Volume 36 — Montana Reports

Silver Bow County; Geo. M. B our quin, Judge. Action by James L. Hamilton, as trustee in bankruptcy of the estate of L. N. Nevills, against D. O. Smith, and the J. N. NevillsCompany. From a judgment in favor of the Nevills Company, and from an order denying him a new trial, plaintiff appeals.

<p>Bankruptcy — Preferences—Findings—Evidence—Sufficiency.</p> <p>Bankruptcy — Creditors—Preference—Findings—Evidence—Sufficiency.</p> <p>1. Evidence adduced in an action by a trustee in bankruptcy to recover a sum of money alleged to have been paid to defendant by his brother, a bankrupt, in preference over other creditors, when defendant had reasonable cause to believe that a preference was intended, examined and held to justify a finding that defendant did not have reasonable cause to believe that the bankrupt, when making payment, intended to give him a preference over other creditors.</p> <p>Same — Preference—Proof.</p> <p>2. Por a trustee in bankruptcy to succeed in an action to recover the amount of an alleged preference, it is incumbent upon him to prove that defendant had reasonable cause to believe that his debtor, in making payment, intended to give him a preference, and that the debtor was then in fact insolvent; hence, mere grounds of suspicion on the part of the creditor that his debtor is in failing circumstances, or is insolvent, are not sufficient to avoid a payment to such creditor, even though it had the effect of giving him a preference over other creditors.</p>

<p>Promissory Notes — Payment—Burden of Proof — Instructions— Evidence.</p> <p>Promissory Notes — Payment—Burden of Proof — Instructions.</p> <p>1. Instructions, given in an action on a promissory note, that if it appeared by a preponderance of the evidence that payment had not been made, plaintiff was entitled to recover, and that, on the contrary, if it appeared in the same way that payment had been made, the defendants were entitled to a verdict, were not objectionable as casting the burden of proving nonpayment upon plaintiff, or because of the absence of a statement as to what should be done in case of an equipoise in the evidence on the issue of payment, and could not have misled the jury, where in other - parts of the charge they had been told that the burden was upon defendants to establish payment by a preponderance of the evidence, and that plaintiff’s possession of the note was to be considered by them as prima facie evidence that it had not been paid.</p> <p>Same — Instructions—Limiting Effect of Evidence — Issues.</p> <p>2. Where defendants in an action on a promissory note pleaded full payment by a conveyance of real property to plaintiff, made in pursuance of an agreement to that effect, and no issue had been made as to a partial payment, an instruction which limited the effect of evidence tending to show the value of the property so conveyed, to the reasonableness or unreasonableness of the agreement entered into relative to-the transfer, and failed to state what should be done in case the jury found that such conveyances discharged a part of the note only, was-not error.</p>

<p>Justices of the Peace — Appeal—Counterclaims—Nonsuit.</p> <p>1. Where defendant in an action before a justice of the peace failed to set up a then subsisting counterclaim upon which an action might have been brought in that court, he could not, under sections 1524 and 1525 of the Code of Oivil Procedure, thereafter on appeal to the district court have it adjudicated, and a motion for nonsuit on the ground that by his failure he was barred from securing any relief was properly sustained.</p>

<p>Actions — At Law — In Equity — Theory of Case — Principal and Agent — Pleadings—Demand—Instructions.</p> <p>Principal and Agent — Recovery of Money Collected by Agent — Accounting— Pleadings — Theory of Case.</p> <p>1. Plaintiff company sued to recover moneys, collected by defendant while acting as its agent, which he failed to pay over after demand. By a second count, a sum of money, alleged to have been collected by defendant for other parties, while acting as plaintiff’s agent, but which he neglected to forward to the persons entitled thereto and which plaintiff was required to pay, was sought to be recovered. Pull payment of plaintiff’s claim was pleaded by defendant, and judgment in a fixed amount demanded by way of counterclaim. There was no allegation in the answer that an accounting was necessary and none was asked. The action was tried as one at law to recover a money judgment. Held, that the action was one at law and not a suit in equity for an accounting.</p> <p>Same — Nonsuit—Demand—When not Necessary.</p> <p>2. A motion for nonsuit made in an action by plaintiff, an express and passenger .transportation company, to recover from its agent money collected for it but not turned over, on the ground that proper demand had not been pleaded or proved, was properly overruled, where the complaint alleged‘failure to pay, “although frequently requested by plaintiff so to do,’’ and where plaintiff’s testimony disclosed some evidence of a demand on plaintiff’s part.</p> <p>Same — Demand—When Unnecessary — Instructions.</p> <p>3. Where it appeared that defendant in the aetion set out in the above paragraph had always claimed that plaintiff’s demand had been fully satisfied, and that, instead of being indebted to plaintiff, the latter was indebted to him, no formal demand upon him for payment was necessary; and in refusing an instruction charging that, in the absence of an allegation that demand had been made, plaintiff could not recover, was properly refused.</p> <p>Appeal — Instructions—Refusal—When not Error.</p> <p>4. Error cannot be predicated upon the refusal of an instruction not justified by the evidence.</p>

<p>Cities and Towns — Improvement Districts — Objections—Manner of Presentation.</p> <p>Cities and Towns — Improvement Districts — Rights of Objectors.</p> <p>1. Under the provisions of section 31 of the Act of 1907 (Sess. Laws 1907, p. 219), owners, or agents of owners, of more than one-half in area of all the property to be affected by a proposed improvement district, have the absolute right to appear before the city or town council at the time and place mentioned in the resolution looking to the creation of such district, and to be heard in protest, either orally or in writing; whereupon the contemplated improvement cannot then be made, even though the objectors assign no reason for their action.</p> <p>Same — City Council — Powers.</p> <p>2. Owners, or agents of owners, representing fifty per cent or less of all the property affected by a proposed improvement district in a city or town, may, under section 31 of the Act of 1907 (Sess. Laws 1907, p. 219), appear before the council and show cause why the improvement should not be made, it being optional, however, with that body to act favorably or otherwise on such remonstrance. -</p> <p>Same — Improvements—Objections—Personal Appearance — City Clerk.</p> <p>3. Seld, that the Act of 1907 (Sess. Laws 1907, p. 219) makes it obligatory on owners of real property, or agents representing them, to appear personally, by agent or counsel, before the city or town council for the purpose of objecting to the creation of an improvement district; by presenting formal written objections, or by showing cause in any other suitable manner; that while it is not necessary that each pro- • testant appear in person, each must be represented, although all may be represented by one person, and that protests left at the city clerk’s office for presentation are of no avail.</p>

<p>Divorce — Pleading—Residence of Plaintiff — Jurisdiction—District Courts.</p> <p>Divorce — Power of District Courts.</p> <p>1. The power to decree a divorce is purely statutory, and therefore courts have not any inherent power to dissolve marriage.</p> <p>Same — Residence of Plaintiff — Complaint—Jurisdiction.</p> <p>2. The fact that plaintiff in a suit for divorce has been a resident of the state for the statutory period of one year next preceding the commencement of the suit (Civ. Code, see. 176) must be alleged in the complaint in order to confer jurisdiction of the cause upon the trial court.</p> <p>Pleadings — Complaint—Jurisdiction—Appeal.</p> <p>3. The objection that a complaint fails to allege a jurisdictional fact may be raised for the first time on appeal.</p> <p>Divorce — Residence of Plaintiff — Complaint—Duty of District Courts.</p> <p>4. In divorce proceedings district courts should, under the mandate of section 176 of the Civil Code, providing that a divorce must not be granted unless plaintiff has been a resident of the state for one year next preceding the commencement of the action, ex officio inquire into the fact of plaintiff's residence — jurisdictional in its nature — and be governed accordingly.</p>

<p>Equity — Deeds—Cancellation—Fraud—Trial—Motion for Judgment — Nonsuit—Findings—Review—Laches.</p> <p>Suits in Equity — Motion for Judgment — Inferences Drawn from Evidence— Findings — -Review.</p> <p>1. Plaintiff, upon motion by defendant for judgment, made at the close of plaintiff’s ease in an equity suit, is not entitled — as be would be on a motion for nonsuit in an action at law — to have every inference drawn in bis favor from the evidence which may reasonably be drawn therefrom; but the whole of the evidence is submitted to the court for final judgment, and if it furnishes ground for different inferences, the finding of the court thereon will not be disturbed unless the evidence preponderates against it.</p> <p>Equity — Deeds—Cancellation—Fraud—Laches.</p> <p>2. Plaintiffs, in a suit to set aside a deed to mining property on the ground of fraud, were subjects of the German empire and resided there. In 1892 they executed and delivered, through a duly authorized agent, a deed to the property in question. In 1894 they were informed that fraud had been practiced in the transaction, and commenced suit in 1897, which, however, was not brought to trial until 1906, plaintiffs’ only excuse for the delay being that, as residents of a foreign country and ignorant of the English language and the institutions of this country, it was difficult for thenu to obtain the necessary faets to support their action. The testimony of the principal witnesses, with the exception of one whose testimony could, however, have been readily supplied by others, was obtainable at any time. Held, that plaintiffs’ right to relief was barred by laches in prosecuting their suit.</p> <p>Same — Laches in Prosecuting Action.</p> <p>3. One desiring to rescind a contract on the ground of fraud is not relieved of the imputation of laches by the mere bringing of his action promptly, if thereafter he negleets to prosecute it with diligence.</p> <p>Same — Laches—Striking, Competent Testimony — When Harmless.</p> <p>4. Where the district court correctly found that plaintiffs’ cause of action in a suit for the cancellation of a deed to mining property, on the ground of fraud, was barred by laches, alleged error in striking out competent and material testimony which tended to support a charge of conspiracy to defraud, will not be considered.</p>

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p> <p>Action by James Donovan against James McDevitt and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Personal Injuries — Master and Servant — Evidence—Sufficiency —Nonsuit—Presumptions—Res Ipsa Loquitur.</p> <p>Personal Injuries — Master and Servant — Evidence—Sufficiency—Nonsuit.</p> <p>1. Where the evidence introduced by plaintiff, in an aetion for damages for personal injuries claimed to have been caused by the negligence of his employers, showed that the accident occurred while he was engaged as a carpenter on the lower floor of a building in course of construction, by reason of two planks falling upon him from an upper story, but failed to disclose how they happened to fall — whether on account of the negligence of defendants in allowing them to be improperly piled, or by reason of the negligence of some fellow-servant in handling them — nonsuit was properly granted.</p> <p>Same — Evidence—Failure to Call Witnesses — Presumptions.</p> <p>2. The failure of plaintiff in the action set out in the foregoing paragraph to call as witnesses in his behalf several of his eoemployees— presumably fellow-servants — who were present at the time and place of the injury, raised the presumption that their testimony would have been unfavorable to him.</p> <p>Same — Bes Ipsa Loquitur — When Doctrine will not Apply.</p> <p>3. The doctrine of res ipsa loquitur rests upon the presumption that, in view of the surrounding circumstances, the accident to plaintiff would not have happened if defendant had exercised ordinary care; therefore, where the evidence was silent as to the cause of the accident and the attendant circumstances left room for the conclusion that the injury complained of might have occurred by reason of the negligence of plaintiff's fellow-servants, the doctrine cannot be invoked.</p>

<p>Mechanics’ Liens — Joinder of Causes of Action — Verified Account — Sufficiency—Costs.</p> <p>Mechanics’ Liens — Joinder of Causes — On Contract — Quantum Meruit— When Permissible.</p> <p>1. Where plaintiff in a suit to foreclose a mechanic’s lien joined a count on an express contract for the construction of a cistern, with a count on a quantum meruit, the averments of each not having been so inconsistent as to be contradictory, and where the defendant was not misled to his prejudice, a demurrer on the ground of ambiguity and uncertainty was properly overruled.</p> <p>Same — Verified Account — Sufficiency.</p> <p>2. A verified account attached to a mechanic’s lien statement, reciting a charge for excavating a cistern, $8, mason’s helper, $6, drayage, 50 cents, cement, $8.75, lime, $5, sand, $1.50, brick, $20, mason’s work and contractor’s services, $20.25, total, $70, constituted a substantial compliance with Code of Civil Procedure, section 2131, as amended by Laws of 1901, page 162, requiring the filing with the county clerk of a just and true account of the amount due after allowing all credits, etc.</p> <p>Same — Costs—Improper Allowance.</p> <p>. 3. Under section 1863 of the Code of Civil Procedure, prescribing the costs allowable in a suit to foreclose a mechanic’s lien, it was error to allow items charged for preparation and verification of the lien and for abstract of title to the property covered by the lien.</p>

Smith, Judge. Action by John D. Pope against Samuel Alexander and others to quiet title to portion of a. city lot. From a judgment for defendants and from an order denying him a new trial, plaintiff appeals. A description in a deed which has neither a place of beginning nor a place of ending is void, and the deed passes no title to the premises in controversy. {Mann v. Taylor, 4 Jones, 272, 69 Am.

<p> Appeal from District Court, Madison County; Lew L. Calla-way, Judge. </p> <p>Action by Ed. Stephens against Hugh Elliott. From a judgment for plaintiff and from an order denying him a new trial, defendant appeals.</p> <p>When, plaintiff’s evidence shows, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused the injury, a nonsuit should be granted. (Cummings v. Helena <Si L. Smelting & Reduct. Go., 26 Mont. 434, 68 Pac. 852; Meyers v. Chicago etc. Ry. Co. (Mo.), 77 S. W. 149; Northern Pac. Ry. Co. v. Jones, 144 Fed. 47; Manchow v. Zschezsche & Son Co., 113 Wis. 8, 88 N. W. 909; Ioioa Gold Min. Co. v. Dufenthaler, 32 Colo. 391, 76 Pac. 981; Roul v. Palmer Brick Co., 114 Ga. 910, 41 S. E. 40; Trapasso v. Cole-mm, 76 N. Y. Supp. 798, 74 App. Div. 33; White on Personal Injuries in Mines, secs. 131, 134; Bailey’s Master’s Liability, 191.) Where it is apparent from the evidence of plaintiff that he could, by the exercise of ordinary care, _ have avoided, not only the injury, but the consequences to himself of the negligence of the defendant, even if such negligence was shown, he was not entitled to recover and a nonsuit was properly awarded. (Barber v. East s& W. B. Go., Ill Ga. 838, 36 S. E. 50; Horton v. Vulcan Iron Whs., 43 N. Y. Supp. 699, 13 App. Div. 508; Creswell v. Shirt Go., 100 N. Y. Supp. 497, 115 App. Div. 12; G-ahagan v. Boston & L. B. Go., 83 Mass. 187, 79 Am. Dec. 724; New Jersey Ex. Go. v. Nichols, 33 N. J. L. 434, 97 Am. Dec. 722.)</p> <p>Where the accident may have arisen from a variety of causes, and any one of which is equally probable, and some of which may be due to defendant’s default, while others are due to influences for which he is not responsible, liability is not fixed on defendant. (8 Ency. of Ev., pp. 872, 874; Pieschel v. Miner, 30 Misc. .Rep. 301, 63 N. Y. Supp. 508; Chicago C. B. Co. v. Bood, 163 111. 477-485, 54 Am. St. Rep. 478, 45 N. E. 238; Yerkes v. Sabin, 97 Ind. 141, 49 Am. Rep. 434; Case v. Chicago B. I. P. B. Co., 64 Iowa, 762, 21 N. W. 30; Cargue v. London B. B. Co., 5 Adol. & EL, N. S., 747; Treadwell v. Whittier, 80 Cal. 574-582, 13 Am. St. Rep. 175, 22 Pac. 266. 5 L. R. A. 498; Howser v. Cumberland B. B. Co., 80 Md. 146, 45 Am. St. Rep. 332, 30 Atl. 906, 27 L. R. A. 154.)</p> <p>The court erred in giving to the jury instruction No. 3. {Cleveland C. C. & St. By. Co. v. Butler, 55 111. App. 594; Georgia B. Co. v. Thomas, 68 Ga. 744; Chicago & A. B. Co. v. Mock, 72 111. 141; Lake Shore <& M. S. By. Go. v. Pauly, 37 111. App. 203; Murphy v. Chicago etc. B. Co., 38 Iowa, 539; McCormick v. Chicago etc. B. Co., 47 Iowa, 345; Hackford v. New York Cent. B. Co., 6 Lans. 381, 13 Abb. Pr., N. S., 18; Bibble v. Starrat, 83 Mich. 140, 47 N. W. 244.)</p> <p>The court further erred in giving the jury instruction No. , 4. (Blashfield on Instructions to Juries, see. 387; Pennsylvania Canal Co. v. Harris, 101 Pa. St. 93; Galveston Land & Imp. Co. v. Levy, 10 Tex. Civ. App. 104, 30 S. W. 504; State v. Cain, 20 W. Ya. 679; White v. Thomas, 12 Ohio St. 312, 80 Am. Dec. 347; Chicago B. & Q. B. Co. v. Anderson, 38 Neb. 112, 56 N. W. 794; Perot v. Cooper, 17 Colo. 80, 28 Pac. 391.)</p> <p>Instruction No. 5 is erroneous, in that it assumes that the plaintiff was not pursuing his occupation when running the whim. The instruction is also misleading in that it assumes that the plaintiff did not know of the alleged defects in the machinery, and that they were not open and obvious, whereas, his own testimony clearly shows that the machinery he was called upon to handle was exposed to plain sight. This exposed machinery, and these known alleged defects were such as to charge him, under his own testimony, with the knowledge of their danger. (White on Personal Injuries in Mines, sec. 201; Kennedy v. Merremaclc, Paving Co., 185 Mass. 442, 16 Am. Neg. Rep. 89, 70 N. E. 437; Coullard v. Tecumseh Mills, 151 Mass. 85, 23 N. E. 731; Prentiss v. Kent Mfg. Co., 63 Mich. 478, 6 Am. St. Rep. 320, 30 N. W. 109; Townsend v. Langles, 41 Fed. 919; Archibald v. Cygolf Co., 186 Mass. 213, 71 N. E. 315; O’Keefe v. 2home (Pa.), 16 Atl. 737.)</p> <p>The giving of instruction No. 9 was error. (Erwin v. St. Louis I. M. By. Co., 96 Mo. 290, 9 S. W. 577; George v. Los Angeles By. Co., 126 Cal. 357, 77 Am. St. Rep. 184, 58 Pac. 819, 46 L. R. A. 829; Mitchell v. Tacoma B. & Motor Co., 9 Wash. 120, 37 Pac. 341; Lynch v. Metro St. By. Co., 112 Mo. 420, 20 S. W. 642; 1 Blashfield on Instructions to Juries, see. 47; Galveston H. <& S. By. Co. v. Knippa (Tex. Civ. App.), 27 S. W. 730; City of San Antonio v. Porter, 24 Tex. Civ. App. 444, 59 S. W. 922; City of Burnham v. Crider (Tex. Civ. App.), 27 S. W. 419; Palfrey v. Texas Central By. Co., 31 Tex. Civ. App. 552, 73 S. W. 411.)</p> <p>The following cases are to the effect, generally, that where plaintiff’s pleading and testimony raise the issue of contributory negligence, it is error to instruct the jury that the burden of proof is on the defendant, without adding the qualification to the effect that “unless they should find from the plaintiff’s •own evidence that he was guilty of contributory negligence”: Kennon v. Gilmer, 4 Mont. 433, 2 Pae. 21; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Wall v. Helena 8. B. Co., 12 Mont. 44, 29 Pac. 721; Taillon v. Mears, 29 Mont. 161, 74 Pae. 421; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; .Prosser v. M. C. By. Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. .314; Cummings v. H. & L. S. <& B. C., 26 Mont. 434, 68 Pac. .‘852; Nord v. Boston & M. C. C. etc., 30 Mont. 48, 75 Pac. 681; .Nord v. Boston & M. C. C. etc., 33 Mont. 464, 84 Pac. 1116, 89 Pac. 647; Creswell v. U. S. Shirt etc. Co., 100 N. T. Supp. 497, 15 App. Div. 12; Balias etc. B. Co. v. Spiker, 61 Tex. 427, 48 Am. Rep. 297; Missouri-etc. B. Co. v. Foreman, 73 Tex. 311, 314, 15 Am. St. Rep. 785, 11 S. W. 326; City of Indianapolis v. Cauley, 164 Ind. 304, 73 N. E. 691; Cook v. Mo. Pac. By. Co., '94 Mo. App. 417, 68 S. W. 230; Burrell v. Johnson, 31 Neb. "796, 48 N. W. 890; North Birmingham St. By. Co. v. Calder-■wood, 89 Ala. 247, 18 Am. St. Rep. 105, 7 South. 360.</p> <p>The law as set forth in instruction No. 3 is the law as given 'by the supreme court of this state. (Johnson v. B. & M. Min. ■Co., 16 Mont. 178, 40 Pac. 298; see, also, Washington etc. B. B. Ho. v. McBade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L." Ed. 235; Solomon B. Co. v. Jones, 30 Kan. 601, 2 Pac. 657; Hill v. .Southern Pac. Co., 23 Utah, 94, 63 Pac. 814; Buzzell v. Laconia .Mfg. Co., 48 Me. 113, 77 Am. Dec. 212.) “In considering alleged error in an instruction, the instructions in the case should 'be considered together as a whole.” (State v. Bolla, 21 Mont. 587, 55 Pac. 523; Cannon v. Lewis, 18 Mont. 408, 45 Pac. 572; Crushing v. Quigley, 11 Mont. 585, 29 Pac. 337; Schwab v. ■Owens, 11 Mont. 482, 29 Pac. 190; TJpton v. Larkin, 7 Mont. 459, 17 Pac. 728; Wenner v. McNulty, 7 Mont. 37, 14 Pac. 643; Territory v. Hart, 7 Mont. 502,17 Pac. 718; Kennon v. Gilmer, 5 .Mont. 270, 51 Am. Rep. 45, 5 Pac. 847; Higley v. Gilmer, 3 .Mont. 106, 35 Am. Rep. 45Q.)</p> <p>The law as given in instruction No. 4 is absolutely correct,-. the doctrine there announced having been followed in this, and in other western states. (Hill v. Southern Pac. B. Go., 23 Utah, 94, 63 Pac. 814; Solomon B. Co. v. Jones, 30 Kan. 601,. 2 Pac. 657; Johnson v. B. <& M. Min. Co., 16 Mont. 178, 40 Pac. 298; Bowers v. Union Pae. By. Co., 4 Utah, 215, 7 Pac. 251,-. Prosser v. Montana Cent. By. Co., 17 Mont. 372, 43 Pac. 81,. 30 L. E. A. 814; Higley v. Gilmer, 3 Mont. 97, 35 Am. Rep. 450,-. Eennon v. Gilmer, 4 Mont. 433, 2 Pae. 21; Wall v. Helena St. By. Co., 12 Mont. 56, 29 Pac. 721; Nelson v. City of Helena,. 16 Mont. 19, 39 Pac. 905.)</p> <p>That the law presented in instruction No. 5 is sound there-can be no doubt, for this doctrine has been followed in Montana. {Berg v. B. & M. Co., 12 Mont. 217, 29 Pae. 545; see,, also, Baxter v. Boberts, 44 Cal. 190, 13 Am. Rep. 160; Spelmany. Fisher Iron Co., 56 Barb. 165.) The law as laid down in this instruction has been followed almost verbatim, and held good. {Hill v. Southern Pae. Co., 23 Utah, 94, 63 Pae.. 814; see, also, McGoivan v. Smelting Co. (C. C.), 9 Fed. 861,. 3 McCrary 393; 1 Shearman and Redfield on Negligence, see.. 219.)</p> <p>The plaintiff in this case has shown in his testimony that he-was free from contributory negligence, as is strongly evidenced by the refusal of the court to grant a nonsuit upon motion made-at the close of plaintiff’s testimony, and such being the case,, the burden of proving contributory negligence and assumption of risk was upon defendant. {Appel v. Buffalo etc. B. B., 2' N. T. 257; Hulehan v. Greenbay etc. B. Co., 68 Wis. 520, 32: N. W. 529; Nadeau v. White B. L. Co., 76 Wis. 120, 20 Am. St. Rep. 29, 43 N. W. 1135; Swoboda v. Ward, 40 Mich. 420; Norfolk etc. Co. v. Ward, 90 Ya. 687, 44 Am. St. Rep. 945, 24 L.. R. A. .717, 19 S. E. 849.)</p> <p>Appellant alleges that an employee is not acquitted of the-assumption of risk merely because he did not comprehend the-danger, and asserts that the test is, whether an ordinary prudent person of his age and experience, under like circumstances,.. would have comprehended the risk. We do not believe this to be the true doctrine of the law, but rather whether he understood the danger and whether the danger of the position was explained as was necessary for the protection of one who had no knowledge of it. (Combe v. New Bedford Cordage Co., 102 Mass. 573, 3 Am. Rep. 506; McDonald v. Chicago etc. By. Co.. 41 Minn. 439, 16 Am. St. Rep. 711n, 43 N. W. 380; McGovern v. Smelting Co., 9 Fed. 861, 3 McCrary, 393; O’Connor v. Adams, 120 Mass. 427.)</p>

<p>•Criminal Law- — Grand Larceny — Definition of “Larceny” — Instructions.</p> <p>•Criminal Law — Definition of "Larceny” — Intent—Instructions.</p> <p>1. In a prosecution for grand larceny, the court gave a definition of "larceny” in the language of section 880 of the Penal Code. The jury were further told that in every crime or public offense there must exist a union or joint operation of act and intent. It further charged that to find the defendant guilty it was sufficient to show that he had appropriated the property mentioned in the information "without color of right or authority.” Held, that these instructions were erroneous, for the reason that they omitted the element of felonious or criminal intent.</p> <p>Same — Intent—Instructions—Curing Error.</p> <p>2. The error, committed in charging that the defendant, accused of grand larceny, could be found guilty if he appropriated the property "without color of right or authority,” was not cured by the addition of the words "and with intent to steal the same,” since the word "steal” could not have been understood by the jury as having any broader import than that given to the term "larceny” by the court in the instruction referred to in the above paragraph.</p>

David Phillips was convicted of an attempt to obtain money by false pretenses, and appeals from the judgment of conviction. The information does not state facts sufficient to constitute a public offense. In a charge of this kind, the information should specifically negative every false pretense charged against the defendant.

<p>•Quieting Title — Mines—Uncertainty of Description — Lost Monuments — Transactions with Deceased Persons — Witnesses—Competency — Declarations—Deeds—Identification of Property — • Parol Evidence.</p> <p>Administrators — Quieting Title — Transactions with Deceased Persons— Witnesses — Competency.</p> <p>1. Where defendants, in a suit brought by plaintiff, as administrator, to quiet title to certain portions of mining property, claimed title under deeds of grant from plaintiff’s intestate and prayed that their titles be quieted as against the estate represented by plaintiff, they were simply attempting to protect themselves against the claims and demands of plaintiff, and were not asserting “a claim or demand against the estate” of deceased, so as to make them incompetent to testify, under the provisions of Laws of 1897, page 245, as to any matter of fact occurring before their grantor’s death.</p> <p>Same — Character of Action — How Determined.</p> <p>2. Defendants in a suit of the character set forth in the above paragraph, are entitled to such relief as their proof warrants, and the character of the action may not be determined from a casual remark of either court or counsel during trial, but must be arrived at from the pleadings.</p> <p>Mining Property — Deeds—Effect—Identification of Property.,</p> <p>3. Under Civil Code, sections 1511 and 1512, a deed purporting to transfer a portion of a lode claim (naming it), located for the purpose of protecting a placer claim from possible adverse claimants prior to procurement of patent for the latter, conveyed such portion of the afterward patented placer claim, lying within the exterior boundaries of the lóde claim, as could be identified; and it was immaterial whether the lode location was a valid one as against others or not.</p> <p>:Same — Identification—Name.</p> <p>4. If a portion of a mining claim can be identified as that intended to be conveyed, it is immaterial by what name the claim itself was designated in the deed.</p> <p>Quieting Title — Uncertainty in Description — Declarations.</p> <p>5. In a suit by an administrator to recover real property, claimed by defendants under deeds of grant from plaintiff’s intestate, for alleged uncertainty of description, declarations of defendant’s grantor relative to the title conveyed-and the location of the portions transferred, were admissible against the administrator.</p> <p>Heal Property — Lost Monuments — Parol Evidence.</p> <p>6. Where monuments or marks called for in a deed are lost or otherwise uncertain, their location may be proved by parol evidence.</p>

W. Tat-tan, Judge. Action by C. H. Evers against L. O. Hudson, county treasurer of Chouteau county. From a judgment of dismissal, entered on sustaining a general demurrer to the complaint, plaintiff appeals. In the ease of special elections, where the statute requires notice to be given, the special election will be declared void, in the absence of such notice.

Mc-Clernan, Judge. Action by Dennis P. Leary against tbe Anaconda Copper Mining Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Instruction No. 3 was erroneous. (Baltimore etc. By. Co. v. Young, 153 Ind. 163, 54 N. E. 793; Cooper v. Georgia C. & N. By. Co., 61 S. C. 345, 39 S. E. 543; Plant Inv. Co. v. Cook, 74 Fed. 503, 20 C. C. A. 625; Mulligan v. Montana Union By.

<p>Criminal Law — Attempt to Commit Burglary — Information— Sufficiency — Degree of Crime — Determination by Court — ■ Sentence — Appeal—Presumptions.</p> <p>Criminal Law — Burglary—Entry—Information.</p> <p>1. Under Penal Code, seetion 820, providing that every person who enters any house, room, etc., with intent to commit grand or petit larceny or any felony, is guilty of burglary, the act of entry, to constitute the crime, must be itself a trespass; therefore the information should negative the idea that the defendant, at the time of entry, had the right to enter.</p> <p>Same — Burglary—Entry—Ownership of Building — Information.</p> <p>2. While the ownership of the room or building, charged in an information for burglary to have been entered by defendant, need not be specifically alleged, it is the safer practice to do so, if known to the pleader.</p> <p>Same.</p> <p>3. An information alleging that defendant "willfully, unlawfully and feloniously" attempted to "willfully, unlawfully and feloniously enter” a certain room in a lodging-house, with intent to commit larceny, sufficiently negatived the idea that at the time of entry he had a right to enter, and stated facts sufficient to constitute an attempt to commit burglary.</p> <p>Same.</p> <p>4. Since under Penal Code, section 820, it is burglary to enter a house or room with intent to commit petit as well as grand larceny, .the contention of appellant that the charge in the information referred to in the above paragraph, that accused attempted to enter "with intent to-commit larceny,” should be construed to mean petit larceny only, and that therefore the value of the articles sought to be stolen should have been alleged, has no merit.</p> <p>Same — Degree of Crime — Determination by Court — Appeal—Becord—Pre-sumptions.</p> <p>5. Tbe jury, in finding a verdict of guilty of the crime of attempted burglary, left the punishment to be fixed by the court. While the-crime of burglary is divided into first and second degrees, and in such ease the jury must find the degree, an attempt to commit that-offense is not so divided. The court, under section 1230, subdivision-1, Penal Code, imposed a sentence of seven and one-half years in the' state’s prison, one-half the maximum punishment authorized for the1 crime of burglary in the first degree. The evidence was absent from the record on appeal. Held, that in the absence of the testimony,, it will be presumed that the court had evidence before it justifying a-finding that, if guilty at all, the defendant was guilty of an attempt-to commit burglary in the night-time, which constitutes the first de-gree of the offense, and that the punishment inflicted was proper.(Mr. Chief Justice Brantly dissenting.)</p>

<p>Justices of the Peace — Jurisdiction—Judgment—Postponement of Rendition — Effect.</p> <p>Justices of tbe Peace — Jurisdiction.</p> <p>1. Justices ’ courts are of limited - jurisdiction, having only such-powers as are conferred upon them by statute.</p> <p>Same — Statutes—Procedure.</p> <p>2. In the exercise of the powers granted to justices of the peace, they must pursue the statute, not only as to the classes of eases which they may hear and determine, but as to the procedure prescribed.</p> <p>Same — Judgment—-Postponement of Rendition — Effect.</p> <p>3. "Where a justice of the peace, after submission of a cause to him-for determination, -took it under advisement, without the consent of the parties, appointing neither time nor place, for the rendition of judgment, he lost jurisdiction, and the judgment, rendered about a month thereafter, without notice to the parties, was void. (Code Civ. Proe., sec. 1623.)</p> <p>Same — Taking Case Under Advisement — When Permissible.</p> <p>4. Obiter: While a justice of the peace may, with the consent of the parties, take a ease under advisement, the adjournment of the trial, so brought about by stipulation, must be to a time and place appointed for that purpose, and an order to that effect entered upon his docket.</p>

<p>.Sheriffs — Deputies—Power of Appointment — County Commissioners — Statutes—Construction.</p> <p>1. The Act of 1905, amendatory of section 4597 of the Political Code (Laws 1905, p. 164), providing, among other things, that the sheriff in a third-class county shall be allowed two deputies, and that such officer “may appoint two deputies * * * who shall act as jailers,” does not, by the latter provision, create a new class of deputies, separate and distinct from those first referred to, or lodge in the sheriff exclusively the power of appointment without the consent or approval of the board of county commissioners, but simply amounts to an increase of the maximum number he may appoint, subject to the approval of the board, as provided by Act of 1893 (Sess. Laws 1893,, p. 60), which Act was not repealed by implication by any provision of the Political Code, thereafter adopted.</p>

<p>Injunction — County Printing — Contracts—Board of County Commissioners — Powers—Public Policy.</p> <p>Injunction — Board of County Commissioners — Printing Contracts— Validity.</p> <p>1. Seld, on an appeal from an order refusing to dissolve an injunction, that, under Political Code, sections 4230 (subd. 20) and 4233, a contract made by a board of county commissioners, a few weeks before the expiration of its term of office and upon the expiration of a prior contract, for county printing for the two succeeding years, was valid, in the absence of fraud in its making, and binding upon the incoming board.</p> <p>Same — Public Policy.</p> <p>2. Nor was the contract, above referred to, void as against public policy.</p> <p>Same — Contracts—Public Policy — How to be Determined.</p> <p>3. Courts may not arbitrarily declare an act or contract void as against public policy; but the question of its invalidity in this respect must be determined by them in view of legislative declarations, or, in their absence, by reference to judicial decisions.</p> <p>Boards of County Commissioners — Powers—Abuse.</p> <p>4. The mere fact that the power conferred, by sections 4230 and 4233 of the Political Code, upon boards of county commissioners to let contracts for county printing for a term of two years, may be abused, is not of itself a sufficient reason for holding that such power does not exist or ought not to be exercised.</p>

<p>Equity Cases — Appeal—Disposition of Cause — District Courts —New Trial.</p> <p>1. The supreme court must, under Act of 1903 (Laws 1903, 2d Extra. Session, p. 7), on appeal in equity cases review all questions of fact arising upon the evidence presented, and determine the same, unless for good cause shown a new trial or the taking of further evidence be ordered. In a cause of an equitable nature it was held on appeal that the defendant had not made out a case upon which he was entitled to recover, and that therefore the trial court should have found in plaintiff's favor. The cause was remanded "to be proceeded with in accordance with the suggestions” made in the opinion. Held, that the. district court thereafter properly entered judgment for plaintiff, a new trial or the taking of further evidence not having been .ordered.</p>

<p>Conversion — Sheep—Chattel Mortgages — Description—Identifi-cation — Evidence—Exclusion—Correct Ruling — Wrong Reason.</p> <p>Conversion — Sheep—Chattel Mortgages — Description—Identification—Evi-" dence.</p> <p>1. The description of a band of sheep, in a mortgage, was “1,000‘ head of sheep on the range on Medicine Lodge creek, in Eremont county, Idaho, together with the wool and increase.” The sheep-were thereafter purchased from the mortgagor and incorporated in the buyer’s band. The mortgagee thereafter, under foreclosure proceedings had the sheep, alleged to have been mortgaged, seized and sold. In an aetion in conversion the defendant offered the above mortgage in evidence, together with the proceedings had by the sheriff. This evidence was excluded. Held, that in excluding the evidence the court acted properly, the description in the mortgage being wholly insufficient to identify the subject thereof, and that, therefore, no additional evidence in this respect having been offered, defendant had failed to connect himself with the mortgagor’s title, and in seizing them, occupied the position of a naked trespasser.</p> <p>Same — Evidence—Exclusion—Correct Buling — Wrong Season.</p> <p>2. Where the ruling of the district court in the exclusion of evidence in an action in conversion was correct, the fact that it stated a wrong reason therefor was immaterial.</p>

<p>'.Nonsuit — Retrial—Law of the Case — Contracts—Consideration.</p> <p>1. Where, on the retrial of a cause, the judgment in -which had been reversed on a former appeal, for the reason that the instrument declared upon and' on which recovery was had was without consideration, no new or additional evidence on the subject of consideration had been adduced, nonsuit was proper. The former deci-sion constituted the law of the case.</p>

<p>Corporations — Railways—Constitution—Statutory Construction —Master and Servant — Personal Injuries — New Trial — Excessive Damages.</p> <p>Corporations — Charters-—-Power of Legislature to Amend.</p> <p>1. While corporations are persons, they are not such for all purposes. They have no inalienable rights. Being creatures of the statute, tli6 legislature may, under the Constitution (Art. XV, secs. 2, 3), enact any legislation by way of amendment of the law creating them, which does not violate the rule that property acquired -under the operation of their charters cannot be taken away, and that contracts made in like manner may not be impaired.</p> <p>Same — Railways—Liability to Employees — Statutes—Constitution—Equal Protection of Laws.</p> <p>2. Held, that the enactment of Chapter 83 of Laws of 1903, page 156, relative to the liability of railway corporations for damages sustained by an employee by reason of the negligence of certain of his therein enumerated coemployees, is a valid exercise of legislative power, under Article XV, sections 2 and 3 of the Constitution, reserving to the state the right to alter or amend corporate charters theretofore granted; and that, therefore, the Act is not open to the objection that it deprives railway corporations of the equal protection of the laws, guaranteed to all under the Fourteenth Amendment to the United States Constitution, by subjecting them to liabilities not imposed upon natural persons or other corporations engaged in the same pursuit.</p> <p>Same — Power of Legislature to Destroy.</p> <p>3. Obiter: Under the right reserved to the state by sections 2 and 3, Article XV of the Constitution, the legislature may not only alter corporate charters, but, if deemed expedient, destroy the corporate body.</p> <p>;Same — Statutory Construction — Constitution—Equal Protection of Laws.</p> <p>4. The general purpose of the Act above being to protect railroad employees in their particularly hazardous employment, it might be held not to violate the equal protection of the law clause of the United States Constitution, under the rule of statutory construction that, where the general purpose of a statute has been ascertained, general words may be restricted to a particular meaning, or those -of a restricted meaning expanded so as to embrace the general purpose and effectuate it, — by holding, that the expression "railway corporation,” therein found, includes all persons, both individual and corporate, engaged in operating -railways.</p> <p>"Foreign Corporations — Privileges.</p> <p>5. Foreign corporations doing business in the state are not entitled to any greater rights than are enjoyed by domestic corporations engaged in the same hind of business. (Const., Art. XV, see. 11.)</p> <p>Personal Injuries — Excessive Damages — Jury—Abuse of Discretion.</p> <p>6. In personal injury eases, the amount to be awarded is left to the fair discretion of the jury, under the facts of the particular case, and damages so awarded, even if comparatively large, will not be held determinative of an abuse of such discretion, unless so disproportionate to the injury complained of as to shock the moral sense.</p> <p>Same — Excessive Damages — When not Ground for New Trial.</p> <p>7. Where an amount awarded by the jury for personal injuries, claimed by defendant to have been so excessive as to amount to an abuse of the discretion lodged in it, may have been the result of a miscalculation, or based upon a wrong standard, the award cannot be said to have been the result of passion or prejudice so as to entitle the defendant to a new trial under subsection 5 of section 1171 of the Code of Civil Procedure.</p> <p>: Same — Excessive Damages — New Trial — Remission of Excess — District Courts.</p> <p>8. Held, that the district court, in an action for damages for personal injuries alleged to have been suffered by plaintiff, a brakeman on a railroad, through the loss of his left hand, was justified in granting a new trial conditioned upon the remission of $7,400 from a verdict for $17,400, and in thereafter, with plaintiff's consent, sealing it to $10,000, and that such latter amount was not excessive in view of all the circumstances in the case.</p> <p>: Same — Damages—Elements—Impairment of Earning _ Capacity.</p> <p>9. In arriving at a verdict in a personal injury case, the jury, in addition to the mental and physical pain suffered by plaintiff, and the disfigurement of his person, should also take into consideration, where earning capacity depends upon bodily strength, the fact that his physical condition becomes impaired by advancing age, and that, as a consequence, his earning capacity is diminished thereby.</p>

<p>Criminal Law — Grand Larceny — Evidence—Insufficiency— Cross-examination— Accomplices — Corroboration— Record— Review — Instructions.</p> <p>Criminal Law — Evidence—Insufficiency—Duty of Court.</p> <p>1. Where, in a criminal cause, there is np substantial evidence to support a verdict of guilty, it becomes the duty of the district court, as a matter of law, to vacate and set it aside, and refusal so to do is reversible error.</p> <p>Same — Grand' Larceny — Evidence—Insufficiency—Review.</p> <p>2. Evidence examined and held insufficient to sustain a conviction of the crime of grand larceny.</p> <p>Same — Evidence Necessary to Convict.</p> <p>3. Mere suspicions or probabilities, however strong, are insufficient to convict of crime. There must be some substantive testimony to justify a judgment of conviction.</p> <p>Same — Grand Larceny — Accomplices—Evidence—Guilty Intent.</p> <p>4. The testimony of a woman, an alleged accomplice of defendant ' charged with grand larceny, relative to an understanding she had with him that, when present in a wineroom adjacent to defendant’s saloon, she was to induce men to drink excessively so as to more readily be able to get hold of their money, was competent as tending to show a system or plan uniformly pursued, and thus to show guilty knowledge or criminal intent.</p> <p>Same — Evidence—Accomplices—Corroboration.</p> <p>5. Under Penal Code, section 2089, the testimony of an accomplice is insufficient to support a conviction, unless corroborated by other evidence which, in itself and independently of that of the accomplice, tends to connect the accused with the crime alleged to have been committed.</p> <p>Same — Grand Larceny — Evidence—Cross-examination.</p> <p>6. In a prosecution for grand larceny where the prosecuting witness claimed to have been deprived of his property while in the wineroom. adjoining defendant’s saloon with an alleged female accomplice of; defendant, it was error to refuse permission to defendant’s counsel,, on cross-examination of the woman, to interrogate her as to whether-the complaining witness had an act of sexual intercourse with her on the floor of the room. The offered testimony was competent as showing what opportunity the woman had to take the money without the aid or knowledge of the defendant.</p> <p>Same — Record—Review—Instructions.</p> <p>7. Where the record in a criminal cause, tried after Chapter 82 of the Laws of 1907, page 197, went into effect, providing that the trial court shall pass upon any objections to instructions requested or proposed to be given, and that the court stenographer shall be present at the settlement of the instructions and note aU objections and exceptions of counsel to those given or refused, does not show that the court ruled, or was requested to rule, on defendant’s requests for instructions or his objections to those given, errors relating to them will not be considered on appeal, since error cannot be predicated on the mere silence of the court.</p>

<p>Criminal Law — Robbery—Prior Convictions — Information— Punishment — Instructions—Flight and Concealment — Alibi— Police Officers — Detectives—Credibility.</p> <p>Criminal Law — Bobbery—Taking of Property Without Besistance.</p> <p>1. Oiiter: The taking of personal property from the person or immediate presence of another without resistance on his part does not bring the offense within the definition of robbery. (Pen. Code, sec. 390.) To constitute that crime the element of force or fear must be present.</p> <p>Same — Bobbery—Information—Degree of Poree.</p> <p>2. Since section 390 of the Penal Code does not define the degree of force necessary to constitute the taking of personal property from the person or immediate presence of another the crime of robbery, an information charging such offense need not allege the degree of force used in accomplishing it.</p> <p>Same — Bobbery—Porce or 'Pear — Information—-Sufficiency.</p> <p>3. Assuming that an information charging robbery was defective in not stating facts sufficient to allege fear, within the statutory definition (Pen. Code, sec. 391), on the part of the person robbed, still, the allegation of force, the alternative element of the crime, having been sufficient, the pleading was not vulnerable to attack.</p> <p>Same — Prior Convictions — Information—Essentials.</p> <p>4. In an information charging, inter alia, a prior conviction of an offense in another state which, in this state, is punishable by imprisonment in the state prison, it is unnecessary to allege the facts constituting the crime in the foreign state, and it is immaterial whether the offense for which defendant is alleged to have been previously convicted in the sister state is a felony there. It is sufficient, under section 2146 of the Penal Code, to allege the fact of defendant's prior conviction of a named offense, indicating the court which rendered the judgment and the date thereof.</p> <p>Same — Bobbery—Prior Convictions — Information—Harmless Error.</p> <p>5. Defendant was charged with robbery and prior convictions in Colorado of the crimes of burglary and assault to rob. The latter crime is not known under the Penal Code of this state. The prior conviction of burglary was sufficiently alleged. The jury found a verdict of guilty and that the charges of both prior convictions were true. Held, that, even assuming that the charge of a prior conviction for an assault to rob was insufficient, that offense being unknown in this state, this technical error in pleading will not work a reversal, if the punishment imposed does not exceed the limit which could properly be imposed upon conviction of the crime of robbery and the finding of a prior conviction of burglary.</p> <p>Same — Robbery—Prior- Conviction of Burglary — Punishment—Statutory Construction.</p> <p>6. Defendant was convicted of the crime of robbery, the penalty for which offense may be, under Penal Code, section 392, from one to twenty years’ imprisonment. He was also found to have been previously convicted in a foreign state of burglary. The court imposed a sentence of fifty years in the state prison. Subdivision 1 of section 1232, Penal Code, provides that one, once convicted of a felony who is thereafter again convicted of an offense which would be punishable upon a first conviction by imprisonment in the state prison for any term exceeding five years, is then punishable by such imprisonment for not less than ten years. Held, that the meaning of subdivision 1 above is, that if the maximum punishment for the offense for which defendant was on trial (robbery in this instance) is more, but not less, than five years’ imprisonment, then his punishment could not be less than ten years, and might be extended to life imprisonment; and, hence; that the sentence of fifty years in this case was not unwarranted by law.</p> <p>Same — Prior Conviction — Information—Surplusage.</p> <p>7. Since all that is required to be alleged in an information charging, among other things, a prior conviction, is, that defendant was convicted of a named offense, in a certain court on a given date, an allegation that defendant, having in March, 1902, been sentenced to a term of seven years, “did so serve said time’’ was surplusage; so that defendant’s contention that the information charged an impossible Btate of facts, inasmuch as at the time of trial in March, 1906, only four years had elapsed, has no merit.</p> <p>Same1 — Robbery—Prior Conviction— Punishment — Instructions— Harmless Error.</p> <p>8. Where defendant was charged with robbery and prior convictions, the giving of an instruction, on the question of punishment, embracing all the subdivisions of section 1232, Penal Code, while only subdivision I should have been given, subdivisions 2 and 3 having reference to offenses the punishment for which is five years or less, was improper, but rendered harmless by an instruction embodying the provisions of section 392, Penal Code, prescribing the maximum punishment for robbery at twenty years’ imprisonment.</p> <p>Same.</p> <p>9. Nor was the giving of instructions defining burglary and prescribing its punishment prejudicial, in the above ease, where defendant was also charged with having been previously convicted of burglary; while it would have been sufficient to have charged the jury that such latter offense was punishable by imprisonment in the state prison, the fact that the court was more elaborate in this respect than was necessary could not have harmed defendant, since what the court did say was correct.</p> <p>Same — Instructions—Appeal—Record—Presumptions.</p> <p>10. An instruction was given by the court in a prosecution for robbery, referring to “the last two instructions’’ on the subject of punishment which might be inflicted. Neither of these instructions, however, dealt with that subject. The jury, after retiring, returned into court and requested further instructions relative to the matter of punishment. Such instructions were given, but the record was silent as to their nature. The certificate of the clerk was to the effect that the record contained copies of all papers constituting the judgment-roll. Held, that, since it is incumbent upon appellant to point out the specific error upon which he relies, and since proper instructions on the sub-_ jeet of punishment were given, in the absence of anything to show which instructions were given in response to the request of the jury, the presumption in favor of the action of the trial court will be indulged.</p> <p>Same — Flight and Concealment — Instructions.</p> <p>11. An instruction which substantially told the jury in a criminal action that if they were satisfied that the crime charged in the information had been committed by some one, they might then, in determining the defendant’s guilt, take into consideration any testimony showing or tending to show flight or concealment on his part, was correct.</p> <p>Same — Alibi—Instructions—Burden of Proof.</p> <p>12. Where the jury in a criminal cause had been properly instructed that the burden of proving, beyond a reasonable doubt, that defendant was present and participated in the alleged crime, a subsequent one stating simply that one of the defenses interposed by defendant was an alibi and defining that term, was not objectionable as impliedly casting the burden of proving that defense upon the defendant.</p> <p>Same — Requested Instructions — Refusal—When not Error.</p> <p>13. The refusal of defendant’s requested instructions is not error, where the matter embraced in' them is fully covered by those given.</p> <p>Same — Evidence—Police Officers — Detectives—Credibility—Instructions.</p> <p>14. An instruction, requested by defendant charged, with crime, to the effect that, in weighing the testimony given by police officers and detectives, the jury should exercise greater care than in the case of other witnesses, because of the natural and unavoidable tendency and bias of such persons to construe everything as evidence against the accused and disregard ■ all matters which did not tend to support their preconceived opinions of the case, was properly refused. If given, it would have invaded the province of the jury and been erroneous under any circumstances.</p>

<p>Habeas Corpus — Forgery—Information—Insufficiency—Jurors’ Certificates — Duty of Clerk of District Court — Seal—Officers —Powers—Appeal.</p> <p>Criminal Law — Information—Insufficiency—Habeas Corpus — Appeal.</p> <p>1. If an information is not merely defective, but states facts which do not constitute any crime known to the law, or undertakes . to state such an offense, but the faets do not constitute it, and no addition to them, however full and complete, can supply what is essential, the court is without jurisdiction to put the defendant on trial, and, if convicted, he is entitled to his release on babeas corpus, even though he might secure the same relief on appeal.</p> <p>Same — Forgery—Instrument Without Apparent Legal Validity.</p> <p>2. To constitute forgery, the instrument, alleged to have been forged, must be one which, if genuine, would have legal validity; hence, if an instrument, though falsely made, shows upon its face-that it has no legal validity, it cannot be made the basis of a charge of forgery.</p> <p>Officers — Limit of Powers.</p> <p>3. The limit of the powers of a publie officer, when acting in a ministerial capacity, is the statute conferring them, and such powers as are necessarily implied to effectuate those expressly conferred.</p> <p>Same — Ministerial Duties — Statutes—Discretion.</p> <p>4. Where, the mode of performance of ministerial duties, expressly enjoined, is prescribed, no further power is implied, and the officer has no discretionary power with reference thereto, but must strictly pursue the statute.</p> <p>Clerk of District Court — Seal—Mandatory Statutes.</p> <p>5. The provisions of section 4645 of the Political Code, prescribing, among other things, that the clerk of the district court when issuing jurors’ certificates, must impress his seal upon them, are . mandatory, as are also those of section 4350, relative to how county moneys must be disbursed by the county treasurer.</p> <p>Criminal Law — Forgery—Void Instrument — Seal—Habeas Corpus.</p> <p>6. Complainant was convicted under an information charging that, while acting as deputy.clerk of the district court, he forged a juror’s certificate. The certificate did not bear the seal required by section 4645 of the Political Code. Held, on application for writ of habeas corpus, that, section 4645 being mandatory and not directory merely, the certificate in the absence of the seal did not constitute a legal liability against the county but was void on its face, that, therefore, a charge of forgery could not be predicated upon it, and that complainant was entitled to his release from custody.</p>

B. Mc-Clernan, Judge. Action by Elmer Hughes against Pat Mullins. 'Judgment for defendant, and plaintiff appeals.

<p>Mandamus — Clerks of District Courts — Criminal Law — Appeal —Record—Supreme Court Rules.</p> <p>Criminal Law — Appeal—Record—Clerk of District Court — Mandamus.</p> <p>1. Meld, on application for writ of mandate, that the clerk of the district court must, as soon as a notice of appeal in a criminal cause is filed with him, proceed to prepare a copy of the reeord and other papers enumerated in section 2281, Penal Code, and transmit same within ten days from the date of the notice, or, in case there be a bill of exceptions to be settled, then within ten days of the date of settlement, to the clerk of the supreme court without charge to appellant, and that a praecipe enumerating the papers constituting such technical record need'not be lodged with the Clerk.</p> <p>Supreme Court Rules — Binding Upon Whom — Appeal.</p> <p>2. The rules of the supreme court, when adopted under the limitations prescribed by section 111, Code of Civil Procedure, have the force of statutes, and are binding upon district courts and their officers in so far as such courts and officers have to do with appellate procedure.</p> <p>Criminal Law — Appeal—Reeord—Rules of Supreme Court — Clerks of District Courts.</p> <p>3. The copy of the record which the clerk of the district court is required, by section 2281, Penal Code, to prepare upon the filing of a notice of appeal in a criminal cause, and transmit to the clerk of the supreme court, must meet the requirements of Rule VI, subdivision 2, and Rule VII of the appellate court, relative to the preparation and arrangement of transcripts on appeal.</p> <p>Same — Reeord on Appeal — Clerks of District Courts — Compensation.</p> <p>4. Quaere: Is the clerk of the district court entitled to compensation from his county for the performance of the duty imposed upon him by section 2281, Penal Code, and the Rules pf the supreme court, to furnish a copy of the record on appeal in % criminal cause in proper form?</p>

<p>Beal Property — Execution Sales — Deficiency Judgment — Purchaser from Judgment Debtor — Title Acquired — Appeal— Pleadings — Complaint—Sufficiency.</p> <p>Execution Sale — Action to Enjoin — Complaint—Sufficiency.</p> <p>1. The complaint in an action to enjoin the levying of an execution issued upon a deficiency judgment, which alleged that an execution had been issued in a cause wherein one C. was defendant, that the sheriff levied upon and sold the property in controversy as the property of C. and that thereafter C., the judgment debtor, for value sold and conveyed the premises by a good and sufficient deed to plaintiff, sufficiently alleged the ownership of C., in the absence of a demurrer, assuming that such an allegation was necessary.</p> <p>Beal Property — Execution Sales — Purchaser from Judgment Debtor — Title Acquired — Liens—Deficiency Judgment.</p> <p>2. Held, under section 1197, and sections 1233-1236, Code of Civil Procedure, that where real estate is sold under execution and bid in by the judgment creditor for less than the amount of his judgment, the judgment debtor may transfer the interest remaining in him, during the period of redemption, to a third person, who, upon redemption within the statutory time, acquires the legal title free from the lien of a deficiency judgment theretofore entered.</p> <p>Statutes — Adopted from Other States After Construction — Effect.</p> <p>3. The legislature, by adopting statutes from another state after the same had been construed by its courts, adopts also the interpretation thus placed upon them.</p>

<p>Criminal Law — “Individual Bankers” — Receiving Deposits When Bank Insolvent — Penal Statutes — Construction— Habeas Corpus.</p> <p>Statutory Construction — Headnotes—Chapter and Section Headings.</p> <p>1. In the construction of statutes, the meaning of which is in doubt, the headnotes, chapter and section headings may properly be examined.</p> <p>Same — Statutes Adopted from Poreign States After Construction.</p> <p>2. Where the statute of a foreign state has been construed by its courts prior to its adoption by the legislature of this state, the interpretation so placed upon it is also adopted.</p> <p>Criminal Law — “Individual Bankers” — Receiving Deposits When Bank Insolvent — Void Statute — Habeas Corpus.</p> <p>3. Complainant was convicted, under an information based upon section 986, Penal Code, for having received deposits as an “individual banker” when knowing that his bank was insolvent. The. laws of this state make no provision for “individual” bankers, but do so for “private” bankers. Section 986, supra, appears to have been adopted from the state of New York after the courts of that state had construed the term “individual banker” to mean one other than a private banker, and after such term had acquired the fixed and definite meaning, in the law, of one who was authorized to do banking subject to the supervision of the banking law. Held, that the term “individual banker” does not mean a “private” banker, that, since under the laws of this state there is no such person as an individual banker, complainant was convicted of an offense not known to the Penal Code, that the judgment of conviction is void and complainant entitled to his release from custody as prayed in his application for writ of habeas corpus.</p> <p>Penal Statutes — Construction—Doubt as to Meaning — How Resolved.</p> <p>4. If, in construing a penal statute, the court should entertain a reasonable doubt as to its meaning, such doubt must be resolved in favor of the defendant attacking an information-based upon the provisions of such statute.</p> <p>■ Same.</p> <p>5. While the construction of penal statutes should not be so strict as to defeat the plain intent of the legislature, it must give the words employed the sense in which they were obviously used; and if then the legislative intent cannot be given effect, the law must fall.</p>

<p>Interpleader — Actions—Mistake in Form — Justices of the Peace • — Jurisdiction—Appeal—Waiver—Notice—Adverse Party— Demurrer — Evidence—Harmless Error — Presumptions—Interest.</p> <p>Actions — Mistake in Norm — Belief—Immateriality.</p> <p>1. Since, under section 28, Article VIII, Constitution, there is but one form of action in this state and law and equity may be administered in the same ease, a mistake as to the form in which an action is brought or as to the relief demanded upon the statement of facts made, is of no moment.</p> <p>Justices of the Peace — Jurisdiction—Appeal—District Courts.</p> <p>2. Merely because plaintiff, in an action before a justice of the peace, assumed by the recitals in his complaint to secure the cancellation of an alleged forged assignment, and also a judgment on a contract for the payment of money, whereas the justice had not jurisdiction to grant the equitable relief asked, was no reason why his appeal to the district court should have been dismissed for lack of jurisdiction to entertain it, where, after eliminating the equity feature of the complaint (a demurrer to which, interposed by one of the defendants, had been sustained by the justice), it still stated a cause of action of which the justice had jurisdiction; and, hence, the district court had power to proceed.</p> <p>Same — Interpleader—Effect on Action — Jurisdiction.</p> <p>3. Where, in an action by an assignee on an account, a justice of the peace permitted the defendant to pay into court the amount sued for, and thereupon substituted as defendants the assignor, and one other who claimed to be entitled to the money, the order of substitution did not convert the purely legal cause of action into an equitable one so as to deprive the justice of jurisdiction of the action, since section 588, Code of Civil Procedure, providing for interpleader, covers the subject both at law and in equity.</p> <p>Interpleader — Irregularity—Waiver.</p> <p>4. Section 588, Code of Civil Procedure, provides, inter alia, that a party against whom an action upon a contract, etc., is pending, may, before answer, upon affidavit, ask that another person claiming an interest in the subject matter of the action, be substituted in his place etc. An application for such a substitution was made on an amended answer. The party substituted became defendant without objection. Held, that the irregularity in the mode of substitution was waived by defendant.</p> <p>Appeal — Transfer of Cause — Notice—“Adverse Party.”</p> <p>5. Under Code of Civil Procedure, section 1760, providing that, when an appeal is taken a notice thereof must be served on the adverse party, etc., an adverse party is one who has an interest in opposing the object sought to be accomplished by the appeal.</p> <p>Same.</p> <p>6. Where in an action before a justice of the peace, brought by’ an assignee on an account, the debtor interpleaded, besides one other, the assignor, who admitted the assignment and disclaimed any interest in the subject matter of the controversy, the latter was not an adverse party, within the meaning of section 1760, Code of Civil Procedure, upon whom it was necessary to serve notice of an appeal to the district court.</p> <p>Justices of the Peace — Appeal—Demurrer.</p> <p>7. In the action set out in paragraph 2 above, the justice of the peace sustained the demurrer of one of the defendants on the ground that the complaint, as against him, asked for equitable relief and thus, virtually, dismissed him from the case. This defendant was subsequently interpleaded by the original defendant, who paid the amount in controversy into court and asked that plaintiff and the substituted defendant be required to submit their claims to the money for determination. When the order of substitution was made, no objection was made by the interpleaded defendant that the complaint did not tender an issue upon the question of right between him and plaintiff. The defendant had judgment and plaintiff appealed to the district court. Here the defendant again interposed the demurrer which had been sustained by the justice of the peace. This was overruled. Seld, that the action of the district court in overruling the demurrer was correct.</p> <p>Appeal — Admissibility of Evidence — Harmless Error.</p> <p>8. Error in admitting evidence on the question of consideration in support of the assignment of the account at issue in the action referred to above, when no such question had been made in the case, was harmless, where appellant offered no evidence but rested his case entirely upon his objection to the jurisdiction of the court, which was properly overruled, and where the court was justified in directing a verdict for plaintiff on the written assignment alone.</p> <p>Interpleader- — Payment into Court — Presumptions.</p> <p>9. Where the defendant in an action on an account had paid the sum in litigation into court and asked that another be substituted in his place and the plaintiff and such defendant be required to adjudicate their respective claims to it, and the parties thereafter proceeded upon the assumption that such payment had actually been made, it will be presumed that the faet that the amount was in the hands of the clerk had been ascertained by the court prior to adjudging it to belong to the party entitled thereto, and its judgment will not be reversed for lack of evidence in this respect.</p> <p>Interpleader — Judgment—Interest.</p> <p>10. Allowance of interest on a sum of money, paid into court by a defendant upon application for interpleader, while in the hands of clerk awaiting judicial determination of the rightful owner, is error.</p>

<p>Insurance — Fraternal Societies — Nonpayment of Dues — Time— Essence of Contract — Forfeiture—Reinstatement—Burden of Proof — Discretion — Waiver — Estoppel in Pais — Agents— Ratification.</p> <p>Insurance — Fraternal Societies — What Constitutes Contract.</p> <p>1. The certificate issued by a fraternal insurance order, together with the provisions of its constitution and by-laws, constitute the contract of insurance between it and one of its members.</p> <p>Same — Nonpayment of Dues — Forfeiture.</p> <p>2. It is competent for a fraternal insurance society to malte a contract of life insurance with one of its members, containing a provision, among others, that failure to make payment of dues within the time allowed for making payment, shall work a forfeiture of his certificate, without notice to or demand upon the insured.</p> <p>Same — Payment of Dues — Time—Essence of Contract.</p> <p>3. Where.a certificate of insurance of the character of the one above referred to provides that it shall be void if payment of dues or premium is not made at a specified, time, time is of the essence of the contract, and failure to make payment on or before such time works an absolute forfeiture.</p> <p>Same — Delinquency—Reinstatement—Burden of Proof.</p> <p>4. Where one, insured under a contract with a fraternal insurance order, had become delinquent by failure to pay his dues and premium at a specified time, and, upon insured’s death, his beneficiary relied for recovery upon a condition subsequent, to wit, decedent’s reinstatement prior to his death, which was denied in the answer — she assumed the burden of proof upon that issue.</p> <p>Same — Delinquency—Reinstatement—Requisites.</p> <p>5. The provisions of the constitution and by-laws of a fraternal insurance society, relative to the method to be pursued by a delinquent member to bring about his reinstatement, must be construed together; hence, a literal compliance with one provision, which required the filing of a proper application with, and payment of the dues and assessments in arrears to, the collector of a local lodge, did not alone work a reinstatement, where it was also made incumbent upon the applicant, by a subsequent provision, to furnish proof of his then good health, and where thereupon his reinstatement depended upon the approval of the application by the secretary of the grand body.</p> <p>Same — Delinquency—Reinstatement—Discretion.</p> <p>6. If, in passing upon an application for reinstatement to membership in a society of the kind referred to above, the officer of the grand body to whom proof of the applicant’s good health must be submitted, in the exercise of the discretion lodged in him, decides adversely to the applicant, the latter cannot complain.</p> <p>Same — Delinquency—Reinstatement—Proof.</p> <p>7. The constitution and by-laws of a fraternal insurance society provided, among other things, that the “secretary.” of the grand body should pass upon applications for reinstatement of delinquent members. The officer performing the duties of secretary for a local branch was styled “collector.” A member, delinquent for two months,' paid all dues in arrears and also those for a current month, to the collector of the subordinate lodge. The insured died while his application for reinstatement was pending. Held, that, since the officer whose duty it was to pass upon such applications was the “secretary” of the grand body, and not the person who acted as such officer for the local branch, a reinstatement was not the result of a remark, claimed to have been made by the collector, when accepting payment of the dues, that the delinquent was again in good standing.</p> <p>game — Delinquency—Reinstatement—Evidence—Insufficiency.</p> <p>8. Evidence reviewed in the cause mentioned in the foregoing paragraphs, and held to be insufficient to show a reinstatement of the delinquent member prior to his death.</p> <p>Same — Delinquency—W aiver.</p> <p>9. Where the delinquency of a member in a fraternal insurance society operated ipso facto to terminate his membership and to abrogate his contract of insurance, and he knew that the secretary of the grand lodge only was vested with the authority to pass upon his application for reinstatement, and there was nothing further that he could do toward his reinstatement, he could not have been misled to his prejudice by anything said or done by the collector of the local branch of the society when accepting payment of dues in arrears and those not yet due, into the belief that the society had waived its right to declare a forfeiture of his certificate upon nonpayment at a specified time, and the doctrine of waiver was, therefore, not applicable.</p> <p>Same — Delinquency—Estoppel in Pais.</p> <p>10. Where the record in the above action did not show that either the insured or his beneficiary was misled to his or her prejudice by the silence of the insurer when in equity and good conscience it ought to have spoken, or by some affirmative act or conduct on its part, in the matter of the insured’s delinquency or reinstatement, the doctrine of estoppel in pais was inapplicable.</p> <p>Same — Delinquency—Reinstatement—Evidence of Good Health — Discretion.</p> <p>11. The officer in whom was lodged the authority to pass upon applications for reinstatement of delinquents to membership in a fraternal insurance order, may not be said to have abused the discretion vested in him by the constitution and by-laws of the society, in rejecting an applicant who, according to the evidence, bad, about two months prior to his application for reinstatement, been confined to his bed by pneumonia for three weeks, a disease shown to be often accompanied by serious lung troubles.</p> <p>Same — Delinquency—Reception of Current Dues — Reinstatement—Unauthorized Act of Agenfri-Ratification.</p> <p>12. The defendant insurance society mentioned in the foregoing paragraphs, had never intentionally conferred authority upon its local collector to waive delinquency or to receive current duos after delinquency, nor did the collector believe that he had such authority. The delinquent knew that only the secretary of the grand body could reinstate him. The dues, both delinquent and current, paid to the collector were never forwarded to the central body but retained by him subject to the approval of the application for reinstatement. Immediately upon receipt 'of the application it was rejected and the collector directed to tender baek the amount paid. Meld, that a ratification by the society of the unauthorized act of its local collector had not been shown, and that therefore the insurer was not estopped to claim a forfeiture.</p>

<p>Ejectment — Trial—Pleadings—Amendment—Evidence—Admissibility.</p> <p>Trial — Pleadings—Amendment—Refusal—Error.</p> <p>1. Where the district court permitted plaintiff, after commencement of trial of an action to recover real property, to amend his complaint, which, prior to amendment, stated no cause of action, it was error to refuse permission to defendant to amend her answer..</p> <p>Ejectment — Evidence'—Admissibility.</p> <p>2. The complaint in an action in ejectment alleged ownership and right of possession, that on a certain date defendant, without plaintiff’s consent, took possession of the premises, and had ever since detained the same, and that the value of the rents was $30 a month. The answer admitted that plaintiff was the owner, but denied his riglit of possession, and also that defendant entered without plaintiff’s consent, and the allegation as to the value of the rents. Meld, that it was error to exclude testimony offered by defendant that she was placed in possession by plaintiff’s agent under a contract of sale made with the agent. It bore upon the question of plaintiff’s right to recover damages from the defendant for the use of the property, and should have been admitted.</p>

<p>Appeal — Proceedings Anterior to Judgment — Motion to Set Aside Judgment — Mistake—Surprise—Excusable Neglect-District Court — Discretion—Review.</p> <p>Appeal — Proceedings Anterior to Judgment — How Reviewable.</p> <p>1. Since proceedings had anterior to judgment can be reviewed only-on appeal from the judgment or an order denying a new trial, the action of the district court in proceeding with the trial of a civil cause to judgment, after plaintiff had orally asked for a postponement on account of the absence of her attorney, instead of dismissing the action for want of prosecution, was not reviewable on appeal from an order denying plaintiff’s motion to set aside the judgment on the ground of mistake, surprise or excusable neglect.</p> <p>Same — Motion to Set Aside Judgment — Mistake, etc. — Discretion—Review.</p> <p>2. A motion to set aside a judgment on the ground of mistake, surprise or excusable neglect, being addressed to the discretion of the court, an order refusing such a motion will not be reversed on appeal, where no complaint is made that such discretion had been abused in passing upon the affidavits filed in support of the motion and those against it, and where no reference is made in appellant's brief to them, the errors relied on being such as were not reviewable on an appeal from an order of this kind.</p>

<p>Quieting Title — City Lots — Tax Sales — Sale en Masse — Tax Deeds — Invalidity—Equity Cases — Disposition of, on Appeal.</p> <p>Tax Sales — Noncontiguous City Lots — Sale en Masse — Tax Deed — Invalidity.</p> <p>1. A tax deed to property assessed and sold under the provisions of the Fifth Division, Devised Statutes, 1879, the recitals in which showed that a number of noncontiguous city lots were sold en masse, was void upon its face and inadmissible in evidence in a suit to quiet title.</p> <p>Equity Cases — Disposition of, on Appeal.</p> <p>2. Where the supreme court, on appeal in an equity ease, reverses the judgment, but no cause appears why a new trial or the taking of further testimony should be ordered, it will, under the provisions of the Act of 1903 (Laws 1903, Second Extra. Session, p. 7), enter a judgment finally determining the cause.</p>

<p>Realty — Fixtures—Chattels—Claim and Delivery — Purchase for Value — Estoppel—Injunction—Pleadings—Complaint.</p> <p>Fixtures — Real Property — Wrongful Attachment to — Effect of Deed— Innocent Purchaser.</p> <p>1. Where one tortiously attaches to his land the house of another, then a chattel, by placing it upon a stone foundation, such house does not thereby become a part of the realty of the tort-feasor; hence, title to the house, good as against the original owner thereof, cannot be acquired by deed of the land with its appurtenances and improvements.</p> <p>When Chattels Become Fixtures.</p> <p>2. A chattel, to become an irremovable fixture, must have been annexed to the realty by the owner of the fixture, or with his consent.</p> <p>Chattels — Fixtures—Realty—Claim and Delivery.</p> <p>3. Where one wrongfully attaches to his realty another’s chattels, and without the latter’s knowledge or consent, such chattels may be reclaimed in an action in claim and delivery, if they can be identified.</p> <p>Same — Wrongful Attachment to Realty — Purchaser for Value — When Defense not Available.</p> <p>4. In the absence of statute, the defense of purchase for value and without notice is not available against the holder of the legal title; therefore, the person who claimed to have bought the house, referred to in paragraph 1, above, from the party who had tortiously attached it to his land and, thus, had not any title at all, — could not interpose such defense to the claim of the rightful owner.</p> <p>Purchaser for Value — When Defense Available.</p> <p>5. Oiiter: The defense of purchase for value and without notice may be interposed only as against the holder of an equitable title.</p> <p>Estoppel — Pleadings.</p> <p>6. Since, to be available as a defense, estoppel must be pleaded, defendant in the action mentioned above, who failed to so plead, though he had ample opportunity so to do, could not rely upon that defense.</p> <p>Pleadings — Injunction—Complaint—Requisites.</p> <p>7. Plaintiff in his complaint for an injunction restraining a sheriff from removing a house, theretofore adjudged in an action in claim and delivery to belong to one from whom it had been wrongfully taken, attached to the tort-feasor’s land and later by him sold to plaintiff, simply alleged that he had no plain, speedy or adequate remedy at law. He failed to state that the sheriff was insolvent, or that his official bond was insufficient; nor was there an allegation that the injury which would he occasioned to plaintiff by removal of the house, could not be compensated in damages. Held, that in the absence of such allegations, the complaint failed to state a cause of action for an injunction.</p>

<p>Criminal Law — Forgery—Information—Duplicity—Evidence—• Admissibility — Instructions—Inapplicability—Abstract Statements of Law.</p> <p>Criminal Law — Forgery—Information—Duplicity—Surplusage.</p> <p>1. An information which, after charging forgery of a promissory note, added that defendant, knowing that the instrument was false, uttered, passed and published the same as true and genuine with intent to defraud, etc., did not allege the commission of two offenses, to-wit, the false making of the note and the passing of it, since the latter portion, standing alone, did not state an offense. It was surplusage and should have been omitted.</p> <p>Same — Forgery—Passing of Instrument — Evidence—Information.</p> <p>2. Evidence that the defendant, charged with forgery, passed the false instrument, is admissible upon the question of his criminal intent, without an allegation in the information to that effect.</p> <p>Same — Forgery—Evidence—Admissibility.</p> <p>3. In a trial for forgery it was error to permit a witness, who testified to a transaction similar to that had by defendant with the persons whose names appeared on the note alleged to have been forged, to give the contents of a letter exhibited by accused to the witness, purporting to be a letter of recommendation from a state official. It was immaterial and should have been excluded.</p> <p>Same — Forgery—Falsely Making — Altering—Information—Instructions — Applicability to Issues.</p> <p>4. Where defendant was charged with having forged a promissory note, not by altering it, but by falsely making the same, an instruction telling the jury, inter alia, that to constitute the crime of forgery it was sufficient if a genuine instrument "be altered so that it is not the instrument signed by the maker," etc., was erroneous, since in order to charge the offense by alteration, the information must clearly set forth the particulars in which the paper was altered.</p> <p>Same — Forgery by Alteration — Materiality.</p> <p>5. To constitute forgery by altering an instrument, it is essential that such alteration be a material one.</p> <p>Same — Forgery—Evidence.</p> <p>6. One charged with forgery in fraudulently making an instrument cannot be proved guilty by showing that he altered the same.</p> <p>Instructions — Abstract Statements of Law.</p> <p>7. Instructions, though correct as abstract propositions of law, should not be given to the jury if they do not relate to the issues made by the pleadings.</p>

<p>Waters — Ditches—Seepage—Liability for Injury — Negligence— Sic utere tuo ut alienum non laedas — Trespass on the Case— Burden of Proof — Instructions—Harmless Error.</p> <p>Waters — Ditches—Owner not an Insurer.</p> <p>1. A ditch owner is not an insurer of his ditch against damages which may result from its operation.</p> <p>Same — Ditches—Injury—Liability of Owner — Instructions.</p> <p>2. Plaintiff in an action to recover damages alleged to have been caused to his lands by seepage from defendant’s ditch, asked the court to instruct the jury that if the injury was caused as alleged, the verdict should be for plaintiff, irrespective of the question of negligence on the part of defendant in the construction and operation of the ditch. This was refused and one given in lieu thereof, announcing the rule that defendant was only bound to exercise ordinary care in the construction and maintenance of his ditch, and that, if he did so, he could not be held responsible. Held, that the court’s action was correct.</p> <p>Same — Sic utere tuo ut alienum non laedas — Applicability of Maxim.</p> <p>3. The doctrine of the maxim Sic utere tuo ut alienum non laedas, is not inconsistent with the rule of law that a man may use his own property as he pleases, for all purposes for which it is adaptable, without being answerable for the consequences, if he is not an active agent in designedly causing injury, if he does not create a nuisance, or if he exercises due care and caution to prevent injury.</p> <p>Actions — Common-law Principles — Applicable Under Codes.</p> <p>4. While by the adoption of the Codes the common-law forms of pleading were abolished in this state, the fundamental principles of that law underlying the various actions, must still be looked to in determining questions relating to such actions.</p> <p>Actions — Trespass—Trespass on the Case.</p> <p>5. _ The action of trespass presumes the doing of an act wantonly or'in total disregard of another’s rights; whereas, the action of trespass on the ease assumes that the injury complained of is the result of negligence or nonfeasance.</p> <p>Waters — Ditches—Injury—Seepage—Actions—Trespass on the Case — Burden of Proof.</p> <p>6. Where, in an action to recover damages for injury alleged to have been caused to plaintiff’s lands by seepage from defendant’s ditch, it was not contended that the seepage was intentionally caused by defendant, nor claimed by the latter that it was the result of inevitable accident or ’an act of God, the injury, if it occurred at all, must have been the result of negligence on defendant’s part in constructing or operating the ditch, and the action was maintainable only as an action of trespass on the ea.se, in which the burden of proving defendant’s negligence, in the first instance, was upon plaintiff.</p> <p>Same — Negligence—Degree of Proof — Instructions—Harmless Error.</p> <p>7. While it was error to instruct the' jury in the ease above mentioned, that, before plaintiff could recover, he must have established by a clear preponderance of the evidence that the ditch in question was negligently and defectively constructed or maintained, etc.— thus, by the use of the word “clear,” imposing a greater burden upon plaintiff than the law requires — the error was harmless, where plaintiff did not rely upon defendant’s negligence nor offer any evidence on that question, but took the erroneous position that defendant was an insurer of his ditch and responsible in any event, and where the court would have been justified in directing a verdict for defendant, in that plaintiff had failed to make out a ease.</p>

<p>Criminal Law — Justices of the Peace — Police Courts — Appeal— Record — /urisdiction—Irregularities—W aiver.</p> <p>Criminal Law — Police Courts — Change of Venue — Justices' Courts.</p> <p>1. Obiter: A police judge may, under Penal Code, section 2685, grant e change of the place of trial of a criminal cause pending before him, upon a motion, supported by a proper showing, either for bias or prejudice of such judge, or prejudice in the citizens of the township.</p> <p>Same — Justices of the Peace — Appeal—Record.</p> <p>2. In the absence of specific statutory provision on the subject, the original files, together with a copy of the docket minutes, held, to constitute the record on appeal, in a criminal cause, from a justice of the peace to the district court.</p> <p>Same — Justices of the Peace — Appeal—Irregularities—Waiver—Jurisdiction.</p> <p>S. By specifically waiving all previous irregularities and informalities, when appearing before a justice of the peace in a criminal cause which had been transferred from a police court, and of whieh both the justice and magistrate had jurisdiction, and submitting to trial without objection, defendant was precluded from thereafter attacking the resulting judgment on the ground that by reason of the failure of the police judge to transmit a copy of his docket to the justice of the peace, the latter did not acquire jurisdiction to try the cause.</p> <p>Jurisdiction — Waiver.</p> <p>4. The rule that if a court has jurisdiction of the subject matter of an action, a general appearance of the defendant to the merits, without objection, is a waiver of all personal privilege in respect of the particular court in which the action is brought, applies to courts of limited as well as of general jurisdiction.</p> <p>Criminal Haw — Justices of the Peace — Appeal—Jurisdiction—District Courts.</p> <p>5. Since the district court on an appeal from a justice’s court does not sit as a court of review to correct errors, but is required to try the cause Ae novo upon the merits, the fact that the justice may have lost jurisdiction in trying a criminal ease in part on a legal holiday, and in thereafter taking it under advisement instead of entering judgment at the close of the trial, all without objection by defendant, did not deprive the district court of jurisdiction. The' justice having had jurisdiction of the subject matter and of the defendant, the appeal clothed the district court with power to proceed, no matter what irregularities may have attended the trial in the lower court.</p>

<p> Appeal from District Court, Missoula County; F. G. Webster, Judge. </p> <p>Action by Alexander L. Demers against Davis Graham, sheriff, and others. From a judgment for plaintiff, defendant M. H. Prideaux appeals.</p> <p>Citing: Shoobert v. De Motta, 112 Cal. 215, 53 Am. St. Rep. 207, 44 Pac. 487; Maier v. Freeman, 112 Cal. 8, 53 Am. St. Rep. 151, 44 Pae. 357; First Nat. Bank v. Ereca, 116 Cal. 81, 58 Am. St. Rep. 133, 47 Pae. 926; Alferitz v. Borgwardt, 126 Cal. 205, 58 Pac. 460; Alferitz v. Ingals, 83 Fed. 964; Hixon v. Hubbell, 4 Oída. 224, 44 Pac. 222; Knowles v. Ferguson, 11 Or. 54, 240, 4 Pac. 126.</p> <p>“Under the rule that the incident follows the principal, a mortgage of domestic animals covers the increase of such animals, though it is silent as to such increase.” (Jones on Chattel Mortgages, sec. 149; Rogers v. Highland, 69 Iowa, 504, 58 Am. Rep. 230, 29 N. W. 429; Darling v. Wilson, 60 N. H. 59, 49 Am. Rep. 305; Funk v. Paul, 64 Wis. 35, 54 Am. Rep. 576, 24 N. W. 419; Lawson’s Rights, Remedies and Practice, see. 1370; Pyeatt v. Powell, 51 Fed. 551, 2 C. C. A. 367; Dyer v. State, 88 Ala. 225, 7 South. 267; Gundy v. Biteler, 6 111. App. 510; Forman v. Proctor, 48 Ky. 124; First Nat. Bank v. Western Mtg. & Inv. Co., 86 Tex. 636, 26 S. W. 488; see, also, Thorpe v. Cowles, 55 Iowa, 408, 7 N. W. 677; Maize v. Bowman, 93 Ky. 205, 19 S. W. 589, 17 L. R. A. 81; Dyer v. State, 88 Ala. 225, 7 South. 267; Forman v. Proctor, 9 B. Mon. (Ky.) 124; Rogers v. Highland, 69 Iowa, 504, 58 Am. Rep. 230, 29 N. W. 429; Kellogg v. Lovely, 46 Mich. 131, 41 Am. Rep. 151, 8 N. W. 699; Edmonston v. Wilson, 49 Mo. App. 491; Funk v. Paul, 64 Wis. 35, 54 Am. Rep. 576, 24 N. W. 419; Latta v. Fowlkes, 94 Tenn. 219, 29 S. W. 124; Darling v. Wilson, 60 N. H. 59, 49 Am. Rep. 305.)</p>

<p>Default Judgments — Setting Aside — Affidavits of Merits — Insufficiency — Demurrer.</p> <p>Default — Application to Set Aside — Requisites.</p> <p>1. A party defendant, on application to set aside his default, must, in addition to excusing his delinquency, support the motion by an affidavit of merits setting forth the faets constituting his defense, or tender with the motion and affidavit a copy of his proposed answer.</p> <p>Same — Affidavit of Merits — Insufficiency.</p> <p>2. An affidavit, filed in support of an application to open a default, which recited that the president of the defendant corporation “fully and fairly stated the case” to affiant, defendant’s attorney, and that affiant “says that said defendant has a good and meritorious defense,” was not a statement of faets from which the district court could determine that the defendant had, primo facie, a defense upon the merits, and a denial of the application was proper.</p> <p>Same — Setting Aside — Demurrer.</p> <p>3. Courts will not open a default to allow the interposition of a demurrer.</p>

<p>Water Bights — New Trial — Appeal—Findings—Insufficiency of Evidence — Discretion—Jury—View of Premises.</p> <p>New Trial — When Order Granting It will' be Affirmed.</p> <p>1. Where a motion for a new trial is based upon a number of grounds, and the court, in granting it, does not specify the particular one upon which it does so, its action will be approved on appeal if justified upon any one or more of the grounds of the motion.</p> <p>Same — Findings—Evidence—Insufficiency—Discretion.</p> <p>2. A motion for a new trial, on the ground that the findings are not supported by the evidence, is addressed to the sound legal discretion of the trial court, and its order will not be disturbed, except in a ease of manifest abuse of such discretion.</p> <p>Same.</p> <p>3. Where the evidence in a water right suit did not preponderate in favor of a finding, attacked upon a motion for a new trial for insufficiency of the evidence to sustain it, but was conflicting and of such a character that different courts might reasonably have differed as to the weight of it, an order granting the new trial will be affirmed.</p> <p>New Trial — Equity Cases — Findings—Modification.</p> <p>4. A litigant, in an equity case, has the right to move for a modification of a finding, or ask for a new trial; hence, a trial court cannot dictate to the moving party to pursue the former method, so as to save- the trouble and expense of a retrial.</p> <p>Water Eights — Ditches—View by Jury — Findings—Evidence—Insufficiency —New Trial.</p> <p>5. The fact -that in a water «right suit, in which one of the principal questions at issue was the capacity of a ditch as of the date of appropriation, — three years and seven months prior to the date of trial, —the jurors were permitted to view the premises, was no ground for the denial of a motion for a new trial, based upon the insufficiency of the evidence to sustain a finding upon the question, where it appeared that in the interim between the date of appropriation and the time of trial the ditch had become greatly out of repair, so that the view had by the jury could not have been of much, if any, assistance to them in determining its capacity at the date of appropriation.</p>

M. Clements, Judge. Mandamus by the state, on tbe relation of John Brass, to-compel Charles Horn, as police judge of the city of Helena, to transfer a charge against relator to the nearest justice of the peace of said” city. From a judgment awarding the writ, respondent appeals.

District Court, Teton County; J. E. Erickson, Judge. Daniel McGowan was convicted of murder in tbe second degree, and be appeals from tbe judgment and an order denying bim a new trial.

<p>Eminent Domain — Payment of Deposit to Trustee — Nonappeal able Orders.</p> <p>Eminent Domain — Deposit in Court — Payment to Trustee.</p> <p>1. In answer to a petition by a trustee holding the legal title to land, which had been condemned for railroad purposes, for an order that the money deposited in court for the land be paid to him, one of the beneficiaries under the trust filed an answer alleging that petitioner had mismanaged the affairs of the trust, that an action was then pending for his removal, and asking that payment to him be withheld. The order asked for by the trustee was made. Held, that the court’s action was correct, since the petitioner, as holder of the legal title, was prima fade entitled to the fund, a fact in effect admitted in the pleading of the objecting beneficiary.</p> <p>Nonappealable Orders.</p> <p>2. An order authorizing the payment of a fund deposited in court in condemnation proceedings to the person entitled thereto is not a special order after final judgment from which an appeal may be taken.</p> <p>Same.</p> <p>3. Nor is the above order one directing the delivery, transfer or surrender of property, within the meaning of section 1722 of the Code of Civil Procedure as amended (Laws 1899, p. 146), authorizing an appeal.</p> <p>Eminent Domain — Deposit in Court — Persons Entitled.</p> <p>4. It is only where no dispute arises as to who is entitled to a fund deposited in court in condemnation proceedings that the court can entertain a motion to direct the clerk to pay it over.</p> <p>Appeal — Right to.</p> <p>5. To entitle a person to an appeal, he must have been aggrieved by an order or judgment of a court.</p>

<p>N ew Trial — Surprise—Affidavit—Insufficiency—N eglect — Diligence — Different Result — Practice.</p> <p>Practice — New Trial — Motion—Affidavits—Filing—Time.</p> <p>1. Section 1173, Code of Civil Procedure, allows ten days after notice of motion for a new trial in which to prepare, serve, and file the affidavits, statement, etc. A finding and decision having heen filed August 30, 1905, a written stipulation was made on September 6th that either party might have thirty days’ “additional” time in which to give notice of intention to move for a new trial, and ninety days’ “additional” time in which to prepare, serve, and file affidavits, bills of exception, or statements in support of the motion. Appellant gave notice of motion for a new trial October 7th, and all the affidavits were filed January 3, 1906. Held, that appellant was entitled to thirty days in addition to the four days of the ten-day period not yet expired when the stipulation was made, in which to serve notice of motion for a new trial, and that the ninety days stipulated for in which to file affidavits, bills of exception, or statements, etc., in support of the motion, began to run on the expiration of ten days after the service of notice, and hence that the affidavits were filed in time.</p> <p>New Trial — Surprise—Showing Neeessary.</p> <p>2. A new trial, asked for on the ground of surprise, will be granted only when it is clearly shown that the movant was actually surprised; that the facts from which the surprise resulted were material, that the verdict or decision resulted mainly from these facts, that the alleged condition was not due to movant’s inattention or neglect, that he acted promptly and claimed relief at the earliest opportunity, that he used every means reasonably available at the time of the surprise to remedy its effect, and that the result of a new trial will probably be different.</p> <p>Same — Surprise—Affidavit—Insufficiency—Neglect.</p> <p>3. Where, from an affidavit filed in support of a motion for a new trial on the ground of surprise, it appeared only by way of conclusion of affiant what inquiry he made, prior to trial, of two witnesses whose testimony constituted the alleged surprise, or what they told him they would testify to, and in the absence of a positive statement that the witnesses whose conduct was complained of were the only ones called to testify in affiant’s behalf in aid of his contention as to a water right (the record on appeal not containing any of the evidence introduced at the trial), and where after trial many other witnesses were found who could furnish the desired evidence, held, that the application was properly refused, since from such showing the inference was permissible that movant was negligent in the search for evidence to sustain his contention.</p> <p>Same — Surprise—Showing—Insufficiency—Diligence.</p> <p>4. The showing made by the applicant for a new trial on the ground of surprise, referred to in the foregoing paragraph, was further insufficient, for want of prompt action and diligence on his part in an endeavor to avoid the result of the alleged surprise, where he failed to ask for a continuance, or negleeted to call the attention of court and counsel to the matter, or ask for a reopening of th'e cause, which was tried by the court, without a jury, and held under advisement for almost three months before the decision was rendered.</p> <p>Same — Surprise—Appeal—Record—Different Results.</p> <p>5. Where, on appeal from an order denying a new trial, asked for on the ground of surprise, occasioned by the testimony of witnesses relied on by appellant to prove his contention, the evidence given at the trial is not incorporated in the record, the supreme court will not order a reversal, since, even conceding that the new witnesses would testify as stated in the movant’s affidavit filed in support of the motion, it cannot say that the result reached at the trial would probably be different if a new one were granted.</p>

M. Clements, Judge. Action in equity by Mary Baymond against John Blancgrass and others. From a judgment for plaintiff, John Blancgrass and Philip Chevalier appeal. Before a judgment creditor can go into chancery and institute an action such as is brought in this case, provided this is a creditor’s bill, the bill must show that all legal remedies have been exhausted. {Roper v. McCook, 7 Ala. 318; Newman v. Willetts, 52 111. 98; Webster v. Clark, 25 Me. 315; Daskam v..

M. Bourquin, Judge. Action by Edgar McIntosh against John O. Jones and another, partners, under the firm name of the Jones Transfer Company. From a judgment for plaintiff against defendant John O. Jones, and an order denying a new trial, defendant John O. Jones appeals.

<p>Personal Injuries — -Appeal—New Trial — Instructions—Review • — Verdict—Arrived at by Chance — District Courts..</p> <p>New Trial — When Order Granting Affirmed.</p> <p>1. If a party was entitled to .a new trial upon any one of a number of grounds urged by him on motion for a new trial, the order granting it will be affirmed, though based upon a ground devoid of merit.</p> <p>Instructions — Beview.</p> <p>2. In reviewing a charge to the jury the supreme court will examine it as a whole, and if then the instructions fully and fairly submit the case, the judgment will not be reversed on the ground that some of them, standing alone, are inaccurate or even prejudicially erroneous, if these latter are qualified and explained by other portions of the charge m pari materia.</p> <p>Personal Injuries — Verdict-—Chance—Duty of District Court.</p> <p>3. In an action for damages for personal injuries, the jury returned a verdict for $18,750. Upon polling - of the jury the court inquired if the verdict had been reached by chance. Several of the jurors'1 answer was in the affirmative. The court thereupon directed them to again retire and find a verdict by “deliberation and reasoning thereon,” excluding the element of chance. A verdict for $20,000 was then returned shortly afterward. Held, that the action of the court was unauthorized; that the verdict first returned should have been received, and that it could only be set aside upon application of the party aggrieved, under section 1171 of the Code of Civil Procedure, providing for a new trial on the ground that the jury had resorted to chance in arriving at their verdict.</p>

<p>Partnership — Payment of Debts — Statute of' Frauds — Appeal— Theory of Case — Pleading — Sufficiency — Instructions — ■ Harmless Error.</p> <p>Appeal — Theory of Case.</p> <p>1. On appeal the supreme court will treat a cause on the same theory it was tried in the district court.</p> <p>Action for Wages — Complaint—Sufficiency.</p> <p>2. In .an action to recover wages due for services rendered to a partnership, of which defendant was a member, ■ an allegation that the partners, upon winding up their affairs, had an accounting, and as part consideration for same, defendant agreed to pay plaintiff for the balance due him from the firm, while somewhat indefinite and uneer- ' tain, sufficiently stated a consideration for defendant’s promise to pay plaintiff the money due him from the firm.</p> <p>Pleading — Uncertainty—Special Demurrer.</p> <p>3. If a defendant in a civil action desires a complaint to be made more definite and certain, he should file a special demurrer for that purpose in the trial court.</p> <p>Appeal — Review—Harmless Error — Instructions.</p> <p>4. In an action to recover wages due for services to a partnership of which defendant was a member, which it was alleged he agreed to pay upon a final settlement between the partners, an instruction that, unless defendant, at the time of making the promise, had funds of the partnership sufficient to' pay the debt, there was no consideration for his prpmise, if erroneous, was harmless error, where the jury, by finding for plaintiff, must. have found that defendant did have sufficient funds to pay the debt.</p> <p>Partnerships — Liability of Partner.</p> <p>5. Quaere: Is a member of a partnership severally liable for services rendered to the partnership?</p> <p>Statute of Frauds — Promise to Pay Debt of Another — Agreement by Partner to Pay Firm Debt — Consideration.</p> <p>6. Section 3612, subdivision 3, of the Civil Code, provides that a promise.to answer for the antecedent obligation of another need not be in writing, where the promise is made .upon a consideration beneficial to the promisor. Upon the winding up of a copartnership of which defendant was a member, he retained certain partnership funds and agreed to pay plaintiff a debt due him for wages from the firm. Held, that defendant’s promise was upon a consideration, beneficial to himself, under section 3612, and was valid, though not in writing.</p>

M. Bourquin, Judge. Action by Ellen O’Flynn against tbe city of Bntte. Judgment for plaintiff, and defendant appeals from it, and an order denying a new trial. A city will not be imputed with knowledge of a defect in a sidewalk of sucb a nature as to have escaped the notice of a person injured thereby who had used it continually for many months. (Byrne v. Philadelphia, 211 Pa.

M. B our quin, Judge. Action by Lavina Kroeger against Charles S. Passmore. From a judgment for plaintiff, and from an order denying defendant’s motion for new trial, he appeals. Though force be employed against the person of another, not for the purpose of detaining him or restraining his liberty, but to obtain possession of a chattel, it has been held there is no false imprisonment. (McClure v. State, 26 Tex.

<p>Foreclosure — Judgment—Default—Extent of Belief — Stipulations — Pleadings—Husband and Wife — Dower.</p> <p>Foreclosure — Default—Stipulation—Extent of Belief.</p> <p>1. Where, in a foreclosure suit, the principal defendants entered into a stipulation with plaintiff that they had no defense, would file no answer, and that judgment might be entered against them in accordance with the prayer of the complaint, it was error for the court to direet in its decree not only the sale of the property and the application of the proceeds to the satisfaction of the mortgages, but also the application of the surplus to the satisfaction of judgments set up in plaintiff’s replication to the answer of another defendant, holding liens on the property, since, under section 1003, Code of Civil Procedure, and under the stipulation the decree should have been entered according to the prayer of the complaint.</p> <p>Judgment — Pleadings to Sustain — Beply.</p> <p>2. A judgment for plaintiff for affirmative relief cannot be based upon allegations which appear in the reply only.</p> <p>Eeplication — Aiding Complaint.</p> <p>3. The replication cannot be looked to to broaden the scope of the complaint or aid it in any way.</p> <p>Dower — Judgment Against Husband — Effect.</p> <p>4. The lien of a judgment against a husband is subject to the interest of his wife, whether arising from a tenancy in common with her husband or out of her right of dower.</p> <p>Foreclosure — Complaint—Adjustment of Equities.</p> <p>5. Where the complaint in a mortgage foreclosure suit stated that defendants other than the mortgagors had or claimed interests in or liens on the premises, as judgment or attaching creditors, but that their interests or liens were subordinate to plaintiff’s mortgage, and demanded that the priority of the mortgage lien be fixed and established, and that the liens of such other defendants be declared inferior to them, the court properly adjusted these equities in the decree.</p>

<p>Specific Performance — Judicial Discretion — Nonsuit — Evidence — Equity Gases — Appeal—Practice.</p> <p>Specific Performance — Nonsuit—Judicial Discretion.</p> <p>1. The discretion with which the district court is vested in determining whether or not a contract should be specifically enforced is a sound legal one; therefore, where the testimony of plaintiff in such a suit furnished no ground for different conclusions, but showed that plaintiff was entitled to the relief asked, no grounds for the exercise of judicial discretion existed, and the motion of defendant .for a “ nonsuit ” should have been overruled.</p> <p>Equity Cases — “Nonsuit.”</p> <p>2. In equitable proceedings there can be, strictly speaking, no such thing as a motion for a nonsuit.</p> <p>Nonsuit — Effect in Law Actions — Appeal.</p> <p>3. The effect of granting a nonsuit in an action at law is to declare that the evidence is insufficient to warrant a verdict for plaintiff under any circumstances; hence the judgment should be reversed on appeal, if there was any evidence justifying a verdict for plaintiff.</p> <p>Same — Equity Cases — Discretion—Appeal.</p> <p>4. In an action for specific performance of a contract, if plaintiff is not entitled to relief as of right, then upon a motion for nonsuit at the close of plaintiff’s testimony it is the trial court’s duty to adjudicate the issues between the parties, and the court may exercise a legal discretion in giving or withholding relief; hence the effect of nonsuit would not be to determine that plaintiff was not entitled to relief in any view of the evidence, but that the court, in the exercise of its discretion, withheld relief in that particular case, and its action will not be disturbed on appeal unless there was an abuse of discretion.</p> <p>Specific Performance — Oral Agreement — Performance.</p> <p>5. Where it appeared from plaintiff’s evidence in a suit to enforce specific performance of an oral contract to sell real property, that he had fully performed all the terms of the agreement to be performed by him, and that defendant had put him in actual possession of the premises upon which he had erected substantial improvements, the court had the power, under section 2342 of the Civil Code, to grant the relief asked for.</p> <p>Same — Evidence—Beview—Nonsuit.</p> <p>6. Evidence of plaintiff in a suit to enforce the specific performance of an oral agreement for the sale of a lot, reviewed, and held sufficient to entitle plaintiff to a decree, and that the court erred in granting a “nonsuit.”</p> <p>Same — N onsuit.</p> <p>7. The .fact that plaintiff in the suit referred to in the foregoing paragraph produced two receipts, which by their recitals, “balance in six months” and “part payment on lot,” injected the only element of uncertainty into plaintiff’s case, did not warrant a court of equity in disregarding his positive testimony as to his full performance of the agreement and granting a ‘ ‘ nonsuit, ’ ’ especially in view of the failure of counsel to ask plaintiff for an explanation in this regard.</p> <p>Same.</p> <p>8. The court in passing upon the motion for “nonsuit” in the above case should have taken into consideration defendant’s general denial which gave it no intimation of the nature of the defense relied upon, and which may have had concealed within it either a valid defense or an absolutely unconscionable one, and should, in view of plaintiff’s positive testimony that he had fully performed his part of the agreement, have denied the motion.</p> <p>Equity Cases — Appeal—Final Disposition — Practice.</p> <p>9. Since the evident purpose of the Act of 1903 (Laws 1903, 2d Extra. Session, p. 7), requiring the supreme court to determine all questions of fact as well as of law in equity cases, unless for good cause a new trial or the taking of further testimony be ordered, is to expedite the entry of final judgment in such cases, and thus put an end to litigation, it is the duty of the parties to introduce all their testimony in the trial court, in order to enable the appellate tribunal to carry out the intention of the Act.</p> <p>Same.</p> <p>10. On appeal in equity cases, defendant’s motion for judgment at the conclusion of plaintiff’s' ease will be construed as a declaration that, in case his motion is granted, he elects to stand upon the case made by plaintiff, and final judgment on appeal will be entered accordingly, and new trials in such cases will not be ordered except for good cause shown in the record.</p>

<p>Criminal Law — Arraignment—Minutes of Court — Irregularities — Waiver — Reasonable Doubt — Definition — Instructions — Singling out Witness — Credibility of Defendant.</p> <p>Criminal Law — Arraignment—Irregularities—Waiver.</p> <p>1. The minutes of the trial of a criminal cause failed to show that the copy of the information delivered to defendant contained the names of the witnesses for the state. They did show that he asked for and obtained time to plead and afterward, without objection, pleaded to the information. Held, that by pleading without objection he waived the defect in the arraignment.</p> <p>Same — Verdict—Jury—Calling of Names.</p> <p>2. The purpose of section 2142, Penal Code, providing that the names of the jurors must be called by the clerk when their verdict is delivered, is to insure their presence before the verdict is delivered.</p> <p>Same — Irregularities—Harmless Error.</p> <p>3. Where the record in a criminal cause did not show that the jurors were not all present when the verdict was delivered, and from the minutes no other fair inference could be drawn than that they were actually present at the time, the omission from the minutes of a statement that their names were called prior to delivery of the verdict was not an error which prejudiced defendant in his substantial rights, and the irregularity may be disregarded under the provisions of sections 2320 and 2600 of the Penal Code.</p> <p>Same — Verdict—Presence of Defendant — Minutes.</p> <p>4. While under section 2142, Penal Code, the fact that the defendant in a criminal cause was present when the verdict was received must affirmatively appear, minutes which show his presence during the trial up to the time the jury retired, and then recite* that 1 ‘ defendant thereupon waived the polling of the jury” and “defendant thereupon waives time for sentence and elects to be sentenced at this time,” sufficiently meet this requirement.</p> <p>Same — Reasonable Doubt — Instructions.</p> <p>5. An instruction defining the term “reasonable doubt"” in the language employed for that purpose in Territory v. MeAndrews, 3 Mont., at page 162, and there approved and since accepted as a proper definition of those words, is not open to the objection that by it the jury were confined to a consideration of the evidence, whereas a reasonable doubt might arise from the lack of evidence.</p> <p>Same — Instructions—Credibility of Defendant.</p> <p>6. While it is the general rule that a court ought not in its instructions single out a particular witness and direct the attention of the jury to his testimony, section 2442, Penal Code, makes an exception to this rule, and the court may properly instruct that the jury, in judging the credibility of one on trial for a crime and the weight to be given to his testimony, may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he stands charged.</p> <p>Same — Dareeny—Definition—Curing Error.</p> <p>7. The defect in an instruction which incorrectly defined “larceny” was cured by a subsequent one, which, though not technically correct, was not open to the objection urged against it by appellant.</p> <p>Instructions — Review.</p> <p>8. In reviewing instructions they must be considered as a whole.</p>

H. Loud, Judge. Action by Esther L. Biley, as administratrix, against the Northern Pacific Bailway Company.

<p>Tax Deeds — Validity—Tax Sales — Statutory Provisions — Strict Construction — Counties—Competitive Bidders — Presumptions.</p> <p>Tax Deeds — County—Competitive Bidder — Effect.</p> <p>1. A tax deed which showed on its face that a county had been a competitive bidder at a sale for delinquent taxes, contrary to the provisions of section 3882 of the Political Code, is void.</p> <p>Same — Beeitals.</p> <p>2. The recitals in a tax deed must show affirmatively that the county had a right to take the property and that it was not a competitive bidder at the sale.</p> <p>Same — Statutes—Strict Construction.</p> <p>3. A .county cannot purchase lands at a tax sale unless authorized to do so by law, and the provisions of the statute relative to sales for delinquent taxes must be strictly pursued before the owner can be divested of title.</p> <p>Same — Construction—In Whose Favor.</p> <p>4. A tax deed must be construed most strongly against him who claims under it, and if one of two constructions will support the claim of the person whose property has been taken, the deed will be held invalid.</p> <p>Same — Invalidity—Presumptions.</p> <p>5. Where a tax deed showed its invalidity upon its face, in that the county had been a competitive bidder at the sale contrary to statute, the presumption that official duty had been regularly performed will not protect a grantee of the county, nor may in such a case the provisions of section 3897, Political Code, making tax deeds prima facie evidence of the fact, among other things, that the property was sold as prescribed by law, be relied upon.</p>

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Action by Samuel Parnell against J. R. Davenport and tbe Davenport Company on a duebill. From an order denying defendants’ motion for a new trial, they appeal.</p>

K. Cheadle, Judge. Action by Joseph Birsch against the Citizens’ Electric Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. Citing: Elliot v. Allegheny Light Co., 204 Pa. St. 568, 54 Atl. 278; Bessey v. Newichawanick Co., 94 Me. 61, 46 Atl. 806. Citing: Goe v. Northern Pac. R. R. Co.-, 30 Wash. 654, 71 Pae. 183; Walters v. Denver Con. El. Lt. Co., 12 Colo.

M. Clements, Judge. Action by tbe state of Montana against the Northern Pacific Railway Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals.

<p>Life Insurmce — Agents—Fraud—Constructive Notice — Negligence — Ratification.</p> <p>Life Insurance — Agents—Ostensible Authority — Constructive Notice— Fraud- — Negligence.</p> <p>1. Plaintiff, a foreigner unable to read the English language well, was induced by one C., as agent for a life insurance company, to sign a note as payment of the first premium on a policy in (J.’s company. He was rejected and without knowledge of his rejection was later induced by O. to sign a new note, payable to C. and one S., for. a policy in a different company, C. falsely introducing S. to plaintiff as the agent of the latter company, and handing to plaintiff for signature an application blank whieh he had obtained from the local ageney director of that company, for the alleged purpose of securing the application on a commission. Plaintiff made no inquiries as to why C. should assume to act for the latter company, and the only ostensible authority exhibited to him by C. was the application blank. Plaintiff in the presence of a number of others signed the note and application without endeavoring to ascertain their contents or requesting some one to read them to him. While the company represented by the ageney director had knowledge of the fact that in some instances it was getting brokerage business, plaintiff had no knowledge of this. The company obtained no part of the proceeds of the note. In the receipt given to plaintiff no reference was made to the company. On rejection of his new application plaintiff brought suit to recover the amount of the second note. Reíd, that he was charged with constructive notice of the restriction upon O.-’s authority in the premises, and that he was guilty of such gross negligence as precluded him from recovering from the defendant company.</p> <p>Same — Ratification.</p> <p>2. The transaction referred to in the foregoing paragraph cannot be said to have been ratified by the defendant company, where neither it nor its agents had knowledge of it until long after the application had been rejected.</p>

<p> Appeal from District Court, Deer Lodge County; Geo. B. Winston, Judge. </p>