of which ran to another person. Plaintiff answered in the affirmative. On cross-examination he was asked why the mortgage had been made to such other person. An objection was overruled and the witness replied that it was done to avoid his having to pay taxes on the mortgage. Held, that the evidence was proper cross-examination, and admissible for the purpose of affecting the credibility of the witness.</p> <p>Same.</p> <p>2. On direct examination plaintiff, in an action against a notary and the sureties on his official bond for damages consequent upon a false certification of an acknowledgment to a mortgage, was asked to state what, if any, efforts he had made with a view to recover the amount of money he had advanced on the mortgage. He replied that he had endeavored to secure it from one E., who had introduced the mortgagor to the notary, and failing in this he had approached the notary with a like demand. On cross-examination he was asked whether E. or his partner had made any offers of settlement. An objection having been overruled, he replied that he could not recollect that any efforts [offers] were made. Held, that the question was proper cross-examination, and that in any event no prejudice could have resulted from the answer.</p> <p>Same — Instructions—Naming Witnesses — When not Eeversible Error.</p> <p>3. In an action against a notary for damages for falsely certifying to an'acknowledgment of a mortgage, the testimony taken at a former trial of the cause was introduced to impeach plaintiff and his wife. Their statements on the second trial in certain respects were in direet conflict with those made at the first trial. The only other witness at the second hearing who had also testified at the first admitted the correctness of his former testimony and gave none contrary thereto. The court instructed the jury that in determining the weight to be given to the testimony of plaintiff and Ms wife they could consider their statements made at the first trial, if they should find that such prior testimony had been given. Held, that while a court should not in any ease desígnate a witness by name in its instructions, in this instance prejudice to appellant (plaintiff) could not have been worked, because, even if the witnesses had not been particularly designated, the instruction could not have been understood as being applicable to anyone but plaintiff and his wife.</p> <p>Attorneys — Argument to Jury — Beading Law. -</p> <p>4. Semble: Whether an attorney in an argument to the jury may read excerpts from an opinion rendered by the supreme court on an appeal of a civil cause then on trial for the second time, seems to rest in the sound discretion of the court, and its action in permitting it to be done is not reversible erroT so long as the portions read do not state or comment on the facts, or disclose what the result of the first trial or the appeal had been.</p> <p>Notaries — False Certificate — Attorneys—Argument—Beading Law to Jury.</p> <p>5. Where, in an action against a notary for damages flowing from a false certificate to an acknowledgment of a mortgage, it was contended by defendants that plaintiff’s testimony as to the reliance he had placed on the certificate before he loaned his money was in direct conflict with Ms statements made on a former trial of the cause, and counsel fpr defendants in Ms argument read to the jury a portion of the opinion of the supreme court rendered in the same case on appeal, to the effect that if plaintiff had not relied on the correctness of the certificate he could not recover, — with the apparent purpose of illustrating to the jury why it had become necessary for plaintiff to change his testimony in this respect, — the court did not abuse the discretion lodged in it in permitting the reading of the excerpt in question.</p> <p>Same — Appeal—Verdict Against Evidence — Failure of Proof.</p> <p>6. The verdict for defendants in an action against a notary on his official bond for falsely certifying to an acknowledgment of a mortgage was not open to the objection that it was not justified by the evidence, where the only testimony of the transaction on the part of plaintiff was that of himself and wife, which was contradictory of their respective stories given at a former tria, of the cause, a fact which the jury were at liberty to take into consideration on the question of their credibility; and if their testimony on the second trial was disregarded, there was an entire failure of proof, and the verdict for defendants was proper.</p>

<p> Appeal from District Court, Lewis and Clark County; Henry C. Smith, Judge. </p> <p>Action by tbe Helena Gold and Iron Company against Ralph Baggaley. From a judgment in favor of defendant, plaintiff appeale.</p> <p>This court has at all times adopted a liberal rule of construction in the consideration of these location notices, and in Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153, the doctrine was announced that only a substantial compliance with the law was needed. (Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714; Bramlett v. Flick, 23 Mont. 96, 57 Pae. 869; Walker v. Bennington, 27 Mont. 369, 71 Pac. 156; Wilson v. Freeman, 29 Mont. 470, 75 Pae. 84, 68 L. B. A. 633. See also, Emerson v. McWorther, 133 Cal. 510, 65 Pac. 1036; McCann v. McMillan, 129 Cal. 350,62 Pac. 31; Duncan v. Fulton,-lb Colo. App. 140, 61 Pac. 244; Farmington Gold Min. Co. v. Rhynney Gold etc. Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pae. 832; Smith y. Newell, 86 Fed. 56.)</p> <p>The effect of the posting of the notice of location of the "Wisconsin lode was to secure to the locator the right of possession to a tract of land, whose exterior boundary extended in every direction eleven hundred and fifty feet from the place where the notice was posted. (Sanders v. Noble, 22 Mont. 115, 55 Pae. 1037, and cases cited; Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560.) On the 6th of December, 1904, the predecessor in interest of the defendant posted a notice of location to the Success claim which covered this ground in controversy with the Wisconsin claim. The ground at the time when this posted notice was placed thereon was not public domain subject to appropriation. The posted notice of the locator of the Wisconsin lode gave him the right to the possession of the ground for thirty days and the attempt to secure the ground through its location as the Success claim was a trespass, and initiated no right to the ground. (Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 18 Pac. 443; Sullivan v. Sharp, 33 Colo. 346, 80 Pac. 1054; Sierra Blanco Min. etc. Co. v. Winchell (Colo.), 83 Pae. 628; Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673; Porter v. Tonapah North Star Development Co., 133 Fed. 756; Peoria etc. Min. Co. v. Turner (Colo. App.), 79 Pae. 915.)</p>

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Action by August Johnson against Joseph Maiette for personal injuries. From a judgment in favor of plaintiff and from an order denying him a new trial, defendant appeals.</p> <p>Where the employer has furnished the facilities for performing the work in a safe manner, and the servant of his own accord selects the way or manner of performing the work which is less safe than that provided by the master, and the servant is injured, the servant cannot recover for the injury, for the reason that he has been guilty of contributory negligence. (5 Thompson on Negligence, par. 5372; Kilroy v. Foss, 161 Mass. 138, 36 N. E. 746; Kinney v. Corbin, 132 Pa. St. 341, 19 Atl. 141; Towne v. United Electric etc. Co., 146 Cal. 766, 81 Pac. 124, 70 L. E. A. 214; see, also, 5 Thompson on Negligence, sec. 5372; 1 Labatt on Master and Servant, par. 258.)</p>

<p>Appeal — New Trial — Bevieiv—District Courts — Discretion.</p> <p>Appeal — New Trial — When Order Granting It will be Affirmed.</p> <p>1. Where a motion for a new trial was made upon the grounds of newly discovered evidence, insufficiency of the evidence to justify the finding, and that the finding was against law, and the order sustaining it did not designate on which of the grounds it was made, the order will be affirmed if justified on any one of the grounds mentioned in the motion.</p> <p>Same — Review—New Trial — Conflicting Evidence — District Courts — Discretion.</p> <p>2. In the district court is lodged the sound legal discretion to grant or refuse a new trial in a ease where the evidence is conflicting, and its action in the premises will not be reviewed on appeal except for a manifest abuse of such discretion.</p> <p>Same — Review—New Trial — Finding Against Evidence — District Courts— Discretion.</p> <p>3. If in the opinion of the trial court the evidence in a given ease preponderates against the finding of the jury, it should be set aside, and where its aetion in granting a motion for a new trial can be justified upon that theory, the supreme court on appeal will not say that it abused its discretion in granting the motion.</p>

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Proceedings for the condemnation of property by the Bntte Electric Railway Company against H. K. Mathews and others. From a judgment in favor of defendant^, and an order denying it a new trial, plaintiff appeals.</p> <p>The allowance of interest by the court was erroneous. If the jury disobeyed the instruction of the court as given, it was the duty of the court, upon proper application for a new trial, to have set aside the verdict as against law. So long, however, as the verdict was permitted to stand, no judgment could be entered for an amount in excess of the verdict. (Kalium v. Dickinson, 47 Ark. 120, 14 S. W. 478; Kallberg v. Brosseau, 64 111. App. 520; Carter v. Christie, 1 Kan. App. 604, 42 Pac. 256; Southern Kan. By. Co. v. Showalter, 57 Kan. 686, 47 Pae. 831; Parker v. Lake Shore etc. B. Co., 93 Mich. 607, 63 N. W. 834; Wright v. Seeley, 96 Mich. 491, 56 N. W. 86; Houston v. Potts, 64 N. C. 41; Akin v. Jefferson, 65 Tex. 137; Smith v. Smith, 10 Tex. Civ. App. 485, 32 S. W. 28; Freiberg v. Brunswick-Balke-Collender Co. (Tex. App.), 16 S. W. 784.)</p> <p>In a proceeding for the condemnation of property, under the eminent domain statute, the party seeking to condemn has a right to minimize the damages by the construction and erection of bridges, trestles, or other structures, by which the loss and injury to the owner of the property may be reduced. (Kayes v. Ottawa etc. By. Co., 54 111. 373; Chicago etc. By. Co. v. Joliet etc. By. Co., 105 111. 388, 44 Am. Rep. 399; Lyon v. Hammon etc. Co., 167 IB. 527, 47 N. E. 775; Kansas City etc. By. Co. v. Kregelo, 32 Kan. 608, 5 Pac. 15; McGregor v. Equitable Gas Co., 139 Pa. St. 230, 21 Atl. 13; Tyler v. Town of Hudson, 147 Mass. 609, 18 N. E. 582; Elgin etc. By. Co. v. Fletcher, 128 111. 619, 21 N. E. 577; St. Louis etc. By. Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751; Oregon By. etc. Co. v. Owsley, 3 Wash. 38, 13 Pac. 186; Packard v. Bergen Neck By. Co., 54 N. J. L. 553, 25 Atl. 506; St. Louis etc. B. Co. v. Postal Tel. Co., 173 111. 508, 51 N. E. 382; Mobile etc. By. Co. v. Postal Tel. Co., 76 Miss. 731, 26 South. 370, 45 L'. R. A. 223; Houston etc. By. Co. v. Postal Tel. Cable Co., 18 Tex. Civ. App. 502, 45 S. W. 179.)</p> <p>The court erred in permitting defendant’s witnesses to testify as to the value of the ground before they were qualified, and erred in permitting their testimony to stand after they had disqualified themselves from testifying as to the market value of the land. (Watson v. Colusa-Parrott M. & S. Co., 31 Mont. 522, 79 Pac. 14; Teerpening v. Corn Exchange Ins. Co., 43 N. Y. 279; Connecticut Mutual L. Ins. Co. v. Lathrop, 111 U. S. 612, 4 Sup. Ct. 533, 28 L. Ed. 536; Combs v. Agricultural D. Co., 17 Colo. 146, 31 Am. St. Rep. 275, 28 Pae. 966; Morehouse v. Mathews, 2 N. Y. 514; Conner v. Stanley, 67 Cal. 316, 7 Pac. 723; Bauch v. New York etc. By. Co., 17 N. Y. St. Rep. 401, 2 N. Y. Supp. 108; Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544; Page v. Hazard, 5 Hill, 603; Allen v. Stout, 51 N. Y. 668; Wichita etc. By. Co. v. Kuhn, 38 Kan. 675, 17 Pac. 322.)</p> <p>Interest upon the assessed value of damages by a jury where the date of entry and possession is fixed and admitted is a question of law for the court, and need not be submitted to the jury ; for no disputed questions of fact are involved. (Lough v. Minneapolis etc. By. Co., 116 Iowa, 31, 89 N. W. 77.) Interest must be computed from time of entry and possession. (Seldon v. James, 6 Rand. 465; Delaware etc. By. Co. v. Burson, 61 Pa. St. 369; Philadelphia etc. B. B. Co. v. Gesner, 20 Pa. St. 240; Phillips y. South Park Commrs., 119 111. 626, 10 N. E. 237; City of Chicago v. Palmer, 93 111. 125; Illinois etc. B. B. Co. v. Mc-Clintock, 68 111. 296; City of Chicago v. Barbián, 80 111. 482; Lough v. Minneapolis etc. By. Co., 116 Iowa, 31, 89 N. W. 77; Pegler v. Inhabitants of Hyde Park, 176 Mass. 101, 57 N. E. 327; Bellingham Boa/ etc. By. Co. v. Strand, 14 Wash. 144, 44 Pae. 140. See, also, Hayes v. Chicago etc. By. Co., 64 Iowa, 753, 19 N. W. 245; Hollingsworth v. Des Moines etc. By. Co., 63 Iowa, 443, 19 N. W. 324; Hartshorn v. Burlington etc. By. Co., 52 Iowa, 613, 3 N. W. 648.)</p>

<p>Contracts — Breach—Beal Property — Measure of Damages— Pleadings — Complaint.</p> <p>1. The measure of damages recoverable in an action for the breach of a eontraet to convey real property is, under section 4306 of the Civil Code, in the absence of bad faith on the part of the vendor, the price paid for the property, together with the expenses properly incurred in examining the title and preparing the neeessary papers, with interest. Plaintiff in such an action sued to recover the amount paid by him to secure title, after discovering that defendant was unable to convey it. Held, that bad faith not having been alleged, recovery could only be had for the amount paid to defendant on the purchase price, together with incidental expenses, and that the court properly sustained defendant's objection to the introduction of any evidence by plaintiff for the reason that the eomplaint failed to state a cause of action.</p>

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by A. Pineus against Henry Muntzer. From a judgment for plaintiff and an order denying his motion for a new trial, defendant appeals.</p>

B.. Winston, Judge. Action by Kate Borden against D. Lyncb. From a judgment for plaintiff and from an order denying Mm a new trial, defendant appeals. When a controversy arises concerning a mortgagee’s rights-under a mortgage, with anyone interested in questioning it, he is, bound to prove the amount and condition of Ms claim. If he has rights he has the means, possessed by no other person, of explaining them, and he is bound to do so.

<p> Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Action by "Walter Passavant against Walter W. Arnold. From a judgment and from an order denying a new trial, defendant appeals.</p>

<p> Appeal from, District Court, Deer Lodge Co^mty; Geo. B. Winston, Judge. </p> <p>Action by Haggerty Brothers against Lash & Shaughnessy. From a judgment for defendants and an order denying their motion for a new trial plaintiffs appeal.</p>

<p>Principal and Surety — Appeal Bonds — Subrogation—Creditors —New Trial — Newly Discovered Evidence.</p> <p>Appeal Bonds — Principal and Surety — Creditors—Subrogation.</p> <p>1. In an action to recover on an appeal bond, where it appeared that a stranger to the original action had deposited in bank a sum of money to indemnify the sureties on the bond, the principle of subrogation, embodied in section 3700 of the Civil Code, creating in favor of the creditor a trust which attaches to the property of the principal debtor when sought to be appropriated to the benefit of the surety, may not be invoked by the creditor.</p> <p>Appeal Bonds — Sufficiency—Failure to Except — Presumptions.</p> <p>2. From a failure to except to the sufficiency of sureties on an appeal bond, the presumption arises that it was sufficient.</p> <p>Appeal Bonds — Principal and Surety — Withdrawal of Indemnity — Who may Object.</p> <p>3. Where a stranger to an action in which an appeal bond was required, deposited a sum of money to indemnify the sureties, no one but the sureties could object to the withdrawal of the indemnity; hnd, such objection not having been made, the court properly awarded the sum deposited to the heir of the deceased depositor.</p> <p>District Court — Reopening Case — Discretion—Review.</p> <p>4. To permit a case to be reopened for the purpose of hearing further proof in a civil case, lay within the discretion of the trial court, and its action in the premises is reviewable only in ease of abuse of such discretion.</p> <p>New Trial — Newly Discovered Evidence — Affidavit—Sufficiency.</p> <p>£. An affidavit filed by an attorney in support of a motion for a new trial on the ground of newly discovered evidence, stating that he and ouposing counsel had stipulated that the deposition of a witness, then out of the state, should be taken; that he relied upon such stipulation; that he asked counsel once where the witness could be found and was informed Re did not know but would ascertain; that he never received the desired information; and that neither he nor his client knew what the absent witness would testify to until after the trial, held insufficient to move the discretion of the eourt, where for a month prior to trial affiant and his client must have known, from a complaint filed in intervention, of the character and importance of the testimony of the witness, and where, if-misled by opposing counsel, affiant did not make application for a continuance.</p> <p>Same.</p> <p>6. Where, from an affidavit filed in support of a motion for a new trial on the ground of newly discovered evidence, it did not appear that movant knew the whereabouts of a witness whose testimony wa¡? relied upon and that there was a reasonable probability that it could be secured if t. new trial were granted, the district court cannot he said to have abused its discretion in refusing a new trial.</p>

<p>Personal Injuries — Cities ‘and Towns — Defective Sidewalks— Damages — Instructions —Appeal—Record—Evidence— Sufficiency — Excessive Verdict.</p> <p>Personal lujuries — Cities and Towns — Defective Sidewalks — Instructions.</p> <p>1. An instruction, given in an action to recover damages for personal injuries claimed to have been sustained by plaintiff by reason of a fall into an excavation next to a sidewalk, negligently left unguarded by the defendant city, that the jury could, in fixing the damages, take into consideration "any pain or suffering which he (plaintiff) has endured, as a result of any injury which he has sustained, up to the present time,” etc., was not open to the objection that it directed the jury to compensate plaintiff for any injury sustained prior to the time of the trial, whether through the negligence of defendant or not, where the evidence was all directed to the injury alleged in the complaint and to no other; and the jury, therefore, must have understood that the clause "up to the present time" had reference to the pain and suffering endured and not to the injury.</p> <p>Same — Appeal—Evidence—Record—New Trial Statement — Review.</p> <p>2. In the absence of certain ordinances from the statement on motion for a new trial, introduced on the trial of an action against a city for personal injuries alleged to have been sustained by reason of a defective sidewalk, ostensibly showing that it was incumbent on the street commissioner and the chief of police to look after the streets, the sufficiency of the evidence to go to the jury as to defendant's notice of the defect in the sidewalk, will not be reviewed, since the duties of such officers may have been such as to make daily inspections ÓÍ streets and sidewalks, in which event notice may be presumed.</p> <p>Evidence — Sufficiency—Appeal—Record.</p> <p>3. Evidence will not be reviewed on appeal to determine its sufficiency where the record fails to show affirmatively that all, or the substance of all, the evidence in the ease is before the appellate tribunal.</p> <p>Personal Injuries — Cities, and Towns — Damages—Evidence—Excessive Verdict.</p> <p>4. Where plaintiff, in an action against a city for damages on account of personal injuries sustained by reason of defendant's negligence in permitting an excavation adjoining a sidewalk to remain unguarded, fell a distance of seven or eight feet, was severely cut about the head, had one tooth knocked out and another broken, was bruised in the hips and suffered other like injuries, a verdict for $1,000 may not be said to be unwarranted by the evidence; and where defendant city did not itself complain that it was excessive, the supreme court on appeal will not say that it is.</p>

Original proceedings by the state on the relation of the Bloomington Land and Live Stock Company for a writ of supervisory control to the district court of the tenth judicial district for the county of Meagher, and Honorable E. K. Cheadle, judge thereof, to annul an order in condemnation proceedings by the Chicago, Milwaukee and St. Paul Railway Company of Montana.

Condemnation Proceedings by tbe Yellowstone Park Railroad Company against the Bridger Coal Company and others. From the judgment, and from an order denying a new trial to plaintiff, it appeals.

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Action by Ida Lindsley against John McGrath and another. From a judgment in favor of plaintiff, and from an order denying him a new trial, defendant McGrath appeals.</p>

The Livingston Concrete Building and Manufacturing Company was charged with violating the provisions of the eight-hour law. From a judgment sustaining defendant’s demurrer to the information, the state appeals.

<p> Appeal from District Court, Silver Bow County; Michael Donlan, Judge. </p> <p>Marion Lee,, was convicted of robbery, and from tbe judgment and from an order denying him a new trial, he appeals.</p>

M. Clements, Judge. Action by Rilla M. Coulter against tbe Union Laundry Company. A motion for nonsuit was granted, and from an order granting a new trial defendant appeals.