Volume 38 — Montana Reports

<p>Conversion — District Judges — Bias and Prejudice — Disqualifying Affidavits — Sheriffs—Void Process — Effect—Briefs—Specifications of Error.</p> <p>District Judges — Disqualifying Affidavits — Liberal Construction of Statute.</p> <p>1. Section 6315, Eevised Codes, providing for the disqualification of a district judge by the filing of an affidavit that the party making it has reason to believe, and does believe, that he cannot have a fair and impartial trial before such judge because of the latter’s bias or prejudice, should be liberally construed with a view to effect its object and promote justice.</p> <p>Conversion — District Judges — Who may Pile Affidavits of Disqualification.</p> <p>2. Held, in an action in conversion against a sheriff, that the plaintiff at whose instance and request the sheriff under a writ of attachment levied upon the property in controversy and who had indemnified the officer, was the real party' in interest in the action in conversion and could file an affidavit disqualifying the trial judge, although he had not intervened and was not a party to the record.</p> <p>Appeal — Briefs—Specifications of Error.</p> <p>3. Where an error relied upon for reversal was clearly set forth in appellant’s brief in a paragraph by itself, it was sufficient, even though it was not set out in appellant’s specifications of error.</p> <p>Sheriffs — Attachment—Infirmity in Process — Effect.</p> <p>4. Where a sheriff in levying upon property purported to act by virtue of a writ of attachment, infirmity in his process did not have the effeet of changing his official status, i. e., he acted officially, notwithstanding such infirmity, and not individually.</p>

<p>Claim, and Delivery — Appeal—Dismissal—Undertaking—Sufficiency — Pleadings—Issues—Conflict in Evidence — Review.</p> <p>Appeal — Judgment—Lapse of Time — Dismissal.</p> <p>1. An appeal from a judgment not taken within one year from the date of its entry will be dismissed.</p> <p>Same — -Undertakings—Sufficiency.</p> <p>2. An undertaking on appeal from a judgment and an order denying a new trial, in the form of that held sufficient in Watkins v. Morris, 14 Mont. 354 (to-wit, omitting the alternative condition referring to each), sustains both appeals if properly taken; hence it is sufficient to sustain the appeal from the order, where that from the judgment is dismissed because not taken in time.</p> <p>Claim and Delivery — Pleadings—General Denial — Matters Admissible Under.</p> <p>3. Since in claim and delivery, wherein plaintiff relies on general allegations of ownership and right of possession, a general denial puts in issue both the right of property and the right of possession, as well as all other material allegations of the complaint, and under it defendant may give in evidence any special matters which will defeat plaintiff's claim, the court did not err in permitting defendants, in an aetion wherein plaintiff sought to recover possession of a stock of merchandise theretofore delivered by him to another to be sold, with an option to purchase, and afterward by the latter placed in the hands of defendants under the same agreement, to abandon their special plea by which they claimed under a sale from their predecessor, and proceed under their general denial.</p> <p>Appeal — Conflicting Evidence — Eeview—New Trial.</p> <p>4. Where the finding of the jury is based on irreconcilably conflicting evidence, it and the judgment of the trial court in denying a motion for a new trial, upon a review of the evidence, will not be disturbed on appeal.</p> <p>Briefs — Assignments of Error — Failure to Argue — Rehearing.</p> <p>1. Where counsel for appellant failed in their brief to argue assignments of error based upon the refusal of the court to give certain instructions, and merely stated therein that under the pleadings and facts in evidence they should have been given, thus leaving it to the supreme court to determine for itself from such examination wherein the trial court erred in refusing them, a petition for rehearing on the ground that in its decision the appellate court overlooked such assignments of error has no merit.</p>

<p>Equity — Fraud—Constructive Trusts — Actions Quasi in Rem— Nonresident Defendants — Summons—Service by Publication— Jurisdiction — Undertakings on Appeal — Mortgages—Evidence —Review.</p> <p>Undertaking on Appeal — Sufficiency.</p> <p>1. An undertaking on appeal, in an action in which the judgment was amended after entry, which recited that the appeal was from ‘‘the judgment and amended judgment” and an order denying a new trial, showed on its face that the appeal was from but one judgment, to-wit, the amended judgment, and the order. The original judgment had become functus officio by the amendment, and reference to it was surplusage; hence one undertaking was sufficient to support the appeals.</p> <p>Same — Defect—How Cured.</p> <p>2. An undertaking on appeal which is defective, but not void, may be cured by filing a new undertaking.</p> <p>District Judges — Disqualification—Power to Call Other Judge.</p> <p>3. Under the provisions of section 6315, Revised Codes, authorizing a district judge against whom a disqualifying affidavit has been filed to call in another judge to sit in the action, one of the judges of a district court, divided into departments, may call in a judge from another district without first calling upon one of the judges of his own court to preside.</p> <p>Action in Personam — Definition.</p> <p>4. A proceeding in personam is one, in form as well as in substance, between parties claiming the right, and the judgment binds the judgment debtor and those in privity with him, to some sort of personal liability; in the execution of the decree the debtor is an active factor.</p> <p>Action in Pern — Definition.</p> <p>5. A proceeding in rem is one to determine the state or condition of the thing itself, and the judgment binds all the world.</p> <p>Action Quasi in Sem — Definition.</p> <p>6. An action quasi in rem is one which, while brought against a person, seeks only to subject his property to the discharge of the claim asserted, and a judgment in such an action is only conclusive between the parties.</p> <p>Same — Summons—Service by Publication — Jurisdiction.</p> <p>7. An action against a nonresident holding the legal title to corporate stock, in the possession of a third person in the state, to establish and enforce a trust therein, is one quasi in rem, and service by publication was sufficient to enable the district court to determine the relative rights of the parties to the stock.</p> <p>Constructive Trusts — Fraud—Complaint—Sufficiency.</p> <p>8. A complaint in an action to have one of several defendants declared trustee ex maleficio for plaintiff’s benefit, for an alleged conspiracy to defraud the latter out of his property, examined, and held to state a cause of action.</p> <p>Same — Fraud—Transactions Between Parties- — Burden of Proof — Presumptions.</p> <p>9. Where, in an action to have one of several defendants declared trustee ex maleficio it appeared that plaintiff, who was indebted to defendants in a large amount, and had given them mortgages on his property to seeure the debt, had relinquished his equity of redemption on valuable mining property to one of them while in a weak mental condition resulting from habitual intemperance, which was known to defendants and contributed to by one of them furnishing him with liquor, and while under a misapprehension as to the status of his accounts with defendants and in a state of ignorance of business generally and of the value of the property, a presumption arose against the bona fides of the transaction, and the burden was upon defendants to show that no unfair advantage was taken of plaintiff and that an adequate price was paid for the property.</p> <p>Same — Mortgagors and Mortgagees — Transactions Between — How Viewed.</p> <p>10. Where the relation of mortgagor and mortgagee has once been established, any subsequent arrangement by which the mortgagor’s equity of redemption is sought to be transferred to the mortgagee will be viewed with distrust, and the original relationship of mortgagor and mortgagee held to exist unless it clearly appears that the transaction was perfectly fair and that no advantage was “taken of the mortgagor by reason of his indebtedness.</p> <p>Trustee and Cestui Que Trust — Transactions Between — Burden of Proof.</p> <p>11. Where, in addition to mortgages to secure indebtedness, absolute deeds to the property were delivered as further security, the relationship of trustee and cestui que trust arose between the debtor and creditor, and the burden was cast upon defendant in an action assailing the bona fides of the transaction, to show that, when the cestui que trust relinquished his rights to defendant, the transaction was fair, that an adequate consideration was paid, that there was no fraud or concealment, and that the cestui que trust acted with full information relative to the status of the property. The presumption is against the transaction.</p> <p>Equity — Appeal—Evidence—Findings—Review.</p> <p>12. In equity eases it is incumbent upon appellant to show that the evidence preponderates against the findings of the trial court; if he is unable to do so, the supreme court will not interfere.</p>

William Conway was convicted, of suffering or permitting females to be or remain in a saloon for the purpose of being supplied with liquor, and appeals from tbe judgment of conviction and from an order denying him a new trial.

Lynch, Judge. Action by Sarah Fearon against Patrick Mullins. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. The complaint does not state facts sufficient to constitute a cause of action. In an action of this nature the facts must be stated showing the legal liability, and it is not sufficient to allege that the defendant has violated his duty.

<p>Probate Proceedings — Estates—Partial Distribution — Questions not Determinable — Motions—Review.</p> <p>Estates — Partial Distribution — Questions not Determinable.</p> <p>1. Séld, omsppeal from an order sustaining objections to a petition for partial distribution of an estate, filed pursuant to tbe provisions of section 7669, Revised Codes, that tbe questions of heirship, amount of distributive share claimed, etc., cannot be determined in a proceeding brought under that section; this may only be done as provided by sections 7670-7672, Revised Codes, or upon final distribution of the estate.</p> <p>Appeal — Motions.</p> <p>2. Where a motion is made upon several grounds, and the order granting it is general in its terms, the order will be sustained on appeal if it can be upon any of the grounds of the motion.</p>

<p>Real Property — Wrongful Occupation and Detention — Mesne Profits — Damages Recoverable.</p> <p>1. In an action for the wrongful occupation and detention of real property, the rental value thereof during the time of such wrongful occupation was provable as an element of damages, under an allegation that the “reasonable value of the rents and profits for the use and occupation of the premises” was a certain sum; section 6069, Revised Codes, providing that “the detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of sueh occupation,” etc.</p>

M. Bourquin, Judge. Action by Johnston T. Hagerty against the Montana Ore Purchasing Company, Elliott H. Wilson, and others. From a judgment for plaintiff, and from an order denying a new trial, defendant Wilson appeals. For mere omission of duty, — for nonfeasance, as distinguished from misfeasance, — the weight of authority is to the effect that the agent is not liable to third persons. (Kelly v. Chicago & A. By.

K. Cheadle, Judge. Action by Joseph Johnson against the Gallatin Valley Milling Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. An account stated will not be disturbed when the party seeking to impeach or surcharge it for errors was aware of the facts constituting the errors at the time of the stating of the account.

<p>Waters and Water Rights — Evidence—Insufficiency.</p> <p>1. Evidence adduced by plaintiff in a suit to determine water rights, held insufficient to warrant a decree that plaintiff and her predecessor had appropriated a certain number of inches of water at a spring, where it did not appear when the water so appropriated was first used by such predecessor, when he dug a ditch by which it was sought to divert the water, when the water was applied for certain power purposes, or whether he did anything toward making an appropriation, other than the filing of a notice of appropriation.</p>

<p>Personal Injuries — Master and Servant — Defective Appliances— Duty to Inspect — Instructions—Pleadings—Defenses—Assumption of Risk — Negligence of Fellow-servant.</p> <p>Personal Injuries — Assumption of Disk — Pleadings.</p> <p>1. In order to make the defense of assumption of risk available to defendant in a personal injury action, it must be specially pleaded.</p> <p>Same — Master and Servant — Negligence of Pellow-servant — Pleadings.</p> <p>2. The defense that the injury complained of by a servant was the result of the negligence of a fellow-servant, being of the same nature as that of assumption of risk, must also be specially pleaded before defendant master can avail himself of it.</p> <p>Same.</p> <p>3. The rule that the defense of negligence of a fellow-servant must be specially pleaded is subject to the same limitations as that of assumption of risk and contributory negligence, to-wit, that, if the facts alleged in the complaint show that the servant is at fault, the pleading is demurrable, and also that, if the facts proven by plaintiff at the trial raise a presumption of contributory negligence on his part, he may be nonsuited, whether the defense is pleaded or not.</p> <p>Same — Contributory Negligence — Conflicting Evidence — Question for Jury.</p> <p>4. Where, in an action by a laborer for damages for personal injuries alleged to have been suffered by reason of tbe breaking of the stock of a cant-hook, used to move logs, the evidence was conflicting as to whether plaintiff was guilty of contributory negligence in subjecting the appliance to unusual or unnecessary strain, the question was properly submitted to the jury.</p> <p>Same — Master and Servant — Appliances—Duty to Inspect — Question for Jury.</p> <p>5. While it is the duty of the master, after having provided the servant with reasonably safe and suitable appliances with which to work, to inspect them both at the .time of furnishing them and during the course of the employment to discover defects in them, such duty of inspection is not absolute; it does not require him to inspect appliances, simple in construction, which do not in themselves involve the element of danger; hence, an instruction that defendant was absolutely bound to inspect or cause to be inspected a cant-hook, used for moving logs, before it was delivered to plaintiff for use, was erroneous. The question whether it was defendant’s duty to inspect it was for the jury to determine.</p> <p>Instructions — Refusal—When not Error.</p> <p>6. Refusal of a requested instruction^ fully covered by those given is proper.</p>

K. Cheadle, Judge. Action by Octavia Prentice against Caroline McKay and another. Judgment for plaintiff!, and defendants appeal from it and an order denying them a new trial.

Original Application by tbe state, on tbe relation of Louis Cohn, next friend of Lessing Cobn and another, minors, against tbe district court of tbe second judicial district and George M. Bourquin, a judge thereof, for a writ of supervisory control. Tbe time to give notice of intention does not commence to run from tbe decision, but from notice of the decision.

<p>Tax Deeds — Quieting Title — Equity—Condition Precedent to Maintaining Action — Interest—Form of Decree.</p> <p>Tax Deeds — Quieting Title — Suit in Equity.</p> <p>1. An action brought by a land owner under the provisions of section 6870, Revised Codes, to quiet the title to premises sold for delinquent taxes, is one in equity.</p> <p>Same — Quieting Title — -Condition Precedent to Maintaining Action.</p> <p>2. Held, that the maxim, “He who seeks equity must do equity,” applies in an action by a land owner to quiet title to land sold for delinquent taxes, and that, as a condition precedent to maintaining his action, the plaintiff will be required to pay to the tax deed holder the amount of taxes which plaintiff should have paid, even conceding that, by reason of irregularities, the sale did not divest the owner of title, and no action could have been maintained by the purchaser to recover back the amounts paid by him, and although the rule of caveat emptor applies to the purchase at a delinquent tax sale.</p> <p>Same — Quieting Title — Decree—Interest.</p> <p>3. The action by the land owner above referred to, not having been one to redeem from a tax sale, the court erred in allowing interest at the rate of two per cent per month from the time the delinquent taxes were paid by defendant. Interest at the legal rate only was recoverable.</p> <p>Same — Quieting Title — Form of Deeree.</p> <p>4. The court decreed that the plaintiff land owner’s title to land, sold for delinquent taxes, be quieted, subject to a lien in favor of defendant for the amounts paid by him. The better practice in a ease of this kind held to be, for the court to enter an order requiring plaintiff to make payment to defendant of the sums paid by the latter, with interest, within a reasonable time, the decree quieting title to be made upon payment, otherwise relief of any kind whatever to be denied plaintiff.</p>

<p>Public Policy — Executors and Administrators — Beal Property — * Contracts of Sale — Future Conveyance,</p> <p>Eeal Property — Contract of Sale — Puture Conveyance — Administrators— Public Policy.</p> <p>1. An agreement signed by one as administrator of an estate, and two others, to convey for a valuable consideration, at a future date, real estate not then owned by them, but belonging to the estate represented by the administrator, is not void as against public policy.</p> <p>Contracts — Construction—Public Policy.</p> <p>2. Courts will not declare a contract void as against publie policy, if by any reasonable construction it can be upheld.</p>

Lynch, Judge. Action by Mamie J. Hollingsworth and others against DavisDaly Estates Copper Company and others. From a judgment in favor of plaintiffs and an order denying it a new trial, the company appeals. Where a plaintiff alleges specific acts of negligence in his complaint, he is restricted in his proof of negligence to the acts, facts and specific negligence alleged.

Petition by tbe state on tbe relation of Hattie F. Happel for mandamus to district court of tbe ninth judicial district in and for Gallatin county.

<p>Statute of Limitations — “Commencement” of Action — Demurrer — Proper Amendment — Relation Back to Original Pleading.</p> <p>1. An action is “commenced” within the meaning of section 6457, Revised Codes, and the operation of the statute of limitations is thereby arrested, by filing a complaint to which a general demurrer is afterward sustained, provided the pleading is sufficiently substantial to allow of its being properly amended so as to fully state the same cause of action attempted to be stated in the first instance.</p>

<p>Landlord and Tenant — Leases—Bond for Rent — Liability of Sureties — Modification of Conditions of Lease — When Immaterial.</p> <p>Landlord and Tenant — Lease—Bond for Bent — Consideration.</p> <p>1. A bond, given to secure the payment of rent, which was signed after the lease of the property had been executed, was not nudum pactumP where both instruments were executed on the same day and where the bond referred to and made the latter instrument a part of it. They must be construed as having been executed contemporaneously and as amounting to one instrument.</p> <p>Same.</p> <p>2. The bond above referred to could not be said to have been without sufficient consideration for the further reason that, so far as the sureties were concerned, the understanding was that the lease would not become effective until the bond had been given; i. e., the consideration for the execution of the bond was the favor which they received by having the lessee take possession of the leased premises.</p> <p>Same — Modification of Conditions of Lease — Liability of Sureties.</p> <p>3. A lease of real property provided that rent should be paid quarterly in advance. A bond was given to seeure the rent. The lessor voluntarily and without consideration therefor, reduced the rent for one quarter and at different times permitted the lessee to make payments at irregular intervals, and not as provided in the lease. Held, under subdivisions 2 and 3 of section 5686, Revised Codes, that in the absence of any showing that the sureties on the bond were injured or prejudiced by the action of the lessor, they were not released from liability; held, further, that they were not released under subdivision 1 of said section, in view of section 5674, which provides that a promise by a creditor which for any cause is void or voidable at his option, does not alter the obligation of the principal within the meaning of section 5673, since the concessions made by the lessor were promises without consideration and therefore void as to him.</p> <p>Principal and Surety — Obligation of Sureties — How Construed.</p> <p>4. While it is true that, in the absence of statute, the obligation of a surety is strietissimi juris, in this state the statutes covering the subject must control.</p> <p>Landlord and Tenant — Lease—Bond—Occupancy by Others than Lessee— Release of Sureties.</p> <p>5. Where a lessee of premises failed in business during the life of the lease, and the lessor, without modifying or changing the lease in any respect, permitted others to take possession in order to minimize the damages recoverable under a bond given to secure payment of the rent, the sureties were not released by the action of the lessor in this respect.</p>

Lynch, Judge. Action by Henrietta Pullen against the city of Butte. From a judgment for plaintiff, and from an order refusing a new trial, defendant city appeals.

M. Clements, Judge. Action by F. W. Mettler against J. M. Adamson and another. From a judgment of the district court, on appeal from a justice’s court, dismissing the action, plaintiff appeals.

<p>Water Rights — Contempt—Attorneys’ Fees — Costs of Litigation — Not Recoverable.</p> <p>Contempt Proceedings — Purpose of.</p> <p>1. The object of contempt proceedings is vindication of the authority of the court, and not indemnity for the plaintiff or any judgment in his favor.</p> <p>Same — Attorneys’ Pees — Costs of Litigation — Not Eecoverable.</p> <p>2. Sold, that, in the absence of statute on the subject, attorney’s fees and other expenses incurred by the owner of a water right in instituting and prosecuting to a successful determination a contempt proceeding for the violation of a decree of court settling his rights, are not recoverable as items in an action against the contemnor for damages proximately caused by his disobedience of the order.</p>

<p>Criminal Law — Robbery—Evidence—Admissibility—Harmless Error — Confessions—Cross-examination—Res Gestae — Rebuttal — Discretion.</p> <p>Criminal Law — Evidence, Hearsay — Maps—Admissibility—Harmless Error.</p> <p>1. Where defendant, charged with robbery, consented during the trial that the bailiff, in company with the prosecuting witness, might go over the route taken by the latter and defendant in the streets of a city on the night of the alleged offense, so as to enable the complaining witness, who was unfamiliar with the streets, to describe the place whore the offense was committed, and the bailiff, having prepared a map of the streets traversed and indicated on it a spot pointed out by the prosecuting witness as the place where he was assaulted, thereafter testified from it, without objection, relative to the trip taken, the formal admission of the map, over defendant’s objection that it was hearsay, if error, was nonprejudicial.</p> <p>Bame — Evidence—Motion to Strike — Waiver of Objection.</p> <p>2. The court properly overruled defendant’s motion to strike out the bailiff’s testimony relative to what the prosecuting witness told him as to where the crime referred to in the above paragraph had been committed, the trip having been taken with his consent and no objection made at the time the evidence was received.</p> <p>Same — Evidence—Refreshing Recollection.</p> <p>3. The prosecuting witness had a right to refresh his memory as to where the assault was committed, by going over the route taken by himself and the defendant on the night of its commission, if by so doing he was enabled to identify the objects along the route theretofore taken by them; and his testimony thereafter as to the place was not objectionable.</p> <p>Same — Exelusion of Evidence — Curing Error.</p> <p>4. Alleged error in sustaining an objection to a question asked on behalf of defendant was cured where the testimony sought to be elicited was immediately thereafter given by the same witness.</p> <p>Same — ■ Evidence — Admissions—Confessions —Voluntary Character — When Immaterial.</p> <p>5. Where defendant testified on the trial to practically the same matters which poliee officers were permitted to give in evidence touching conversations had with him after his arrest, and where it appeared that at no time did defendant admit or confess the crime with which he was charged, but consistently denied it, the contention that such evidence was inadmissible inasmuch as it amounted to a confession, and that, before admitting it. the court should have satisfied itself that the admissions contained therein were voluntarily made, has no merit. While admitting the truth of the statements, he eannot complain that they were involuntarily made.</p> <p>Same — Cross-examination—Remarks of Court.</p> <p>6. Where the record did not disclose that cross-examination by defendant’s counsel was in fact limited, remarks of the judge commenting upon the method pursued by counsel on cross-examination in needlessly repeating questions did not constitute reversible error.</p> <p>Same — Prosecuting Witness — Evidence—Friendly Feeling Toward Defendant — Immateriality.</p> <p>7. Friendly feeling of the prosecuting witness toward the defendant cannot be considered by the jury in arriving at their verdict; and hence evidence that the prosecuting witness did not have defendant arrested of his own free will, and that he bore him no malice, was inadmissible.</p> <p>Same — Evidence—Res Gestae — Erroneous Admission — When Harmless.</p> <p>8. In a criminal prosecution, the erroneous admission of evidence as part of the res gestae was not prejudicial to defendant, where he himself on the stand admitted the very facts shown by the testimony thus erroneously admitted.</p> <p>Same — Cross-examination—Scope.</p> <p>9. Defendant having testified on his direct examination that he went to a certain city on the morning after the alleged robbery, a question by the county attorney whether he did not go to a different city and write a letter to a certain person was proper cross-examination, as bearing upon the truth of his statement on his examination in chief.</p> <p>Same — Evidence—Admissibility—Prejudice—When Defendant may not Complain.</p> <p>10. Defendant, in answering the question referred to in the foregoing paragraph, volunteered the statement that he wrote the letter in the town to which he had testified he went after the alleged offense, and from there had sent the letter to another town to be posted so as to make it appear that he had gone to the latter place. Held, that, if prejudice resulted from permitting the question to be answered, it was his own fault, and he could not complain.</p> <p>Same — Evidence—Rebuttal—Discretion.</p> <p>11. Whether matters which properly constituted a part of the state’s case in chief were admissible in rebuttal lay within the sound discretion of the trial judge, and where opportunity was given defendant to meet the testimony thus adduced and abuse of discretion was not shown, the action of the court will be held proper.</p>

<p>Criminal Law — Murder—Information—Sufficiency—Conspiracy '■ — Evidence.</p> <p>Murder- — Information—Sufficiency.</p> <p>1. An information alleging that at a specified time and place defend- . ant did “willfully, unlawfully, feloniously, premeditatedly and of Ms malice aforethought kill and murder” a certain person, was sufficient to charge murder.</p> <p>Same.</p> <p>2. Allegations sufficient for a common-law indictment for murder being sufficient for an information charging that crime under the statute, it was not necessary that the charging part of sueh pleading should set forth the facts showing how and by what means the killing was done.</p> <p>Same — Conspiracy—Evidence—Sufficiency.</p> <p>3. Where, on a trial for the murder of a guard in the penitentiary, the evidence showed that the object of the conspiracy between accused and certain other prisoners, was to effect an escape by force, that the disabling or killing of the officers whose presence tended to prevent the escape was a part of the conspiracy, that defendant was a party to the entire plan, and that he assaulted the warden at about the time the others were assaulting the guard, the killing of the latter was a part of the main transaction, justifying the conviction of accused for the murder.</p>

M. Clements, Judge. Action by Alvin Robinson, a minor, by W. H. Hirst, his guardian ad litem, against the Helena Light' and Railway Company. Judgment for plaintiff, and defendant appeals from it and an order denying it a new trial.

<p>Municipal Corporations — Police Commission — Statutes—Constitutionality — Status of Policemen — Bemoval—Powers of Mayor —Mandamus.</p> <p>Police Commission Act — Policemen—Extending Term of Office — Constitution — Provision Inapplicable.</p> <p>1. Section 31 of Article Y of the Constitution, which declares that no law shall extend the term of any public officer, etc., does not apply to the provision of the Act of 1907 (Laws 1907, p. 344, creating a police commission in cities and towns), that an officer then serving on the force may be reappointed, such appointment to hold during good behavior or until the incumbent shall become incapacitated — thus practically insuring to such officer an indeterminate tenure^-since prior to his appointment under the provisions of the Act, he is obliged to pass an examination and serve a probationary period of six months, the same as any other applicant for such a position.</p> <p>Same — “Special Commission” — Constitutional Provision Inapplicable.</p> <p>2. The Act establishing a police commission in cities and towns (Laws 1907, p. 344) does not violate section 36, Article V of the Constitution, declaring that the legislature shall not delegate to any special commission power to make, supervise or interfere with any municipal improvement, etc., or perform any municipal function whatever. The board thus created, held, not to be a “special commission” within the meaning of this section of the Constitution.</p> <p>Same — Status of Policemen — State Officers.</p> <p>3. A policeman is not a state officer. He is a public officer in the sense that he has certain duties to perform other than those strictly pertaining to the government of the municipality for which he is acting.</p> <p>Same — Policemen—-“Municipal” Officers — Servants—Employees.</p> <p>4. Strictly speaking, a policeman is not a “municipal” officer — that is, a “city” officer — as that term is used in section 16, Article VI of the state Constitution, declaring that the legislative assembly may provide for the election and appointment of such municipal officers as public convenience may require, but that their term of office shall not in any case exceed two years; nor is sueh officer a mere servant or employee of the municipality.</p> <p>Same — Policemen—Removal—Powers of Mayor.</p> <p>5. Held, that section 14 of the Act establishing a police commission in cities and towns, which repeals all Acts and parts of Acts in conflict with the provisions of the legislation, and then declares that nothing therein contained shall abridge any of the powers possessed by the mayor under any other provision of law or any ordinance, does not reserve to the mayor the power of suspension and removal he theretofore possessed under section 3250, Revised Codes, but takes from him such right.</p>

<p>Probate Proceedings — Estates of Deceased Persons — Sale of Real Property — Petition for Order to Sell — Contents—Defects — Jurisdiction—Collateral Attach.</p> <p>Estates of Decedents — Beal Property — Sale—Petition—Statutes'—Substantial Compliance.</p> <p>1. A petition for the sale of real estate of a decedent, which complies substantially with the provisions of section 7562, Bevised Codes, prescribing what such paper shall contain, is sufficient.</p> <p>Same — Petition for Sale — Contents—Jurisdiction.</p> <p>2. Held, that the requirement of section 7562, Revised Codes, that the condition and value of the real estate of a deceased person shall be set forth in a petition to sell such real property to pay debts, is not jurisdictional; and that, upon a collateral attack, defects in the petition with reference to such matters will not operate to set aside the proceedings had on the petition for leave to sell, after the sale has been made and the purchaser has, in good faith, paid the purchase price and gone into possession of the land sold.</p> <p>Same — Defective Petition — Sale—Collateral Attack.</p> <p>3. A petition to sell real estate of a decedent, which in its statement as to the condition thereof was so defective as to amount to an entire omission in this regard, and which as to its value set forth that it had been “appraised at the sum of $2,000” (which appraisement was had less than one year prior to the presentation of the petition), was not so defective as to render the sale void on a collateral attack, in an action to quiet title brought by heirs of the estate.</p> <p>Same- — Minute Entry — Evidence—Signature of Judge — Surplusage.</p> <p>4. An entry in the minute-book required to be kept by section 7701, Revised Codes, for probate proceedings, of an order to show cause why real estate of a deceased person should not be sold, as asked by a petition filed for that purpose, was sufficient evidence of the fact that the order was duly made, and the act of the clerk in signing the judge’s name to the entry did not render it incompetent as evidence. The signature was surplusage.</p> <p>Same — Order of Sale — Omission of Terms — Cured by Confirmation.</p> <p>5. Where real estate of a deceased person was sold, on the petition of the administratrix, for cash and for considerable more than its appraised value, and the court after a full hearing confirmed the sale, the failure of the order of sale to state the terms thereof was cured by such confirmation.</p> <p>Same — Order of Sale — Clerical Error — Effect.</p> <p>6. The petition for an order of sale of the real estate of a decedent, consisting of one parcel of land, the notices of sale, the order of confirmation and the deed correctly described the land to be sold as being situated in range “26,” etc. In the order of sale (which referred to the petition), however, it was described as located in range “25.” The land was sold, the deed delivered, the purchase price paid, and the purchaser platted the land for city additions and had sold portions thereof to others, when certain of the heirs of the estate brought suit to quiet title, claiming, inter alia, that by reason of the misdescription of the land in the order, the sale was void. Held, that taking into consideration all the records in the proceedings leading up to the. sale, the substitution of the figures “25” for “26” in the order of sale was a clerical error, and that under the circumstances disclosed the sale should not, on collateral attack, be declared void for such error.</p> <p>Same — Irregularities'—Errors Within Jurisdiction — Review.</p> <p>7. Where the district court had jurisdiction to make an order of sale of a decedent’s real estate, and the order itself was not void, any defects in the proceedings leading up to the sale were errors within jurisdiction, subject to review on appeal in the probate proceedings only, and not open to collateral attack by heirs seeking to set aside the sale for errors which amounted only to irregularities in the proceedings, and which, under section 7625, Revised Codes, must be disregarded.</p> <p>(Mr. Chief Justice Brantly dissenting.)</p>

Calla-way, Judge. Action by Abraham Reino against the Montana Mineral Land Development Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Appellant’s contention that there is no issue of fact in the record on the question of negligence of appellant is without merit.

<p> Appeal from District Court, Silver Boiu Countyj Jeremiah J. Lynch, Judge. </p> <p>Action by Winifred A. McLean against Hannah Moran. From an order vacating a default judgment, plaintiff appeals.</p>

<p>Water Bights — Placer Mining — Bights of Lower Appropriators —Abandonment—Subsequent Appropriation — Belation Bach.</p> <p>Water Eights — Placer Mining — Recapture oí Water.</p> <p>1. Water used for placer mining purposes is subject to recapture and appropriation by farmers on the stream below.</p> <p>Same — Change of Use — When not Permissible.</p> <p>2. While a person entitled to the use of water may change the point of its diversion and use it for other purposes than that for which it • was originally appropriated, this may not be done if persons on the stream below him are injured thereby; hence where water had been appropriated for placer mining purposes, the successors of the appropriator could not so change its use as to deprive lower appropriators of their rights, theretofore acquired, in the use of it for irrigating purposes.</p> <p>Same — Abandonment—Subsequent Appropriation — Title—Eelation Back.</p> <p>3. Where upon the death of one who had held public lands under a squatter’s right and appropriated water for plaeer mining purposes, there was no one to take the land under the laws of succession or by devise, and the premises thereafter remained without a claimant or owner for about two years, when others, not in privity with the original oecupant, went into possession as upon unoccupied public lands for mining purposes, their rights to the use of the water did not relate back to the date of the appropriation made by the decedent, but had their inception as of the date of their entry, even though they repaired and used the ditches of the original claimant.</p>

<p>Criminal Law — Larceny by Bailee — Indictment—Partnership— Executory Agreement — Evidence—Exclusion—Harmless Error.</p> <p>Criminal Law — Motion in Arrest of Judgment — Appeal.</p> <p>1. An appeal does not lie from an order overruling a motion in arrest of judgment. Such an order is reviewable only on appeal from the judgment.</p> <p>Same — Larceny by Bailee — Indictment—Sufficiency.</p> <p>2. An indictment charging defendant with larceny as bailee in the words of the statute (section 8642, Revised Codes) and in the form. I prescribed by section 9148, was sufficient, and not open to tbe objection I that it failed to describe the character of bailment.</p> <p>Same — Executory Agreement of Partnership — Larceny by Bailee.</p> <p>3. “While partners cannot commit lareeny of the funds or property of the partnership, this immunity does not attach so long as the partnership agreement is executory only and the conditions of the agreement, remain unfulfilled. ^</p> <p>Same. « ---</p> <p>4. Defendant and the prosecuting witness entered into an agreement to engage as partners in a business venture, the former furnishing the experience and the latter the means. The complaining witness turned ■ over certain sums of money to defendant for the purpose of obtaining a 1 license, purchasing supplies, etc., who thereupon appropriated the \ money to his own use and absconded. Neld, that the contract of part- » nership was never executed, but that defendant repudiated it by his J conduct, and thus became the bailgg of his prospective partner.</p> <p>Same — Evidence—Exelusion—Harmless Error.</p> <p>5. Error in exeluding an offer of proof tending to show that the complaining witness in a prosecution for larceny by bailee had turned over to defendant less money than he claimed, was cured by the admission of testimony which included all the evidence in the offer.</p>

'John Ross was convicted of a violation of tbe anti-gambling law, and appeals. The information does not charge that the game was played for money, checks and credits, but that the appellant conducted it for moneys, checks and credits. It may be that those who were engaged in the game were playing for amusement, and paid the app.ellant a fixed sum, in no way dependent upon the result of the game, for conducting it.

<p> Appeal from District Court, Yellowstone County; Sydney Fox, Judge. </p> <p>John Boss was convicted of conducting a gambling game, and he appeals.</p>

K. Cheadle, Judge. Ole Nordall was convicted of murder in the first degree, and from the judgment and from an order denying a new trial, he appeals. Held: and after the county attorney had placed a pair of left overshoes belonging to the defendant in the tracks.

Myers, Judge, presiding. Action by J. R. Poor, administrator of Amos R. Howerton, deceased, and others, against the Madison River Power Company and another. Judgment for defendants, and plaintiffs appeal from it and an order denying them a new trial. Statement oe the Case, by the Justice Delivering the Opinion.

<p>New Trial — Conflicting and Insufficient Evidence — Excessive Verdict — Duty of Court.</p> <p>New Trial- — Conflicting Evidence.</p> <p>1. Where the evidence is conflicting, a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict is addressed to the sound legal discretion of the trial court.</p> <p>Same — Insufficiency of Evidence — Duty of Court.</p> <p>2. If, on motion for a new trial, the court concludes that the verdict is not supported by the evidence, it is its duty to set it aside.</p> <p>Same — Excessive Yerdict — Demission of Excess.</p> <p>3. Where the jury returned a verdict for plaintiff for more than double the amount he was entitled to recover under the most favorable aspect of his testimony — thus evincing bias and prejudice — the trial court properly granted it a new trial, and was not obliged to refuse a retrial in case plaintiff consented to a remission of the excess.</p>

<p> 'Appeal from District Court, Cascade County; J. B. Leslie. Judge. </p> <p>Action by R. R. Johnson against the City of Great Falls and another. 'Judgment for plaintiff, and defendants appeal.</p>

District Court, Custer County; C. H. Loud, Judge. Action by John W. Montague against Charles Hanson. Judgment for plaintiff, and defendant appeals from it and an order denying him a new trial. Where the complaint shows that a proximate cause of plaintiff’s injury was the act of the plaintiff himself, it must also state his freedom from negligence in the doing of the act; otherwise the pleading is bad.

M. Clements, Judge. Condemnation Proceedings by the Helena Power Transmission Company against Mary H. McLean. From the judgment of the district court on appeal from the commissioners’ award, defendant appeals.

C. Webster, Judge. Action for conversion by Earl Shandy against F. J. McDonald, sheriff, and J. A. Featherman and another, copartners under the firm name of J. A. & J. B. Featherman. From a judgment for plaintiff, and from an order denying them a new trial, defendants appealed.

M. Bourquin, Judge. Action by Alfred Forsell against the Pittsburgh & Montana Copper Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. A party can recover only on the cause of action alleged or proved. (Abromovitz v. Markowitz, 58 Mise. Rep. 231, 108 N. Y. Supp. 1044; Pierce v. Great Falls & Canada By.

Supervisory Control, on the relation of Johann Kolbow and others, against the district court of the second judicial district and Michael Donlan, a judge thereof, to set aside an order refusing to vacate a default judgment, and to vacate the judgment.

M. Clements, Judge. Proceedings for settlement of the estate of Lorenz Kappler. Maria Magdalena Kappler and others petitioned for the appointment of Joseph Milch as administrator with the will annexed, and Samuel Schwab, public administrator, petitioned for the issuance of letters to himself. From orders denying the application of Schwab, issuing letters to Milch, and formally appointing him upon the filing of his bond, Schwab appeals.

B. Winston, Judge. John Berberick was convicted of murder, and appeals from the judgment and an order denying a new trial. There can be no question but what, under the circumstances surrounding this confession, it was made both under the influence of the flattery of hope and the coercion of fear, and that therefore it was clearly inadmissible. (Bram v. United States, 168-TJ. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568; Brown v. Walker, 161 U. S. 591, 16 Sup.

M. Bourquin, Judge. Soxus Nielson was convicted'of manslaughter, and from the judgment, and an order denying a new trial, he appeals. The information is defective in that it fails to set forth the means whereby the offense was committed. (State v. Keerl, 29 Mont. 510, 101 Am.

M. Clements, Judge. Action by Lincoln H. Schaeffer against the Mutual Benefit Life Insurance Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Where an agent is employed for the sale of property, a contract between him and an intended buyer for the payment of a commission by the latter to the former, in ease of a sale, is illegal on account of its tendency to cause the agent to violate his duty to the seller. (15 Am. & Eng.

'Appeal from District Court, Yellowstone County; Sydney Fox, Judge. Nick Hughes was convicted of a violation of the eight-hour law, and, from the judgment and an order denying his motion for new trial, he appeals.

M. Bourquin, Judge. Action by Daniel Schroder against the Montana Iron Works for injuries received by plaintiff while in.defendant’s employ as a teamster. From a judgment for defendant on sustaining a demurrer to the complaint, plaintiff appeals.

C. Bach, Judge. Action by tlie city of Helena against Robert S. Hale. From the judgment and an order denying a new trial, defendant appeals.

E. Erickson, Judge. Action by Winifred Dillon in her own right and as guardian of her minor children, against the Great Northern Railway… Held: in Iowa, to extend to all employees who are engaged in the business of operating railroads, or who are, by the nature of their employment, exposed to the hazard incident to moving trains. (Smith v. Humeston & S. B. Co., 78 Iowa, 583, 43 N. W. 545; see, also, Schroeder v. Chicago etc. By. Co., 47 Iowa, 375; Bayburn v. Central I. By.

Appeal from District Court, Park County; Sydney Fox, Judge. Action by H. I. Wilson and others against Yegen Bros, and others. From an order granting a new trial, plaintiffs appeal.

<p>Personal Injuries — Death by Negligence — Railroads—Complaint —Insufficiency—Demurrer.</p> <p>Personal Injuries — Death by Negligence — Complaint—Insufficiency.</p> <p>1. Where, in an action against a mining company and a railroad company to recover damages for the negligent filling of a person while walking on or crossing the latter defendant’s track, which action was based upon the alleged fault of the former in allowing steam from its plant to be so exhausted as to obscure the track, and upon the negligent failure of the employees of the latter to give warning of an approaching train, it was impossible to ascertain from the allegations of the complaint at what place the accident occurred, where the track was enveloped in steam, whether deceased was in the steam on the track when killed, or at a place where miners were in the habit of crossing the track in going to or coming from work, a demurrer to the pleading was properly sustained.</p> <p>Same — Railroad Crossings — Duty to Give Signals.</p> <p>2, If deceased was not on a public crossing when struck by defendant railroad company’s train, but several hundred feet away from it, the failure of its employees to give warning of the approaching train did not constitute a breach of any duty which the company owed him.</p> <p>Same — Complaint—Insufficiency.</p> <p>3. The allegation in the complaint that it was the duty of defendant railroad company to refrain from wantonly killing a human being on its track and, in order to observe said duty, to give warning of an approaching train, was insufficient to put the defendant in the wrong, in the absence of the further allegation that it had not observed the duty, or that . deceased was in a place where its observance would have enabled him to escape injury.</p>

Myers, Judge, presiding. Action by Georgie Mize, as administratrix of John Mize, deceased, against the Rocky Mountain Bell Telephone Company and the Gallatin Light, Power and Bailway Company. From a judgment for plaintiff and from an order denying them a new trial, defendants appeal.

<p>Executors and Administrators — Estates of Deceased Persons— Conveyances — Petition — Sufficiency — Tender — Findings— Conclusiveness.</p> <p>Executors and Administrators — Estates of Deceased Persons — Conveyances— P etition — Sufficiency.</p> <p>1. A petition, filed pursuant to the provisions of section 7614, Revised Codes, for an order requiring an administrator to convey real property as per a contract entered into between decedent and petitioner, which set forth the contract at length and alleged an adequate consideration for it, was sufficient; it was not neeessary that it contain all the essential averments of a bill in equity for the specific performance of a contract.</p> <p>Same — Petition—Tender—When Unnecessary.</p> <p>2. Petitioner having paid into the county treasury, for the use of the administrator, the last installment due on the contract above referred to, it was not necessary for him to make an actual tender of the balance still owing. The law does not require the doing of an idle thing.</p> <p>Same — Petition not Premature.</p> <p>3. Prior to the time the last installment on the above contract became due, litigation involving the lands arose and a suit was commenced by others in the United States circuit eourt. Thereupon decedent and petitioner entered into a supplemental agreement that final payment should not be made until said action was finally determined in said court. The contention that the petition to convey was premature, inasmuch as an appeal may have been taken from the decree of the circuit court, held without merit, since the determination “in said court” meant in the circuit court, and not on appeal.</p> <p>Findings — Conclusiveness.</p> <p>4. Where the evidence does not preponderate against the trial court’s findings, they will not be disturbed on appeal.</p>

<p>Pleadings — Common-law Counts — Inapplicable Under Code Practice.</p> <p>1. Plaintiff, under a common-law count for money had and received, sought to show fraud on the part of defendants. The court held the testimony inadmissible, for the reason that the facts relied upon to show fraud were not set forth in the complaint. Held, that, since under section 6532, Revised Codes, the complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and the common law has no application where the law is declared by the code (section 8060), the ruling of the court was correct.</p>

<p> Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. </p> <p>Action by E. A. Nicbols and others against Holly D. Williams. From a judgment for plaintiffs and from an order denying him a new trial, defendant appeals.</p>

<p> Appeal from, District Court, Park County; Sydney Pox, Judge. </p> <p>Barney Hanlon was convicted of murder in the second degree, and appeals from .the judgment of conviction and from an order refusing him a new trial.</p> <p>The court erred in excluding the evidence relative to what occurred in the Wellcome saloon on the night preceding the homicide. Even if the transaction there had been an independent transaction, and had not been referred to by the deceased as a threat against the defendant, and had stood alone, disassociated from any occurrence upon the ditch, it would nevertheless, under the modern and logical rule, be competent and material evidence, when communicated to the defendant, and would tend to show the just apprehensions of the defendant, and that he had reasonable grounds to believe that he was in danger of losing his life or receiving great bodily harm at the hands of the deceased, and it would tend directly and logically to show the state of the defendant’s mind at the time he was assaulted, as he testifies he was by the deceased, and this is, of course, a most material inquiry. {People v. Harris, 95 Mich. 87, 54 N. W. 648; Boyle v. State, 97 Ind. 322; Childers v. State, 30 Tex. App. 160, 28 Am. St. Rep. 899, 16 S. W. 904; State v. Burton, 63 Kan. 602, 66 Pac. 633; Bowlus v. State, 130 Ind. 227, 28 N. E. 1115; Sneed v. Territory, 16 Okl. 641, 86 Pac. 71; State v. Beird, 118 Iowa, 474, 92 N. W. 694; People v. Powell, 87 Cal. 363, 25 Pac. 481, 11 L. R. A. 75; State v. Shad-well, 22 Mont. 573, 57 Pac. 281; Cannon v. People, 141 111. 270, 30 N. E. 1027; see, also, Patten v. People, 18 Mich. 326, 100 Am. Dec. 173; Campbell v. Commonwealth, 88 Ky 402, 21 Am. St. Rep. 349, 11 S. W. 290; Larsen v. State (Tex. Cr.), 29 S. W. 782; Gunter v. State, 111 Ala. 23, 56 Am. St. Rep. 17, 20 South. 633; Renfro v. Commoniveálth, 11 Ky. Law Rep. 246, 11 S. W. 815; Thomas v. State, 44 Tex. Cr. 344, 72 S. W. 178; Bowers v. State, 122 Wis. 163, 99 N. W. 447; State v. Thrailkill, 71 S. C. 136, 50 S. E. 551.)</p> <p>The exclusion of evidence which tended t'o show that, a short time previous to the encounter between the deceased and the defendant, the former was armed with a pistol, was error. {Smith v. State, 75 Miss. 542, 23 South. 264; Fields v. State, 46 Fla. 84, 35 South. 185; Reynolds v. State, 1 Kelly, 220; King v. State, 65 Miss. 576, 7 Am. St. Rep. 681, 5 South. 97; State V. Graham, 61 Iowa, 608, 16 N. W. 743.)</p> <p>The question asked the witness Campbell as to why he had not mentioned the fact that he had taken a pistol from the body of the deceased, to anyone outside of counsel for defendant, was proper cross-examination. (State v. McGahey, 3 N. D. 293, 55 N. W. 753; Williams v. State, 61 Wis. 281, 21 N. W. 62.)</p> <p>By the instruction found in paragraph 7 of the opinion, the court destroyed the fundamental principle which lies at the foundation of the administration of our criminal law, and deprived the defendant absolutely of the benefit of the just and legal effect of the presumption of innocence that attended him at every stage of the proceeding. In Coffin v. United States, 156 U. S. 453, 15 Sup. Ct. 394, 39 L. Ed. 481, the supreme court of the United States said: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” For the effect and meaning of an instruction couched in such terms upon other, but analogous, propositions, see Remsen v. People, 43 N. Y. 6; People v. Wileman, 44 Hun, 187; State v. Shadwell, 26 Mont. 54, 66 Pac. 508; State v. Sauer, 38 Minn. 438, 38 N. W. 356; State v. Bindley, 51 Iowa, 343, 33 Am. Rep. 139, 1 N. W. 484; Edgington v. United States, 161 U. S. 364, 17 Sup. Ct. 72, 41 L. Ed. 467; Territory v. Baca, 11 N. M. 559, 71 Pac. 460; Sacred and pre-eminent above all other rights of the defendant is the right to have the benefit of the presumption of innocence at every stage of the proceedings against him, and have his guilt established beyond a reasonable doubt before he is convicted. {Stapp v. State, 1 Tex. App. 738; Horne v. State, 1 Kan. 42, 81 Am. Dec. 500.)</p> <p>The exclusion of the offer of proof respecting the occurrences in the Wellcome saloon on the night preceding the shooting was correct. It is true the general rule in a murder ease is that threats communicated or uneommunicated, where self-defense is relied on, are competent for the purpose of showing the state of mind of the defendant at the time the killing took place, and also where doubt exists as to who commenced the affray. The offer of proof here, however, had to do with the misconduct of the deceased toward third persons, and no threat or threatening action toward this defendant can by any possibility be discovered in the incidents contained in the offer of proof. The great weight of authority is against the admissibility of this sort of evidence. (People v. Henderson, 28 Cal. 470; Thomas v. People, 67 N. Y. 223; Eggler v. People, 56 N. Y. 642; People v. Druse, 103 N. Y. 655, 8 N. E. 733; People v. Bodawald, 177 N. Y. 427, 70 N. E. 1; see, also, Fitzhugh v. State, 13 Lea, 258; State v. Bonk, 91 Minn. 419, 98 N. W. 334; People v. Farrell, 137 Mich. 127, 100 N. W. 265.) What a third person told defendant as to deceased’s being a bad man, as to his having killed other men, is not admissible. (Harrell v. State, 39 Tex. Or. 204, 45 S. W. 581.) Indeed, the doctrine seems to be generally recognized that the violent or dangerous character of the deceased can only be established by general reputation and not by specific acts, and in the cases herewith submitted the doctrine is announced without qualification that the exclusion of the offer of proof in question was correct. {Garner v. State, 28 Fla. 113, 9 South. 841; People v. Gordon, 103 Cal. 568, 37 Pae. 534; Thornton v. State, 107 Ga. 683, 33 S. E. 675; Stalcup v. State, 146 Ind. 270, 45 N. E. 334; Dcuvenport v. State, 85 Ala. 336, 5 South. 152; Campbell v. State, 38 Ark. 498; People v. Griner, 124 Cal. 19, 56 Pac. 625; Andrews v. State, 118 Ga. 1, 43 S. E. 852; Jenkins v. State, 80 Md. 72, 30 Atl. 566; People v. Dowd, 127 Mich.- 140, 86 N. W. 546; King v. State, 65 Miss. 576, 7 Am. St. Rep. 681, 5 South. 97; MoKenna-sr. People, 18 Hun, 580; State v. Mims, 36 Or. 315, 61 Pae. 888; Alexander v. Com., 105 Pa. St. 1; State v. Dill, 48 S. C. 249, 26 S. E. 567; see, also, State v. Shadwell, 22 Mont. 559, 57 Pae. 281.)</p>

<p>Appeal — Dismissal—Colbmon Between Parties — Evidence—Insufficiency.</p> <p>Appeal — Dismissal—Collusion.—Eviden eo.</p> <p>1. In order to justify the dismissal of an appeal on the ground of collusion between the parties, it must appear with reasonable certainty that they are guilty of the abuse charged in the motion to dismiss; else the appeal will be retained and reviewed on its merits.</p> <p>Same — Evidence—-Insufficiency.</p> <p>2. Plaintiff commenced an action to test the validity of certain bonds sought to be issued by a city. A demurrer was filed and submitted without argument, counsel for both parties, however, offering to submit briefs if desired by the court. The demurrer was overruled and defendant appealed. Thereupon certain members of the bar appeared as amici curies and moved that the appeal be dismissed on the ground of collusion. The evidence disclosed that plaintiff voted for the bonds, and that he would prefer to see them held valid; that counsel for defendant assisted his counsel in the preparation of the complaint, but that of this he had not any knowledge; and that he expected to pay the necessary costs and counsel fees; that he had no understanding or agreement with anyone as to the bringing of the suit or as to the issues he would present therein, or that anyone else would bear any part of the expenses. Held, not to warrant dismissal of the appeal on the ground alleged.</p>

<p>Elections — Ballots—Manner of Marking — Statutes—Mutilated Ballots — Qualified Voter — Residence—■ ‘Removal.’’</p> <p>Election Contest — Ballots—Manner of Marking — Statutes.</p> <p>1. In an election contest the court properly refused to count for the Democratic candidate ballots marked as follows: (1) Where the cross was placed after the candidate’s name and entirely without his party column; (2) where perpendicular lines were drawn through the names in the Bepublican column, but no cross was placed before his name; and (3) where his name was written in the Socialist column but no cross marked in the square before the name. In neither instance was there a substantial, or any, compliance with the provisions of section 552, Bevised Codes, relative to how the elector shall prepare his ballot.</p> <p>Same.</p> <p>2. By placing a cross in the square before the blank space left below a candidate’s name, and failing to write in such blank space the name of some person for whom he desired to vote, the elector did not vote for anyone.</p> <p>Same.</p> <p>3. The court properly refused to count a ballot for the Bepublican candidate which was marked by crossing out all the names in the other columns, but which failed to show an “X” before his name. While the intention of the voter is generally a very material consideration, he must express his intention substantially as indicated by the statute.</p> <p>Same — Ballots—Indorsement by Election Judges — Surplusage.</p> <p>4. A ballot bearing the indorsement: “Voted by H. and M. [judges of election] for illegibility of voter,” was not void on the ground that the reason given for assisting the voter was not one recognized by law. Section 555, Bevised Codes, does not require the judges to certify the reason for assisting an elector, and the words “for illegibility of voter” were therefore surplusage; and in the absence of a showing why they gave assistance, it will be presumed that they regularly performed their official duties.</p> <p>Same — Ballots—Manner of Marking.</p> <p>5. Where the cross-mark was placed after the candidate’s name but within his party column, the ballot was void, since the elector did not substantially comply with the requirement of section 552, Bevised Codes, that the “X” must be placed before the name.</p> <p>Same — Ballots—What Constitutes an “X.”</p> <p>6. Any mark within the square before the candidate’s name, which can be said to be a crossing of two lines, will answer the requirement of the statute that the elector must place an “X” in such square; and in the absence of anything to indicate a purpose on his part to identify his ballot by the use of a third line within the square, a defect in the mark is not sufficient to vitiate the ballot.</p> <p>Same — Ballots—Maimer of Marking.</p> <p>7. The Socialist party had no candidate for the office over which the contest arose. A cross was placed before the name of every candidate in the Republican and Socialist columns, and the names in the other party columns had been crossed out. Held, that the ballot should not have been counted for the candidate in the Republican column. The ballot was one from which it was impossible to determine the elector’s choice, and therefore void under section 575, Revised Codes. (Mr. Justice Smith dissents.)</p> <p>Same — Ballots—Failure to Detach Stub — Effect.</p> <p>8. The court erred in refusing to count a ballot, properly marked, but from which the stub had not been detached by the ballot judge as required by section 552, Revised Codes. A voter may not be disfranchised by the errors or wrongful acts of election officers.</p> <p>Same — Mutilated Ballots — Presumptions.</p> <p>9. In the absence of any showing that a ballot was mutilated by the elector, the presumption is that the mutilation occurred after the ballot left his hands.</p> <p>Same — Ballots—Mutilation by Officers — Effect.</p> <p>10. Where it was apparent from an inspection of a' mutilated ballot, found in the ballot-box in two separate pieces and with one portion containing the names of two candidates in each party column missing, that it was torn by the ballot judge in detaching the stub, the court erred in refusing to count it.</p> <p>Same — Qualified Voter — Residence—“Removal.”</p> <p>11. During the months of July, August and October, 1907, certain persons came to Montana from the state of Iowa. They then selected and filed on homesteads, with the intention to make this state their future home. Shortly thereafter they returned to Iowa, without having made any improvements on their homesteads, for the purpose of arranging their affairs preparatory to returning to this state. In the spring of 1908, each brought his family to Montana and settled on his respective homestead, residing there continuously thereafter. None of them voted in Iowa between the fall of 1907 and the spring of 1908. They voted at the general election held in November, 1908. Held, that the court committed error in ruling that they were not legal voters; held, further, that having formed the intention, when filing on their homestead, to make Montana their future home, this state beeame and was their place of residence in the sense of that term as used in the election laws, and that their coming to this state in the summer of 1907, coupled with the selection of their new homes, constituted their “removal” from their former home.</p>