Volume 35 — Montana Reports

<p> Life Insurance—Action on Policy—Waiver of Conditions—Instructions. </p> <p>Life Insurance—Policy—Breach of Conditions—Conflicting Instructions. 1. Where a life insurance policy provided that it should be void: (1) if insured had been attended by a physician for any serious disease within two years prior to the date of the poliey, or (2) if before its date he had any pulmonary disease—it was error for the court to instruct the jury, in an action to recover the amount of the policy, that there was but one question for them to decide, viz., whether deceased had been attended by a physician as provided in the first clause, and, if they found that he had not, they should find for plaintiff—in that the instruction ignored the second defense urged by the insurer, that deceased had been afflicted by tuberculosis of the lungs.</p> <p>Trial—Conflicting Instructions—Prejudicial Error. 2. Error committed by the trial court in submitting to the jury conflicting instructions upon a material point, the one correct and the other incorrect, is prejudicial, inasmuch as it is impossible to determine by which one of them the jury were guided in arriving at a verdict.</p> <p>Life Insurance—Breach of Conditions—Good Faith of Insured—Instructions.</p> <p>3. An instruction, given to the jury in an action on a life insurance policy, that if the insured acted in good faith when answering certain questions in the application for the policy, even if wrongly answered, verdict should be for plaintiff, was upon a point not at issue and immaterial, where the policy declared that it contained the entire agreement between the parties to it, and where the defense relied upon was the breach of two provisions contained in the contract of insurance.</p> <p>Same—Waiver of Conditions—Instructions.</p> <p>4. Where a life insurance policy provided that its terms could not be changed or its conditions varied except by a luriting signed by the president or secretary of the insurance company, the defendant in an action on the policy was entitled to have the jury instructed that any waiver of the terms and conditions in the contract must have been in writing.</p>

<p>Appeal from District Court, Gallatin County; W. B. C. Stewart, Judge.</p> <p>Action by Lizzie Woods against W. C. Latta. Judgment for plaintiff. Defendant appeals from the judgment and an order denying him a new trial.</p> <p>The plaintiff was required to recover upon the strength of her own title, and it was not necessary that the defendant should prove his contention by a preponderance of the evidence. Instruction No. 12, being erroneous and the error apparent, prejudice is presumed and the case should be reversed. (State v. Mason, 24 Mont. 340, 346, 61 Pac. 861; Parrin v. Montana Gent. By. Go., 22 Mont. 290, 292, 56 Pae. 315; Lawrence v. Westlake, 28 Mont. 503, 507, 73 Pac. 119.)</p> <p>Instructions 11 and 14 being conflicting, they were prejudicial to the defendant, and it was error for the court to give instruction No. 14, and the case should be reversed. (Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633; Flick v. Gold Hill etc. M. Co., 8 Mont. 298, 305, 20 Pac. 807; Yoder v. Beynolds,, 28 Mont. 183, 72 Pac. 417; 11 Ency. of PI. & Pr. 145, 146; Haight v. Yallet, 89 Cal. 249, 23 Am. St. Rep. 465, 26 Pac. 897; Brown v. Mc-Allister, 39 Cal. 573.)</p> <p>The statute of limitations commenced to run at the time of the assertion of the ownership by the defendant in this ease. Conceding for the purpose of this point that at that time the plaintiff was the owner of -the property, such assertion of the right of ownership in the defendant would have entitled the plaintiff to an action for conversion. Any act of dominion over property in denial of plaintiff’s right amounted to a conversion. (Glass v. Basin etc. Min. Co., 31 Mont. 21, 77 Pac. 302; citing Cooley on Torts, 428; Union S. Y. & T. Co. v. Mallory S. & Z. Co., 157 111. 554, 48 Am. St. Rep. 341, 41 ,N. E. 888; and see, further, McPheters v. Page, 83 Me. 234, 23 Am. St. Rep. 772, 22 Atl. 101.)</p> <p>The statute of limitations began to run from the first assertion of the claim of ownership by defendant in 1898, and not when plaintiff first had knowledge of his claim. (Yore y. Murphy, 18 Mont. 342, 45 Pac. 217; Harpending v. Meyer, 55 Cal. 555; Carr v. Barnett, 21 111. App. 137.) Ignorance of one’s rights, when not owing to fraud or deceit of defendant, will not affect the running of the statute of limitations. (Jordan v. Jordan, 4 Greenl. (Me.) 175, 16 Am. Dec. 249; Thomas v. White, 3 Litt. (Ky.) 177, 14 Am. Dec. 56; Wells v. Halpin, 59 Mo. 95.) It.has even been held that, “a fraudulent concealment by which plaintiff has been delayed will not enlarge the time of bringing an action under the statute of limitations.” (Fee v. Fee, 10 Ohio, 470, 36 Am. Dec. 103.)</p> <p>The verdict of the jury did not determine all of the issues in the case and therefore will not support the judgment. (Knight v. Boche, 56 Cal. 15 j Soto v. Irvine, 60 Cal. 436; Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605.)</p> <p>Taken in connection with instruction No. 10, instructions Nos. ' 7 and 9 clearly mean, and the jury evidently understood them so to mean, that the plaintiff must show the right of possession and ownership in herself at the time of the bringing of the action, by a preponderance of the evidence, but that, if she so established ownership and the right of possession at the times contended for in the pleadings, she had made a prima facie ease and the burden was upon the defendant to overthrow this prima facie case. If the plaintiff’s testimony was true, she had made out a prima facie case of ownership, and the defendant, claiming also to be the owner, had the burden of overthrowing this prima facie case and showing ownership in himself. To that extent the burden shifted to the defendant. (See Osmers v. Furey, 32 Mont. 581, 81 Pac. 345; Chandler v. Lincoln, 52 111. 74.) The court below, by these instructions, evidently intended to state the well-known rule that, where ownership of property is once shown .to exist, said ownership is presumed to continue until the contrary is shown. (16 Cyc. 1053, 1054; Hohenshell v. South Riverside etc. Water Go., 128 Cal. 627, 61 Pae. 371; Kidder v. Stevens, 60 Cal. 414, 419, 420; McAfee v. Montgomery, 21 Ind. App. 196, 51 N. E. 957-959; Magee v. Scott, 9 Cush. 148-150, 55 Am. Dec. 49; Code Civ. Proc., sec. 3266, subd. 32.)</p> <p>Mere conflict in the instructions is not sufficient to 'reverse. (State v. Jones, 32 Mont. 442, 452, 453, 80 Pac. 1095; Thornton-Thomas etc. Co. v. Bretherton, 32 Mont. 81, 98, 99, 80 Pac. 10; Webster v. Sherman, 33 Mont. 448, 84 Pac. 878, 882; Yoder v. Reynolds, 28 Mont. 183, 195, 72 Pac. 417; Donovan-McCormick Co. v. Sparr, 34 Mont. 237, 85 Pae. 1029, 1031, 1032.)</p> <p>Defendant having failed to call the defect in the verdict to the attention of the court at the time of its return, he cannot raise the question or assert the error, if it was an error, for the first time in the supreme court. (Johnson v. Visher, 96 Cal. 310, 312-314, 31 Pac. 106; 2 Cyc. 702, subd. 1, 703; Hicks v. Coleman, 25 Cal. 122-146, 85 Am. Dec. 103; Cook v.. McNaughton, 128 Ind. 410, 24 N. E. 361-363; McClellan v. Gaston, 18 Wash. 472, 51 Pae. 1062-1064; Rawson v. Ellsworth, 13 Wash. 667, 43 Pac. 934; Code Civ. Proc., 1090, 1103, 1193; McGregor v. Lang, 32 Mont. 568, 81 Pac. 343; Ryan v. Fitzgerald, 87 Cal. 345, 25 Pae. 546.)</p>

M. Clements, Judge. Action by the Plymouth Gold Mining Company against the United States Fidelity and Guaranty Company of Maryland. From a judgment in favor of defendant, and from an order denying defendant’s motion for a new trial, it appeals. It is held by the great weight of authority that the attorney’s fees to procure the dissolution of an attachment is a proper element of damages.

<p>Justices of the Peace—Appeal—Dismissal—District Courts— A~buse of Discretion.</p> <p>Justices of the Peace—Appeal—Dismissal—Abuse of Discretion.</p> <p>1. Where the dismissal of an appeal from a justice’s court was asked on the grounds, that the justice had stricken the notice of appeal from his files and that the same had never been refiled, that the sureties on the undertaking had never justified, and that the appellant had been guilty of laches in filing certain papers in the district court, the court, if it granted such motion upon the grounds alleged, was guilty of abuse of its discretion, where it was apparent that the conditions complained of were brought about by practices of the moving party’s attorney not to be approved of.</p> <p>Same—Notice of Appeal—Filing After Service—Result.</p> <p>2. The filing of a notice of appeal from a justice’s court after its service is ground for the dismissal of the appeal by the district court.</p> <p>Same—Notice of Appeal—Filing After Service—Dismissal of Appeal.</p> <p>3. That the notice of appeal from a justice of the peace court to the district court was served before filing, may be urged as a ground for dismissal of the appeal in the supreme court, though such point was not raised in the district court.</p> <p>Same—Appeal'—Dismissal—Correct Decision—Reason for Decision Immaterial.</p> <p>4. If the district court’s action in dismissing an appeal from a justice’s court was correct, its reasons for doing so are. immaterial.</p>

<p> Appeal from, District Court, Cascade County; J. B. Leslie, Judge. </p> <p>Action by Esther Erbes against Alonzo Smith. From a judgment in favor of plaintiff, and from an order denying him a new trial, defendant appeals.</p> <p>A party is bound in the appellate court, as to the nature and form of action, by the theory upon which it was tried. Thus, if a cause of action is tried as an action at law, it cannot be contended on appeal that it is really a suit in equity. (Kostuba v. Miller, 137 Mo. 161, 38 S. "W. 946.) Conversely, where a case is by both parties regarded as an equity case in the court below, to be tried by the court without a jury, the question as to whether it is in fact a law case will not be considered on appeal. (Hardin v. Clark, 32 S. C. 480, 11 S. E. 304.) For like reasons, if a particular construction has been placed upon the pleadings in the court below, a different construction cannot be urged upon appeal. Thus the construction of pleadings as to their nature and form which is placed upon them in the trial court must be adhered to on appeal. (San Diego Land etc. Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 11 L. R. A. 604; Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963; Keyes v. Minneapolis etc. By. Co., 36 Minn. 290, 30 N. W. 888; Harwood v. Toms, 130 Mo. 225, 32 S. W. 666; Feneran v. Singer Mfg. Co., 20 App. Div. 574, 47 N. T. Supp. 284; Southern Pac. B. Co. v. Kennedy, 9 Tex. Civ. App. 232, 29 S. W. 394.) Accordingly, where a defendant styles his answer a counterclaim and the trial proceeded on that idea, he will not upon appeal be permitted to claim that it was a cross-complaint. (McAbee v. Bandall, 41 Cal. 136.) On the other hand, when an answer setting up affirmative matter is treated as a counterclaim in the trial court, it will be so treated on appeal. (Wilson v. Carpenter, 62 Ind. 495.)</p> <p>While an appellate court will ordinarily review only such issues as are tendered by the pleadings, yet where a case has been tried without objection as though the pleadings raised a certain issue, the objection, that the issue was not raised by the pleadings, cannot be made for the first time in the appellate court. {Flinn v. Ferry, 127 Cal. 648, 60 Pac. 435; Barbour v. Flick, 121 Cal. 628, 59 Pac. 122; Casey v. Leggett, 125 Cal. 664, 58 Pac. 264; Golstein v. Reynolds, 190 111. 124, 60 N: E. 65; Schopp v. Taft, 106 Iowa, 612, 76 N. W. 843; Humbert v. Larson, 99 Iowa, 275, 68 N. W. 703; German-American Bank v. Daly, 88 Hun, 608, 34 N. T. Supp. 986; Cook etc. Co. v. Haan, 21 Misc. Eep. 346, 47 N. T. Supp. 131; 2 Century Digest, tit. “Appeal in Error,” sec. 1056 et seq.; 2 Cyc. 672.)</p> <p>Applying these familiar principles to the case at bar, we find that appellant having tried this cause upon the theory that it was an equitable action to quiet title, and having actually sought a decree upon that basis in the district court, cannot now for the first time upon appeal endeavor to escape the consequences of an adverse decision upon the issue of title by calling his equitable counterclaim.</p> <p>Since the plaintiff relied upon title in herself, no cross-complaint was necessary, and none would have been required, even though the original complaint were silent upon the question of title. A mere denial of the allegations of defendant’s equitable counterclaim would have been sufficient. {Miller v. Luco, 80 Cal. 257, 261, 22 Pac. 195; Wilson v. Madison, 55 Cal. 5; Mills v. Fletcher, 100 Cal. 142, 34 Pae. 637; Germania B. & L. Assw. v. Wagner, 61 Cal. 349; 17 Ency. of PI. & Pr. 354.)</p> <p>The mere fact that damages only were prayed for in the original complaint could not possibly furnish any reason for holding that title to the real estate was not put in issue, since even under the rigid rules of the common law, the question of title might arise in an action of trespass or for damages to land, and a judgment rendered in that form of action by a court of competent jurisdiction would conclude the parties. {Branson v. Studebaher, 133 Ind. 147, 33 N. E. 98, 101; Campbell v. Cross, 39 Ind. 155; Parker v. Bussell, 3 Blackf. 411.)</p> <p>It matters not that the prayer of the original complaint was for damages, since a court is “not confined to the prayer alone in ascertaining the relief proper to be granted.” (Leopold v. Silverman, 7 Mont. 266, 282, 16 Pac. 580.) And “a party is entitled to the relief which the facts alleged and proved warrant, whether his prayers are answered or not.” (Gillett v. Clark, 6 Mont. 190, 192, 9 Pac. 823; State v. Tooker, 18 Mont. 540, 547, 46 Pac. 530, 34 L. R. A. 315; Kleinschmidt v. Steele, 15 Mont. 181, 188, 38 Pae. 827; Davis v. Davis, 9 Mont. 267, 23 Pac. 715.)</p> <p>Where matter set up in the reply is treated by the parties as an amendment to the petition, it will be so considered on appeal as the rights of the parties have been fairly and fully considered. (Buffner v. Ridley, 81 Ky. 165.) It has been frequently held that the omission of the complaint to state a fact necessary to make out the cause of action intended is cured by an allegation of the fact in the reply, if defendant accepts the> reply and goes to trial without objection. (Raplee v. Wilkin, 5 N. Y. Week. Dig. 560; Denver etc. R. Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285; Johnson v. Cummings, 12 Colo. App. 17, 55 Pac. 269; 2 Abbott’s Trial Brief Pleadings, 1170.)</p>

<p>Habeas Corpus—District Courts—Jurisdiction—Constitution—Certiorari.</p> <p>Habeas Corpus—District Courts—Jurisdiction.</p> <p>1. The jurisdiction granted to district courts and their judges to issue the writ of habeas corpus, by Article VIII, section ll of the Constitution, "on petition by, or on behalf of, any person held in actual custody in their respective districts,” is exclusive; and the power of a district judge to inquire into the legality of the detention of persons in custody is, therefore, confined to cases where the com plainant, who seeks his release, is so detained within the boundaries of the district over which such judge presides.</p> <p>Same—Judicial Districts—Absence of Judge.</p> <p>2. Where the judge of a judicial district, within the confines of which a person imprisoned seeks to have the legality of his inearceration determined by writ of habeas corpus, is absent from tbe state, and no judge temporarily presides over sueli court, the application should be made to the supreme court or a justice thereof and not to a district judge in another district.</p> <p>Same—Befusal of Writ in District Court-—Application to Supreme Court.</p> <p>3. Obiier: A person claiming to be illegally deprived of his liberty may, after an adverse ruling on his petition for writ of habeas corpus in the district court, apply to the supreme court to have his rights again inquired into.</p>

<p> Claim and Delivery—Evidence—Cross-examination—Burden of Proof—Instructions—Gifts—Appeal—Orders—Verdict—Surplusage. </p> <p>Claim and Delivery—-Evidence—Cross-examination—Witnesses—Interest in Litigation.</p> <p>1. A witness, in an action in claim and delivery brought to recover possession of a mare and colt, testified that he had purchased the mare from a former husband of defendant and thereafter resold her to plaintiff, and that his only interest in the case was that of a witness. On cross-examination he was asked whether, if it should turn out that his vendor was not the owner of the mare at the time of the sale, he would not have to "make good” to the actual owner. Held, to have been proper cross-examination; the interest of a witness in the result of the litigation being always a proper subject of inquiry.</p> <p>Same—Burden of Proof—Instructions.</p> <p>2. In claim and delivery the burden of proving that at the time of the commencement of the action he was the owner or entitled to the possession of the property in dispute, and that defendant wrongfully took the same from him, rests upon plaintiff, notwithstanding affirmative allegations of ownership in defendant’s answer; and an instruction to that effect was correct.</p> <p>Same—Live Stock—Increase—Ownership—Instructions.</p> <p>3. The court correctly instructed the jury under Civil Code, section 1170, in an action in claim and delivery to recover possession of a mare and colt, that if the mare had been given to defendant, verdict should be for her for the possession of the animal ‘ ‘ and for any increase or offspring thereof,”—even though plaintiff was in the actual possession of the dam at the time the colt was foaled and when defendant took both animals.</p> <p>Same—Estrays—Gift—Title.</p> <p>4. Where a mare had been given to -defendant (to recover which plaintiff brought an action in claim and delivery), by one who had taken up the animal as an estray, the donee’s title was good as against everyone except the true owner; and plaintiff was in no position to complain that the donor, having failed to comply with the statute regulating the disposition of estrays, could not make a valid gift of the animal.</p> <p>Appealable Orders—Correcting Verdict.</p> <p>5. An order of the district court correcting the verdict in a civil aetion is not one of those orders enumerated in section 1722 of the Code of Civil Procedure, as amended (Session Laws, 1899, p. 146), from which an appeal may be taken.</p> <p>Order Correcting Verdict—-How Beviewable.</p> <p>6. Under Code of Civil Procedure, section 1742, an order correcting a verdict may be reviewed on appeal from the judgment.</p> <p>Claim and Delivery—Value of Property—Admissions in Pleadings—Verdict —Surplusage.</p> <p>7. To the extent of the admissions in the pleadings, both court and jury are bound by them. Therefore, where in an action in claim and delivery the pleadings admitted the value of the property in controversy to be $250, that portion of the verdict fixing the value at $100 was surplusage and inoperative, and in correcting the verdict by striking out the value fixed by the jury and fixing it at the value admitted, the court did not commit error.</p>

<p> Appeal—Filing of Briefs—Buies—Laches—Specification of Errors. </p> <p>1. Au appeal will be dismissed for failure of appellant to file brief within the time provided by Rule X, subdivision 2, where, in addition to the forty-five days allowed by the rule, the time within which to file it liad been extended by fifty-seven days, where the showing made by his counsel in opposition to a motion to dismiss was not such as to excuse or justify his laches, and where the brief, when filed, did not contain a specification of errors as prescribed by subdivision 3 of Bule X.</p>

<p> Appeal from District Court, Deer Lodge County; George B. Winston, Judge. </p> <p>Action by M. J. Walsh against Eugene L. Conrad, administrator. From an order granting defendant a new trial, plaintiff appeals.</p>

<p>Common . Carriers—Railroads—Passengers—Loss of Baggage— Liability—Contracts—Public Policy.</p> <p>Appeal—Order Vacating Default—How Reviewable—Record.</p> <p>1. Where the moving papers on which an application to vacate a default had been made are not embraced in a bill of exceptions, the supreme court cannot review the ruling made thereon, since, not having any authoritative information before it as to what evidence the trial court acted upon, it is unable to say that the discretion lodged in the district court was abused.</p> <p>■Carriers—Passengers—Baggage—Liability for Loss—Contracts.</p> <p>2. Held, that a railroad ticket, signed by the passenger, which contained, among others, the recital that in consideration of the reduced rate at which it was sold, the passenger agreed that the value of her baggage did not exceed $100, was a sufficient consideration for any contract which the carrier might lawfully make respecting the transportation of both passenger and baggage, and that it was not necessary that there should have been an independent consideration for each and every paragraph or provision of the contract of transportation, in order to make it valid and binding.</p> <p>Same—Loss of Baggage—Limitation of Liability—Evidence.</p> <p>3. In an action by a railway passenger to recover for the loss of baggage, where it appeared that the agent of the carrier had been instructed by his company to furnish plaintiff a certain kind of ticket without price, which, among others, contained stipulations limiting the liability of the carrier for loss of baggage to $100, in consideration of the reduced rate of the ticket, and that the agent could not vary the terms of the contract in any manner, and which had been signed by the passenger, she was bound by the terms of the agreement; and evidence that nothing had been said to her by the agent about a reduced rate or a limitation upon the value of her baggage, was properly excluded.</p> <p>Same—Loss of Baggage—Liability—Special Contract—Validity.</p> <p>4. In the absence of fraud, a railway passenger signing a ticket containing a provision limiting the carrier's liability for loss of baggage to a specified sum cannot be heard to say that she did not know of or understand the contents of such ticket, which constituted a contract between the parties.</p> <p>Same—Loss of Baggage—Special Contract Limiting Liability.</p> <p>5. Where a railway ticket had been furnished a passenger without price, and signed by her, containing a stipulation that, in consideration of the reduced price at which it was sold, in case of loss of her baggage, recovery should be limited to $100, she cannot urge, in an action to recover for the loss of such baggage, that the carrier should have accorded her an opportunity to determine for herself whether she would accept the limited ticket or procure another containing no limitation.</p> <p>Same—Loss of Baggage—Special Contract Limiting Liability—Public Policy.</p> <p>6. 1leld, that a contract made by a railway company with a passenger in the sale of a ticket, which among other recitals contained the provision that, in view of the reduced rate at which it was furnished, the carrier's liability for loss of baggage should be limited to $100, was not void as against public policy.</p>

<p> Claim and Delivery■—New Trial—Verdict Contrary to Evidence —Notice—Specifications—Appeal—Presumptions—Discretion. </p> <p>New Trial—Insufficiency of Evidence—Specifications—Statutes.</p> <p>1. Under Chapter 92 of the Session Laws of 1905, page 185, amending sections 1152 and 1173 of the Code of Civil Procedure, it is no longer necessary for a party to specify in his notice of intention to move for a new trial the particulars in which the evidence is claimed to be insufficient to justify the verdict.</p> <p>Same—N otiee—Presumptions—Appeal.</p> <p>2. Where the district court passed upon a motion for a new trial, it will be presumed, in the absence of a showing to the contrary by the party alleging error in this regard, that it had a notice before it' sufficient to justify it in doing so.</p> <p>Same—Insufficiency of Evidence—Discretion—Keview.</p> <p>3. A motion for a new trial on the ground that the evidence is insufficient to justify the verdict is addressed to the sound legal discretion of the trial court, and, in the absence of a showing that there was a clear and unmistakable abuse of such discretion, its action in granting it will not be disturbed.</p>

<p> Physicians and Surgeons—Action for Services—Statutory Regulations—Compliance—Burden of Proof—Interest—Complaint —Sufficiency—Appeal. </p> <p>Complaint—Sufficiency—Appeal—Review.</p> <p>1. The question of the insufficiency of the complaint to state a cause of action cannot be raised for the first time on appeal from an order denying a new trial.</p> <p>Physicians and Surgeons—Action for Services—License to Practice—Burden of Proof.</p> <p>2. Where a witness for plaintiff, in an action to recover for medical services, had testified that he knew plaintiff at the time of the rendition of the services as a physician, and that he was then the city physician, it will be presumed that plaintiff had secured a license to practice as required by the statute, and the burden of proving the contrary was upon defendant.</p> <p>Same—Action for Services—Interest on Balance Due.</p> <p>3. Interest on a balance due a physician for medical services seems to be properly allowable, under Civil Code, section 4280, in an action to recover such balance. (Sefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.)</p>

<p> Municipal Corporations—Livery-stables—Ordinances—Validity —Equal Protection of the Laws. ■ </p> <p>1. Defendants had practically completed a building for livery-stable purposes within a resident portion of a city at an outlay of about $2,600, before an ordinance was passed making it incumbent upon persons desiring to engage in such business to first obtain a permit. The ordinance also provided that it should not apply to any livery-stable then in existence in the city limits. The defendants, having failed to</p> <p>obtain such permit, were found guilty and a fine imposed upon each of them. Held, that the ordinance was an unlawful discrimination between defendants and others engaged in the same business at the time of its enactment, contrary to the provisions of the fourteenth amendment to the Constitution of the United States insuring to all the equal protection of the laws, and therefore inoperative as to defendants.</p>

Smith, Judge., Action by the Helena Power Transmission Company against Augustus N. Spratt and others, for the condemnation and appropriation of land. From a judgment in favor of plaintiff, defendants appeal. The court erred in holding that the use for which respondent sought to condemn and appropriate the lands, property and rights of these appellants set forth in the complaint, was and is public use. What is a public use?

<p> Appeal from District Court, Silver Bow County; George M. Bourquin, Judge. </p> <p>Action by Michael Kavanaugh, administrator of the estate of Michael Kavanaugh, deceased, against Mary Flavin, administratrix of the estate of Matthew Flavin, deceased. From a judgment of dismissal and from an order denying a new trial, plaintiff appeals.</p> <p>Statement of the Case by the Justice Delivering the Opinion.</p> <p>The purpose of this suit is to have Mary Flavin, the administratrix of the estate of Matthew Flavin, declared to be an involuntary trustee of an undivided one-half interest in the Spread Delight quartz lode mining claim for the benefit of the estate of Michael Kavanaugh, deceased, and to compel a conveyance of such interest.</p> <p>It appears that Michael Kavanaugh was one of the locators of the Spread Delight claim and by mesne conveyances became the owner of an undivided one-half interest, that he died in 1888, and that the plaintiff, his nephew and only heir, was duly appointed administrator of his estate. It is alleged that in 1891 Flavin, who was the owner of the other undivided half interest in the claim, undertook to have forfeited to himself the interest of Kavanaugh’s estate by process of advertising it out for the alleged failure of anyone representing the estate to perform any part of the annual assessment work on the claim for the year 1890, or to contribute the estate’s proportion of the expenditure required to do such work. But it is alleged that Flavin’s representations to the government concerning the ownership of the claim at the time application for patent was made were false and fraudulent and made with intent to defraud the estate of Michael Kavanaugh out of its interest in the claim, and that, in fact, this plaintiff, representing the said estate, did $100 of work on the claim during the month of July, 1890. It appears from the complaint that Flavin assumed to transfer some interest in the claim to P. J. Brophy, and in 1896 a patent was duly issued to Flavin and Brophy. It further appears that Flavin died in 1904, and in March, 1905, Mary Flavin was appointed administratrix of his estate. This suit was commenced in October, 1905. It is alleged in the complaint that the plaintiff did not know of the fraudulent acts or representations of Flavin until 1905. In addition to the denials contained in the answer, the bar of the statute of limitations and the defense of laches are pleaded. It is claimed in the answer that the plaintiff knew ever since 1891 that the interest of Kavanaugh’s estate had been forfeited, and that Flavin and Brophy asserted ownership to the entire claim.</p> <p>The plaintiff testified in his own behalf that he performed $100 of work on the claim during the month of July, 1890, and that he has never been on the claim since that time. It does not appear when the application for patent was made. The patent itself was issued in 1896. The plaintiff testified that he was informed in 1893 that the interest of Michael Kavanaugh’s estate had been advertised out, but that he took no steps in the matter until 1905, and that since the claim was patented he has not paid any portion of the taxes assessed against the same. Two other witnesses, Murphy and Curry, each testified, on behalf of the plaintiff, that he saw the plaintiff at work on one day on the Spread Delight claim in July, 1890. The witness Murphy also testified that in 1893 he notified the plaintiff that the interest of Michael Kavanaugh’s estate had been advertised out. The foregoing is, in substance, all the testimony introduced on behalf of the plaintiff.</p> <p>Upon the conclusion of plaintiff’s case the defendant moved . for a nonsuit, on the ground that the plaintiff had “not made a sufficient case in equity to authorize the court to make any order giving the plaintiff the relief sought, or any relief whatever.” This motion was sustained and a decree entered dismissing the plaintiff’s case and awarding the defendant her costs. From the decree and an order denying him a new trial, the plaintiff appeals.</p>

<p>Appeal from District Court, Silver Bow County; George M. Bourquin, Judge.</p> <p>Suit by Aquilino Delmoe against Joseph Y. Long, as administrator of the estate of Herman H. Horst, deceased, and others. From a decree in favor of plaintiff, defendants appeal.</p> <p>The claimant of mining ground, until he has secured a patent therefor, must annually perform, within the year $100 worth of work in representing the same. (U. S. Rev. Stats., sec. 2324; Bay State S. M. Co. v. Brown, 21 Fed. 167; Mt. Diable Mill etc. Co. v. Callison, 5 Saw. 439, Fed. Cas. No. 9886; Belle v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Jackson v. Bobey, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875.) The only exception to the general rule that representation work must be done until a patent has been issued therefor, is that the courts have construed a receiver’s receipt as equivalent to a patent. (1 Snyder on Mines, see. 493; 2 Lindley on Mines, pp. 1182, 1183.)</p> <p>A party who charges fraud is bound to clearly and distinctly prove the fraud which he alleges. (Kerr on Fraud, Am. ed. by Bump, 382; Griswold v. Sabin, 51 N. H. 167, 12 Am. Kep. 76; Kaine v Weigley, 22 Pa. 179; Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108.) If the party claiming fraud does no more than create an equilibrium, he fails to make out his case. {Koine v. Weigley, 22 Pa. 179.) A transaction fair and honest on its face must be regarded as free from fraud until some kind of evidence is adduced to show that it is tainted with fraud. (Kerr on Fraud, Am. ed. by Bump, 384; Tealde v. Bailey, 2 Brock. 43, Fed. Cas. No. 13,811; Sanborn v. Stetson, 2 Story, 482; Fed. Cas. No. 12,291; Walker v. Carrington, 74 111. 446; Hamilton v. Beal, 2 Har. & J. 414; Buck v. Sherman, 2 Doug. (Mich.) 176.) Fraud cannot be inferred because it is possible, or even probable, but it must be shown by positive proof, or by circumstances sufficient to leave no serious doubt of its existence. {Buck v. Sherman, 2 Doug. (Mich.) 176; In re Will of Vanderveer, 20 N. J. Eq. 463; Pares v. Pares, 33 L. J. Ch. 218, 10 Jur., N. S. 90 ) Where every allegation of fraud charged in the bill is met and denied by answer, and no effort is made by the complainant to sustain the charge of fraud, the defendant is entitled to the full benefit of the answer, so far as it is responsive to the bill. {Stubblefield v. McBaven, 5 Smedes & M. 130, 43 Am. Dec. 502; Allen v. Cole, 29 N. J. Eq. 286, 59 Am. Dec. 416; McCarthy v. White, 21 Cal. 495, 82 Am Dec. 754.)</p> <p>Plaintiff, in an action such as this, must set up in his pleading the reason why he has not sooner prosecuted his ease. {Badger v. Badger, 2 Wall. 87, 17 L. Ed. 836; Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671, 38 L. Ed. 548.) Without such allegation no complaint in equity states a cause of action, and the authorities agree that the point may be raised upon demurrer or at any stage of the case, even in the appellate court. {Lakin v. Sierra Butte M. Co., 25 Fed. 337; Pratt v. Cal. M. Co., 9 Saw. 354, 24 Fed. 869; Hagerman v. Bates, 24 Colo. 71, 49 Pac. 139; Woodmanse Min. Co. v. Williams, 68 Fed. 489, 15 C. C. A. 520; Murphy v. Be France, 105 Mo. 53, 15 S. W. 949, 16 S. W. 861; Wood v. Carpenter, 101 TI. S. 135, 140, 25 L. Ed. 807; Hammond v. Hopkins, 143 U. S. 224, 251, 12 Sup. Ct. 418, 36 L. Ed. 134; Lansdale v. Smith, 106 U. S. 391, 394, 1 Sup. Ct. 350, 27 L. Ed. 219; Felix v. Patrick, 145 ü. S. 317, 332, 12 Sup. Ct. 862, 36 L. Ed. 719; Foster v. Mansfield etc. B. Co., 146 U. S. 88, 13 Sup. Ct. 28, 36 L. Ed. 899; Fisher v. Boody, 1 Curt. 206, Fed. Cas. No. 4814; Carr v. Hilton, 1 Curt. 390, Fed. Cas. No. 2437; Moore v. Greene, 2 Curt. 202, Fed. Cas. No. 9763;, Lady Washington C. Co. v. Wood, 113 Cal. 482, 45 Pae. 809.)</p> <p>The trust attempted to be set up in plaintiff’s complaint is, if any, a resulting trust, not by virtue of any agreement between the parties, but by virtue of an alleged fraud perpetrated upon the plaintiff, Delmoe, by Horst, in his lifetime. The trust results, if at all, from what is claimed to have been a fraudulent act on the part of Horst, advertising out the defendant and in fraudulently making a record in the land office of having advertised the plaintiff out of the Sarah lode claim for refusal to pay his proportion of the representation work for the year 1892. The trust, if any, must arise, if at all, by operation of law, and in all such cases, whether it be called an implied, resulting or constructive trust, the statute begins to run from the date of the alleged wrong. (Perry on Trusts, see. 865; Beach on Trusts, sees. 208, 209; Hecht v. Slaney, 72 Cal. 363, 14 Pae. 88; Wilmerding v. Buss, 33 Conn. 67; Brackin v. Newman, 121 Ala. 311, 26 South. 3; Cox v. Mensing (Miss.), 30 South. 41; Nougues v. Newlands, 118 Cal. 102, 50 Pae. 386; Barker v. Hurley, 132 Cal. 21, 63 Pac. 1071; Braun v. First G. E. L. Church, 198 Pa. 152, 47 Atl. 963.)</p> <p>Plaintiff’s alleged cause of action was barred by laches. (Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134; Badger v. Badger, 2 Wall. 87, 17 L. Ed. 836; Penn M. • L. Ins. Co. v. Austin, 168 H. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626; Willard v. Wood, 164 U. S. 502, 17 Sup. Ct. 176, 41 L. Ed. 531; Galliher v. Codwell, 145 U. S. 368, 12 Sup. Ct. 873, 36 L. Ed. 738; Johnston v. Standard Mfg. Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Twin Lick Oil Go. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. Ed. 719; Naddo v. Bardon, 51 Fed. 493, 2 C. C. A. 335; Abraham v. Ordway, 158 U. S. 416, 15 Sup. Ct. 894, 39 L. Ed. 1036; Whitney v. Fox, 166 U. S. 637, 17 Sup. Ct. 713, 41 L. Ed. 1145; Gildersleeve v. New Mexico Min. Co., 161 U. S. 573, 16 Sup. Ct. 663, 40 L. Ed. 812; Johnson v. Toulmin, 18 Ala. 50, 52 Am. Dec. 212; Mackall v. Casilear, 137 U. S. 556, 11 Sup. Ct. 178; Mantle v. Speculator M. Co., 27 Mont. 473, 71 Pae. 665.)</p> <p>A person deceived by another owes him no duty of active vigilance in the discovery of the fraud. (Brown v. Post, 62 N. Y. 651; Baker v. Lever, 67 N. Y. 304, 23 Am. Rep. 117; Baker v. Spenser, 47 N. Y. 562.) Except it can be shown that lapse of time or laches caused prejudice to the adverse party, it will not bar recovery in equity. (Nudd v. Powers, 136 Mass. 273; Mott v. Maris (Tex. Civ. App.), 29 S. W. 825; Hamilton v. Dooley, 15 Utah, 280, 49 Pac. 769; Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Richardson v. Green, 61 Fed. 432, 9 C. C. A. 565.) There can be no acquiescence without a full knowledge of all of the facts, and of a person’s rights. (18 Am. & Eng. Ency. of Law, 2d ed., p. 99; Lux v. Haggin, 69 Cal. 255, 10 Pae. 674; Rigney v. Tacoma Light Co., 9 Wash. 576, 38 Pae. 147, 26 L. R. A. 425.) Where the delay is not sufficient to bar the legal remedy, equity should not bar the remedy for laches, except there has been great prejudice to the defendant. (McDermott v. Anaheim Water Co., 124 Cal. 112, 56 Pac. 779; Waller v. Nelson, 106 Ala. 535, 18 South. 154; The Oregon, 73 Fed. 846.) The effect of lapse of time upon a cause of action, when the delay is unproductive of, and unaccompanied by, any hardship or injustice to the other party is determined by the provisions of the statute of limitations; in order to constitute laches there must be something more than mere lapse of time which would bar the remedy under the statute of limitations. (Cahill v. Superior Court, 145 Cal. 42, 78 Pac. 467; Eleinclaus v. Dutard, 147 Cal. 245, 81 Pae. 516.) "Where one has been defrauded by the misrepresentations of another, he owes the latter no duty of active vigilance to discover the fraud. For this reason the rule that if he had used diligence to discover fraud, he might have done so, does not apply in such cases. He is charged with notice only after actual discovery of the fraud. (Balter v. Lever, 67 N. Y. 304, 23 Am. Rep. 117; Brown v. Post, 62 N. Y. 651; Baker v. Spence, 47 N. Y. 562.)</p> <p>If Horst proceeded to patent while he and Delmoe were co-tenants in the Sarah lode claim, the title acquired by him and his successors in interest would inure to the benefit of the plaintiff, his cotenant. (Lakin v. Sierra etc. Min. Co., 25 Fed. 341; Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Brundy v. May-field, 15 Mont. 201, 38 Pac. 1067; Malaby v. Bice, 15 Colo. App. 364, 62 Pac. 228; Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189; Haynes v. Briscoe, 29 Colo. 137, 67 Pae. 156; Biste v. Morton, 20 Mont. 139, 49 Pac. 656; Ballard v. Golob (Colo.), 83 Pac. 378.) And the latter could enforce the transfer of title to him at any time after the issuance of the patent.. (Turner v. Sawyer, 150 H. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189; Sussenbach v. First Nat. Bank, 5 Dak. 477, 41 N. W. 662; Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067; Malaby v. Bice, 15 Colo. App. 364, 62 Pac. 228; Ballard v. Golob (Colo.), 83 Pac. 378.)</p>

<p>Cities and Towns — Nuisances—Abatement—Damages—Pleadings—Appeal.</p> <p>Nuisances—Cities and Towns—Pleadings—Complaint.</p> <p>1. A complaint against a city alleging, in substance, that defendant without right constructed and maintained a storm sewer over and across a lot owned by plaintiff, and permitted it to become and remain in such an unsafe and unsanitary condition as that nauseous gases escaped from it, making it unfit for building purposes, that plaintiff’s petition to the city council to repair it was ignored, that he then repaired -it at his own cost, and that the city refused to reimburse him for his outlay, states a cause of action upon the theory that plaintiff sustained damages by reason of the maintenance of a nuisance by the city for the abatement of which he was entitled to recover, as an element of his damages, the reasonable cost incurred in abating it.</p> <p>Same—Pleadings—Complaint—Sufficiency.</p> <p>2. A complaint against a city seeking to recover damages for the abatement of a private nuisance, though indefinite and uncertain, but showing facts that defendant did maintain such a nuisance, held sufficient, in the absence of a special demurrer attacking the pleading on those grounds, to entitle plaintiff to recover damages under Civil Code, section 4555.</p> <p>Same—Cities and Towns—Liability.</p> <p>3. A city, like an individual, may be made to respond in damages to the injured party for the detriment caused by the maintenance of a nuisance.</p> <p>Same—Abatement—Measure of Damages.</p> <p>4. Where the party injured through the maintenance of a nuisance by a city has abated it at his own expense, after a refusal by the municipality to remedy the evil, the necessary outlay so incurred is a part of his detriment proximately caused by its maintenance, and recoverable, under Civil Code, section 4330, as an element of his damages.</p> <p>Same—Trial—Waiver of Issues.</p> <p>5. The district court was justified, in an action against a city to recover the cost of abating a nuisance, in treating the case as if the only issue involved was whether the expense incurred by plaintiff was rendered necessary by reason of any act or omission on the part of the city, where counsel for the defendant in the course of the trial stated that the only question before the court was whether the amount of plaintiff’s bill against the city had been‘necessarily expended.</p> <p>Same—Abatement—Verdict—Appeal—Conflicting Evidence.</p> <p>6. Where the evidence upon the question whether the expense incurred by plaintiff, in an action against a city for its recovery for the abatement of a nuisance, had been necessarily incurred was conflicting and a new trial refused to defendant, the judgment will not be disturbed.</p> <p>Evidence—Insufficiency—Lack Supplied by Adverse Party.</p> <p>7. When plaintiff’s omission to offer any proof in support of a. material allegation in his complaint is supplied by defendant’s testimony, the latter cannot complain on appeal that the evidence is insufficient to sustain the verdict.</p> <p>Pleadings—Complaint—Reference to Other Causes of Action.</p> <p>(Ip Every cause of action must be complete in itself, and therefore allegations contained in certain paragraphs in one count cannot be made part of another by mere reference.</p> <p>Pleadings—Complaint—Sufficiency—How Reviewed.</p> <p>/S) The sufficiency of a complaint to state a cause of action may be enquired into on appeal from the judgment, even though objection to it was not made in the trial court. ,</p> <p>Nuisances—Cities and Towns—Splitting Causes of Action—Effect—Judgment.</p> <p>10. In the same complaint plaintiff split his cause of action for a nuisance, attempting to set out two causes of action—the first, for the cost of abating the nuisance; the seeond, for permanent injury to his property from the nuisance. The jury returned a verdict for plaintiff for a certain amount on his first cause of action, and for another amount on the seeond cause of action, and judgment was entered accordingly. Eeld, on appeal, on which it was decided that the complaint, as regards the seeond cause of action, failed to state sufficient facts, that plaintiff, having recovered on his first cause of action on a part of his demand, cannot maintain his second cause of action for the balance of it, but that the judgment recovered on the first is a bar to recovery on the second.</p>

<p> Water Eights—Equity—Evidence—Conveyance of Land—Appurtenances—Judgments—Ees Adjudicata. </p> <p>Equity Cases—Supreme Court—Trial de Novo.</p> <p>1. Under section 21 of the Code of Civil Procedure as amended (Laws, 1903, 2d Extra. Session, p. 7), authorizing and requiring the supreme court in.equity cases to review and determine all questions of fact arising upon the evidence, as well as those of law, that court, if it deems it advisable, will in a case wherein the title to a water right is sought to be quieted and defendant enjoined from further interference therewith, disregard the questions presented upon alleged errors of the district court, and dispose of the merits of the appeal upon a review of the evidence alone.</p> <p>Water Eights—Evidence—Findings—Adverse User.</p> <p>2. Evidence in an action to quiet title to a water right and have defendant enjoined from further interference with it, which showed that defendant and his predecessors had used the water in question for forty-years in derogation of the alleged rights of plaintiff and his grantors, and that defendant had not infringed upon any right of plaintiff, held, to warrant a finding in favor of defendant.</p> <p>Same—Conveyance of Land—Appurtenances.</p> <p>3. Where the father of plaintiff’s grantor had merely permitted his son to use certain waters on the lands conveyed to plaintiff, such permissive use by plaintiff’s grantor did not make it appurtenant to the lands sold, and the grantee obtained no better title to the use ol it than his grantor himself had.</p> <p>Evidence—Testimony at Former Trial—Stenographic Notes—Identification.</p> <p>4. Where the stenographer who took the testimony of a witness since deceased was dead at the time the testimony was sought to be used, and no one could be found who could read the stenographer’s notes, or testify to the correctness either of the notes or the transcript, or to the fact that the transcript embodied the testimony of the witness as given at the former trial, it was not identified as required by Code of Civil Procedure, section 3146, and therefore inadmissible.</p> <p>Water Eights—Judgments—Who May be Bound by Them—Bes Adjudicata —Parties.</p> <p>5. A plaintiff in a water right suit who, though not technically a party to certain prior suits of the same character, was so connected with them by his interest in the result of the litigation and his active participation in it, will be held to be bound by the judgments rendered in such other suits.</p>

<p> Appeal from District Court, Silver Bow County; George M. Bourquin, Judge. </p> <p>Action by W. D. Thornton and others against Louis Kaufman. Judgment for plaintiffs, and defendant appeals.</p>

<p> Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Proceedings by Jacob Klein, executor of tbe estate of Henry Klein, deceased, and others, against R. A. Fraser and others, to •determine the persons entitled to distribution under the will of decedent. From an order determining the persons entitled to distribution, and from an order denying a new trial of the issues, plaintiffs appeal.</p> <p>The policy of the law under the modem English statute of wills and under statutes in most of the states of this country is that where an attesting witness to a will was at the same time a legatee or devisee, he should be competent as a witness to prove the will, but the legacy or devise to him should be void. (Holdfast v. Dowsen, 1 W. Black. 17; Doe v. Mills, 1 M. & Rob. 288, 42 Rev. Rep. 795; Wigan v. Rowland, 11 Hare, 157, 21 Eng. L. & Eq. 132; In re Trotter, [1899] 1 Ch. 764; Ryan v. Devereux, 26 U. C. Q. B. 100. See Clark v. Hoskins, 6 Conn. 106; Fortune v. Buck, 23 Conn. 1; Elliot v. Brent, 6 Mackey (D. C.), 98; Jones v. Habersham, 63 Ga. 146; Harp v. Parr, 168 111. 473, 48 N. E. 113; Fisher v. Spence, 150 111. 253, 41 Am. St. Bep. 360, 37 N. E. 314; Hawkins v. Hawkins, 54 Iowa, 445, 6 N. "W. 699; Finegan v. Theisen, 92 Mich. 178, 52 N. W. 619; High, Appellant, 2 Doug. (Mich.) 528; Pucker v. Lambdin, 12 Smedes & M. 230; Miltenberger v. Miltenberger, 78 Mo. 27; Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664; Hodgman v. Kittredge, 67 N. H. 254, 68 Am. St. Bep. 661, 32 Atl. 158; Matter of Owen, 48 App. Div. 507, 62 N. Y. Supp. 919; Matter of Brown, 31 Hun, 166, 66 How. Pr. 289; Du Bois v. Brown, 1 Dem. (N. Y.) 325; Smith’s Estate, Tuck. (N. Y.) 83; McDonough v. Loughlin, 20 Barb. (N. Y.) 238; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 653; Jackson v. Denniston, 4 Johns. (N. Y.) 311; McLean v. Elliott, 72 N. C. 70; Boone v. Lewis, 103 N. C. 40, 14 Am. St. Bep. 783, 9 S. E. 644; Vroomwn v. Powers, 47 Ohio St. 194, 24 N. E. 267, 8 L. B. A. 39; Nixon v. Armstrong, 38 Tex. 296; Fowler v. Stagner, 55 Tex. 393; Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861; Clark v. Clark, 54 Yt. 489; Croft v. Croft, 4 Gratt. (Ya.) 103; Clark v. Miller, 65 Kan. 726, 68 Pac. 1071; Schouler on Wills, secs. 23, 357; Bigelow on Law of Wills, pp. 50, 104; Underhill on Wills, secs. 82, 193.) It will be seen from the foregoing authorities that under the circumstances the bequest to Fraser cannot be maintained.</p> <p>One who was not in the employ of Gans & Klein, either the firm or the corporation, at the time of the death of Henry Klein, could not take under the eleventh clause of the will. (Underhill on Wills, sec. 604; 12 Encyclopedia of Laws of England, p. 683; In re Bey on v. Grieve, 53 L. J. Ch. 1165, 51 L. T. 116, 32 Week. Bep. 871; Darlow v. Edwards, 1 Hurl. & C. 547, 32 L. J. Ex. 51, 9 Jur., N. S., 336, 6 L. T. 905, 10 Week. Bep. 700—Ex. Ch.; In re Marcus v. Marcus, 56 L. J. Ch. 830, 57 L. T. 399.) One who is engaged to render services in a particular transaction is not an “employee.” The word implies continued service, and excludes those employed for a single transaction. (Frick Co. v. Norfolk etc. B. Co., 86 Fed. 725, 738, 32 C. C. A. 31 (citing Louisville etc. B. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 405, 34 L. Ed. 1023; Clark v. Benninger, 89 Md. 66, 42 Atl. 928, 929, 44 L. R. A. 278; 15 Cyc. 1021; Chillcot v. Bromley, 12 Ves. 104; Thrupp v. Collett, 26 Beav. 147; Metcalf v. Sweeney, 17 R. I. 213, 33 Am. St. Rep. 864, 21 Atl. 365.)</p> <p>Englebrecht did his work as a contractor and not as an employee. Contractors who have entire control of the work to be done, and were in no way subject to the control or direction of the person with whom they contracted, while performing the work they contracted to do for them, are not employees. {In re Cortland Mfg. Co., 45 N. Y. Supp. 630, 21 Misc. Rep. 227; Farmer v. St. Croix P. Co., 117 Wis. 76, 98 Am. St. Rep. 914, 93 N. W. 830; Lang v. Simmons, 64 Wis. 525, 25 N. W. 650; Campfield v. Lang, 25 Fed. 128; Lehigh C. & N. Co. v. Central B. Co., 29 N. J. Eq. 252.)</p> <p>The death of Herman Gans in September, 1901, dissolved the partnership of three. This is an elementary principle of the law of partnership. There was neither in contemplation of law nor in fact a partnership of Gans & Klein, of three, as it existed in July, 1896, after the death of Herman Gans. (22 Am. & Eng. Ency. of Law, 199; Louis v. Flfelt, 89 Cal. 547, 26 Pac. 1095; Mont. Civ. Code, sec. 3290.) After September 3, 1901, when Louis Gans, Henry Klein and Alice M. Gans, the executrix of the will of Herman Gans, continued business in law and in fact, a new partnership was formed, and a new firm of Gans & Klein, consisting of three, Alice M. Gans, Louis Gans and Henry Klein, composing the same. ' {Pitkin v. Pitkin, 7 Conn. 314, 18 Am. Dec. Ill; Mattison v. Farnham, 44 Minn. 95, 46 N. W. 347; Hoard v. Clum, 31 Minn. 186, 17 N. W. 275; McGrath v. Coiuen, 57 Ohio St. 385, 49 N. E. 338; Wilcox v. Derickson, 168 Pa. St.. 331, 31 Atl. 1080.)</p> <p>On September 24, 1902, the then firm of Gans & Klein, consisting of three, conveyed all its assets to the corporation of Gans & Klein. On this date all partnerships of three were dead, both in law and as a fact. There never was a partnership of three of Gans & Klein after September 24, 1902. The bequest was to the employees of the firm of Gans & Klein. In 1896 Henry Klein used the words “firm of Gans & Klein,” as meaning the employees of the firm, whether the firm of two or the firm of three, as it then existed, and there not having been any employees of the firm of three at the date of his death, it can only now refer to those left in the employment of either one of the firms to which the will referred in 1896. As to meaning of “firm,” see Bolckow v. Foster, 25 Grant’s Ch. 476; Ryder v. Wilcox, 103 Mass. 28; Duncan v. Tombeckbee Bank, 4 Port. (Ala.) 184; McCosker v. Bank, 84 Md. 292, 35 Atl. 935, 936; Stewart v. Katz, 30 Md. 334. All words are to be understood according to their meaning at the time and place of writing them. (Code Civ. Proe., sec. 3136; In re Pearsons, 99 Cal. 34, 33 Pac. 751; Mont. Civ. Code, see. 1771; Swenson’s Estate, 55 Minn. 300, 56 N. W. 1115; Quick v. Quick, 21 N. J. Eq. 13; In re March, 27 Ch. Div. 166, 54 L. J. Ch. 143, 51 L. T. 380.) Words are presumed to be used in their ordinary sense. (Rood on Wills, 431, citing Wigram on Wills, 58; Adams v. Jones (1900), 176 Mass. 185, 57 N. E. 362; Hoope’s Appeal (1869), 60 Pa. 220, 100 Am. Dec. 563; Bedford’s .Appeal (1861), 40 Pa. 18; Edgerly v. Barker (1891), 66 N. H. 434, 31 Atl. 900, 28 L. R. A. 328; Lee v. Baird (1903), 132 N. C. 755, 44 S. E. 605; Brett v. Donaghe (1903), 101 Ya. 786, 45 S. E. 324.)</p> <p>Technical terms are to be understood in their technical sense, (Rood on Wills, 432, citing: Perrin v. Blake (1771), Har. Law Tr. 489, 10 Eng. Rui. Cas. 689, Thomp. Cas. 1; Hodgson v. Ambrose (1780), 1 Doug. 337, Abbott, 688; Miller v. Worrall (1900), 62 N. J.- Eq. 776, 90 Am. St. Rep. 480, 48 Atl. 586; Leathers v. Gray (1888), 101 N. C. 162, 9 Am. St. Rep. 30, 7 S. E. 657; Keteltas v. Keteltas (1878), 72 N. Y. 312, 28 Am. Rep. 155; Sims v. Conger (1860), 39 Miss. 231, 77 Am. Dec. 671; Estate of Reinhardt (1887), 74 Cal. 365, 368, 16 Pac. 13.)</p> <p>The act of Henry Klein in creating the corporation of Gans & Klein ipso facto amounted to a revocation of the legacy to the employees of the firm of three, inasmuch as by that act he put the firm of three out of existence. (Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699; Baaclce v. Baacke, 50 Neb. 22, 69 N. W. 303.) A legacy or devise to a corporation or association will lapse where the beneficiary has ceased to exist before the death of the testator. {In re Bymer, [1895] 1 Ch. 19, 12 Rep. 22; Fisk v. Attorney General, L. R. 4 Eq. 521; In re Ovey, 29 Ch. Div. 560; Neill’s Estate (Cal.), Myr. Prob. 79; Crum v. Bliss, 47 Conn. 592; Brooks v. Belfast, 90 Me. 318, 38 Atl. 222; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949; New Orleans v. Hardie, 43 La. Ann. 251, 9 South. 12.)</p> <p>The respondents are not entitled to interest. {Estate of James, 65 Cal. 25, 2 Pac. 494.)</p> <p>Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of property from that moment. {Applegate v. Smith, 31 Mo. 167; Campbell v. Bawden, 18 N. Y. 412; Walker v. Williamson, 25 Ga. 549; Morse v. MaCrum, 22 Or. 236, 29 Pac. 615, 30 Pac. 73; Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616; Jette v. Picard, 4 Or. 296; 1 Redfield on Wills, 7-9, 210; 1 Jarman on Wills, 286, 287.)</p> <p>The executor has the right to appeal in this proceeding independent of the other appellants. {In re Phillips’ Estate, 18 Mont. 311, 45 Pac.1222; In re Davis’ Estate, 27 Mont. 240, 241, 70 Pac. 721.) An examination of the order appealed from will show that the estate is not in a condition for final distribution; that the assets have not been converted into money; that the accounts of the executor have not been settled, and the executor has the right to move for a new trial or appeal. {State ex rel. Leyson v. District Court, 26 Mont. 378, 68 Pae. 411; Estate of Kelley, 63 Cal. 106; Estate of Mitchell, 121 Cal. 391, 53 Pac. 810; Estate of Murphy, 145 Cal. 464, 78 Pac. 960; In re Phillips’ Estate, 18 Mont. 311, 45 Pac. 222; In re Davis’ Estate, 27 Mont. 240, 241, 70 Pae. 721; In re Welch’s Estate, 106 Cal. 427, 58 Am. St. Rep. 188, 39 Pae. 805; In re Smith’s Estate, 117 Cal. 505, 49 Pac. 456; In re Heydenfeldt’s Estate, 117 Cal. 553, 49 Pac. 713.)</p> <p>Mr. Wm. T. Pigott, for Respondents Fraser, Smith, 'McKusick, Hoepfner, Damon, Graiff, Merdian and Gans.</p> <p>Fraser was not, at the time the will was made, in the class mentioned in the eleventh clause, and was therefore not at that time a legatee or interested as a beneficiary. The class so provided for had then no existence, and did not spring into being until Klein’s death. He was, therefore, a competent witness to the will. (Doe d. Hindson v. Hersey, 4 Burn’s Ecc. Law, 27; Bograne v. Winder, 2 Yes., Jr., 633; Sears v. Dillingham, 12 Mass. 357; 30 Am. & Eng. Ency. of Law, 2d ed., 604, and notes, 18 Am. & Eng. Ency. of Law, 2d ed., 737, 738, and cases cited in notes.) The interest that will disqualify an attesting witness must be present, certain, and vested at the time the will was made. (In re Will’s Estate, 67 Minn. 335, 69 N-. W. 1090; Holt’s Will, 56 Minn. 33, 45 Am. St. Rep. 434, 57 N. W. 220, 22 L. R. A. 481.) Unless Fraser was interested as a legatee or devisee at the time the will was made, he was entitled to take under the eleventh clause.</p> <p>Klein is conclusively presumed to have known the law, and to have ordered his affairs with reference to it. The courts must indulge the irrebuttable presumption that Klein was aware of section 1729 of the Civil Code. Knowing of the existence of that statute, Klein must also have known that if the class created by clause 11 embraced employees who had already served one year, Fraser, being an attesting witness, could not take under that clause. Did Klein intend to cut Fraser off from any possibility of receiying a legacy under that clause ? The judicial expositor must put himself in the position of the testator at the time the will was made. (In re Fair’s Estate, 132 Cal. 523, 84 Am. St. Rep. 70, 64 Pac. 1006.)</p> <p>The distinction which differentiates Fraser’s situation from that of one who is specifically named or mentioned in the will, is broad. If Fraser had been pointed out or mentioned as a legatee, then, of course, bequests to him would be void. This is illustrated in Carr v. Smith, 25 App. Div. 214, 49 N. Y. Supp. 351, and in Matter of Brown, 28 Misc. Rep. 273, 59 N. T. Supp. 844. Klein, however, left the question of the identification of the legatees to the uncertainties of the future.</p> <p>Appellants contend that such of these respondents as were actually employees of the corporation “Gans & Klein” at Helena at the time Klein died, and had been such employees for the year next before that day, cannot take under the eleventh clause, for the sole reason that the word “firm” appears before the words “of Gans and Klein.”</p> <p>Their position is that Klein intended employees of that concern or association “Gans & Klein” which, rigidly applying technical rules (apices juris) and definitions familiar only to members of the legal profession (and not to all of them), constituted a copartnership firm, should receive his bounty; and that he did not intend that employees (his daily associates for years) of the corporation or corporate firm “Gans & Klein” should-receive anything under the eleventh clause.</p> <p>In the interpretation of a will the cardinal rule is that the intention of the testator, as gathered from the whole instrument, must control, and, in ascertaining such intention, the relation of the testator to those asserting rights as beneficiaries, and the circumstances existing at the time the will was made, should be taken into consideration. (Civ. Code, secs. 1770, 1771, 1777, -1781, 1793, 1801; Penny v. Christmas, 7 Rob. (La.) 481; Blackwell v. Blackwell, 15 N. J. L. 386; Edwards v. Bibb, 43 Ala. 666.)</p> <p>The word “firm” has not necessarily the exclusive meaning of “copartnership.” It may, and often does, mean a corporation, or a joint stock company, or other concern, the members of which are jointly or commonly engaged in some business enterprise. The words “firm of Gans & Klein” used in the eleventh clause are, under the facts, neither more nor less than the words “Gans & Klein.” The purpose was to identify. The word “firm” neither adds to nor subtracts from the force and effect which the eleventh clause would have after the elimination of that word. “Firm” is superfluous; it was used simply, but unnecessarily, as a means of identifying ‘ ‘ Gans & Klein, ’ ’ in whose employ the persons must be if they are to take under that clause. Klein attached no importance to the word “firm.” He used it as a mere equivalent of “Gans & Klein.”</p> <p>The will speaks from the death of its maker, and employees of the corporation “Gans & Klein” were and are within the class created by the eleventh clause. The whole matter is reduced to a question of the identification of the persons who fall within the class of employees intended to be benefited by clause 11. These conclusions seem very clear, and should not need the support of eases adjudged. The principle of Van Nostrand v. Board of Domestic Missions, 59 N. J. Eq. 19, 44 Atl. 472, is applicable to some extent.</p> <p>These respondents are entitled to interest at the rate of eight per centum yearly from November 12, 1904. The common-law rule will be unquestioned. Legacies begin to bear interest at the expiration of one year after the testator’s death. Even in the absence of any statute on the subject, a general legacy is due and payable after one year from the testator’s death, and from that time draws interest at the statutory rate. This is the rule even “where administration was prevented by contests of the will, or in regard to a right to administration.” {In re Williams’ Estate, 112 Cal. 521, 53 Am. St. Rep. 224, 44 Pac. 808.)</p> <p>The case of Welch v. Adams, 152 Mass. 74, 25 N. E. 34, 9 L. R. A. 244, with notes on page 248, is instructive. Cases supporting the rule are collated in 18 American and English Encyclopedia of Law, 793. The statutory law in this state declares the same rule by sections 1831 and 1832 of the Civil Code, which are copies of sections 1368 and 1369 of the Civil Code of California.</p> <p>The proposition that an executor has no right to take sides in a controversy between rival claimants for the estate on which he administers, and use it up in defeating the claims of the rightful owners, is one so clearly founded in reason that the courts have been unanimous in denying to him any right to appeal, or otherwise complain of the judgment settling their claims or directing final distribution. This court held in Dewar’s Estate, 10 Mont. 422, 25 Pac. 1025, that the executor had no right to appeal from an order of distribution. (See, also, Estate of Wright, 49 Cal. 550; Bates v. Ryberg, 40 Cal. 463; Roach v. Coffey, 73 Cal. 281, 14 Pac. 840; In re Jessup’s Estate, 80 Cal. 625, 22 Pac. 260; Estate of Marrey, 65 Cal. 287, 3 Pae. 896; Merrifield v. Longmire, 66 Cal. 181, 4 Pac. 1176; Goldtree v. Thompson, 83 Cal. 422, 23 Pac. 383; Jones v. Lamont, 118 Cal. 503, 62 Am. St. Rep. 251, 50 Pac. 766; Ryer v. Fletcher etc. Co., 126 Cal. 484, 58 Pac. 908; McCabe v. Healy, 138 Cal. 90, 70 Pac. 1008; Thomas v. Hosselhus, 137 Cal. 474, 70 Pae. 455.) The following cases are referred to for the purpose of showing that the rule obtains not only in the state from which we take our Practice Act as it applies to administration proceedings, but is founded in reason quite beyond particular statutory provisions. (Merrick v. Kennedy, 46 Neb. 264, 64 N. W. 989; Bryant v. Thompson, 128 N. Y. 426, 28 N. E. 522, 13 L. R. A. 745; Schlegel v. Sisson, 8 S. Dak. 476, 66 N. W. 1087; In re Stilphen (Me.), 60 Atl. 888.)</p> <p>Sections 2840, 2841 and 2842 of the Code of Civil Procedure do not contemplate that the executor is to be a party to the proceedings. There is no reason why he should be. As said in Goldtree v. Thompson, supra; “Executors, * * * are, in their official capacity, indifferent persons, as between the real parties in interest.” The “interest” in the estate which justifies one to come into the proceedings with those claiming “heirship” or “ownership” under the statute is clearly a property interest. The rule noscitur a sociis unquestionably applies. The executor, as such, has no interest in the estate, however much he may be interested in its administration.</p> <p>It is said by appellants that the clause “eleventhly” is to be read as though the word “next” were inserted before the words “previous to my decease.” To do so would be to take unwarrantable liberties with the instrument.</p> <p>The authorities are all against the court’s reading the word “next” into the will. The testator’s “intention is to be ascertained (first and above all other considerations) from the words of the will.” (Cassoday on Wills, sees. 613, 614; Hamilton v. Boyles, 1 Brev. 414; Webster v. Morris, 66 Wis. 366, 28 N. W. 353; Dove v. Johnson, 141 Mass. 287, 5 N. E. 520; Ginter’s JExrs. v. Shelton, 102 Ya. 185, 45 S. E. 892. See, also, Metcalf v. Sweeney, 17 it. I. 213, 33 Am. St. Eep. 864, 21 Atl. 364; In re Becker, 39 Misc. Eep. 756, 80 N. Y. Supp. 1115; 8 Chitty’s Equity Index, 7745.) If Henry Klein had intended to restrict the provision of his will to those who were in the employ of Cans and Klein for one year next preceding his death, he would have used the word “next.” (In re Sharland, [1896] L. E. 1 Ch. Div. 517.</p> <p>The argument upon which the appellants base their claim is that a will is presumed to speak from the time of the death of the testator, when it refers to a class. But that rule has its principal application to classes like children or other relatives not subject to change in their relationship to the testator. (Schouler on Wills, 529 et seq.)</p> <p>It is our position that, under the will of Henry Klein, deceased, any person who had served said copartnership for one year or more preceding, or for one year or more subsequent, to the date of the making of the will, is a devisee or beneficiary thereunder. The testator’s intention is to be ascertained from the words of the will', taking into view the circumstances under which it was made, exclusive of his oral declarations. The words of the will are to be taken in the ordinary, grammatical sense; and it is the office of the court to simply ascertain and declare what, in substance, is contained in the will—not to insert what has been omitted, or to omit what has been inserted. For the purpose ©f doing this, it may take into consideration the circumstances existing at the time the instrument was executed. (Civ. Code, sees. 1771, 1777, 1793, 2203-; Code Civ. Proc., secs. 3134, 3133; Crapo v. Peirce, 187 Mass. 141, 72 N. E. 935; Mueller v. Buenger, 184 Mo. 458, 105 Am. St. Rep. 541, 83 S. W. 458, 67 L. R. A. 648; Sturgis v. Work, 122 Ind. 134,17 Am. St. Rep. 349, 22 N. E. 996; Burke v. Lee, 76 Ya. 386; Schouler on Wills, sees. 465, 466, 467; In re Walkerly’s Estate, 108 Cal. 627, 49 Am. St. Rep. 97, 41 Pae. 772; In re Tompkins’ Estate, 132 Cal. 173, 64 Pae. 268; In re Fair’s Estate, 132 Cal. 523, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000.) A bequest to a class includes all in existence at tbe death of the testator. (Goodwin v. Goodwin, 48 Ind. 584; In re Charland, [1896] 1 Ch. 517; Page on Wills, sec. 534.) In the construction of a will or in the application of its terms or provisions, reference is to be had to the circumstances which existed at the time the will was made and under which the testator understood himself to be, and the conditions brought to his mind., (In re Pearson’s Estate, 99 Cal. 30, 33 Pac. 751.) The will is the law unto the court. (Estate of McDevitt, 95 Cal. 17, 30 Pac. 101.)</p> <p>Engelbrecht, as the testimony shows, was hired and paid by piece work, and settlements were made with him periodically. The essence of the definition of employee, in section 2650 of the Civil Code, is the doing of something for the benefit of the employer, and not the method of payment, whether by the month, day or piece.</p> <p>By section 2676, Civil Code, an employee is required to substantially comply with all the directions of his employer concerning the service on which he is now engaged; and by section 2683 it is provided that “an employee who has any business to transact on his own account, similar to that intrusted to him by his employer, must always give the latter preference.” In this connection particular attention is directed to the statement of Engelbrecht upon the examination by counsel for appellants, “whenever I was called in, I had to do it.”</p> <p>By section 2721, Civil Code: “A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for one year; a hiring at a daily rate for one day; a hiring by piece work, for no specified term.” A servant is certainly an employee. (15 Cyc. 1033, note 60, citing: White v. Alameda, 124 Cal. 95, 56 Pac. 795.)</p>

<p> Appeal from District Court, Deer Lodge County; George B. Winston, Judge. </p> <p>Joseph Schaefer was convicted of assault in tbe first degree, and appeals from the judgment of conviction and an order denying him a new trial.</p> <p>Neither of the presumptions of law embodied in instruction No. 5 are applicable to a case of assault with a specific intent to kill, nor to any case where the specific intent with which the act is done is the very gist of the offense. They can only apply where the intent has been fully consummated, and the intended crime committed, and are held prejudicial where the intent has failed of accomplishment, and the act done is charged to have been done with a specific intent. (People v. Mize, 80 Cal. 41, 22 Pac. 80; People v. Landman, 103 Cal. 577, 37 Pac. 518; Roberts v. People, 19 Mich. 409; Commonwealth v. Mersey, 2 Allen, 173; State v. Stewart, 23 Mo. 420, State v. Glovery, 10 Nev. 26; Patterson v. State, 85 Ga. 131, 21 Am. St. Rep. 152, 11 S. E. 620; State v. Miclcman, 95 Mo. 322, 6 Am. St. Rep. 54, 8 S. W. 252; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Reagan, v. State, 28 Tex. App. 227, 19 Am. St. Rep. 835, 12 S. W. 601; Jones v. State, 13 Tex. App. 1; Thomas v. State, 16 Tex. App. 539; Black v. State, 18 Tex. App. 127; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; Chrisman v. State, 54 Ark. 283, 26 Am. St. Rep. 44, 15 S. W. 889; State v. Dolan, 17 Wash. 499, 50 Pae. 472.)</p> <p>Instruction No. 14 assumes that an assault committed under the circumstances mentioned in the information—that is, with a loaded firearm, and with the specific intent to kill—means no more than an assault with intent to commit manslaughter; and it eliminates from the crime of an assault in the first degree the question of malice aforethought, either express or implied. (Pontius v. People, 82 N. Y. 339; Slattery v. People, 58 N. Y. 354; Bradley v. State, 10 Smedes & M. 618; Sarah v. State, 28 Miss. 267, 61 Am. Dee. 544; Cline v. State, 43 Ohio St. 332, 1 N. E. 22; Moore v. People, 146 111. 600, 35 N. E. 166 ■ People v. Lilley, 43 Mich. 521, 5 N. W. 982; Chrisman v. State, 54 Ark. 283, 26 Am. St. Rep. 44, 15 S. W. 889; State v. Stout, 49 Ohio St. 270, 30 N. E. 437; State v. Lynch, 20 Or. 389, 26 Pac. 219; State v. Kelly, 41 Or. 20, 68 Pac. 1; State v. Brooks, 23 Mont. 155-157, 57 Pac. 1038.)</p>

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by John Nelson against the Boston and Montana Consolidated Copper and Silver Mining Company. Judgment for defendant. Plaintiff appeals from the judgment and from an order denying him a new trial.</p>

<p>Master and Servant—Personal Injuries—Safe Place to Work— Complaint-^Instructions.</p> <p>Master and Servant—Personal Injuries—Complaint.</p> <p>1. Where plaintiff alleged in her complaint, in an action to recover damages for personal injuries sustained by her while in defendant’s employ as a domestic servant, that she was acting as such servant at the time she received the injuries and engaged in the performance of her duties under the directions of defendant, it was sufficient to show the relation of master and servant between the parties, and that plaintiff was acting within the scope of her employment when the accident occurred.</p> <p>Same—Complaint—Indefiniteness—Special Demurrer.</p> <p>2. In the absence of a special demurrer' to a complaint, in a personal injury suit brought by a servant against her employer, on the ground of indefiniteness of the allegation as to whether she was acting within the scope of her employment when she was injured, the pleading will be held sufficient where, although the allegation relative to the particular work she was engaged in at that time was indefinite, enough was shown to make it appear that she was doing her work under the employer’s directions.</p> <p>Same—Complaint—Master’s Knowledge of Dangerous Place.</p> <p>3. Plaintiff’s failure to allege, in a complaint against her employer to recover damages for personal injuries, received while performing her duties as a domestic servant, through his alleged negligence in not furnishing her a safe place in which to work, the facts wherein the danger incident to an opening in the floor of a porch, through which she fell, consisted, as well as the causal connection between the defective place and the injury, and that defendant knew, or by the exercise of reasonable diligence ought to have known, of the dangerous condition of the opening, was fatal to the complaint.</p> <p>Same—Instructions—Care Required of Master.</p> <p>4. In an action for injuries to a servant, an instruction that the master owed to his servant the duty to provide her a reasonably safe place in whieh to work and of maintaining it in a reasonably safe condition during the employment, was erroneous in that it required too high a degree of este on the part of the employer, he being bound only to use ordinary care in providing a reasonably safe place for his servant to work.</p>

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by Thomas Mulrone against J. W. Marshall. Judgment for plaintiff. From an order denying him a new trial, defendant appeals.</p> <p>The rule in cases like this requires that each proprietor in exercising his own rights, in his own territory, shall act with reasonable skill and care to avoid injury to others, and as an approximate rule for measuring that degree it is laid down that such skill, care and diligence should be exercised as men of common or ordinary prudence in relation to similar subjects would exercise in the conduct of their own affairs. (Shrewsbury v. Smith, 12 Cush. 177; Wolf v. St. Louis Ind. Water Co., 10 Cal. 511.) An extraordinary flood is an act of God, and imposes no liability upon him whose lawful structure is an instrument in causing damage to others. (Central Trust Co. v. Wabash etc. By. Co., 57 Fed. Ml.) .</p> <p>Where a railroad .is charged with flooding lands, and it appears that it was due to an unprecedented storm and rainfall, the company is not liable, even though the company’s negligence contributed to the loss by leaving the stumps of piling in a stream where a bridge had been built which caught drift and threw the water out of the channel. (Coleman v. Kansas City etc. B. B. Co., 36 Mo. App. 476.) Instruction No. 4 invaded the province of the jury. (St. Louis S. W. B. Co. v. Casseday. (Tex. Civ. App.), 40 S. W. 198; Houston & T. C. By. Co. v. Jones, 16 Tex. Civ. App. 179, 40 S. W. 745; Missouri etc. B. Co. v. Bogers (Tex. Civ. App.), 40 S. W. 849.)</p>

<p> Appeal from District Court, Yelloivstone County; C. H. Loud, Judge. </p> <p>Action by Harry L. Kelly against the Northern Pacific Railway Company. From a judgment for defendant, plaintiff appeals.</p> <p>In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., see. 740.) The practice of questioning the sufficiency of a petition by an objection to the introduction of evidence thereunder is not to be encouraged, and such objection should be overruled if, upon any fair construction of the petition, any cause of action is stated. (Howard v. Carter, 71 Kan. 85, 80 Pac. 61.) Where no demurrer was interposed to a complaint, but issue was joined thereon, it will not be held insufficient on the ground of ambiguities or uncertainties of statement. (Sanderson v. Billings Water-Power Co., 19 Mont. 236. 47 Pac. 998; Bose v. Bose. 112 Cal. 341. 44 Pac. 658; Pryor v. City of Walkerville, 31 Mont. 618, 79 Pac. 240; Code Civ. Proc., sec. 685; Cleveland etc. By. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. E. A. 33; Louisville etc. By. Co. v. Bates, 146 Ind. 564, 45 N. E. 108.)</p> <p>If the sufficiency of a-pleading has not been challenged by motion or demurrer, but is drawn in question upon the admission of evidence, a liberal construction of the allegation of fact will be adopted. (Patterson v. Patterson, 40 Or. 560, 67 Pae. 664; Creecy v. Joy, 40 Or. 28, 66 Pac. 295; Chan Sing v. City of Portland, 37 Or. 68, 60 Pac. 718; Burnette v. Elliott, 72 Kan. 624, 84 Pac. 374; Bank of Glaseo v. Marshall, 5 Kan. App. 252, 47 Pac. 561.) If facts are pleaded from which an ultimate fact necessarily results, it is the same as though such ultimate fact were specifically pleaded. (Harmon v. Fox, 31 Mont. 324, 78 Pae. 517.)</p> <p>Under the rule of Code pleading that allegations are -to be liberally construed, with a view to substantial justice, whatever is necessarily implied in or is reasonably to be inferred from an allegation is to be taken as if directly averred. (Malloy v. Benway, 34 Wash. 315, 75 Pae. 869.)</p> <p>As illustrating the doctrine of implied pleading, see Indianapolis etc. By. Co. v. Johnson, 102 Ind. 352, 26 N. E. 200, on rehearing; also, Hi Marcho v. Builders’ Iron Foundry, 18 E. I. 514, 27 Atl. 328, 28 Atl. 661; Indianapolis Union By. Co. v. Houlihan, 157 Ind. 494, 54 L. E. A. 787, 60 N. E. 943.</p> <p>A right to recover from a man for his own wrong is one thing; a right to recover from the same man for the wrong of another is an entirely different thing. In the one case recovery is had for the defendant’s own misconduct. In the other case, where the person for whose wrong recovery is had is a servant of the defendant, the recovery rests upon the principle of respondeat superior, the law making the defendant answerable, though his own individual conduct is entirely blameless. This distinction was always preserved in the forms of pleadings themselves. An action to recover from a defendant for Ms own wrong was an action of trespass; an action to recover from the same defendant for the wrong of one for whom he was accountable was an action of trespass on the case. The distinction in forms of pleadings has been abolished, but the distinction between the grounds of recovery in the two cases exists and can never be abolished. (Warax v. Cincinnati etc. By. Co., 72 Fed. 637.)</p> <p>At the common law the principle of respondeat superior operated in favor of all the world except the fellow-servants of and engaged in the same common employment with the immediate wrongdoer. Such persons were held to have assumed the risk of such negligence, and, therefore, could not recover. The effect of the fellow-servant laws has been simply to extend the principle of respondeat superior, in the cases defined by the statutes, to the fellow-servants of the wrongdoer, as well as to the rest of the world, and to allow the servant to hold the defendant liable upon that principle just as a third person might hold him liable.</p> <p>Now, as the grounds of recovery are different in the eases above instanced, so the averments of the complaint must differ according as the one theory or the other is relied upon; or, if both are relied upon in the same action, they must be stated in separate counts. (2 Labatt on Master and Servant, 733. See also, Union Pac. By. Co. v. Wyler, 158 IT. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; Menard v. Montana C. B. Co., 22 Mont. 340, 56 Pac. 592; Dixon v. Chesapeake etc. By. Co., 179 U. S. L31, 21 Sup. Ct. 67, 45 L. Ed. 121; Broiun v. Central Pac. B. Co., 68 Cal. 171, 7 Pac. 447, 8 Pac. 828; Southern Indiana By. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; Chicago I. & L. By. Co. v. Barnes, 164 Ind. 143, 73 N. E. 91.)</p>

<p> Chattel Mortgages—Grain—Purchaser in Good Faith—Evidence—Costs-—Taxation—Burden of Proof. </p> <p>Chattel Mortgages—Grain—Purchaser After Removal—Evidence.</p> <p>J. Evidence adduced in an action to recover the value of a crop of wheat, upon which plaintiff held a chattel mortgage, from the purchaser of the same, examined and held sufficient to warrant the district court in directing a verdict for defendant.</p> <p>Same—Grain—Removal from Land of Mortgagor—Bona Fide Purchaser.</p> <p>2. Where mortgaged grain has been removed from the land of the mortgagor, it is, under Civil Code, section 3876, prima faeie free from encumbrance, and the mere fact that one who bought it after its removal had knowledge that it was once mortgaged is not alone sufficient to prevent his being a bona fide purchaser.</p> <p>Same—Grain—Removal from Land of Purchaser—Bona Fide Purchaser—Estoppel.</p> <p>3. Unless a buyer of mortgaged grain, after its removal from the land of the mortgagor, has estopped Mmself in some way to deny the continued existence of the mortgage lien, he may safely buy under the presumption that the lien has been extinguished.</p> <p>Same—Grain—Waiver of Lien.</p> <p>4. Where an agent of a mortgagee had taken a mortgage on a crop of grain in his own name, for the benefit of his principal, and agreed with the secretary of a mercantile corporation which furnished the seed for the crop, that the corporation might purchase the crop at' a stipulated price and pay him (mortgagee’s agent) the balance due after deduction of the cost of the seed, he bartered the mortgage lien —if he did not waive it altogether—for the promise of the corporation to pay the balance to him.</p> <p>Costs—-Taxation—Memorandum—Items Properly Chargeable—Burden of Proof.</p> <p>5. A memorandum of items of costs duly verified, served on the opposite party, and filed with the clerk, is prima facie evidence that the items were necessarily expended and properly taxable unless they appear otherwise on the face, and the burden of showing tha-t such items were not properly taxable is on the party disputing them.</p>

<p> Appeal from, District Court, Silver Bow County; George M. Bourquin, Judge. </p> <p>Action by Thomas Howie and another against the California Brewery Company and others. From a judgment in favor of plaintiffs and an order denying it a new trial, the defendant company appeals.</p>

George F. Danzer was convicted of being accessory to -a county official in purchasing evidence of indebtedness against a county, and appeals.

<p> Appeal from District Court, Silver Bow County; Michael Donlan, Judge. </p> <p>Proceedings on objections and exceptions by Henry A. Root and others to the annual account of John H. Leyson, administrator with the will annexed of Andrew J. Davis, deceased. From an order settling and allowing such final account, the objectors appeal.</p> <p>Where objections are filed to the account of an administrator, the burden of proof is upon the administrator to show that the items objected to were a necessary expense to preserve and care for tbe estate, and were for tbe benefit of tbe estate and not for tbe personal benefit of the administrator, or the benefit of some of the persons interested in the estate. It must, also, be shown that the administrator acted with prudence in incurring the expense, and that such expense is reasonable. (Powell v. Foster’s Estate, 71 Vt. 160, 44 Atl. 96; Sutton v. Sutton (Tenn.), 58 S. W. 891; Brandon v. Hoggatt, 32 Miss. 335; Pearson v. Barrington, 32 Ala. 227; Harwood v. Pearson, 60 Ala. 410; Hunden v. Bailey, 70 Ala. 63; St. John v. McKee, 2 Dem. 236; Yingling v. Hesson, 16 Md. 112; Wysong v. Nealis, 13 Ind. App. 165, 41 N. E. 388; Brewster v. Bemarest, 48 N. J. Eq. 559, 23 Atl. 271.)</p> <p>The distribution of estates under our statutes are proceedings in rem, and the validity thereof can.only be attacked on appeal. ('William Hill Go. v. Lawler, 116 Cal. 359, 48 Pac. 323; Grew v. Pratt, 119 Cal. 139, 51 Pae. 38; Goad v. Montgomery, 119 Cal. 552, 63 Am. St. Rep. 145, 51 Pac. 681; Matter of Trescony, 119 Cal. 568, 51 Pac. 951; Jewell v. Pierce, 120 Cal. 79, 52 Pac. 132; Mulcahey v. Bow, 131 Cal. 73, 63 Pac. 158; Kearney v. Kearney, 72 Cal. 591, 15 Pac. 769; Cunha v. Hughes, 122 Cal. Ill, 68 Am. St. Rep. 27, 54 Pac. 535.) If an administrator obeys the order of distribution made by the court, he is protected in such action against all .the world. (Cathaway v. Bowles, 136 Mass. 54; Loring v. Steinemen, 1 Met. 204; White v. Weaiherhee, 126 Mass. 450; Pierce v. Prescott, 128 Mass. 140; Partlow v. Moore, 184 111. 119, 56 N. E. 317.)</p> <p>Attorneys’ fees cannot be claimed against an estate, unless the litigation in which the fees are charged is for the benefit and protection of the estate. (Brandon v. Hoggatt, 32 Miss. 335; Boyers’ Appeal, 13 Pa. 569; Prior v. Bams, 109 Ala. 117, 19 South. 440; Munden v. Bailey, 70 Ala. 63.) The estate, as an estate, must be interested in the litigation, and the mere fact that the administrator is a party to such suit is not sufficient to charge the estate, unless the acts of the administrator in reference to the estate are in question in such litigation.</p> <p>A judgment in rem is not such a judgment as can be renewed, either by motion or by original suit. (Seligman v. Eallcman, 17 Cal. 152; Henrie v. Sweasey, 5 Blackf. (Ind.) 335; Boose v. McDonald, 23 Ind. 157; Miller v. Dungan, 36 N. J. L. 31; Eastman v. Dearborn, 63 N. H. 364; Whiting v. Johnson, 5 Dana, 390.)</p> <p>The order directing the distribution of $100,000 was a final judgment for the payment of money, and therefore, under the statutes of this state, drew interest at the rate of eight per cent per annum from the date of its entry until paid. (State v. Babb, 77 Mo. App. 277; Hull v. Butler, 7 Ind. 267; Wheeler v. Dawson, 63 111. 54; In re Noble’s Estate, 24 Pitts. Leg. R. 441; In re Heydricks’ Estate, 1 Mont. Co. L. R. 106; Withers’ Appeal, 16 Pa. 151; Bruner’s Appeal, 57 Pa. 46; Wilson’s Appeal (Pa.), 11 Atl. 678; Succession to Mann, 4 La. Ann. 28.)</p> <p>If the probate of a will is contested, or any proceeding instituted to vacate or set it aside, the executor is entitled to credit for expenses incurred in the contest, including attorneys’ fees. (In re Whetton’s Estate, 98 Cal. 203, 32 Pac. 970; 11 Am. & Eng. Ency. of Law, 2d ed., p. 1237; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590; Abita v. Burnett, 33 Cal. 658; Meeker v. Meeker, 74 Iowa, 352, 7 Am. St. Rep. 489.) Where, on a contest of a will, the executor employed two counsel to defend such contest, an allowance to each of such counsel was sustained. (In re Ogden’s Estate, 41 Misc. Rep. 158, 83 N. Y. Supp. 977.) This suit was practically a suit against the succession, and in such a case the administrator has authority to employ an attorney to defend him. (Succession of Moise, 107 La. 717, 31 South. 990.) An administrator is always allowed his attorney’s fees in defense of his right to administer. (Ex parte Young, 8 Gill, 285; Firebaugh v. Burbank, 121 Cal. 186, 53 Pac. 560.)</p> <p>When an executor unjustly, and for his own advantage, resists the payment of a legacy, he is liable for the costs (Appeal of Witman, 28 Pa. 376); but where he acts in good faith, and in order to protect the interests of the estate, costs should be allowed him. (McKay v. Riley, 135 111. 586-589, 26 N. E. 525; 11 Am. & Eng. Ency. of Law, 1243; Holman v. Sims, 39 Ala. 709; Polhemus v. Middleton, 37 N. J. Eq. 240; McKay v. Riley, 135 111. 586, 26 N. E. 525; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dee. 590; Compton v. Barnes, 4 Gill (Md.), 55, 45 Am. Dec. 115; Holman v. Sims, 39 Ala. 709; Polhemus v. Middleton, 37 N. J. Eq. 240; Bratney v. Curry, 33 Ind. 399 ; Moore v. Randolph, 70 Ala. 575; Turner v. Tapscoot, 30 Ark. 312; In re Simons, 55 Conn. 239, 11 Atl. 36.) Nor will his right to have the expense charged to the estate be lost because he sought the protection of the court for himself. (Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Clarh v. Knox, 70 Ala. 607, 45 Am. Rep. 93; Hurlbut v. Hutton, 44 N. J. Eq. 302, 15 Atl. 417.)</p> <p>Credit will be allowed for all costs incurred on the judicial settlement of the administrator’s accounts, or in litigation reasonably undertaken by him on behalf of the estate, or in defending suits and proceedings brought against him, if they were not occasioned by his fault or negligence. (Matter of Miner, 46 Cal. 564; Matter of Holbert, 48 Cal. 627; Greenwood v. McGUvray, 120 Mass. 516; Wooldridge v. Draper, 15 Mo. 470; Ammon’s Appeal, 31 Pa. 311.)</p> <p>In allowing costs and fees of litigation, each ease must stand to a great extent upon its own merits. (O’Neill v. Donnell, 9 Ala. 734.) Expenses (including both counsel fees and costs) incurred by the administrator, in resisting claims, honestly believed upon reasonable grounds to be unjust, should be allowed, although the suit be lost. (Pearson v. Darrington, 32 Ala. 228; Crofton v. Ilsley, 6 Greenl. 48.) The determination as to what amount is reasonable is in the discretion of the court to which the account is presented for settlement, and with the exercise of this discretion the appellate court will not ordinarily interfere. (In re Dorland, 63 Cal. 281; Smith v. Worthington, 53 Fed. 977, 4 C. C. A. 130; Matter of Kasson, 119 Cal. 489, 51 Pac. 706; Matter of Hutchinson, 84 Hun (N. Y.), 563, 32 N. Y. Supp. 869; St. Clair’s Appeal (Pa.), 15 Atl. 914; 11 Am. & Eng. Ency. of Law, 1252.)</p> <p>“In cases where the administrator has not actually received interest or used the funds of the estate for his own purposes, but has permitted them to lie idle when they might have been productively employed for the benefit of the estate, it is a matter of discretion with the court, on consideration of all the circumstances of the case, whether interest shall be charged. And this discretion will be exercised in favor of the administrator where it appears that he was acting in good faith in the endeavor fairly to perform the duties of his office.” (Wheeler v. Bolton, 92 Cal. 159, 28 Pac. 558; Matter of Clary, 112 Cal. 292, 44 Pac. 569; Matter of Gloyd, 93 Iowa, 303, 61 N. W. 975; Estate of Danforth, 66 Mo. App. 586; Pulliam v. Pulliam, 10 Fed. 53. See, also, Chase v. Locherman, 11 Gill & J. 185, 35 Am. Dec. 277; King v. Berry, 3 N. J. Eq. 261.)</p> <p>Where devisees under a will notified the executor that they would employ their own counsel in a pending contest of the will, it was, nevertheless, the duty of the executor to employ counsel to > procure the probate of the will, and he was entitled to an allowance for their fees. (Reed v. Reed, 24 Ky. Law Rep. 2438, 74 S. W. 207.) An administrator has the authority to employ an attorney to defend a suit against the succession. (Succession of Moise, 107 La. 717, 31 South. 990.) The reasonable fees of attorneys employed by an executor to defend the validity of a will in a proceeding to contest it are a proper charge against the estate. (Shaw v. Camp, 56 111. App. 23; Pingree v. Jones, 80 111. 117.) It is held that where the executor believes the will under which he is acting to be genuine, it is his duty to support it, and he is entitled to have allowed to him counsel fees necessarily expended by him in doing so. (Tilghman v. France, 99 Md. 611, 59 Atl. 277; Compton v. Barnes, 4 Gill (Md.), 55, 45 Am. Dec. 115; Glass v. Ramsay, 9 Gill, 456.) An administrator is allowed Ms attorneys’ fees in defense of-Ms right to administer. {Ex parte Young, 8 Gill, 285; Firebaugh v. Burbank, 121 Cal. 186, 53 Pae. 560; Geddis’ Appeal, 9 Watts (Pa.), 284.)</p> <p>Where litigation becomes necessary during the administration of an estate, the personal representative is entitled to reasonable attorneys’ fees necessarily expended in conducting it. {Williamson v. Mason, 23 Ala. 488; Noel v. Harvey, 29 Miss. 72.)</p>

<p> Taxation—Illegal Assessment—Action to Recover Taxes—Trial ■—Special Verdict—Sufficiency. </p> <p>Trial—Special Verdicts—Essentials.</p> <p>1. A special verdict must find all the facts which are necessary to enable the court to determine, by a consideration of the pleadings and the verdict alone, which party is by law entitled to a judgment, without reference to the evidence.</p> <p>Taxation—Illegal Assessment—Issues—Special Verdict—Sufficiency.</p> <p>2. Plaintiff cattle company brought suit against a county and its treasurer to recover taxes alleged to have been illegally collected from, and paid under protest by, it on thirteen hundred head of range cattle. Among other issues presented were, whether the above number of cattle had been running at large in the county on the first Monday in March of the year when the assessment was made, and whether such cattle had been assessed for taxation in the same year in a neighboring county. The jury returned a special verdict finding that the accustomed range of the cattle was in the defendant and the neighboring county, but failing to find upon the issues above set forth. Held, that the special verdict was insufficient to warrant a judgment for plaintiff.</p>

<p> Appeal from District Court, Lewis and Clark County; Henry C. Smith, Judge. </p> <p>Action by Cans & Klein Investment Company against Wm. Sanford and others. From the judgment, and from an order denying a new trial, the defendant Ann Sanford and the plaintiff in intervention, Wm. Sanford, appeal.</p> <p>If the findings of a court omit material facts in the case, it is the duty of the court to supply the omission when its attention is called to the subject by proper exceptions to the findings. (Luse v. Isthmus T. B. Co., 6 Or. 124, 25 Am. 'Rep. 506; Simmonds v. Richardson, 5 Hun, 177; Logan v. Hale, 42 Cal. 646; Ogburn v. Connor, 46 Cal. 353, 13 Am. Rep. 213; Hayes v. Wetherbee, 60 Cal. 399; Mitchell v. Jensen, 29 Utah, 346, 81 Pac. 165.) The failure of the court to find on material issues is reversible error. (Christy v. Spring Valley Water Works, 84 Cal. 541, 24 Pae. 307; McTarnahan v. Pike, 91- Cal. 540, 27 Pac. 784; Ball v. Kehl, 95 Cal. 606, 30 Pac. 780; Duañe v. Neumann (Cal.), 2 Pac. 274; Hawes v. Green (Cal.), 3'Pac'. 496; Ross v. Evans, 65 Cal. 439, 4 Pac. 443; Casey v. Jordan (Cal.), 9 Pac. 99; Conklin v. Stone (Cal.), 6 Pae. 378.) Where evidence is introduced on a material issue the court should make a finding thereon, and until such finding is made judgment may not be properly rendered. (Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664.) Where a material allegation of the answer was proved without contradiction, the defendant was entitled to a definite and direct finding with reference thereto. (Lackman v. Kearney, 142 Cal. 112, 75 Pac. 668.) A failure to find on a fact alleged in the complaint, whether due to regarding such fact as admitted by the answer or to inadvertence, was error. (Senior v. Anderson, Í38 Cal. 716, 72 Pae. 349.) The trial eourt must make findings on every material issue; it is not sufficient to say that it is impossible to make the finding. If no sufficient evidence be introduced the finding should be against the party upon whom was the burden of proof. (Leviston v. By an, 75 Cal. 293, 17 Pac. 239.) A court may change or modify findings without ordering a new trial only before judgment has been entered. (Spaulding v. Howard, 121 Cal. 194, 53 Pac. 563.) After findings have been filed and judgment entered thereon, they can be changed or modified, except in respect of a mere clerical error or misprision, only by the granting of a new trial. (Hawhurst v. Bathgeb, 119 Cal. 846, 51 Pac. 846.) Where the findings are erroneous in any respect, the proper proceeding to have them set aside is a motion for a new trial, and a motion to amend the findings after a decree has been entered in the case is irregular. (Pico v. Sepulveda, 66 Cal. 336, 5 Pae. 515.)</p> <p>Failure of the court to make special findings cannot be urged on appeal when no requests therefor appear of record. (Davis 'v. Ford, 15 Wash. 107, 45 Pac. 739, 46 Pae. 393.) Failure of the trial court to make a finding is not matter for review on appeal, unless there was a request for the finding and objection for want of one urged at or before the time of entry of a decree. (Bank of California v. Dyer, 14 Wash. 279, 44 Pac. 534; Bobbin v. Palmer, 9 S. Dak. 39, 67 N. W. 949; Tatum v. Massie, 29 Or. 140, 44 Pae. 494; Noland v. Bull, 24 Or. 479, 33 Pac. 983; Washington Bock Plaster Co. v. Johnson, 10 Wash. 445, 39 Pac. 115.)</p> <p>In a trial by the court, the party in whose favor a decree is rendered is responsible for the findings of fact, and cannot be heard to object on appeal that the findings of fact and conclusions of law are insufficient to determine the rights of the parties. (Watson v. Sawyer, 12 Wash. 35, 40 Pac. 413, 41 Pac. 43.) A finding of fact not within the issue cannot support a judgment, and will be disregarded. (Dutro v. Kennedy, 9 Mont. 101, 22 Pac. 763; Harris v. Lloyd, 11 Mont. 405, 28 Am. St. Rep. 475, 29 Pac. 736.)</p> <p>“In case of the trial of the cause before the court without a jury, it is the right of the judge of the court to sign and file his findings, whether drafted by himself or another, without notice to the attorneys of the parties; and in doing so his sole duty is to see that they are proper and in conformity with his view of the facts and law of the case.” (Hathaway v. Ryan, 35 Cal. 188.) “The Practice Act is merely directory as to the time of filing the findings of the court and as to the order of filing in relation to the entry of judgment.” (Broad v. Murray, 44 Cal. 228.) In this court the presumption of the findings of fact by the court below will not extend to a fact not within the issue. (Bernal v. Gleim, 33 Cal. 668; Estate of McKinley, '49 Cal. 152.)</p>

<p>Contracts—Actions for Balance Due—Counterclaim—Damages for Breach—Evidence—Loss of Profits—Appeal—Exceptions —Instructions—Applicability to Pleadings and Evidence—■ Definition of Technical Terms.</p> <p>Written Evidence—Admission of Contents Without Proof of Loss of Original—When Harmless Error.</p> <p>1. The admission of the contents of a telegram in evidence, without proof of the inability of the party offering it to procure the telegram itself, while error, was harmless where the evidence thus brought to the attention of the jury was wholly immaterial.</p> <p>Contracts—Breach—Damages—Loss of Profits.</p> <p>2. Plaintiff sued defendant to recover a balance due for materials furnished for a pipe-line and the laying of the same. Defendant by way of counterclaim demanded damages for the failure of plaintiff’s assignor to complete certain portions of the contract within the time stipulated. The court sustained an objection to a question asked defendant, as to what was the reasonable value of a million gallons of water delivered in the city to which the line was constructed, from the time the contract should have been completed up to the time it was actually completed. Held, that while profits may be recovered as damages, if their loss is the natural and proximate result of a breach of the contract sued upon, and if they are reasonably certain of ascertainment, the court in this instance properly excluded the evidence because of the numerous contingencies upon which the profits from the plant depended.</p> <p>Appeal—Exclusion of Evidence—Offer of Proof—Review.</p> <p>3. The supreme court will not review the trial court’s action in excluding evidence, where no offer of proof was made, and where the question, the answer to which was excluded, was not of such a character as to make it appear what reply was sought.</p> <p>Appeal—Evidence—Exclusion—Record—Exceptions.</p> <p>4. Where the record on appeal does not show that an exception was taken to the ruling of the court in admitting certain evidence over objection, its action will not be reviewed.</p> <p>Contracts—Damages for Breach—Misleading Instructions.</p> <p>5. In an action to recover a balance due for material furnished for, and the laying of, a water pipe-line, the complaint sought to excuse the failure of plaintiff’s assignor to complete the contract within the time stipulated, by showing that the delay was caused by the act of defendant, among others, in appointing an inspector at the factory of the concern which furnished the plates for the pipe, who, it was alleged, did not properly perform his duties but permitted some defective material to be shipped. No pretense was made by plaintiff that such inspector interfered in any manner with the shipment of sound plates. The court instructed the jury that if they found that the contract was not completed in time by reason of the delays mentioned and specified in the complaint, verdict should be for plaintiff; also, that if the delay had been occasioned by reason of any of defendant’s acts set forth in the complaint, the time of such delay should not be included within the time agreed upon in the contract. Held, that these instructions were erroneous, in that they led the jury to understand that they should take into consideration, as an excuse for the failure of plaintiff’s assignor to complete the. contract in time, the alleged negligent acts of the inspector in passing certain defective plates, whereas his services, gratuitously furnished by defendant, in singling out and rejecting defective material would seem to have been beneficial rather than detrimental to the contractor.</p> <p>Appeal—Instructions—Request for—Presumptions.</p> <p>6. In the absence of a showing in the record on appeal making it appear affirmatively that appellant requested an instruction, similar to others objected to by him and held erroneous, it will not be presumed that such instruction was given at his instance or request.</p> <p>Contracts—Breach—Instruction on Immaterial Matter.</p> <p>7. Where, in an action to recover a balance due for materials furnished for, and the laying of, a pipe-line, there was an entire failure of proof of the allegation in the complaint that the contract, divided into sections A, B and C, could not be completed as a -whole in the time limited by it because of an order by defendant to complete section B before section A, and where the proof showed that it -was immaterial which section of it was completed first, it "was error to submit instructions to the jury which left them to conjecture whether such change in the order of the work furnished any excuse for delay in the completion of the contract.</p> <p>Same—Instruction—Definition of Technical Terms.</p> <p>8. The court further erred in instructing the jury, in the action set out in the foregoing paragraph, on the question of damages demanded in defendant’s counterclaim, that in estimating the damages, those which were “remote and speculative” should not be considered, but only those “actually” suffered by defendant,—the vice of the instruction consisting in the failure of the court to define these technical, legal terms, since without such definition the jury must have been confused upon the subject of damages properly recoverable by defendant.</p> <p>Same—Instructions—Curing Error.</p> <p>9. Nor was the error in the foregoing instruction cured by one subsequently given, assuming that the latter correctly stated the law.</p> <p>Same—Loss of Profits—Instructions—Applicability to Pleadings and Evidence.</p> <p>10. Where, in an action to recover a balance due on a contract for the furnishing of water pipe and the laying of the same, no testimony had been introduced on the question of-loss of profits sustained by the noncompletion of the contract within the time limited, and where the pleadings did not warrant the submission of the question to the jury, an instruction thereon was inapplicable.</p> <p>Same—Damages for Breaeh---Instructions—Eaulty Construction.</p> <p>11. The giving of an instruction,—in an action to recover a balance due for material furnished and labor done under a contract to construct a pipe-line, in a counterclaim to which defendant asked damages for noneompletion of the work within the time limited,—which, in attempting to state the abstract proposition of law that only those damages which were the natural and probable result of delay in the completion of the contract could be recovered, in effect limited the defendant to the recovery of only such damages as the parties at the time they entered into the agreement knew would flow from its breach, was error, in that under it, no showing having been made that the parties at the time the contract was made knew that any particular damages would result from its breach, defendant was barred from any recovery whatever on his counterclaim.</p> <p>Instructions-—Abstract Propositions of Law.</p> <p>12. G-enerally speaking, district courts in charging juries should refrain from submitting abstract propositions of law and thus leaving it to them to apply such principles to the facts of the particular case before them.</p> <p>Contracts—-Breach—Damages—Applicability of Instructions to Issues.</p> <p>13. Where, in an action to recover for material furnished and work done in the construction of a water pipe-line under a contract, no demand was made in defendant’s counterclaim for damages other than those which were the natural and probable result of a noneompletion of the contract within the time limited, and such as the parties could reasonably anticipate as a result of such noneompletion under the circumstances known to the parties at the time the contract was entered into, it was error to charge that, in the absence of proof of knowledge on the part of the contractor, at the time the agreement was made, of special circumstances which made other damages for the delay the natural and probable effect thereof, such damages only as were implied by the contract itself and such as would naturally flow from its breach or could reasonably be anticipated, could be recovered by the defendant. The instruction was inapplicable.</p> <p>Same.</p> <p>14. The court also erred in submitting an instruction in the case above set forth, that proof of knowledge of special circumstances which formed the basis of any damages claimed in defendant’s counterclaim for noneompletion of the contract in time, was essential in order to make the contractor liable, where defendant had not alleged facts in his counterclaim showing any special circumstances surrounding the making of the contract by reason of which damages were caused other than those which naturally flowed from its breach. The instruction was not applicable under the pleadings.</p>

<p>Administrators—Discovery of Assets—Prohibition—Petition— Sufficiency.</p> <p>1. Held, on application for writ of prohibition, that the district court erred in issuing a citation to certain persons, in pursuance of a petition, filed by an administrator under section 2571 of the Code of Civil Procedure, requiring such persons to appear and be examined under oath as to the knowledge they possessed touching the title to decedent’s property interests, and to bring all deeds, memoranda and books bearing on the matter—which petition was fatally defective in failing to allege that any one of the persons cited had in his possession, or had knowledge of, any deeds or papers containing evidences of the right, title or interest of the decedent to the property described in the petition.</p>

<p>Original application for writ of supervisory control by the state to review the action of the district court of Deer Lodge county, and of Honorable George B. Winston, Judge, in ordering the discharge of Andrew Fairgraives from confinement in the state prison on habeas corpus proceedings.</p>

B. Mc-Clernan, Judge. Suit by the Butte Consolidated Mining Company against Samuel Barker, Jr., in support of an adverse to a mining claim. From a judgment for plaintiff and an order denying him a new trial, defendant appeals. Citing on the question of the sufficiency of the location notices of the Annex and Plumber locations: Fleming v. Daly, 12 Colo. App. 439, 55 Pac. 946-949; Beale v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pác. 948-959; Terrible Min.

<p>Appeal from District Court, Cascade County; J. B. Leslie, Judge.</p> <p>W. F. Copenhaver was convicted of burglary in the second degree, and appeals from the judgment of conviction.</p> <p>Citing: People v. Jefferson, 52 Cal. 454; Bromley v. People, 150 111. 297, 39 N. E. 209; State v. Johnson, 35 La. Ann. 842; Guyness v. State, 25 Tex. App. 584, 8 S. W. 667.</p>

<p> Appeal from, District Court, Deer Lodge County; Geo. B. Winston, Judge. </p> <p>Action by John O’Rourke against W. W. Harper and J. P. Stagg. Defendants had judgment, and plaintiff appeals therefrom.</p> <p>The respondents are jointly and severally liable with the bondsmen on the former bond, for any misfeasance, or malfeasance of J. S. Wisner, with reference to said estate, occurring subsequent to the time when Wisner’s second term of office as public administrator began, and when he entered upon the discharge of the duties thereof. The cases of Estate of Averline, 53 Cal. 259, In re Pingree, 100 Cal. 80, 34 Pae. 521, In re Craigie’s Estate, 24 Mont. 43, 60 Pac. 495, relied on by respondents are inapplicable.</p> <p>If a public administrator succeeds himself and gives a new bond, the second bond covers liability for misappropriation of funds during its life, although the funds came into his hands during the life of his former bond. (State v. Holman, 93 Mo. App. 611, 67 S. W. 747 ; State v. Purdy, 67 Mo. 89; see, also, 18 Cyc. 131, 1251; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Bucklen v. McGuire, 58 Ala. 226.)</p> <p>It has been held that it is not even necessary to issue letters to the publie administrator. {Abel v. Love, 17 Cal. 233.) During the time from his second qualification and the giving of bond, Wisner was chargeable as publie administrator, and therefore the respondents are liable. {Healy v. Superior Court, 127 Cal. 659, 60 Pac. 428; Los Angeles County v. Kellogg, 146 Cal. 590, 80 Pae. 861.) It has been held that the second bond is Rabie for default occurring during its term, although the application of the money has been made to the discharge of an obligation existing prior to the commencement of the term. {Pine County v. Wiltard, 39 Minn. 125, 12 Am. St. Bep. 622, 39 N. W. 71,1 L. B. A. 118; People v. Hammond, 109 Cal. 393, 42 Pac. 36; * Walker County v. F. & D. Co., 107 Fed. 855, 47 C. C. A. 15.)</p> <p>By section 1067, Political Code, as amended by Laws of 1899, page 79, an officer may be required to give an additional bond; by section 1068, such additional bond is as effective and binding from the date of its execution as the original bond; and by section 1069, the original bond is not discharged or affected. Section 1070 makes the officer and his sureties liable to any party injured by breach of the bond, for its execution upon either or both bonds. So that we have the declared policy of the law clearly stated by the statute itself. The bopd of these respondents stands as an additional bond; although not required by any order of the court, it was required by the law, and given under its provisions. {Lacosta v. Splivalo, 64 Cal. 35, 30 Pac. 571.)</p> <p>Citing: Rodgers & Hoberlain, 11 Cal. 128; Estate of Aveline, 53 Cal. 259; In re Hamilton, 34 Cal. 464; Olsen v. Rich, 79 Ky. 247; In re Pingree, 100 Cal. 78, 34 Pac. 521; In re Craigie’s Estate, 24 Mont. 43, 60 Pac. 495; Tyler v. Nelson, 14 Cratt. 214; Baker v. Baldwin, 48 Conn. 131; Elkin v. People, 3 Seam. (111.) 207, 36 Am. Dec. 541; Dabney v. Smith’s Legatees, 5 Leigh, 13; Tyree v. Wilson, 9 Gratt. (Ya.) 1, 58 Am. Dec. 214; State v. Watts, 23 Ark. 305; Studebaker v. Johnson, 41 Kan. 326, 13 Am. St. Bep. 288, 21 Pac. 271; Mamey v. State, 13 Mo. 8; Colyer v. Higgins, 1 Duvall (62 Ky.), 6, 85 Am. Dec. 601; Crawn v. Commonwealth, 84 Ya. 282, 10 Am. St. Bep. 845, 4 S. E. 721.</p>

<p>Mining Corporations—Directors—Trustees Ex Maleficio—Stock —Equity—Innocent Purchasers—Burden of Proof—Notes— Transfer—Laches.</p> <p>Mining Corporations—Stock—Transfer—Innocent Purchasers—Equity.</p> <p>1. Evidence examined, and held to show that a vendee of certain shares in a mining corporation, of which the vendor was only the eouitable owner, and the transfer of which on the books of the company was sought in an action by the vendee, was not an innocent purchaser without notice, but acquired only such equities as the vendor had.</p> <p>Same—Directors—Personal Profit—Trustees Ex Maleficio.</p> <p>2. Directors of a corporation who have derived personal profit from their dealings with corporate property will be held trustees ex maleficio as to such profits, for the benefit of the company and those stockholders who have been injured by such dealings.</p> <p>Same—Directors—Purchase of Stock with Corporate Funds—Innocent Purchasers—Burden of Proof.</p> <p>3. Where it appeared that directors of a mining corporation used its-funds in purchasing shares of its stock for themselves, without proo ' that they had the right to do so, they became trustees ex maleficio of the property so bought, for the benefit of the company, to the extent to which they used such funds; and the buyer of a portion of the stock from one of the directors, with full knowledge of the facts surrounding the transaction, who sought to compel a transfer of it on the books of the company, had the burden of showing that the directorr violated no duty owed by them to the company in the premises.</p> <p>Same—Directors—Using Corporate Funds—Notes—Trusts.</p> <p>4. Where directors of a mining corporation gave their personal notes in purchasing shares of its stock and later without authority used company funds to pay such notes in part, the proportion of the stock paid for with the company’s own money was impressed by the trust resulting from the purchase, in favor of the company, and the fact that the buyers had previously executed their notes therefor did not relieve it of the trust character stamped upon it by their conduct.</p> <p>Same—Stock—-Title of Equitable Owner.</p> <p>5. A. and B., the latter at the time being a director of a mining corporation, purchased a large block of its stock and agreed that C., also a director, should have a one-third interest in it. Notes in payment were issued to the seller, signed by all three. The stock was taken in the name of A. and B. One of these notes was paid by A. out of his own money and others either directly or indirectly out of the company’s funds. O. thereafter paid the balance due on them in compromise of a suit, brought by the payees for collection, with interest. Seld, that O. was entitled to the proportion of the shares, represented by the certificate issued to A. and B., that the amount paid by him personally, excluding interest, bore to the full amount of the notes given in payment of the stock.</p> <p>Same—Stock—Transfer—Party in Interest—Findings—Review—Conflicting Evidence.</p> <p>6. In an action to compel a mining company to issue to plaintiff a certificate for shares of its capital stock, where- the evidence was conflicting as to whether or not plaintiff was the real party in interest and did not preponderate against the court’s finding resolving the question in plaintiff’s favor, the finding will not be disturbed on appeal.</p> <p>Same—Stock—Transfer—Duty of Officers—Laches.</p> <p>7. A purchaser of shares of mining stock from the equitable owner, whose ownership was not disputed by his associates in whose name the stock was held at the time, was not precluded by laches from having the stock transferred on the books of the company, since its officers are bound to make the transfer at any time when properly directed to do so, and' no lapse of time will protect them from the consequences of a refusal.</p>

<p>Original application by the state, on the relation of Jacob Klein, personally and as executor of Henry Klein, deceased, for a writ of supervisory control to the district court of the first judicial district and the Honorable J. M. Clements, a judge thereof.</p>

<p> Appeal from District Court, Gallatin County. W. B. C. Stewart, Judge. </p> <p>Roland T. Sloan was convicted of grand larceny and appeals from the judgment.</p>

<p> Criminal Law—Instructions—Evidence—Weight to he Given to Affirmative and Negative Testimony. </p> <p>1. An instruction, given in a criminal prosecution, that, other things being equal, “affirmative testimony is in general entitled to more weight than negative testimony, ’ ’ was vague and indefinite, in that it failed to point out what character of testimony was to be weighed under the rule stated and what attendant facts and circumstances should be considered. As a general rule, such an instruction should not be given without eareful qualification with reference to the attendant circumstances; and the safer practice is to submit the ■ evidence, under general instructions, and allow the jury to weigh and test it according to the ordinary rules.</p>

<p> Appeal from District Court Gallatin County; W. R. C. Stewart, Judge. </p> <p>Harry Anderson and James Smith, convicted of assault in the second degree, appeal from the judgment.</p>

<p> Criminal Law—Assault—Information—Sufficiency—Instructions ■—Harmless Error—Credibility of Defendant as Witness. </p> <p>Criminal Law—Assault in Second Degree—Information—Sufficiency.</p> <p>1. Under Penal Code, section 401, subsections 3 and 5, an information charging defendant with having willfully, unlawfully and feloniously assaulted a person with a piece of iron pipe with intent to inflict grievous bodily harm, was sufficient to charge the defendant with an assault with the intent to commit a felony and gave the district court jurisdiction to try the cause.</p> <p>Same—Instructions—Harmless Error.</p> <p>2. Where one charged with assault in the second degree was convicted of that crime in the third degree, he was not prejudiced by an instruction which comprised all of the subdivisions of section 401 of the Penal Code, setting forth the various circumstances under which, the crime in the higher degree may be committed.</p> <p>Same—Instructions—Assault in Its Degrees—Harmless Error.</p> <p>3. In a prosecution for assault in the second degree, an instruction which directed the jury, inter alia, that while eight of their number could return a verdict of guilty of assault in the third degree, it required a unanimous verdict to find him guilty of the crime in its higher degree or a verdict of not guilty, but which omitted to charge that if the jury unanimously agreed that defendant was not guilty of assault in the seeond degree, and if thereupon eight of their number came to-the conclusion that he was not guilty of the crime in the third degree, he should be acquitted, was harmless error where the record showed that nine of the jurors agreed to the verdict finding defendant guilty of assault in the third degree.</p> <p>Same — Witnesses—Defendant—Credibility—Instructions—Presumption of Innocence.</p> <p>4. An instruction, submitted to the jury in a criminal cause, embodying the provisions of section 2442 of the Penal Code, that a defendant cannot be compelled to be a witness against himself, and that if he does testify, the fact that he is the defendant and the nature and enormity of the crime with which he stands charged could be taken into consideration by the jury in weighing his testimony, was not open to the objection that it practically deprived him of the presumption of innocence which attends him until his guilt is established beyond a reasonable doubt.</p> <p>Same—Instructions—Eefusal—When not Error.</p> <p>5. Where the district court in a prosecution for assault in the second degree had fully covered the law of the ease in the instructions given, error may not be predicated upon its refusal to submit others requested by defendant.</p> <p>Same.</p> <p>6. An instruction requested by the defendant in a criminal prosecution which commented upon the evidence, and one not justified by the-facts of the case, were properly refused.</p>

K. Cheadle, Judge. Barney Hedican, convicted of grand larceny, appeals from the judgment.

Mc-Clernan, Judge. Action by Martha Storm against the city of Butte. From a judgment for plaintiff and from an order denying it a new trial, defendant city appeals. Statement op the Case, by the Justice Delivering the Opinion. This is an action for damages for personal injuries alleged to have been received by the plaintiff, Martha Storm.

<p>Torts — Negligent Killing—Mines — Corporations—Liability— Evidence—Sufficiency—Damages—Instructions.</p> <p>Negligent Killing—Mines—Aetion for Damages—Evidence—Sufficiency.</p> <p>1. Evidence, adduced in an aetion against a mining company for damages for the wrongful killing of plaintiff’s intestate, alleged to have been done negligently and in intentional disregard of life, in that it caused a large quantity of dynamite to be exploded in a mine in order to prevent the inspection of certain ore bodies then in dispute between it and an adjoining company, by reason of which explosion plaintiff’s husband, employed by the rival company, was killed, examined, and held to disclose an entire absence of substantive testimony as to how and by whom the powder was exploded, and, therefore, insufficient to support a judgment against the defendant company.</p> <p>Same—Conspiracy—Evidence—Sufficiency.</p> <p>2. Evidence in the action set out in the foregoing paragraph, held, also, insufficient to show that the defendant company killed plaintiff's intestate in furtherance of a general plan or conspiracy between it and its officers, to prevent a discovery of the fact that it was extracting ore from disputed ground, in violation of an injunction theretofore issued.</p> <p>Same—Punitive Damages.</p> <p>3. Under section. 4290 of the Civil Code, and section 579 of the Code of Civil Procedure, damages by way of punishment, in addition to those actually sustained, may be recovered in an action against a mining company for the negligent and wrongful killing of plaintiff’s intestate, a miner, where the complaint charges that the defendant company was primarily responsible for the death of decedent.</p> <p>Same—Master and Servant—Punitive Damages.</p> <p>4. Quaere: May punitive damages be awarded against a mining company for an injury caused by the oppression, fraud or malice of one of its servants for whose conduct it is responsible?</p> <p>Same—Damages—Instructions.</p> <p>5. In charging the jury, in an aetion to recover damages for the negligent killing of a person, upon the question of determining the pecuniary loss sustained by plaintiff through the death of decedent, the court should submit a definite rule to guide them in arriving at an estimate of such damages as are capable of computation. (BourTco v. Butte Ml. P. Co., 33 Mont. 267, 83 Pae. 470.)</p>

<p> Appeal from District Court, Gallatin County; W. B. C. Stewart, Judge. </p> <p>Action by Frank W. Vreeland against West Edens and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal.</p> <p>The findings are not responsive to all the material issues in the case and do not support the judgment. (Campbell v. Buck-man, 49 Cal. 362; Kennedy v. Berry, 52 Cal. 87; Harlan v. Ely, 55 Cal. 340; 2 Spelling on New Trial and Appeal, 591; Du Prat v. James, 61 Cal. 361; Hawes v. Green (Cal.), 3 Pac. 496; Conklin v. Stone (Cal.), 6 Pac. 378; Goodnow v. Griswold, 68 Cal. 599, 9 Pae. 837; Porteus v. Reed (Cal.), 12 Pac. 117; Warren v. Robinson, 71 Cal. 380, 12 Pac. 265; Samuel v. Allen, 98 Cal. 406, 33 Pac. 273; Bates v. Wilbur, 10 Wis. 415; Johnson v. Bucklen, 9 Ind. App. 154, 36 N. E. 176; Braden v. Lemmon, 127 Ind. 9 26 N. E. 477, 478; Albright v. Hawk, 52 Ohio St. 362, 39 N. E. 1044; Brant v. Robertson, 16 Mo. 129; Downing v. Bourlier, 21 Mo. 149; Foster v. Devinney, 28 Neb. 416, 44 N. W. 479; Wood v. La Rue, 9 Mich. 158; Adams v. Champion, 31 Mich. 233; Roussain v. Patten, 46 Minn. 308, 48 N. W. 1122; Little v. Lee, 53 Minn. 511, 55 N. W. 737; Bahinsen v. Gilbert, 55 Minn. 334, 56 N. W. 1117; Mitchell v. Jensen, 29 Utah, 346, 81 Pae. 165,168; Bartholomew v. Fayette Irr. Co. (Utah), 86 Pae. 481.)</p> <p>A water right cannot be acquired by a trespass upon the possession of another. (Taylor v. Abbott, 103 Cal. 424, 37 Pac. 408; Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 705; Campbell v. Flannery, 32 Mont. 120, 79 Pae. 702, 80 Pae. 240.)</p> <p>If Hawkins was using the ditch and water right in controversy by permission of Wisner, it amounted only to a license, revocable at the will of Wisner, and gave Hawkins no right in the ditch. (Great Falls Water Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pae. 963.) This license, being a purely personal privilege, was not assignable and did not operate for or against third persons. (Fabian v. Collins, 3 Mont. 215, 227; 18 Am. & Eng. Eney. of Law, 2d ed., 1140, and cases cited in note 2; He Haro v. United States, 5 Wall. 599, 18 L. Ed. 681.)</p> <p>“An easement is an interest in lands, and the instrument conveying an easement must conform to the requirements of the statute of frauds and be executed with the formalities essential to conveyances of estates in land.” (10 Am. & Eng. Ency. of Law, 2d ed., 409, 4,10; Hayes v. Fine, 91 Cal. 391, 27 Pae. 772; Angelí on Watercourses, sec. 168; Washburn on Easements, 23, 24; Gould on Waters, 300-321; see, also, Bell v. Sausalito, L. & F.Co. (Cal.), 33 Pae. 449.)</p> <p>If Hawkins acquired some rights to flow water through this ditch, his right was limited to the purpose for which he took it. Even if there had been a grant of this right, the use of the easement is to be confined strictly to the purpose for which it was granted. (Kaler v. Beeman, 49 Me. 207; Noyes v. Hemphill, 58 N. H. 536; Evans v. Dana, 7 R. I. 306; Schaffer v. State Nat. Bank, 37 La. Ann. 242; Allen v. Water Go., 92 Cal. 138, 28 Pac. 215, 15 L. R. A. 93; Schaffer v. State Nat. Bank, 37 La. Ann. 242; Lampman v. Milks, 21 N. Y. 505.) The use defines the right. (Washburn on Easements, 352.)</p> <p>Title to the use of water may be acquired by ten years’ adverse possession. (Talbott v. Butte City Water Go., 29 Mont. 17, 72 Pac. 1111; Bullerdich v. Hermsmeyer, 32 Mont. 541-554, 81 Pac. 334; see, also, Yankee Jim’s Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Evans v. Ross (Cal.), 8 Pac. 88; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554; Dickerson v. Col-grove, 100 U. S. 578, 25 L. Ed. 618; Kirk v. Hamilton, 102 U. S. 68, 26 L. Ed. 79; Dalton v. Rentaría, 2 Ariz. 275, 15 Pae. 37; Park v. Kilham, 8 Cal. 78, 68 Am. Dec. 310; Slocum v. Ry. Co., 57 Iowa, 675, 11 N. W. 641; Lehigh Irr. Co. v. Moyle, 4 Utah, 327, 9 Pac. 867; Fabrian v. Collins, 3 Mont. 216; Biggs v. Irrigating Ditch Co., 7 Ariz. 331, 64 Pae. 494.)</p> <p>Counsel for respondent waived notice of intention to move for .a new trial by consenting in open court to an extension of ninety days in which to prepare the statement or bill of exceptions. On a motion for a new trial, the filing of a counter-statement is a waiver of objections to the want of notice of intention to' move for a new trial. (Williams v. Gregory, 9 Cal. 76; see, also, McLeran v. Shartzer, 5 Cal. 70, 63 Am. Dec. 84; Payne v. Davis, 2 Mont. 381; Frost v. Meetz, 52 Cal. 664; Millard v. Hathaway, 27 Cal. 119; Acock v. Halsey, 90 Cal. 215, 27 Pac. 193; Reynolds v. Harris, 14 Cal. 668, 76 Am. Dec. 459; Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Cothran v. Brower, 75 Ga. 494; Treftz v. Stahl, 46 111. App. 462, 18 L. E. A. 500; Foster v. Hinson, 76 Iowa, 714, 39 N. W. 682; Allis v. Day, 14 Minn. 516; Mdbin v. Webster, 8 Ind. App. 547, 35 N. E. 194, 36 N. E. 373; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547; Desmooid v. Superior Court, 59 Cal. 274; Simpson v. Budd, 91 Cal. 488, 27 Pac. 758; Belf'ord v. Beatty, 145 111. 414, 34 N. E. 254.) A party cannot make objection to the want of notice, and still throughout all the proceedings appear, propose amendments, argue motions, take his chances of a decision, and afterward be heard to complain in the appellate court of a want of notice.</p> <p>Findings which would be immaterial, on the theory of the court, as evidence by the other findings made, need not be made and the ease will not be reversed for failure to make such findings. (Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Schelling v. Curran, 30 Mont. 370, 76 Pac. 998.) And findings on immaterial issues are not required and, if made, are to be disregarded. {Fontaine v. 8. P. B. B. Co., 54 Cal. 645; McCourtney v. Fortune, 57 Cal. 619; Lovell v. Frost, 44 Cal. 474.) And where the evidence upon a point is all one way and against the appellant, the failure to find upon it is an immaterial error. {Hutchings v. Castle, 48 Cal. 156; Schroeder v. Jahns, 27 Cal. 281.) And the findings must be construed liberally to uphold rather than to defeat the judgment; and for the purpose of supporting the judgment, any ambiguity must be resolved in favor of the judgment, and reference may be had to other findings and to the issues for this purpose. {Breeze v. Brooks, 97 Cal. 72, 31 Pac. 742, 22 L. R. A. 256; Krasky v. Wollpert, 134 Cal. 338, 66 Pac. 309; People’s Home Sav. Bank v. Bickard (Cal.), 73 Pac. 858; Leist v. Dierson, 139 Cal. 285, 88 Pac. 812.) Only the ultimate facts need be found, and they may be stated in the findings the same .as they are stated in the pleadings. (Hayne on New Trial and Appeal, par. 242, pp. 723, 724.)</p> <p>A motion for a new trial, without a notice of intention to so move, unless such notice of intention is waived, does not lie, and the court settling the statement on motion for a new trial and bill of exceptions in support of said motion is without jurisdiction, and such statement or bill of exceptions, in support of said motion, so settled over the objection of the prevailing party, is a nullity and cannot be considered for any purpose. (Calderwood v. Brooks, 28 Cal. 151; Street v. Mill, 9 Nev. 251 ; see, also, State v. District Court, 29 Mont. 176, 74 Pac. 414; Ogle v. Potter, 24 Mont. 501, 62 Pac. 920; State v. District Court, 28 Mont. 227, 72 Pac. 613.)</p>

M. Bourquin, Judge. Proceedings by the Chicago, Milwaukee and St. Paul Railway Company of Montana against one White and others for the condemnation of certain land, in which the compensation money was paid into court, and in which John A. Cannon and another petitioned for an order requiring the clerk to pay the moneys over to said Cannon, to which Mary D. Forbis, as administratrix of the estate of James W. Forbis, deceased, filed an answer.

B. Winston, Judge. ’ Action by Lucy Yan Yranken against Granite county and others. From a judgment for plaintiff, and from an order denying defendants’ motion for a new trial, they appeal.

<p> Appeal from. District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Proceedings to fix the amount of inheritance tax on the estate of James Tuohy, deceased. From an order -fixing the amount, Cyril Pauwelyn, executor, and others, appeal.</p> <p>Citing: Cooley on Taxation, p. 669; Clapp v. Mason, 94 U. S. 591, 24 L. Ed. 212; In re Line’s Estate, 155 Pa. St. 378, 26 Atl. 728; Gelsihorpe v. Purnell, 20 Mont. 310, 51 Pac. 267, 39 L. R. A. 170; Linsly v. Bogert, 67 N. Y. St. Rep. 653, 33 N. Y. Snpp. 975; Carr v. Tucker, 42 Tex. 330; String fellow v. Sorrels, 82 Tex. 277, 18 S. W. 689.</p> <p>Citing: In re Magee’s’ Estate, 32 Colo. 527, 77 Pac. 853; In re Hickok’s Estate, 78 Yt. 259, 62 Atl. 725; State v. Bazille, 97 Minn. 11, 106 N. W. 93; State v. Vinsonhaler (Neb.), 105 N. W. 473; Plummer v. Cole, 178 U. S. 115, 44 L. Ed. 998, 20 Snp. Ct. 829; Succession of Kohn, 115 La. 71, 38 South. 898; Succession of Levy, 115 La. 377, 39 South. 37; In re Jones, 1 Redf. 266, 5 N. Y. Leg. Obs. 124; Scottish-American Mortgage Co. v. Massie, 94 Tex. 339, 60 S. W. 545.</p>

<p> Appeal from, the District Court, Silver Bow Countyj Geo. M. Bourquin, Judge. </p> <p>Action by J. D. 0 ’Brien against J. J. Quinn, sheriff. From a judgment for plaintiff and an order denying him a new trial, defendant appeals.</p> <p>Section 672 of tbe Code of Civil Procedure, enumerates tbe causes of action wbieb may be united. One of tbe causes of action herein urged comes under subdivision 1 of that section and tbe other under subdivison 7 thereof, and they are not unitable. One is an action in tort and the other an action on contract, and they cannot be united. (Nelson v. Great Northern B. B., 28 Mont. 310, 72 Pac. 642; Gore v. Condon, 87 Md. 368, 67 Am. St. Rep. 352, 39 Atl. 1042, 40 L. R. A. 382; Lamb v. TLarbaugh, 105 Cal. 680, 39 Pae. 56; Hunter v. Powell, 15 How. Pr. 223.)</p> <p>The complaint will not support a verdict for damages greater than nominal damages. Damages for loss of reputation, either business or personal, for loss of business, profits, etc., are special damages and must be specially pleaded. The complaint does not specify the amount of damages, if any, sustained in any of these particulars, and therefore will not support a judgment. (8 Ency. of PL & Pr., p. 719; Parker v. Bond, 5 Mont. 11, 1 Pac. 209.) In actions to recover for a merely wrongful attachment, where only actual damages can be allowed, injury to credit and loss of prospective profits are not an element of damages, and cannot be recovered, because too remote. (Seattle Crockery Co. v. Haley, 6 Wash. 302, 36 Am. St. Rep. 156, 33 Pac. 650; Mitchell v. Harcourt, 62 Iowa, 349. 17 N. W. 581; Anderson v. Taylor, 56 Cal. 131, 38 Am. Rep. 52.)</p> <p>The defendant was entitled to the statutory notice of O’Brien’s claim. (Code Civ. Proc., sec. 906.) The statute is for the protection of all parties interested—the officer, the attaching creditor and the claimant, and it is reasonable in its requirements. (Bradley v. Miller, 100 Iowa, 169, 69 N. W. 426; Taylor v. Seymour, 6 Cal. 512; Tricher v. Blocker, 10 Md. 14; Cheadle v. Quitar, 68 Iowa, 680, 28 N. W. 14.)</p> <p>Duplicity does not consist in the union of several facts, constituting together but a single cause of action. (Hough v. Hough, 25 Or. 218, 35 Pac. 249; Harker v. Brink, 24 N. J. L. 333.)</p> <p>Causes of action required to be separately stated are such as by law entitle the plaintiff to separate actions, and each of which would be a perfect cause of .action in itself. (1 Estee’s Pleading, 4th ed., see. 314a; Sturges v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582.) If a claim is founded upon one single or continuous tortious act, it cannot be divided up into separate and distinct demands, and made ■ the subject of separate actions; and if this is attempted, a judgment in one action will be a conclusive bar to any other action, upon the principle that if a plaintiff bring an action for a part only of an entire and indivisible demand, the verdict and judgment in that action will be a conclusive bar to any subsequent suit for another part of the same demand. (Herriter v. Porter, 23 Cal. 387; Philips v. Berik, 16 Johns. 136, 8 Am. Dec. 299; Wilson v. Sullivan, 17 Utah, 341, 53 Pae. 994.)</p> <p>“When the trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of hardship and oppression, the rule of mere compensation is not enforced, and the measure and amount of damages are matters for the jury alone, and they may award punitive or exemplary damages.” (Harlow on Sheriffs, 2d ed., sec. 632.)</p>

H. Loud, Judge. Action by Charles E. Barngrover against Austin North. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, he appeals.

M. Bourquin, Judge. Action by H. M. Gehlert against John J. Quinn and another. From a judgment for plaintiff, and from an order denying defendants’ motion for a new trial, they, appeal. A single cause of action cannot be split in order that separate suits may be brought for the various parts of what really constitute but one demand. (1 Ency. of PI. & Pr. 148; Beronio v. Southern Pacific By., 86 Cal. 415, 21 Am.

<p> Criminal Law—Bobbery—Appeal—Record—Bill of Exceptions —Information—Objections—Prior Convictions—Instructions —Verdict. </p> <p>Criminal Law—Appeal—Record—Bill of Exceptions.</p> <p>1. Alleged error on the part of the district court in refusing to hear evidence, offered by defendant in a criminal prosecution upon his ehallenge to the jury panel, will not be reviewed on appeal unless presented by bill of exceptions.</p> <p>Same—Information—Prior Convictions—Objections—Bill of Exceptions.</p> <p>2. An objection to tbe form in which a prior conviction is pleaded in an information can only be raised by demurrer, which in turn, in order to be reviewable on appeal, must be presented by a bill of exceptions.</p> <p>Same—Information—Prior Convictions—Objections—Waiver.</p> <p>3. The defendant in a criminal proceeding will be deemed to have waived any objection to the manner in which prior convictions had been pleaded in the information, where it does not appear from the record by bill of exceptions that any demurrer to the information had been interposed.</p> <p>Same—Arrai gnment—Amended Information—Beeord—Sufficiency.</p> <p>4. Where the record in .a criminal appeal showed that it was only after the filing of an amended information that a warrant was issued, and that thereafter, when called upon to plead, the defendant interposed a demurrer to this amended information, and, upon overruling thereof, pleaded not guilty, it was sufficient to disclose that defendant had been arraigned on the amended information and not on the original one, which latter had become functus officio by reason of the filing of the amended paper.</p> <p>Same—Arraignment—Beading of Information—Waiver.</p> <p>5. Where defendant, charged with the commission of a crime, accepts a copy of the information, takes time to plead, and afterward enters a plea to the merits and goes to trial, he waives the reading of the information.</p> <p>Same—Information—Prior Convictions—Plea of Not Guilty—Effect.</p> <p>6. Under Penal Code, section 1943, the plea not guilty of the offense charged in an information puts in issue allegations of prior convictions as well as the other allegations therein contained, and, therefore, defendant’s contention that, never having pleaded to the charge of prior convictions, no issue was raised as to that allegation has no merit.</p> <p>Same—Prior Convictions—Faulty Instruction—When not Prejudicial.</p> <p>7. Where the defendant, charged with robbery and prior convictions, was found guilty of robbery, he suffered no prejudice by the statement of the court in an instruction that, if the jury found the defendant not guilty of that crime, it would not be necessary for them to find upon the question of prior convictions, instead of charging positively, as it should have done, that in that event the question of prior convictions should not be considered. .</p> <p>Same—Prior Convictions—Informal Verdict—Prejudice.</p> <p>8. For a mere informality in the wording of a verdict finding the defendant guilty of robbery and also “guilty of prior convictions,” instead of following the language of section 2146 of the Penal Code, and saying “we find the charge of previous conviction true,” the judgment of conviction will not be reversed, since this provision is directory only and the verdict in question substantially conformed to it, and further in view of sections 2320 and 2600 of the same Code, which provide that mere technical errors not affecting the substantial rights of' the defendants shall not be deemed grounds for a reversal.</p> <p>Same—Technical Error—Prejudice—Statutes.</p> <p>9. Quaere; Was the rule, that “error appearing, prejudice will be presumed,” as announced prior to the adoption of the Codes in 1895, abrogated by sections 2320 and 2600 of the Penal Code, which declare the law to be that no judgment shall be held invalid for mere technical errors not affecting the substantial rights of the defendant 1</p> <p>Same—Instructions—Bequest.</p> <p>10. Under section 2070 of the Penal Code, as amended by Laws of 1901, page 173, appellant, convicted of crime, will not be heard to complain of instructions in which the court made reference to the information in stating the facts, instead of making an independent statement of the case. If the instructions given did not appear satisfactory to defendant, he should have requested others more fully covering the matter deemed faulty.</p> <p>Same—Instructions—Assumption of Fact.</p> <p>11. An instruction in a criminal case, in the language of the Penal Code, section 21, that the intent is manifested by circumstances connected with the offense, etc., was not objectionable, the expression “the offense ’ ’ having reference to the crime charged in the information, and, therefore, not being subject to the criticism that it assumed that in fact a crime had been committed.</p> <p>Same—Instructions—Assumption of Fact—When not Beversible Error.</p> <p>12. Where the record on appeal in a criminal case contained none of the evidence introduced at the trial, but only those proceedings which fall under the technical designation “record of the case” or “judgment-roll, ’ ’ as defined by Penal Code, section 2229, as modified by Act of 1903, page 47, an instruction which, by the use of the terms “at the time of the commission of the crime,” “when the crime was committed, ’ ’ and ‘ ‘ at the time and place of the commission of the crime,' ’ virtually assumed that a crime had in fact been committed and might have constituted reversible error if the evidence were up for review, was not such in the absence of the evidence from the record, since the defendant in open court may voluntarily have admitted the fact thus assumed by the court.</p> <p>Same—Admissions.</p> <p>13. Obiter: One charged with crime may upon his trial admit that the offense was in fact committed at the time and place mentioned in the information, and thereafter he is bound by such admission.</p> <p>Appeal—Error—Presumptions.</p> <p>14. Error on the part of the district court will not be presumed, but every presumption attaches in favor of its action.</p>

B. C. Stewart, Judge. Action by Snsan McEwen and others, doing business as Mc-Ewen Bros., against the Montana Pulp and Paper Company and the Union Bank and Trust Company. From a judgment in favor of plaintiffs, defendant Union Bank and Trust Company appeals.

<p>Attorneys — Disbarment — Evidence — Insufficiency — Presumptions.</p> <p>Attorneys—Disbarment—Evidence—Insufficiency. -</p> <p>1. To warrant disbarment, the evidence adduced to sustain a charge of unprofessional conduct on the part of attorneys should be of such a character as to satisfy the court to a reasonable certainty that the accusation is true.</p> <p>Same—Presumptions.</p> <p>2. Attorneys, charged with professional misconduct, are presumed to be innocent of the charges preferred, and to have properly performed their duties as officers of the court in accordance with their oaths, until the contrary is shown.</p> <p>Same—Evidence—Insufficiency.</p> <p>3. Where, in a disbarment proceeding, after discarding the testimony of the principal witness,—a detective who went into the office of the accused attorneys, under the guise of a student, for the confessed purpose of spying upon their actions,—whose statements clearly disclosed a conspiracy to bring about the disbarment of the accused, and whose acts as narrated by himself were of such a character as to make his testimony unworthy of belief, nothing remained in the record to show unprofessional conduct on the part of the attorneys, the report of the referee recommending dismissal of the proceeding will he adopted.</p> <p>Same—Evidence—Insufficiency.</p> <p>4. While the record in the disbarment proceeding, mentioned above, disclosed that certain persons had attempted to defraud the accuser, it was devoid of evidence showing that the accused had any knowledge of the transaction until after it took place, or that, after the accused appeared as counsel for the parties at fault, any guilty knowledge which they may have had, had ever been communicated to their attorneys by them, and was therefore insufficient to overcome the presumption of innocence attending an attorney charged with unprofessional conduct.</p>

Ravalli County; F. C. Webster. Judge. W. P. 0 ’Brien was convicted of violating tbe local option law, and he appeals from the judgment of conviction and from an order denying him a new trial. The allegation that the local option law had become operative by reason of an election is purely a conclusion of law. The facts going to constitute such election and the facts necessary to put such law into operation should have been pleaded.

<p> Supervisory Control—Criminal Law—Homicide—Bail—Habeas Corptis. </p> <p>Criminal Law—Homicide—Bail—Supervisory Control—Habeas Corpus.</p> <p>1. D., charged with murder, filed his petition in the district court for a writ of habeas corpus, alleging that he was held in custody without authority of law. It appearing on return day that a complaint had been filed, the petition was not prosecuted, but an oral application for bail made instead. While formal notice of the application ho I not been given to the county attorney, that officer was present at the time it was made and protested, on the ground that the proof of the guilt was evident and the presumption thereof great, offering no testimony, however, to substantiate his statement. Bail was allowed, and a writ of supervisory control thereupon sought to review the action of the court. Held, that the order allowing bail was properly made, in the absence of a showing by the county attorney that the proof of defendant’s guilt wa.s evident or the presumption thereof great. (Const., Art. Ill, sec. 19.)</p> <p>Same—Bail—When to be Refused.</p> <p>2. Obiter: Where a showing is made to the district court that the proof of the guilt of one charged with murder is evident or the presumption thereof great, bail should be refused.</p>

B. Mc-Clornan, Judge. Action by Edward W. Shively against George E. De Snell. Judgment for plaintiff. Defendant appeals from the judgment and an order denying him a new trial.

E. Cheadle, Judge. 'James Sherman was convicted of murder, and appeals from the judgment and an order denying him a new trial. Citing, on the question of the inadmissibility in evidence of the confession of defendant: People v. Barrie, 49 Cal. 345; People v. Thompson, 84 Cal. 598, 24 Pac. 386; Watts v. State, 99 Md. 30, 57 Atl. 544; State v. Nagle, 25 R. I. 105, 105 Am.

Appeal from District Court, Sanders County; F. C. Webster, Judge. Quo warranto by the state on the relation of Corbie Livesay against L. E. Smith. From a judgment for relator, defendant appeals. Citing: Matthewson v. County Commissioners, 34 Kan. 607, 9 Pae. 769; State v. Collins, 2 Nev. 351; State v. Philips, 30 Fla. 579, 11 South. 922; People v. Wilson, 72 N. C. 157; People v. Coll, 132 Cal. 334, 64 Pae. 477; People v. Hardy, 8 Utah, 73, 29 Pae. 1118; State v.

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Action by Phil. J. Harrington against the Butte and Boston Mining Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p> Appeal from Justices’ Courts—Dismissal—Record—Affirmance —Bills of Exceptions. </p> <p>1. The judgment of the district court dismissing an appeal from a justice’s court will be affirmed, where the bill of exceptions in the record presented to the supreme court for review is a mere skeleton, and does not contain, by copy or appropriate reference, either the transcript from the justice of the peace court, notice of appeal to the district court, motion to dismiss or order dismissing the appeal—none of which papers form a part of the judgment-roll, and must, therefore, be incorporated in a bill of exceptions.</p>

Harry Penna was convicted of murder, and he appeals from the judgment and from an order denying a new trial. “A question as to how a designated person appeared at a certain date with reference to soundness or unsoundness of mind cannot properly be pnt except to a medical expert.” (Wyman v. Gould, 47 Me. 159; Commonwealth v. Wilson, 1 Gray, 339.) While we do not wish to be understood as contending that a non-expert cannot give his opinion as to the sanity or insanity of a…

Earl Cunningham was convicted of grand larceny, and, from an order granting Mm anew trial, the state appeals. It is contended that Chapter XIX, Laws of 1903, page 30, known as the “estray” law, is unconstitutional, for the reason that the Act is not supported by the title; that is, that the term “public domain” is used in the title, and the word “range” is used in the body of the law, and that these words are not synonymous in meaning.

<p> Criminal Law—Assault—Information—Instructions. </p> <p>Criminal Law—Assault in Seeond Degree—Information—Sufficiency.</p> <p>1. An information charging that defendant ‘ ‘ did willfully, unlawfully, wrongfully, intentionally and feloniously assault one S., by throwing said ¡3. from a moving street-car, with intent in him, the said defendant,-to inflict grievous bodily harm upon said S.,” was sufficient to charge assault in the second degree, under subdivision 3 of section 401 of the Penal Code.</p> <p>Same—Instructions—Definition of Crime.</p> <p>2. Before defendant, on trial for assault in the seeond degree, can complain of an instruction which defined the crime of assault in the third degree in the words of the statute, but did not specifically define the distinctions between this degree of the offense and assault in the first and second degrees, he must have made request for a more specific instruction and have had it refused, since, generally speaking, there is no error if the court has submitted the statutory definitions to the jury.</p> <p>Same—Instructions—Technical Error—Effect.</p> <p>3. Where, under the evidence submitted at a trial for assault in the seeond degree, the defendant might have been convicted of assault in either the seeond or third degree, but was found guilty of the lower degree, the judgment will not, under Penal Code, sections 2320, 2600, be reversed for a purely technical error in giving an instruction.</p> <p>Same—Technical Error—Instructions—Prejudice.</p> <p>4. ’Even though an instruction, given in a prosecution for assault in the second degree, which laid down an unauthorized restriction upon the power of the jury to rejeet the testimony of a witness who had willfully testified falsely to a material matter, was technically erroneous, the substantial rights of the defendant were not affeeted by it prejudicially, where the jury had been instructed that they were the exclusive judges of the weight to be given to the evidence, and defendant was convieted of assault in the third degree.</p> <p>Same—Instructions—Refusal—AVlien not Error.</p> <p>5. Refusal of an instruction, on a trial for assault in the seeond degree, to the effeet that in determining whether or not defendant’s conduct was willful or wrongful, the jury might take into consideration whether the defendant did anything to bring about the trouble; whether at the time he was engaged in his regular occupation; whether he used more force than necessary, and whether he did anything that indicated an intention to wound the prosecuting witness, and that if then they were not satisfied beyond a reasonable doubt that his conduct was either willful or wrongful, acquittal should follow, was not error, where, in instructions given, the jury had been charged that if they were not satisfied beyond a reasonable doubt that rhe defendant had willfully and wrongfully assaulted the prosecuting witness with intent to do him grievous bodily harm, they should acquit him.</p>

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p> <p>Action by Bart Armstrong against J. B. Poe. From a judgment in favor of defendant, plaintiff appeals.</p>

J. Lynch, Judge. Action by Elizabeth C. Nickel and others against Thomas M. Hodgens. From a judgment in favor of the plaintiffs, defendant appeals. In - support of the contention that the plaintiffs are not the real parties in interest, and that the complaint does not state a cause of action in their favor, see the following authorities: Washer v. Mining Co., 142 Cal. 702, 76 Pae. 654; Bassett v. Hughes, 43 Wis. 319; Brown v. Marhland, 16 Utah, 360, 67 Am.

<p> Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. </p> <p>Action by James Glass and another against the Basin & Bay State Mining Company. From a judgment in favor of defendant, plaintiffs appeal.</p> <p>Citing: Petrie v. Trustees, 92 Hun, 81, 83, 36 N. Y. Supp. 636; Wheeler'v. Ruckman, 51 N. Y. 391; Genet v. Canal Co., 163 N. Y. 173, 178, 57 N. E. 297; Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965; Stannard v. Hubbell, 56 Hun, 450, 647, 10 N. Y. Supp. 254, affirmed on appeal, in 123 N. Y. 520, 25 N. E. 1084; Dexter v. Clark, 122 How. Pr. (N. Y.) 289; Cort v. Beard, 32 Barb. (N. Y.) 357; Gilman v. Rives, 10 Pet. 301, 9 L. Ed. 432; Freeman on Judgments, sec. 267; City of Los Angeles v. Mellas, 59 Cal. 452; approved in Kirsch v. Kirsch, 113 Cal. 61, 45 Pac. 164; Gerish v. Pratt, 6 Minn. (Gil. 14) 61; Lopen v. Kedgeivin, 1 Mod. 207; Moore v. Dunn, 41 Ohio St. 62; Wells v. Moore, 49 Mo. 229; Gould v. Evansville etc. Co., 91 U. S. 526, 23 L. Ed. 416; Herman on Estoppel, sec. 274; City of Aurora v. West, 7 Wall. 82, 19 L. Ed. 42; Pepper v. Donnoly, 87 Ky. 259, 8 S. W. Rep. 441; Rose v. Hawley, 141 N. Y. 366, 36 N. E. 335, 337; Marsh v. Masierson, 101 N. Y. 401, 407, 5 N. E. 59; Spelman v. Terry, 74 N. Y. 448; Shaw v. Broadbent, 129 N. Y. 114, 29 N. E. 238; Bell v. Merrifield, 109 N. Y. 202,. 4 Am. St. Rep. 436, 16 N. E. 55; Hoag v. Town of Greenwich, 61 Hun, 622, 15 N. Y. Supp. 743; s. e., 133 N. Y. 152, 30 N. E. 842.</p> <p>Citing: Steinhauer v. Colmar, 11 Colo. App. 291, 55 Pac. 291; 2 Abbott’s Trial Brief, 2d ed., p. 1219; People v. Skidmore, 27 Cal. 294; Kleinschmidt v. Binzel, 14 Mont. 31, 43 Am. St. Rep. 604, 35 Pac. 460; 24 Am. & Eng. Ency. of Law, 795, 798; Power v. Gum, 6 Mont. 5, 9 Pac. 575; Gould v. Evansville R. R. Co., 91 U. S. 532, 23 L. Ed. 416; Bouchaud v. Dias, 3 Denio, 238, 244; Perkins y. Moore, 16 Ala. 17; Robinson y. Howard, 5 Cal. 428; Aurora City y. West, 7 Wall. 99, 19 L. Ed. 42; Goodrich y. City, 5 Wall. 573, 18 L. Ed. 511; Beloit v. Morgan, 7 Wall. 619, 19 L. Ed. 205; Rex y. Kingston, 20 St. Tr. 588; Hut-chin y. Campbell, 2 W. Black, 831; Clearwater y. Meredith, 1 Wall. 43, 17 L. Ed. 604; Gould on Pleadings, sec. 42; Ricardo y. Garcias, 12 Clark & F. 400; Bissell v. Spring Valley Township, 124 U. S. 232, 8 Sup. Ct. 495, 31 L. Ed. 411; Aetna Life Ins. Co. v. Board of Commrs., 117 Fed. 87, 54 C. C. A. 468; Plant y. Carpenter, 19 Wash. 621, 53 Pac. 1108; Hardy v. Hardy, 97 Cal. 125, 31 Pac. 907; Lamb v. McConkey. 76 Iowa, 47, 40 N. W. 78; Carlin v. Brackett, 38 Minn. 307, 37 N. W. 342; Porter v. Fraleigh, 19 Ind. App. 562, 49 N. E. 863; Robinson v. Howard, 5 Cal. 428; City of Los Angeles y. Melius, 58 Cal. 18; Alley v. Nott, 111 U; S. 475, 4 Sup. Ct. 495, 28 L. Ed. 492; Messinger y. New England Mut. L. Ins. Co., 59 Fed. 416; Lindsley v. Union S. S. Min. Co., 106 Fed. 470; 2 Black on Judgments, 2d ed., 709.</p>

<p> Municipal Corporations—Indebtedness—Limitations—Bond Issues—Constitution. </p> <p>Municipal Corporations — Indebtedness — Limitations — Constitution— Bond Issues.</p> <p>1. The three per cent limit of indebtedness which, under section 6, Article XIII of the Constitution, a city could contract was $37,998.30. Of this amount, $17,000 had been consumed in a bond issue for water and light purposes. Subsequently a further issue of $10,000, for water supply purposes, was made and declared to fall within the ten per cent extended limit, authorized by Act of 1897 (Laws 1897, p. 203), under certain conditions. Later an issue of $10,000, for improvement of the city’s electric light plant and consolidation of it with its waterworks plant, was voted, such issue to fall within the three per cent limit. In addition to its bonded indebtedness the city had a floating debt of $1,500. Held, under the constitutional provision and Act above, that a city may not resort to the ten per cent extended limit of indebtedness, until its financial condition and the needs of the people have created the necessity for such action, and that, therefore, the city in question had no authority to arbitrarily declare the second bond issue of $10,000 for water supply purposes, within the extended limit so long as there was ample margin within the constitutional limit to cover such issue; held, further, that after placing these bonds within the three per cent limit and adding to it the first issue of $17,000 and the floating debt of $1,500, the margin left to meet the latest proposed issue of bonds, amounting to $10,000, was insufficient, and hence the issue could not lawfully be made. •</p> <p>Same—Bond Issues—Legality.</p> <p>2. A city’s arbitrary action in placing a bond issue within the extended ten per cent limit of indebtedness authorized, under certain conditions, by Aet of 1897 (Laws 1897, p. 203), when there was sufficient margin within the constitutional three per cent limit to cover it, does not affect the validity of such bonds as a liability of the city.</p> <p>Same—Constitutional Construction.</p> <p>3. The argument of db ineonvenienti cannot avail in the interpretation of constitutional provisions relative to the limitations placed upon the power of a city to contract indebtedness; the rule of strict construction must be applied, and any doubt as to such power must be resolved against it.</p>

<p> Appeal from District Court, Lewis and Clarh Coimty; J. M. Clements, Judge. </p> <p>Action by J. C. Hanrahan and others against Allie M. Freeman and others. From a judgment in favor of plaintiffs, defendants appeal.</p> <p>One wbo deals with a member of a nontrading partnership has the burden of proving that the contracting partner had authority to enter therein. (Cavanaugh v. Salisbury, 22 Utah, 465, 63 Pae. 39.) A partner in a nontrading partnership has prima facie no authority to bind the firm or another partner in a transaction not within the scope of the partnership business, and he who seeks to hold the firm liable by virtue of such transaction has the burden of showing that the contracting partner had authority to enter therein. (Guthiel v. Gilmer, 23 Utah, 84, 63 Pac. 817.) What is necessary for carrying on the business of the firm in the ordinary way, is the test of its scope. (17 Am. & Eng. Ency. of Law, 1st ed., 992.) In a nontrading partnership, the case must be left to be decided upon its particular facts, and in order to hold the firm, it must be affirmatively established that the acting partner had the power to make the contract in question. (Id., 994, citing Smith v. Sloan, 37 Wis. 289, 19 Am. Rep. 757.) Where a purchase is made individually or in the name of the firm, if the purchase is outside of the real or apparent scope of the partnership business, the firm is not bound. (Id., 1008, note 6.) ' The power to purchase is not presumed and must be established by proof to authorize a recovery. (Id. 1009, note 2.) If the same is, made upon the individual credit of the buying partner personally, the fact that the goods are afterward turned over by him to the firm does not render the firm responsible for the purchase price. (Id., 1010, note 3.) A transaction not within the scope of the firm business does not bind the partners who do not participate in it or ratify it, though the plaintiff believed that it was within the scope of the firm business. (Nolan Co. v. Simpson, 74 Tex. 218, 11 S. W. 1098; see, also, Smith v. Sloan, 37 Wis. 292, 19 Am. Rep. 757; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 38 L. Ed. 225; Sefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.)</p>

<p> Appeal from, District Coicrt, Silver Bow County; Geo. M. Bourqtoin, Judge. </p>

<p>Original application for writ of supervisory control to annul and set aside a peremptory writ of mandamus ordered issued by Hon. J. M. Clements, a Judge of the District Court of Lewis and Clark County.</p>