Volume 39 — Montana Reports

<p> Nuisances—Tower Dams—Comparative Damages—Notice—Injunction—Scope of Order—Evidence—Sufficiency. </p> <p>Power Dams—Nuisances—Injunction—Findings—Evidence—Sufficiency.</p> <p>1. In a suit for a mandatory injunction to compel defendant power company to lower its dam so as to avoid flooding plaintiff’s lands lying above it, and for damages, held, that the findings of the court in favor of plaintiff were not based upon a “mathematical impossibility,” but were supported by substantial testimony and, therefore, ought not to be disturbed on appeal.</p> <p>Same—Offer of Proof—Exclusion—Harmless Error.</p> <p>2. Alleged error in excluding defendant company’s offered proof that the plaintiff’s lands had not netted to him in any one year the sum of $801 was harmless, where he had not claimed any damages on account of impairment of the rental valúe of his premises, and where the finding of the jury that such' value had been decreased by the construction and maintenance of the dam, if pertinent, was probably only material to the question whether the injunction should issue, and where the damages whieh were awarded ($200) could all be attributed to specific losses testified to by plaintiff.</p> <p>Same—Injunction—Notiee Before Suit.</p> <p>3. Defendant power company was chargeable with knowledge of whatever conditions resulted from the construction and maintenance of its dam, and could, therefore, not complain of the failure of plaintiff to give it notiee that he had been injured by the overflowing waters and submit an itemized statement of his damages, before commencing suit.</p> <p>Same—Injunction—Comparative Damages—Evidence.</p> <p>4. The record not disclosing any evidence that defendant company was a public service corporation or that it was actually operating any part of its plant, but showing that the dam was in course of construction for over twenty years, and that numerous mistakes had been made and difficulties encountered during its erection, defendant’s offer to prove that it cost $120,000 to build was properly excluded, since, under these circumstances, the magnitude of defendant’s interest was not apparent, so as to make applicable the rule that injunction will not issue in view of the great damage that would result to defendant and others dependent upon its operations, and the comparatively small injury caused to plaintiff by th.e maintenance of the dam.</p> <p>Same—Not Nuisance Per Se.</p> <p>5. The finding of the court that the dam in question was a nuisance per se, disapproved.</p> <p>Same—Injunction—Scope of Order.</p> <p>6. Where the evidence did not show that it was necessary to rebuild, repair or remove defendant power company's dam in order to prevent the flooding of plaintiff’s lands, an order of the court to that effect was too broad. All plaintiff was entitled to was a deeree that defendant abate the nuisance and refrain from causing him injury in the future, and that, to attain this result, it employ the necessary and requisite means.</p>

<p>Promissory Notes—Agency—Intention of Parties—Ambiguity—■ Parol Testimony—Admissibility.</p> <p>1. In an action to recover on a promissory note, signed by defendant and others with the word “Trustees” added to their signatures, defendant denied that he ever received any consideration for the note, and alleged that it had been executed by him as trustee of a mining company and not in his individual capacity, that the consideration expressed in it was received and enjoyed solely by the company, and that it was so understood between defendant and the payee of the note at the time of its execution and delivery. At the trial the eourt, over objection of plaintiff, permitted defendant to introduce parol testimony in support of the affirmative allegations of the answer. Eeld, that the court’s action was correct, the rule being, in such cases as this, that where a note is so ambiguous on its face as to leave it in doubt who is bound by it, parol testimony is admissible to solve the question.</p>

<p>Personal Injuries — Excessive Verdict — Remission by Court— New Trial—Conditions—Compliance with—Effect—Waiver.</p> <p>New Trial—Conditions—Power of Courts.</p> <p>1. Courts have power to impose as a condition precedent to the denial of defendant’s motion for a new trial, that plaintiff shall remit such portion of the damages awarded by the jury as is deemed excessive.</p> <p>Same—Conditions—Pinal Order.</p> <p>2. Upon the filing of a written acceptance of the condition imposed by the court that’ plaintiff remit so much of the verdict of the jury as it deemed excessive or submit to a new trial, the ordA becomes a final order denying a new trial.</p> <p>Excessive Verdict—New Trial—Conditional Order—Compliance—Waiver of Irregularities.</p> <p>3. Plaintiff in a personal injury action had judgment for $7,500. The court denied a- motion for a new trial, provided plaintiff remit all damages in excess of $4,000. This plaintiff did, but in his written acceptance of the condition imposed stated that he did so “if the court had jurisdiction to make the order,” he claiming that the court was without jurisdiction to make the order in that notice of intention •to move for a new trial had not been given. He then appealed. Held, that, by filing his acceptance of the condition precedent to the denial ■of a new trial, plaintiff waived any irregularity in the proceedings on the new trial motion and could not appeal from the order.</p>

<p>Default — Setting Aside — Discretion — Pleadings — Answer — Denials.</p> <p>General Denial—When Proper.</p> <p>1. A general denial is proper in eases where the pleader has theretofore generally or specifically denied certain allegations of the complaint, as also where he has denied any knowledge or information sufficient to form a belief as to the truth of particular allegations, and has specifically admitted others.</p> <p>Denial on Information and Belief—Sufficiency.</p> <p>2. Where defendant denied, as to certain specified allegations of the complaint, that he had “any knowledge or information [thereof] sufficient to form a belief,” the omission of the word “thereof,” used in section 6540, Revised Codes, authorizing denials on information and belief, was immaterial.</p> <p>Default—Setting Aside—Answer-—Affidavit of Merits—Inconsistency.</p> <p>3. The complaint in an action to recover on a claim against an estate, alleged, inter alia, that the plaintiff had duly presented her claim to the administrator in writing, supported by affidavit as required by law. The default-of the administrator having been entered, defendant, on motion to set aside the default, tendered a proposed answer containing a general denial. In his affidavit of merits he stated that the claim delivered to him had not been verified as prescribed by law and was therefore not a legal claim against the estate. Held, that the answer was not so inconsistent with the statements in the affidavit as to warrant the court in refusing to set aside the default.</p> <p>Same—Setting Aside—Discretion—Terms.</p> <p>4. In setting aside a default judgment, on a showing that defendant’s attorney, through mistake and inadvertence, failed to file an answer within the time allowed by law, where the party in default moved promptly to vacate the judgment and appeared to have a good defense to the action, the court did not abuse its discretion; nor did it err in not imposing terms.</p>

<p> Appeal from District Court, Flathead County; J. E. Erickson, Judge. </p> <p>Action by Mary Trevarthen against D. R. Peeler, as administrator of Jacob Fine, deceased. From an order setting aside a default judgment, and permitting defendant to answer, plaintiff appeals.</p>

<p> Claim and Delivery—Live Stock—Sales—Contracts—Construction—Evidence—Instructions—Nonprejudicial Error—Hearsay Testimony. </p> <p>Live Stock—Sales—Contracts—Construction.</p> <p>1. Evidence examined, in an action in claim and delivery to recover a number of cattle, alleged to belong to plaintiff by virtue of an oral contract of sale under which, he became the owner of the brand and of all the cattle bearing it, whether actually delivered or not, and held to show the contract to have been that only such cattle as were actually delivered to plaintiff and paid for at the rate per head agreed upon should beeome his property.</p> <p>Same—Instructions—Nonprejudicial Error.</p> <p>2. Defendant claimed to have purchased the cattle in dispute from one D., who theretofore had sold to plaintiff the major portion of the herd with the brand, under the contract referred to in the foregoing paragraph. The question before the jury was whether D. had sold to defendant cattle previously sold and delivered to plaintiff. In an instruction the court defined the term “innocent purchaser,” and plaintiff objected to the definition and suggested an amendment, which the court refused. Held, that the question whether defendant was an innocent purchaser was not in the ease, inasmuch as, if defendant bought cattle which belonged to plaintiff by actual purchase and delivery, the latter could recover irrespective of the good faith of defendant, and that therefore the refusal of the court to permit the amendment was not prejudicial error.</p> <p>Same—Hearsay Testimony—Harmless Error.</p> <p>3. The statements of a- bank officer, who testified partly from personal knowledge as to transactions between the parties, partly from statements made to him by them, and partly from knowledge obtained by cashing checks covering the transactions, could not be said to have been strictly hearsay, and an order refusing to strike such testimony did not constitute reversible error, especially where from other evidence it appeared that plaintiff could not have suffered prejudice from the ruling.</p> <p>Same—Verdict—Evidence—Sufficiency—Eeview.</p> <p>4. Where the evidence in an action in claim and delivery was almost wholly circumstantial and in such a condition that the mind was left in doubt as to the justness of plaintiff’s claim, upon whom was the burden of proof, a verdict in favor of defendant will not be disturbed on appeal under an assignment that it is not supported by the testimony.</p>

C. Webster, Judge. Action by L. L. Hovey against the Northern Pacific Railway Company. Order dismissing the action for defendant’s failure to have judgment entered, and defendant appeals.

Appeal from District Court, Yellowstone County; Sydney Fox, Judge. Action by Elmer G. Summers and others against D. F. Sullivan, as drain commissioner of Yellowstone county. From a judgment for defendant, plaintiffs appeal.

<p> Associations—Actions—Parties—Erroneous Judgment. </p> <p>Associations—Actions Against, in President’s Name. ■</p> <p>1. A voluntary association of laborers cannot, in the absence of statute authorizing it, be sued in the name of its president.</p> <p>Same—Judgment—Error.</p> <p>2. Held, that a judgment against defendant personally, who was sued as president of a labor organization by a member of it to recover certain pecuniary benefits which he alleged he was entitled to from the association, was not supported by the complaint which neither stated a cause of action against him individually nor in his official capacity.</p>

<p> Master and Servant—Personal Injuries—Safe Appliances—Statutory Provisions—Duty of Master—Proximate Cause—Evidence—Insufficiency—Presumptions. </p> <p>Master and Servant—Personal Injuries—Safe Appliances—Statutory Provisions—Noneompliance—Liability of Master.</p> <p>1. Where the legislature has declared that the master shall adopt certain precautions to guard against danger to his employees, the common-law rule of reasonable care is no longer the measure of his duty, and any failure on his part to observe the required precautions is such a breach of duty as will render him liable to the servant for any injury caused to the latter by his disobedience.</p> <p>Same—Safe Appliances—Legislative Wisdom—Courts may not Question.</p> <p>2: In the absence of constitutional limitation upon the power of the legislature to declare what precautions the master shall observe, or what appliances he shall adopt, to safeguard the lives and limbs of his employees, its judgment in this regard is binding, and it is beyond the power of the courts to inquire into the wisdom of the legislation.</p> <p>Same—Nonperformance of Statutory Duty—Burden of Proof—Proximate Cause.</p> <p>3. In an action to recover damages for the death of an employee, alleged to have been caused through the fault of the employer by reason of his nonperformance of a statutory duty relati've to safeguarding appliances, the burden is upon plaintiff to show the causal connection between the negligence as alleged and the injury, i. e., that defendant’s negligence in failing to observe the statutory requirement was the proximate cause of the injury.</p> <p>Same—Nonperformance of Statutory Duty—Proximate Cause—Evidence— Insufficiency.</p> <p>4. Evidence in an action against a mining company to recover damages for the death of one of its employees, claimed to have been caused through his falling out'of a cage while being hoisted out of the mine, because of defendant’s negligence in failing to see that the doors with which the cage was provided were in place, as required by section 8536, Eevised Codes, held, not to show that the alleged negligence was the efficient cause of the death of plaintiff’s intestate.</p> <p>Presumptions.</p> <p>5. The law presumes that a person takes ordinary care of his own affairs, including his life.</p>

C. Bach, Judge. Action by Quong Wing against Thomas B. Kirkendall, county treasurer, to recover a license fee paid. From a judgment for plaintiff, defendant appeals. The legislature is not restricted by the Constitution, and therefore has full authority to impose a license tax either for regulation or for revenue, and the money received may be divided between the state and the counties.

<p> Sales—Pleading and Proof—Variance. </p> <p>1. The complaint alleged that plaintiff had sold and delivered to defendant 2,000 shares of the capital stoek of a mining company for a named sum. The proof showed that a block of 9,500 shares, including that of plaintiff and others, had been placed in the hands of one R. for sale and sold to defendant, but that plaintiff’s stoek had been returned by the latter to R. with the request to hold it for him (defendant) for a short time, when he would take the stoek and pay for it, which he failed to do. Held, that by returning plaintiff’s stoek to R. there was such a severance from the block sold to defendant in the first instance, as to permit plaintiff to recover on the promise of defendant to pay for it, and that the claim that there was a variance between the allegations of the complaint and the proof had no merit.</p>

<p> Counties—Indebtedness—Constitutional Limitation—{fBridge” —What Constitutes—Agreed Statement of Facts—Eff ect. </p> <p>Counties—Constitution—Indebtedness—Items not to be Considered.</p> <p>1. The mileage and per diem of county commissioners charged to their county on account of trips made to the site of a bridge, and expenses incurred for services of the county surveyor in surveying and locating the site, are not proper items to be taken into consideration in arriving at the amount of indebtedness ($10,000) which could lawfully be incurred by the county, under section 5, Article XIII, of the Constitution, on account of the construction of the bridge, without first obtaining the approval of a majority of the electors of the county.</p> <p>Same—Indebtedness—Constitutional Limit—Items to be Considered.</p> <p>2. Where it becomes necessary to employ inspectors, other than county officers, in the construction of a bridge, the sums so expended must be regarded as a part of the aggregate cost of the project in arriving at the amount county commissioners may disburse without consulting the electors of their county.</p> <p>Agreed Statement of Pacts—Effect.</p> <p>3. An agreed statement of facts upon which a cause was tried-is of the same effect as a special verdict or finding of facts.</p> <p>Counties—Indebtedness—“Bridge”—What Constitutes—Void Contract.</p> <p>4. The commissioners of two counties entered into a contract for the construction of a bridge over a river separating them. The contract price was $19,998, and each county became obligated in the sum of $9,999. Without proper approaches, the cost of which would approximate $300, the bridge was useless, but the contract did not make any provision for them. Section 5, Article XIII, of the Constitution, declares that no county shall ineur any indebtedness, for any single purpose, to an amount exceeding $10,000, without first obtaining the consent of a majority of the electors of the county. Under section 1416, Bevised Codes, the word “bridge” includes the approaches thereto. Held, that the single purpose sought to be accomplished by the commissioners was the building of a bridge, with approaches thereto, and that, since that purpose could not be consummated without exceeding the constitutional limitation, the contract was void.</p>

<p> Municipal Corporations—Indebtedness—Extension of Constitutional Limit—Water and Sewer Bonds—Interest—Purchase of Water Supply—City Council—Discretion—Bonds—Validity—Redemption—Special Election Notice—Contents—Initiative and Referendum Statute—Inapplicability. </p> <p>Municipal Corporations—Indebtedness—Extension of Constitutional Limit— Necessity for—How Determined.</p> <p>1. “Where the legislature had, by a general law applicable to all municipalities alike (Revised Codes, see. 3259), extended the constitutional limit of indebtedness which a city could incur in the procurement of a water supply or the construction of a sewer system, it was not necessary that the question whether the necessity calling for an extension of the limit of indebtedness existed, be first submitted to the lawmaking power and authority obtained from it through a special Act. The determination of such necessity rested with the taxpayers affeeted by the contemplated improvement.</p> <p>Same—Purchase of Existing Water Supply not Obligatory.</p> <p>2. Subsection 64, of section 3259, Revised Codes, does not make it incumbent upon a city, when it desires to acquire a water supply of its own, to purchase the system then maintained therein by any person or corporation under a franchise granted or contract made by the municipality, the course pointed out in the proviso in said section relative to the purchase of the then existing system being obligatory only when the city “desires” to so purchase; if not, it may procure any other available supply.</p> <p>Same—Interest—D efiniti on.</p> <p>3. Interest is merely an incident to the debt, to be paid from time to time or at the date when the principal falls due, in consideration of the forbearance extended to the debtor, and becomes a part of the debt, or a debt at all, only when it has been earned.</p> <p>Same—Indebtedness—Limitation on Amount—Interest.</p> <p>4. In determining whether an indebtedness in excess of the limit authorized by law will be created by a proposed issue of municipal bonds, the interest reserved is not to be taken into account and added to the principal.</p> <p>Same—Indebtedness—Constitutional Provision—When Complied with.</p> <p>5. The authority conferred upon a city council by a special election called for that purpose, to incur additional indebtedness for water and sewer purposes, does not lapse upon the completion of the assessment-roll for the year in which the election is held. The requirement of section 6, Article XIII of the Constitution, that the question whether the debt shall be incurred must be submitted to the taxpayers “to be affected thereby,” is satisfied if the council, after authority to act has been voted, proceeds with reasonable diligence to issue and sell the bonds.</p> <p>Same—Indebtedness—Extension—Submission to Electors.</p> <p>6. To authorize a city to incur indebtedness beyond the limit prescribed by law, it is not necessary to hold two elections, one to extend the limit and incur the indebtedness, and one to issue bonds.</p> <p>Same—Purchase of Water Supply—City Council—Discretion.</p> <p>7. The discretion to purchase a particular water supply for a city is by law vested in the council exclusively, and of this discretion it may not devest itself by submitting the question whether a c&tain supply shall be purchased, without having first ascertained whether it is available and can be acquired for the amount of indebtedness to be incurred.</p> <p>Same—Water Supply—Indebtedness—Provision for Payment.</p> <p>8. The provision of section 6 of Article- XIII, Constitution, that the revenues derived from a water system purchased or installed by a city shall be devoted to the payment of the debt incurred in its acquisition, does not impliedly prohibit the municipality from resorting to taxation to pay the principal and interest on the bonds evidencing the indebtedness.</p> <p>Same—Bonds—Validity.</p> <p>9. That municipal bonds upon their face pledge the full face and eredit of the city to their payment is no objection to their validity.</p> <p>Same—Bonds—Ordinances—Plurality of Subjects.</p> <p>10. An ordinance calling for a special election for the authorization or rejection of an increase of the city’s indebtedness by the issuance of water and sewer bonds, was not obnoxious to the prohibition contained in section 3265, Revised Codes, that no ordinance shall be passed containing more than one subject. The general subject of the ordinance was the incurring of the indebtedness, and the different purposes named in it as making the indebtedness necessary were matters of detail for the information of the voters.</p> <p>Same—Powers—How to be Exercised.</p> <p>11. Where a power is by law conferred upon a municipality and the mode of its exercise is pointed out, such mode must be pursued.</p> <p>Same—Bonds—Time of Redemption.</p> <p>12. In providing for the issuance of water and sewer bonds, it is incumbent upon the city council, under section 3460, Revised Codes, to make them redeemable, at its option, at a time prior to their maturity; its failure in this regard renders them void.</p> <p>Same—Bonds—Notice of Election—Contents.</p> <p>13. Section 3455, Revised Codes, does not require that the notiee of an election called for the purpose of obtaining authority to issue water and sewer bonds, shall state the time of payment of interest thereon. Section 3459 provides that it shall be paid semi-annually and the elector must be presumed to have understood that the time of payment would be that fixed by the statute.</p> <p>Same—Bonds—Payable in Gold Coin—Validity.</p> <p>14. In the absence of legislation declaring otherwise, a city council may issue bonds “payable in gold coin of fhe United States of America, of the present standard of weight and fineness.”</p> <p>Same—Bonds—Ordinances—Initiative and Referendum Statute—Inapplicability.</p> <p>15. The provision of section 3268, Revised Codes, that no ordinance passed by the council of a city shall become effective until thirty days after its passage, which section is a part of the initiative and referendum law applicable to cities (Bevised Codes, secs. 3266-3276), has no application to an ordinance providing for the issuance of water and sewer bonds after sanction of the taxpayers affected thereby has been obtained. The law has to do with matters of general legislation on which all electors, whether taxpayers or not, may vote, while the question whether bonds shall be issued ean be submitted to taxpayers only.</p>

<p> Quieting Title—Waters and Water Bights—Ditches Across Unoccupied Public Lands—Bights Acquired—Subsequent Homestead Entry—Decree—Injunctive Belief—Pleadings—Answer —Striking of Allegation. </p> <p>Water Eights—Ditches Across Public Lands—Vested Eights—Subsequent Homestead Entry—Effect.</p> <p>1. Where the construction of plaintiff’s ditch over unoccupied public land was completed, and its predecessors in interest were in possession of it at the time defendant made a homestead filing on such land, the latter took the homestead subject to the right of way for the former’s ditch (IT. S. Comp. Stats., 1901, secs. 2,339, 2340), even though water had not been appropriated or actually conveyed through it until after defendant’s filing.</p> <p>Same—Quieting Title—Decree—Injunctive Belief—When Proper.</p> <p>2. Where, in an action to quiet title to the right of way for an irrigation ditch, the eourt found that the ditch and right of way therefor were the property of plaintiff and that defendant had wrongfully interfered therewith, it did not err in incorporating in its decree an order restraining defendant from further interference. Plaintiff was entitled to complete relief.</p> <p>Same—Pleadings—Answer—Motion to Strike.</p> <p>3. Nor did the court err in striking from defendant’s answer an allegation that defendant had received nothing on account of the construction of the ditch over his land, and that, if maintained, he would be damaged in a certain sum. Plaintiff’s ditch having been completed ■ before any rights of defendant to the land traversed by it had accrued, he suffered no injury because of plaintiff’s continued use of the ditch, and no rights of defendant were violated.</p> <p> Waters and Water Bights—Ditches Across Public Lands—Bights of Way—Statutory Bequirements—Noncompliance—Forfeiture. </p> <p>1. The right of way for a ditch, granted to plaintiff’s predecessors in interest by section 2339, TJ. S. Comp. Stats. 1901, over public land upon which defendant made a homestead filing after the ditch was completed, was not forfeited by failure of the grantees to comply with the provisions of sections 18,- 19 and 20 of the Act of 1891 (TJ. S. Comp. Stats., 1901, p. 1570), relative to filing certificates, maps etc.</p>

<p> Sales—Delivery to Carrier—Transfer of Title—Action to Recover Price—Burden of Proof—Evidence Admissible Under General Denial—Theory of Case—Witnesses—Oath—Evidence on Former Trial—Admissibility—Presumptions. </p> <p>Sales—Transfer of Title—Delivery to Carrier.</p> <p>1. When goods ordered in the ordinary course of trade are not directly delivered to the purchaser, but are turned over to a carrier for delivery, title to them is deemed to be vested in the vendee, subject to the right of stoppage in transitu. The latter, on receipt of them, has a reasonable time within which to inspect them, and he is bound to accept them only when they are in quality and description such as the purchaser ordered.</p> <p>Same—Action for Price—Burden of Proof.</p> <p>2. One who seeks to recover the contract priee of goods shipped on order is bound to show by a preponderance of evidence that they are of the kind and quality ordered.</p> <p>Same—-Evidence—Admissibility.</p> <p>3. On an issue whether whisky was of the brand and quality ordered, the defendant buyer was properly permitted to show that the barrels containing it were received by him in apparently the same condition as when shipped, and that they had not been tampered with after being stored in his cellar or their contents adulterated.</p> <p>Witnesses—Evidence on Former Trial—Admissibility.</p> <p>4. The testimony of a witness, given at a former trial in an action between the same parties and relating to the same subject matter, who was out of the jurisdiction at the time of the second trial, was competent.</p> <p>Appeal and Error—Evidence—Objection not Made in District Court.</p> <p>5. An objection to the introduction of testimony not made in the district court cannot be raised for the first time on appeal.</p> <p>Evidence—Witnesses—Administering of Oath—Presumptions.</p> <p>6. Where it appeared that a witness in a justice’s court-, in an action subsequently appealed to the district court, had been examined and cross-examined at length, the presumption attaches that the justice regularly performed his official duties and administered the oath to the witness before permitting him to testify.</p> <p>Verdict Contrary to Law—Instructions.</p> <p>7. A verdict cannot be said to be contrary to the law as declared by the court, where under its instructions the jury could have found the issue for either party.</p> <p>Sales—Action for Price—General Denial—Evidence Admissible.</p> <p>8. In an action for the price of goods to be shipped on order, proof that the plaintiff failed to ship goods of the quality ordered is admissible under a general denial.</p> <p>Same—Appeal—Theory of Case.</p> <p>9; Where a cause was tried on a theory adopted by plaintiff’s counsel, he will not be heard to complain on appeal that such theory was wrong.</p>

<p> Physicians cmd Surgeons—Revocation of License—Appeal to District Court—Special Proceeding—Appeal to Supreme Court—Certiorari. </p> <p>Physicians and Surgeons—Revocation of License—Special Proceeding— . Appeal.</p> <p>1. The application of a physician to the district court to have the action of the state board of medical examiners, in revoking his license for alleged unprofessional and dishonorable conduct, judically determined, is a special proceeding, from the judgment in which an appeal lies to the supreme court.</p> <p>Same—Eevocation of License—Failure to Appeal—Certiorari.</p> <p>2. Where a physician fails to avail himself, within one year after entry of judgment, of the remedy by appeal, from the action of the district court in affirming the revocation of his license by the state board of medical examiners, he may not thereafter have it reviewed on certiorari.</p> <p>Certiorari—Error Within Jurisdiction.</p> <p>3. Error within jurisdiction is not revie wable on certiorari.</p>

<p>Taxation—Ditches Appurtenant to Placer Claims—Exemption— Burden of Proof—Estoppel.</p> <p>Appeal—Dismissal—Record.</p> <p>1. An appeal from an order denying a new trial will be dismissed where a copy of the order denying the motion is not incorporated in the transcript.</p> <p>Taxation—Ditches Appurtenant to Placer Claims—When Exempt.</p> <p>2. Held, that a ditch, appurtenant to placer claims, which had always been used to convey water for mining such claims, and for no other purpose, and which, independently of such use, had never been the source of revenue to its owner, although the water could be sold for irrigation and other purposes and would be valuable in this connection, had no value independent of its use in connection with the placer lands so as to render it subject to taxation under section 2500, Revised Codes.</p> <p>Same—-Exemption—Burden of Proof.</p> <p>3. One claiming an exemption from taxation has the burden of showing that he is entitled to it; but in an action to enjoin the collection of taxes upon a ditch used solely in connection with placer mining operations and therefore not subject to taxation, the burden rests upon the state to show that the ditch has a value independent of the placer mining claim, so as to render it liable to taxation as provided in section 2500, Revised Codes.</p> <p>Same—Exemption—Estoppel.</p> <p>4. Though the owner of the ditch referred to in the paragraphs above, had for many years submitted to the payment of taxes thereon upon a valuation fixed by himself (because demanded by the assessor), he was not estopped to question the right of the state to continue to make the unauthorized imposition.</p>

<p> Appeal—Dismissal—Faulty Record. </p> <p>1. Where the record on appeal in an action against three defendants showed a judgment against one only, and a joint notiee of all defendants recited that they intended “to move the court to vacate the verdict rendered against them, and to grant a new trial thereof,” while the order of the court denying the motion referred to only one of defendants, the attempted appeals will be dismissed. (Mr. Justice Smith dissenting.)</p>

<p>Appeal from District Court, Silver Bow County; John B. Mc-Clernan, Judge.</p> <p>Suit by Louis Kaufman against C. W. Cooper and another to restrain enforcement of a judgment. From an order granting an injunction pendente lite, defendants appeal.</p> <p>The power of courts of equity to enjoin the enforcement of judgments, being liable to abuse and the abuse of it being extremely mischievous, its exercise will be closely and carefully scrutinized and confined to clear eases and well-recognized grounds of equitable interference. (Kersey v. Rash, S Del. Ch. 321; Johnson v. Templeton, 60' Tex. 238.) Before a party is entitled to equitable relief against the enforcement of a judgment, he must have exhausted his resources at law. (23 Cye. 981, and eases cited.) Furthermore, when the bill states simply a ground for legal relief and contains no equity, the judgment will not be enjoined though the judgment creditor be a nonresident of the state and personal service cannot be had on him. (Walker v. Thomas, 88 Ky. 486, 11 S. W. 434; Smith v. Washington etc. Go., 31 Md. 12, 100 Am. Dec. 49; Beall v. Broivn, 7 Md. 393.) In allowing the injunction against the enforcement of the judgment, the court erred. (Levy v. Steinbach, 43 Md. 212.)</p> <p>If plaintiff commences an action, seeking one kind of a remedy with full knowledge of the facts, he is presumed conclusively to have elected his remedy and cannot retract by withdrawing his suit. (2 Herman on Estoppel, 1172.) The doctrine is applicable, not only to the election made in the course of litigation, but in the course of dealings between parties in pais. (See Grossman v. Universal Rubber Co., 127 N. Y. 34, 27 N. E. 400, 13 L. R. A. 91, note; Kinney v. Kiernan, 49 N. Y. 164; Syme v. Badger, 92 N. C. 706; Mendenhall v. Mendenhall, 8 Jones, 287; Jones v. Gerock, 6 Jones Eq. 190; Yorkly v. Stinson, 97 N. C. 236, 240, 1 S. E. 452; 1 Bigelow on Fraud, 436.) All actions which proceed upon the theory that the title to the property in controversy remains in plaintiff, are naturally inconsistent with those which proceed upon the theory that title has passed to defendant. (Brown v. Littlefield, 1 Wend. 404, 7 Wend. 454, 11 Wend. 467; McElroy v. Mancius, 13 Johns. 121; Sanger v. Wood, 3 Johns. Ch. 416; Junkins v. Simpson, 14 Me. 364; Butler v. Miller, 1 N. Y. 496; see, also, Thomas v. Sugarman, 157 Fed. 669, 85 C. C. A. 337, 15 L. R. A., n. s., 1267.),</p> <p>The right of the respondent to have his claim determined in judgment and have the same set off against the judgment of the defendants is well sustained. (Wells-Fargo Go. v. Clarkson, 5 Mont. 336, 5 Pac. 894; Jump v. Leon, 192 Mass. 511,116 Am. St. Rep. 265, 78 N. E. 532; Haskins v. Jordan, 123 Cal. 157, 55 Pae. 786; Coonan v. Lowenthal, 147 Cal. 218, 109 Am. St. Rep. 128, 81 Pac.. 527; McManus v. Cash & Luckel (Tex.), 108 S. W. 800; Wells v. Clarkson, 2 Mont. 230.) And that the appellant was entitled to the injunction is also sustained. (Potter v. Lohse, 31 Mont. 91, 77 Pac. 419.)</p> <p>The cause of action set forth by plaintiffs in the action on the note was in the nature of an action for conversion, and therefore the plaintiff was not required to set forth a counterclaim. (Gunnerson v. Erickson, 69 111. App. 159; Goldberger v. Leibowitz, 42 Colo. 99, 93 Pac. 1108.) Nor was the claim in anywise connected with the subject of that action. A counterclaim in contract cannot be pleaded against a cause of action in tort. (Davis v. Frederick, 6 Mont. 300, 12 Pae. 664; Collier v. Ervin, 3 Mont. 142; Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943; Stadler v. Bank, 22 Mont. 190, 74 Am. St. Rep. 582, 56.Pae. Ill; Ayotte v. Nadeau, 32 Mont. 498, 81 Pae. 145.) ' A counterclaim may or may not be pleaded, as the defendant shall elect; and, unless it is pleaded, the right to sue upon it as an independent cause of action, or to rely upon it as a defense to another action brought by the same plaintiff, is in no wise affected or injured by a judgment for or against the defendant, (iJones v. Witousek, 114 Iowa, 14, 86 N. W. 59.) A party does not lose his action for a demand which he might have pleaded as a setoff, but neglected to do so. (Hobbs v. Duff, 23 Cal. 596-630.)</p> <p>The insolvency of one of the parties is sufficient ground for the court to exercise its equitable jurisdiction in allowing an equitable setoff. (Quick v. Lemon, 105 111. 587; Gay v. Gay, 10 Paige, 369; McDonald v. Mackenzie, 24 Or. 573, 14 Pac. 866; Jarret v. Goodnow, 39 W. Va. 602, 20 S. E. 575, 32 L. R. A. 321; Bussell v. Conway, 11 Cal. 93; Hobbs v. Duff, 23 Cal. 596; Howard v. Shores, 20 Cal. 277; 0 ’Neill v. Perryman, 102 Ala. 522, 14 South. 898.)</p>

<p>Quartz Lode Claims—Location—Declaratory Statement—Substantial Compliance with Statute Sufficient—Location Notice— Posting—Costs — Erroneous Allowance—Judgment—Amendment After Appeal.</p> <p>Appeal—Evidence—Objections—When not Beviewable.</p> <p>1. An objection to the introduction of evidence not urged in the district court will not be considered on appeal.</p> <p>Quartz Lode Claims—Declaratory Statement—Sufficiency.</p> <p>2. A declaratory statement of the location of a quartz lode mining claim which, though not technically complying with the requirements of the statute, did so substantially, was sufficient.</p> <p>Same—Notice of Location—Where Posted.</p> <p>3. While the locator of a quartz lode mining claim is not required to sink his discovery shaft at a point of discovery, he must post his notice of location at that point.</p> <p>Same—Notice of Location—Posting.</p> <p>4. The locator of a quartz lode claim had posted his notice of location a considerable distance away from the point of discovery, but about a month thereafter sank his discovery shaft at the point where he posted his notice of location. In the meantime, however, another had made discovery and posted his notice. Held, that because of the intervening rights of the latter, the former’s location must be held to be postponed to the date when he posted his notice at the point of discovery.</p> <p>Same—Location Notice—Description of Course of Vein.</p> <p>5. The finding of the district court in an adverse suit to a mining claim that a notice of location describing the course of the vein as north and south was insufficient to support a location along a vein the general course of which was east and west, was erroneous.</p> <p>Costs—Insertion in Judgment—Ministerial Duty.</p> <p>6. The elerk of the district court in carrying out the provisions of section 7173, Revised Codes, relative to the insertion of costs in the judgment where the same have been taxed or ascertained, acts in a ministerial capacity.</p> <p>Same—Allowance—When Error.</p> <p>7. It was error to allow costs where no showing had been made to the court that the successful party had claimed them, as provided in section 7170, Revised Codes.</p> <p>Same—Adding to Judgment After Appeal—Error.</p> <p>8. After an appeal has been perfected, the district court is without jurisdiction to amend the judgment by adding a provision that the successful party recover Ms costs.</p>

<p>Supreme Court—Power to Appoint Assistants—Stenographer— State Board of Examiners—Powers—Constitution—Statutes ■—Appropriations—Mandamus.</p> <p>Supreme Court—Assistants—Power to Appoint—Compensation—Liquidated Claim.</p> <p>1. Where the state has failed to make provision for necessary assistants to the supreme court, the court may, both under its inherent power and under the authority conferred by section 6248, Revised Codes, select and appoint them, and make the compensation due them for their services a charge against the state as a liquidated claim.</p> <p>Same—State Board of Examiners—Powers.</p> <p>2. Section 262, Revised Codes, authorizing the board of examiners to employ clerical help for any state officer or board, and prohibiting such officers or’ boards from employing clerks without the authority of the board of examiners, does not apply to the employees of the supreme court; it, viewed as. a department of the state government, not being an officer or board within the terms of the provision.</p> <p>Same—State Board of Examiners—Powers—Constitution—Statutes.</p> <p>3. Section 20, Article VII, of the Constitution, and section 226, Revised Codes, empowering the state board of examiners to examine all claims against the state, except salaries of officers fixed by law, apply to'unliquidated claims, and not to those the amounts of which have been fixed specifically by contract or by any department of the state government having authority to fix them.</p> <p>Same—Stenographer—Compensation—Liquidated Claim.</p> <p>4. Meld, on mandamus to the state auditor, that, under the rule declared in paragraph 3 above, where by general appropriation bill provision for the compensation of the stenographer of the supreme court had been made, his claim for salary earned was not an unliquidated claim which required approval of the board of examiners before issuance of warrant.</p> <p>Same—Stenographer—Compensation—General Appropriation Bill.</p> <p>5. The declaration in a general appropriation that the sums named therein, “or so much thereof as may be necessary,” are appropriated for the purposes named, has no reference to the salary of the stenographer of the supreme court as fixed therein, so as to empower the state board of examiners to fix a smaller amount. Any discretion in this regard is addressed to the supreme court, vested with the power to appoint such officer and control the disbursement of the sum thus appropriated.</p>

<p>Criminal Law—'Assault in First Degree—Insanity—Erroneous Instructions—Burden of Proof— Verdict—Witnesses—Cross- . examination—Degrading Character—Hypothetical Questions.</p> <p>Criminal Law—Cross-examination—Witnesses—Degrading Character.</p> <p>1. The court erred in overruling objections of defendant, charged with crime, to questions asked his (defendant’s) brother by the county attorney, on cross-examination, whether he was the same Pat Crowe who had been connected with the Cudahy kidnaping, and whether he had not been more or less directly implicated in other offenses of like character. The questions had a tendency to degrade and discredit the witness. (Mb. Justice Smith dissenting.)</p> <p>Same.</p> <p>2. It was also error to permit the witness above referred to, to be asked on cross-examination whether he knew of his brother, the defendant, ever having been involved in difficulty or been defendant in a criminal proceeding before.</p> <p>Same—Insanity Preceding Offense—Evidence—Discretion.</p> <p>3. Where the defense relied on by one charged with crime is insanity, the length of time preceding the offense to which inquiry relative to defendant’s mental condition may be directed is a matter addressed to the sound legal discretion of the trial judge, subject to review for abuse of such discretion only.</p> <p>Same—Insanity—Evidence—Admissibility.</p> <p>4. A lay witness having testified that in his opinion defendant was of unsound mind at the time the offense charged wras committed, it was proper to ask him on cross-examination whether he thought defendant had sufficient mental capacity to distinguish between right and wrong and would know that it was wrong to shoot a man, or steal or commit burglary.</p> <p>Same.</p> <p>5. The witness mentioned in paragraph 4, above, having answered the question in the affirmative, he should have been allowed on redirect examination to give his opinion as to whether defendant, if he knew it was wrong to do the things enumerated, had sufficient mental capacity to do right and avoid wrong; since defendant could not have anticipated the extent of the cross-examination, and therefore could not, in his direct examination, cover every possible phase of insanity whieh might be opened to inquiry.</p> <p>Same—Insanity—Irresistible Impulse.</p> <p>6. Where defendant on trial for crime lelies on the defense of insanity, the question of irresistible impulse is a proper subject of inquiry.</p> <p>Same—Hypothetical Questions—Contents.</p> <p>7. A hypothetical question on the subject of defendant’s insanity need not embrace all the evidence given relating to his mental condition.</p> <p>Same—Insanity—Instructions—Burden of Proof.</p> <p>8. In instructing the jury in a criminal action that the defense of insanity “is to be weighed fully and justly, and, when satisfactorily established, must recommend itself” to their favorable consideration, etc., the court impliedly east the burden of satisfactorily establishing that defense upon the defendant, and therefore committed error. (Mr. Justice Smith dissenting.)</p> <p>Same—Insanity—Disparagement of Defense by Court—Erroneous Instruction.</p> <p>9. It was also error to instruct that the jury should examine the defense of insanity “with care, lest an ingenious counterfeit of such mental disease or disorder should furnish protection to guilt.” The defendant is entitled to make any defense recognized by the law and have it submitted without disparagement by the court. (Mr. Justice Smith dissenting.)</p> <p>Same—Insanity—Instructions—Burden of Proof.</p> <p>10. An instruction that, before the jury could acquit upon the ground of insanity, they must find defendant was laboring under such a defect of reason from disease of the mind as to not know—that is, as not to have sufficient mental capacity to know—the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing wrong, and one which declared that, before acquittal could be had on that ground, it must appear that defendant was affected with insanity to sueh a degree as to create an uncontrollable impulse to do the act charged by overriding his reason and judgment, while not inconsistent when viewed in the light of the whole charge, were so vague in language that the jury might reasonably have inferred from them that defendant had the burden of establishing his insanity.</p> <p>Same—Insanity—Seasonable Doubt.</p> <p>11. The court further erred in charging the jury that it was for them to say whether the evidence, as a whole, convinced them of defendant’s insanity, or raised in their minds a reasonable doubt on the subject. The instruction was objectionable because couched' in the alternative. The only matter which should have been submitted for their determination was whether the evidence as a whole raised a reasonable doubt of defendant’s sanity.</p> <p>Same—Insanity—Verdict of Acquittal—Form.</p> <p>12. "Where defendant, charged with assault in the first degree, relied wholly upon the defense of insanity, the court’s instruction that they might find defendant guilty of assault in the first, second or third degree, or not guilty was inaccurate; the jury should have been told that, if they found him not guilty because insane, their verdict should be “not guilty by reason of insanity.” (Revised Codes, see. 9322.)</p>

<p>%ife and Accident Insurance Policies—Construction—Proximate Cause of Death—Evidence—Street-cars—Passenger— Proof of Death — Madling — Presumptions — Pleadings— Amendments—Hypothetical Questions.</p> <p>Life and Accident Insurance Policies—Ambiguity—Construction.</p> <p>1. Where the terms of a life and accident insurance • policy are so ambiguous and involved as to be almost unintelligible, they should be liberally construed in favor of the insured.</p> <p>Same—Law of the Case—Estoppel.</p> <p>la. Where at the first trial of a cause counsel for both parties proceeded upon a certain theory touching the meaning of the terms of an insurance policy, and on appeal the question of its proper construction was not raised in or considered by the appellate court, its decision cannot be said to be the law of the case on such point, and plaintiff was, therefore, not estopped to contend for a different construction on the second trial.</p> <p>Same—Proximate Cause of Death—Evidence—Sufficiency.</p> <p>2. In an action on a life and accident insurance policy under the terms of which the beneficiary was to be indemnified in ease the assured, while riding as a passenger on a street-ear, was injured and should die in consequence of sueh injury, evidence which showed that the assured injured her leg while alighting from a car and 'died from erysipelas, which disease experts testified could only be introduced into the system through an abrasion of the skin, was in the absence of any testimony that the disease had been communicated through any other means, sufficient to show that the injury to her limb was the proximate cause of her death.</p> <p>Same—Passengers—Evidence—Sufficiency.</p> <p>3. Although there was no direct testimony that the deceased was a passenger on the car in alighting from which she was injured, evidence that it stopped at her home and she alighted, sufficiently showed that fact, nothing appearing that it stopped for any other purpose.</p> <p>Same—Proof of Death—Mailing—Presumptions.</p> <p>4. Where proof of death was mailed to the home office of defendant insurance company at New York by registered letter, the presumption obtains that it was received in due course of mail.</p> <p>Same—Pleadings—Amendment at Trial.</p> <p>5. Plaintiff, in an action on an insurance policy, was properly allowed to amend his complaint at the trial by the allegation that “he had duly performed each and all of the obligations in said contract on him binding.”</p> <p>Same—Pleadings—Amendments at Trial—Relation Back.</p> <p>6. An insurance policy provided that unless action upon it was commenced within six months after it accrued, it should be barred. Assured died October 24, 1906, and the beneficiary commenced suit on April 24, 1907. At the trial, on October 23, 1907, he was permitted to amend his • complaint by inserting that he had duly performed all obligations made binding upon Mm in the contract. Held, under Ciarle v. Oregon Short Line B. B. Co., 38 Mont. 177, that the original pleading was sufficiently substantial to permit of its being amended so as to fully state the same cause of action attempted' to be stated in the first instance; that the amendment related back to the date at wMch the complaint was filed, and that therefore the contention that the action was barred because the complaint never stated a cause of aetion until after amendment, had no merit.</p> <p>Same—Evidence—Hearsay—Harmless Error.</p> <p>7. Plaintiff, the husband of deceased, having testified that he saw she was injured in alighting from the car, the admission of a statement by her, made to him at the time, that she had been hurt, was not prejudicial error.</p> <p>Same—Hypothetical Questions—Contents.</p> <p>8. A hypothetical question to an expert need not embody all the testimony on the subject to which it relates.</p> <p>Same—Expert Evidence—Hypothetical Question.</p> <p>9. The hypothetical question: “If the woman died from erysipelas, what relation, in your opinion, as a physician and surgeon, did the scratch or abrasion have to her death?” to which the answer was: “It served as a point of entrance into the system of the germ of erysipelas”—was not objectionable as calling for the ultimate conclusion to be reached by the jury, to-wit, whether the injury wMch produced the abrasion, was the direct and proximate cause of the woman’s death.</p>

<p>Original application for mandamus by the state, on relation of Mrs. Charles B. Peyton, against Harry R. Cunningham, as state auditor.</p>

Original application for mandamus by the state, on relation of the Cascade Bank of Great Falls, against A. N. Yoder, as Secretary of State, to compel respondent to file a certificate extending the bank’s corporate existence.

<p> New Trial Order—Statutes—Constitutionality—Determination. </p> <p>Statutes—Constitutionality—Determination.</p> <p>1. Unless the necessity of passing upon the constitutionality of a statute is urgent and imperative, the supreme court will not do so on appeal.</p> <p>New Trial Order—On Minutes.</p> <p>2. Where a notice of intention to move for a new trial reeited that the motion would be made on the minutes of the court and a bill of exceptions, and the order of the court simply stated that if was granted, it was not sufficient for appellant to show that the court was not warranted in granting the motion on the bill of exceptions, (which was absent from the record) but he had the burden of showing also that it was not authorized to do so upon the minutes.</p>

<p>Action by Mina Sanden against tbe Northern Pacific Railway Company. From an order granting defendant’s motion for a new trial on the minutes, plaintiff appeals.'</p>

C. Bach, Judge. Action by Mary Alice Yergy, executrix of George O. Yergy, deceased, against the Helena Light and Bailway Company and Stephen Peterson. Judgment for plaintiff, and defendants appeal. Negligence is a relative term and consists in a failure to do something which, under the circumstances of the particular case, it became the duty of the person charged to do.

<p> Livestock—Conditional Sales—Breach—Remedies—Election. </p> <p>Conditional Sale—Breach by Buyer—Seller’s Remedies.</p> <p>1. On the breach of a conditional sale contract by the buyer, the seller may treat the contract as rescinded and retake the property; or retake the property and still treat the contract as in force, but broken by the buyer, and sue for damages occasioned by the breach; or waive the breach and insist upon payment for the property.</p> <p>Same—Wrongful Retaking of Property—Effect.</p> <p>2. Where the retaking of personal property sold under a conditional sale, is wrongful, the action of the seller constitutes a violation of the contract, and the buyer may treat it as rescinded.</p> <p>Same—Livestock—Rescission of Contract—Counterclaims—Quantum Meruit.</p> <p>3. Where livestock was sold conditionally and the seller wrongfully retook the same, the buyers could treat the contract as rescinded, and, on an action by the former to recover on a note evidencing the latter’s indebtedness under the contract, maintain their counterclaim on the quantum meruit, for pasturage and labor performed in handling the stock.</p> <p>Election of Remedies—Conclusiveness.</p> <p>4. An election between coexisting remedial rights' which are inconsistent, when made with full knowledge of the facts, is irrevocable and conclusive, irrespective of intent, and constitutes a bar to any action based upon a remedial right inconsistent with that asserted by the election.</p> <p>Conditional Sale—Livestock—Retaking of Property—Election—Effect.</p> <p>5. Where a seller of livestock which had been sold conditionally, elected to treat the contract of sale as rescinded because of an alleged breach of it by the buyer and retake the property, he elected to take it as he found it, and coiüd not thereafter insist upon payment for animals which had died while in the buyer’s possession.</p> <p>Same—Livestock—Breach of Contract—Evidence.</p> <p>6. Defendants agreed to provide feed for livestock conditionally sold to them, to the amount of 400 tons annually. The evidence showed that they had only 235 or 250 tons between the time the agreement was entered into and the time the animals were retaken by the seller. Meld, that this fact alone did not constitute a breaeh of the contract on their part, so as to entitle plaintiff to reclaim the property. A substantial compliance was sufficient, and if the amount of hay provided was ample to feed the stock during the time feeding was necessary (as the jury found), plaintiff’s action in retaking it was wrongful.</p>

<p> Default Judgment—Setting Aside—When Proper. </p> <p>1. Plaintiffs commenced an aetion in a justice’s court by filing a complaint. Defendant’s answer was an oral denial and, a trial having resulted in plaintiffs’ favor, defendant appealed to the district court. When the record was lodged in that court it was found that the complaint had been lost and plaintiffs asked leave to file a substitute. The motion was granted. The only change in the new pleading was an immaterial one in the title of the cause. About nine months thereafter plaintiffs asked that the default of defendant be entered for failure to answer the substituted complaint. A motion to strike defendant’s original answer for refusing to sign his deposition was then pending. The default was entered and later set aside on motion. Held, that defendant having evidently been, misled by plaintiffs’ conduct, in supposing that the cause stood for trial upon the issues made by defendant’s oral denial, the default was properly set aside.</p>

<p> Brokers—Real Estate—Right to Commission—“Indirectly” Interesting Purchaser—Evidence. </p> <p>1. Defendant had employed plaintiff, a real estate broker, to find a purchaser for his raneh. The contract provided that if the sale was made to one who had beeome interested in the property through plaintiff’s efforts, directly or indirectly, he was to receive a commission of $500. Through plaintiff’s endeavors one G. was induced to inspect the ranch, and the latter, while not becoming a purchaser himself, imparted the information thus obtained to P., who thereupon in conjunction with another entered into negotiations with defendant owner directly and bought the property. Held, that plaintiff was entitled to the commission, inasmuch as through his efforts a chain of events was set in motion which finally culminated in the sale.</p>

<p> Criminal Law—Homicide—Jury—Challenge to Panel—Self-defense—Instructions—Information—Date of Death—Surplus-age—Variance. </p> <p>Criminal Law—Drawing Jurors—Challenge to Panel.</p> <p>1. The fact that two judges of a district court, divided into departments, sat together when an order for the drawing of jurors for their departments was made, is not ground for challenge to the panel.</p> <p>Same—Judicial' Authority—Delegation—Challenge to Panel—Presumptions.</p> <p>2. The court in making the order above referred to appointed three members of the bar to supervise the drawing of jurors. The record on appeal did not disclose that during the drawing the attorneys thus appointed attempted to exercise any judicial functions. Held, that the court’s action did not constitute a valid ground for challenge to the panel as a delegation of judicial power. The presumption obtains that the judges and clerk did their duty.</p> <p>Same—Jurors—Names—Clerical Errors—Challenge to Panel.</p> <p>3. Where “M. Meyer” responded to a summons to jury duty, and the original juror’s slip bore his proper name and place of residence, the, fact that the venire contained the name of “E. Meyer” and the sheriff’s return showed that “Ed. Meyer” had been served was not ground for challenge to the panel. The names of “E. Meyer” and “Ed. Meyer” held to have been clerical errors.</p> <p>Same—-Evidence—Degree of Proof—Moral Certainty—Statutes.</p> <p>4. The provision of section 7847, Revised Codes, that moral certainty, or that degree of proof which produces conviction in an unprejudiced mind, is all that is required, held applicable to criminal causes.</p> <p>Homicide—Self-defense—Instructions—Burden of Proof.</p> <p>5. The court having instructed the jury that if it appeared to defendant, as a reasonable person, when he killed deceased, that it was necessary to do so in self-defense, he had a right to act on such appearances, although he was in no aetual danger; that no greater burden rested on him than to raise a reasonable doubt concerning his guilt, and that if, after considering all the evidence, the jury were not satisfied beyond a reasonable doubt of his guilt, he should be acquitted,—the giving of the further instruction that defendant’s cause of apprehension must have been reasonable and that it was for the jury to determine whether the facts constituting such reasonable cause of apprehension had been established, and, if not so established, defendant was not entitled to acquittal, could not have misled the jury into believing that the burden of proof was upon defendant to show that his apprehension was a reasonable one. (Mb. Justice Holloway dissenting.)</p> <p>Same—Self-defense—Instructions.</p> <p>6. Where the only testimony that deceased assaulted defendant was that of defendant himself, which was not only not corroborated, but facts and eireumstanees were made to appear from which the jury could properly have determined that his version was not true, the refusal of an instruction on self-defense which proceeded upon the theory that defendant was confronted by the actual faet that deceased was attempting to commit a felony or do some great bodily injury upon the person of accused, was properly refused.</p> <p>Same—Unnecessary Instructions.</p> <p>7. Where, in a criminal action, the court had properly charged the jury on all branches of the case, refusal to instruct that each juror should render his verdict according to the law as given in the instructions, and according to the evidence; that private knowledge or belief acquired otherwise must be disregarded; that the verdict should not be based on probabilities of defendant’s guilt; and that, even though the evidence might establish in their minds a strong suspicion or a probability of defendant’s guilt, he should not be convicted unless they were convinced of his guilt beyond a reasonable doubt, was proper.</p> <p>Same.</p> <p>8. Error was not committed in refusing an instruction that the physical power and strength of the defendant and deceased should be considered by the jury in arriving at a verdict in a prosecution for homicide. While properly a subject matter for argument to them, it was not one to be incorporated in the charge.</p> <p>Same—Information—Date of Death—Surplusage—Variance.</p> <p>9. Seld, that in an information charging murder it is not necessary to allege the date upon which deceased died, as distinguished from the date of assault; and that therefore the contention that there was a fatal variance between a pleading which charged that deceased was killed on a certain day and the evidence which showed that, while he was assaulted on that day, he died two days later, was without merit.</p>

J. Lynch, Judge. Action by Patrick J. Hamilton against the Monidah Trust, a corporation, and others. From a judgment granting defendants a new trial, plaintiff appeals.

M. Bourquin, Judge. Action by Sophia Sullivan against David G. Girson and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

Original proceedings by the state, on the relation of Robert Gregg and others, against John E. Erickson and others, to determine the validity of the Act creating Lincoln county.

M. Bourquin, Judge. Action by John Dreeland against George Paseoe. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. The complaint fails to state facts sufficient to constitute a cause of action in claim and delivery. It is not alleged that defendant wrongfully detained the property from him at the time of the commencement of the action; nor that at that time he was entitled to the possession of the property.

<p> Personal Injuries—Railway Grossings—Parent and Child—Conflicting Evidence—Findings—Conclusiveness. </p> <p>Personal Injuries—Conflicting Evidence—Findings of Jury—Conclusiveness.</p> <p>1. Where, in an action against a railway company to recover for personal injuries to- plaintiff’s minor child, the evidence whether the infant ran in front of -the moving ears so as to render the injury unavoidable, or whether the defendant’s employees were negligent, was conflicting, the jury’s finding thereon will not be disturbed on appeal.</p> <p>Same—Railway Crossings—Parent and Child.</p> <p>2. Evidence that the parents of a minor child injured at a railway crossing, exercised due care of the child, held sufficient to go to the jury.</p>

<p> Interest—Deposit—Principal and Surety—Evidence—Pleadings —Amendments During Trial—Complaint—Prayer, No Part of. </p> <p>Principal and Surety—Deposit—Interest—Evidence.</p> <p>1. Where, in an action for interest on a sum deposited in a bank to indemnify defendants against loss as sureties on a supersedeas bond, it appeared that a smelting company was indebted to plaintiff, that the sum so due was deposited to the credit of defendants to be held by them until exonerated from liability under the bond, and that the liability was discharged, evidence that neither the company nor its receiver ever claimed any interest on the deposit was admissible as confirmatory of plaintiff’s title to the amount on deposit and the interest accruing thereon.</p> <p>Pleadings—Amendments During Trial.</p> <p>2. Amendments during trial, to pleadings which do not change the nature of the action or mislead the adversary party to his prejudice are proper.</p> <p>Complaint—Prayer, No Part of—Amendments—Judgment.</p> <p>3. The prayer is no part of the complaint and cannot be looked to to find support for the judgment; hence, .the allowance of an amendment to the prayer asking for a larger sum than could be found due under the allegations of the complaint, did not authorize judgment for the greater amount.</p> <p>Principal and Surety—Deposit—Pledge—Interest.</p> <p>4. A deposit in a bank to indemnify sureties on a bond against possible loss is a pledge within the definition of section 5774, Revised Codes; title to it, as between the principal and the sureties, is in the former, and any interest accruing thereon belongs to him and not to the sureties.</p> <p>Same.</p> <p>5. Section 6046, Revised Codes, providing that acceptance of payment of the principal waives all claim to interest, has no application to moneys deposited to indemnify sureties on a bond against loss.</p>

<p>Personal Injuries—Complaint—Uncertainty—Nature of Injuries —Demurrer — Women — Miscarriage—“Injured Feelings”— Not Element of Damage.</p> <p>Personal Injuries—Complaint—Uncertainty—Nature of Injuries—Demurrer.</p> <p>1. A special demurrer to the complaint in a personal injury aetion, which alleged that by reason of defendant city water company’s negligence in shutting off the water from a tank connected with plaintiff's stove without her knowledge, an explosion occurred, and plaintiff was so injured and mentally disturbed thereby, that being with child, she lost the same, and became very sick, and on account thereof suffered great pain and injury, etc., was properly sustained. It was impossible to tell from the pleading whether the grievances complained of were the result of physical injury and mental disturbance, or of mental disturbance alone.</p> <p>Same—Women—Miscarriage—“Injured Peelings”—Not Element of Damage.</p> <p>2. While a woman who suffers a miscarriage as a result of -physical injury may recover for any mental or physical suffering attendant upon the miscarriage, injured feelings following the miscarriage, not a part of the pain naturally attending it, are too remote to be considered an element of damage..</p>

<p>Trusts—Meal Property—Cancellation of Deeds—Principal and Agent—Fraud—Evidence—Sufficiency—Bona Fide Purchaser —Appeal and Error—New Trial—Record—Waiver—Briefs— Presumptions.</p> <p>Appeal and Error—New Trial—Reeord—Waiver.</p> <p>1. Alleged errors in rulings of the court on the admission and exclusion of evidence and the allowance of amendments to the pleadings during trial, whieh were not called to its attention on the submission of the motion for new trial, based upon the minutes only, and in the absence of a bill of exceptions making them a part of the judgment-roll, will be conclusively presumed to have been waived.</p> <p>Same—New Trial—Norm of Assignments—Presumptions.</p> <p>2. Though the ground on whieh a new trial had been asked was stated by the judge in his certificate authenticating the record on appeal in an equity case to have been that the evidence failed to support the judgment, and such ground is not one of those enumerated in section 6794, Revised Codes, yet where appellants in their brief made the statutory assignment that the evidence was insufficient to justify the court’s decision, and counsel for respondent argued the assignment on its merits, the supreme court will assume that the trial judge intended to state that the matter was properly submitted to him.</p> <p>Same—Review—Briefs.</p> <p>3. Review on appeal is confined exclusively to matters properly assigned in appellant’s brief.</p> <p>Trusts—Bona Fide Purchaser—Definition.</p> <p>4. A tona fide purchaser is one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and who purchases in the honest belief that his vendor had a right to sell, without notice, either actual or constructive, of any adverse rights, claims, interests or equities of others in and to the property sold.</p> <p>Same—Real Property—Cancellation of Deed—Consideration—Antecedent Debt—Bona Fide Purchaser.</p> <p>5. One to whom a transfer of real estate was made without present consideration, but merely for the purpose of securing an antecedent debt, did not occupy the position of an innocent purchaser; therefore, since he had parted with nothing of value, the cancellation of the deed resulted in no loss to him and he has no cause for complaint.</p> <p>Same—Fraud—Principal and Agent—Cancellation of Deed—Evidence— Sufficiency.</p> <p>6. Evidence, in an action to set aside a conveyance of real property alleged to have been made by plaintiff’s agent in breach of his trust, held sufficient to support the court’s decision in favor of plaintiff.</p>

<p> Quieting Title—Foreign and Domestic Corporations—Powers and Privileges—Constitutional Provisions—Bight to Maintain Action—Enforcement of Contracts—Statutes. </p> <p>Quieting Title—Evidence—Letters.</p> <p>1. In an action to quiet title to certain real property, claimed by defendant to have been donated to it by a foreign brewing company, letters written by the latter to defendant’s predecessor and answers thereto, which showed, in connection with other testimony, that the company bought and paid for the land and the building thereon, were admissible.</p> <p>Foreign Corporations—“Carrying on” of Business—What does not Constitute.</p> <p>2. Held, that the shipping of beer into the state by a foreign eor- ‘ poration and selling the same to a distributing agent did not constitute a carrying on of business in the state within the meaning of section 4413, Revised Codes, relating to the steps necessary for such a corporation before it can carry on business in Montana.</p> <p>Same—Noneomplianee with Statute—Right to Maintain Actions.</p> <p>3. The failure of a foreign corporation to comply with the law authorizing such corporations to do business in the state did not deprive it of the right to maintain a suit to quiet title to real property claimed by defendant as a donation. Its action in this respect was not an attempt to enforce a contract.</p> <p>Same—Holding Property—Statutes—Applicability.</p> <p>4. Held, that section 3823, Revised Codes, declaring that a corporation cannot hold property in a county, or maintain an action in relation thereto, unless it has first filed a certified copy of its articles of incorporation in the office of the county clerk, applies to domestic corporations only.</p> <p>Same—Privileges—Constitutional Provisions—Construction.</p> <p>5. The inhibition of the state Constitution (Art. XV, see. 11), that no foreign corporation shall be allowed to exercise or enjoy within the state any greater rights or privileges than are possessed or enjoyed by corporations of the same or similar character created under the laws of Montana, is simply a limitation placed upon the legislature in enacting laws, and does not mean that the placing of a burden upon a domestic corporation shall have the effect of imposing a like one upon foreign corporations.</p> <p>Same—Statutes—Validity—Who may Assail.</p> <p>6. It is only in eases where a foreign corporation is attempting to exercise or enjoy greater privileges than those possessed by domestic corporations expressly given to it by the legislative assembly contrary to the provisions of section 11, Article XV, of the Constitution, that its right to exercise the same may be questioned.</p>

<p> Personal Injuries—Master and Servant—Burden of Proof—Evidence—Insufficiency—Nonsuit—New Trial Order—Opinions of District Court—Record on Appeal. </p> <p>New Trial Order—Opinion of District Court—Not Part of Record.</p> <p>1. Where a motion for a new trial, made on several of the statutory grounds, is sustained by an order general in its terms, the supreme court in its review is not restricted to a consideration of the reason for his action given by the judge in a memorandum opinion attached to the order; such opinion is not a part of the record on appeal; but if the order can be justified upon any of the grounds of the ffiotion, it will be affirmed.</p> <p>Personal Injuries—Evidence—Insufficiency—Nonsuit.</p> <p>2. In a personal injury action the burden is upon plaintiff to prove the negligence of defendant as alleged, and that such negligence was the proximate cause of his injury; hence if the conclusion to be reached from his testimony is equally consonant with the truth of his allegations and some other theory or theories inconsistent therewith, it becomes a mere conjecture and insufficient to establish his ease, and non-suit should be granted.</p> <p>Same.</p> <p>3. The district court not only did not err in granting a new trial, but should have nonsuited plaintiff, in an action for damages to compensate him for personal injuries alleged to have been sustained ay him, while employed by defendants as a laborer in railroad construction work, by reason of their failure to ascertain whether there was a “missed hole” after one of their blasting operations,—where the evidence introduced by him left it to conjecture whether the expíosion -was caused by his picking into a “missed hole” or into a piece of dynamite left loose in the dirt, or into a cap, used to explode the charge, accidentally dropped by a workman the day before the accident.</p> <p>Same—Contractors—Subcontractors—Liability—Evidence—Insufficiency.</p> <p>4. In an action against a contractor and a subcontractor for injuries to a member of a railroad construction crew, evidence held insufficient to show that plaintiff was employed by the former.</p>

<p>Ejectment—Cities and Towns-—Streets—Establishment—Public Lands—Grants for Highways—Construction—-Complaint— Sufficiency—Estoppel—Instructions — General Verdict — Effect.</p> <p>Ej eetment—Complaint—Sufficiency.</p> <p>1. A complaint in ejectment by a city to recover possession of a strip of ground alleged to be a public street, which stated that the city was' the owner of an easement in the property described, for street and highway purposes, that it was entitled to the immediate possession of the ground, and that defendant had taken possession of and was wrongfully withholding it, was sufficient.</p> <p>Cities and Towns—Publie Lands—Highways—How Established—Prescription.</p> <p>2. Section 2477, U. S. Bev. Stats., grants a right of way for the construction of highways over public lands, but does not specify the method by which the roadway is to be established. Held, that any acts by which the public might acquire a publie roadway over private property, other than by purchase, were sufficient to constitute an acceptance of the grant, and that therefore evidence that a city had used a strip of ground for twelve or thirteen years as a public roadway under such a grant was ample to establish a road by-prescription.</p> <p>Same—Publie Lands—Grants—Belation Back.</p> <p>3. An acceptance of a grant of public land for highway purposes, under section 2477, TJ. S. Bev. Stats., relates back to the date of the grant or dedication, and one taking such land after acceptance by a municipality, does so subject to the rights which the publie has acquired.</p> <p>Same—Streets—Building Permits—Estoppel.</p> <p>4. Where a city had acquired an easement in public land for street purposes prior to the taking of such land by defendant, it could not be estopped to assert its right by the acts of it's building inspector in issuing building permits to_ defendant, relying on which he claimed to have made valuable improvements on the land, and evidence to that effeet was properly excluded.</p> <p>Estoppel—Pleading—Evidence—Admissibility.</p> <p>5. Unless an estoppel is properly pleaded, evidence of acts constituting it is inadmissible.</p> <p>Same—Availability of Defense Against Public.</p> <p>6. Quaere: Is the defense of estoppel available as against the public or a municipality?</p> <p>Cities and Towns—Streets—Width.</p> <p>7. The court in awarding plaintiff city a strip of ground sixty feet in width, instead of confining the width to the beaten path, did not err, since the word “highways,” as used by Congress in section 2477, must be construed in accordance with recognized local laws, customs and usages, and since section 1339, Revised Codes, provides that they must be sixty feet wide, unless otherwise ordered by the officers having control or supervision over them.</p> <p>Same—Public Lands—Grants for Highways—Evidence of Use.</p> <p>8. The grant of public land for highway purposes, made by Congress in section 2477, U. S. Rev. Stats., is to the public as a continuing body; therefore, as soon as territory over which a highway had been established under the grant became part of an incorporated city, the latter took the place of the county as the trustee of the public in supervising and controlling it, and the court did not err in admitting evidence of the use made of the strip of ground mentioned in the above paragraphs, prior to the time the land was first included within the city limits.</p> <p>Same—Instructions—Assumption of Fact—Harmless Error.</p> <p>9. Though an instruction that both plaintiff and defendant derived title to the ground in controversy between the city and defendant, from the government, was erroneous as an assumption of faet in dispute, the error was harmless where in subsequent portions 0f the charge the jury was given to understand that both parties “claimed” title from the same source.</p> <p>Same—General Verdict—Effeet:</p> <p>10. Defendant not having submitted any special interrogatories upon the question whether the city’s right of action was barred by the statute of limitations, he was bound by the general verdict in plaintiff’s favor upon all the issues.</p>

<p>Mortgages—Redemption—Tender—Waste—Interest—Accounting—Use and Occupation—Rents—Liability of Mortgagee— Briefs—Specifications of Error—Review.</p> <p>Mortgages—Deeds Absolute—Redemption—Tender.</p> <p>1. Where a deed, absolute on its face, had been declared a mortgage, and the amount due was unliquidated and uncertain, the debtor in a subsequent suit to redeem was not required to plead a tender.</p> <p>Same—Waste—Liability of Mortgagee.</p> <p>2. A mortgagee of real property is chargeable for waste committed by him on the premises while in his possession, including the permanent depreciation in the property caused by his failure to make necessary or proper repairs, or resulting from the reckless or improvident management of it by himself or his tenant.</p> <p>Appeal and Error—Specifications—Briefs—Review.</p> <p>3. Error pointed out in appellant’s brief but not based upon any specification of error will not be considered on appeal.</p> <p>Trial by Court—Decision—Time of Rendition—Directory Statute.</p> <p>4. Section 6763, Revised Codes, providing that upon a trial of a question of fact by the court, its decision or findings must be filed within twenty days after submission of the ease, is directory only, and its failure to render a decision within the time limited does not deprive it of jurisdiction to decide at a later date.</p> <p>Mortgages—Redemption—Interest Allowable.</p> <p>5. After decree in a foreclosure suit the mortgage debt became merged in the judgment, and in a subsequent action, looking to the redemption of the property, interest was properly allowed at eight per cent per annum. (Revised Codes, sec. 5214.)</p> <p>Same—Redemption—Accounting—Use and Occupation—Rents.</p> <p>6. AYhile a mortgagee who personally retains possession of the mortgaged premises, or who, when not in actual possession, does not exercise reasonable care in selecting an agent to look after it, or whose agent fails in this respeet, is chargeable on redemption with the reasonable value of the use and occupation thereof, to the amount of its fair rental value for the period, he is chargeable only with rents actually received where he depends on the interposition of an agent in the selection of whom reasonable care was exercised and who likewise exercised such care to keep the property rented at a fair rental.</p>

<p>Suits in Equity—Findings—Insufficiency of Evidence—Extent of Review — Quieting Title — Conveyances — Forgery — Evidence—Admissibility—Hem'say—Instructions.</p> <p>Equity—Findings—Insufficiency of Evidence—Extent of Review.</p> <p>1. In reviewing an assignment that the evidence is insufficient to warrant the findings in an equity case, the supreme court will go no further than to determine whether there is a decided preponderance in the evidence against them, and if upon examination of the testimony such preponderance is not found, they will not be disturbed.</p> <p>Appeal and Error—Assignments—Review.</p> <p>2. Only those assignments of error which are argued in the brief will be considered on appeal.</p> <p>Equity—Evidence—Admissibility.</p> <p>3. In a suit to quiet title to lands alleged to have been conveyed by defendant to his divorced wife, proof as to who paid the taxes on the property after the alleged conveyance, claimed by defendant to have been a forgery, was competent as tending to show the reasonableness or unreasonableness of plaintiff’s claim.</p> <p>Same.</p> <p>4. Defendant in the suit referred to in the above paragraph was properly permitted to answer the question why he made an application to reduce the amount of alimony awarded his wife. The testimony was competent as tending to show the feelings existing between the parties prior to and at the date of conveyance, and the probability or improbability of the transfer by defendant of all his property to plaintiff.</p> <p>Same—Evidence—Hearsay.</p> <p>5. Testimony of third persons as to what an employee of defendant had said concerning certain cheeks introduced in evidence was inadmissible as hearsay.</p> <p>Same—Instructions—Review.</p> <p>6. The findings of the jury in an equity case being advisory only, alleged error in instructions to the jury will not be reviewed.</p>

<p>Waters and Water Bights—Adverse User—What Constitutes— Evidence—Insufficiency.</p> <p>Appeal—Dismissal—Technical Grounds.</p> <p>1. The law favors the right of appeal; hence, where a substantial compliance with the statutes and rules of the supreme court regulating appeals is shown, dismissal, asked on purely technical grounds, will not be ordered.</p> <p>Water Eights—Adverse User—Burden of Proof.</p> <p>2. The burden of proving an adverse user of water rests upon him who alleges it.</p> <p>Same—Adverse User—What Constitutes.</p> <p>3. In order that the use of water may be said to have ripened into a right by adverse user, such use must have been open, notorious, continuous, adverse and exclusive, under a claim of right, for the statutory period of ten years.</p> <p>Same.</p> <p>4. Proof of the mere use of water for the statutory period is not sufficient to show that it was adverse. To constitute an “adverse” user, the prior appropriator must have been deprived of the water when he had actual need of it, and the use must have been such that during the entire statutory period he eould have maintained .an action against the party claiming the prescriptive right.</p> <p>Same—Adverse User-—Evidence-—Insufficiency.</p> <p>5. Proof that claimants of water by adverse use took all that flowed in a creek at low-water season and thus deprived others thereof, did not meet the requirements of the rule declared in paragraph 4, supra, where it appeared that water sufficient to mature the crops of the parties against whom the prescriptive right was claimed, had always been available, and that they ceased irrigating their hay lands at about the time the adverse claimants asserted they deprived them of the water, and where the evidence failed to show that the prior appropriators did not have other crops which needed irrigation after that time.</p>

<p>Waters and Water Bights — Appropriation — Validity — How Determined — Development -of Water — Evidence — Insufficiency.</p> <p>Waters—Appropriation—Validity—How Determined.</p> <p>1. In determining tbe validity of an appropriation of water, the claimant’s intent, judged by Ms acts, the circumstances surrounding his possession of the water, its actual or contemplated use, and the purposes thereof, are important factors.</p> <p>Same—Rights of Appropriators.</p> <p>2. A subsequent appropriator in a stream is entitled to have the water flow in the same manner as when he located, and he may insist that one prior to him shall be eonfined to what he actually appropriated or what is necessary for the purposes for whieh he intended to use the water.</p> <p>Same—Appropriation—Evidence—Insufficiency—Remand.</p> <p>. 3. Where the evidence in a water right suit failed to diselose what maximum amount of land respondent’s predecessor in interest had irrigated, how much water he used or when he used it for irrigating purposes, what his intentions were when making his appropriation, or the character of his land, the capacity of his ditch, or how soon he carried out his intentions and to what extent, or what diligence he exercised in carrying them out, the supreme court will not enter a final judgment, but remand the cause for further proceedings.</p> <p>Same—Subsurface Supply—Part of Stream.</p> <p>4. The subsurface supply of a stream, whether coming from tributary swamps or running in the sand and gravel constituting its bed, is as much a part of the stream as is the surface flow, and is governed by the same rules.</p> <p>Same—Development of Water—Burden of Proof.</p> <p>5. One who based his right to the exclusive use of water upon an alleged development of a supply had the burden of proving that in developing it he did not intercept water to whieh others were rightfully entitled.</p> <p>Same—Development of Water—Rule not Applicable, When.</p> <p>6. The rule that one who develops a new supply of water is entitled to its exclusive use has no application to the mere removal of obstructions in, or the hastening of the flow of, a stream; nor does it apply to the draining of a swamp which has a natural outlet and feeds a stream, in the .undiminished flow of whieh others have prior rights.</p> <p>Same—Development of Water—Evidence—Insufficiency.</p> <p>7. Evidence held insuflicient to warrant a finding of the court that respondents in a water right suit were entitled to the exclusive use of certain water because developed by them.</p>

<p>Personal Injuries—Railroads—Postal Clerks—”Passengers”— Burden of Proof—Excessive Speed—Complaint—Cause of Accident— Surplusage, When— Costs— Memorandum— Sufficiency—District Cohort Rules—Construction.</p> <p>Personal Injuries—Railroads—Postal Clerks—“Passengers.”</p> <p>1. Postal clerks, when carried by a railway company under an arrangement with the United States government with reference to the transportation and handling of mail, are “passengers.”</p> <p>Same—Postal Clerks—Passengers—Burden of Proof.</p> <p>2. Where, in an action against a railroad company by a railway postal clerk for injuries sustained while off duty, caused by the derailment of a train, plaintiff elected to rest his case without offering any testimony as to the cause of the derailment, the burden was on him to prove that he was a passenger, and it was incumbent on him to show, either that defendant was under a specific contractual or statutory obligation to the government to carry him in the mail-car where he was at the time, or that defendant recognized a request for transportation when he was off duty.</p> <p>Same—Railroads—Excessive Speed—Proximate Cause.</p> <p>3. The running of a railway train, when late, at a speed of forty-five miles per hour, is not per se excessive, and the fact that the schedule time was about twenty-four miles per hour is of no importance in determining whether the carrier’s alleged negligence in this regard was a proximate cause of a derailment.</p> <p>Same—Passengers—Cause of Derailment—Complaint—Surplusage.</p> <p>4. Plaintiff, in an action against a railway company for injuries suffered while being transported as a passenger, need not allege or prove in his affirmative case the particular cause of a derailment; therefore, allegations of specific causes of the accident should be treated as surplusage, and he may rely upon his prima facie case without attempting to substantiate them.</p> <p>Same—Pleadings—Sufficiency—How Determined.</p> <p>5. The sufficiency of a pleading must be determined from the facts from which the legal duty or liability is deduced.</p> <p>Same—Railroads—Cause of Derailment—Pleading and Proof.</p> <p>6. In a personal injury action against a railway company where proof of the specific cause of derailment of a train is necessary to fix a liability upon defendant, the failure of plaintiff to make prima facie proof of one, at least, of the grounds of negligence alleged in the complaint is fatal, and proof of some other ground will not supply the defect.</p> <p>Costs—Memorandum—Verification—Sufficiency.</p> <p>7. An affidavit to a memorandum of costs made by one of defendant’s attorneys, stating that the memorandum was true and correct, and the items were reasonable, and necessarily incurred in defense of tbe cause, to the best of his knowledge and belief, substantially complied with section 7170, Revised Codes.</p> <p>District Courts—Rules—Construction—Review.</p> <p>8. It is within the province of the district court to construe its own rules, and the supreme court will not interfere therewith, unless the construction is clearly unreasonable and erroneous.</p> <p>Same—Rules—Costs—Number of Witnesses.</p> <p>9. Under a rule of the district court that in all civil actions not more than five witnesses should be examined as to “any question of fact or issue in the cause,” the phrase quoted held to refer to any single, substantial allegation of the pleadings on which an issue is raised, and not to the ultimate fact to be determined; therefore where several grounds of negligence were alleged by plaintiff in a personal injury action against a railway company, he could not complain that defendant, on nonsuit, was allowed costs of witnesses brought into court to disprove such allegations.</p> <p>Costs—Verified Memorandum—Prima Facie Evidence of Correctness.</p> <p>10. A verified memorandum of costs is prima facie evidence of the correctness of the items of disbursements enumerated therein.</p>

<p> Cities and Toivns—Public Health—Water Supply—Discharge of Sewage into Streams—State Board of Health—Validity of Order—Appeal to District Court—Burden of Proof. </p> <p>Cities and Towns—Discharge of Sewage—State Board of Health—Regularity of Procedure.</p> <p>1. The fact that the state board of health did not hear testimony before it made an order prohibiting a city from polluting a stream which is a source of water supply for domestic uses, is not a valid objection to the order. Section 1566, Revised Codes, under which the board acted, does not provide for a public trial, but contemplates an ex parte investigation by the board.</p> <p>Same—Pollution of Streams—Statutes.</p> <p>2. The validity of the order of the state board of health above referred to was not affected by the fact that the intake of the water supply of tlie next town on the river below the outfall of defendant city’s sewer was many miles away. The prohibition of the statute (Chapter 177, Laws 1907 [Revised Codes, secs. 1559-1572]) is against the pollution of a stream at any place within the state.</p> <p>Same—Public Health—Prescription—Police Power.</p> <p>3. Prescription does not run against the right of the state to protect the public health by preventing the pollution of a stream which is a water supply for domestic uses; nor may the state waive or devest itself of its police power in this respect.</p> <p>Same—Appeal from Order of Board—Burden of Proof.</p> <p>4. A city against which the state board of health had issued an order prohibiting it from emptying its sewage into a river before proper purification, had the burden of showing, on appeal to the district court., that the order was not justified; hence, where it produced no evidence whatever, and the order, upon its face, bore no evidence of its own invalidity, the order will be held valid.</p>

<p>Promissory Notes—Talcing Secuñty—When Bar to Action—. Complaint—Insufficiency—Illegality—Pleading and Proof— Amendments—Application—Affidavit—Insufficiency—Discretion—Dismissal—Delay.</p> <p>Actions—Dismissal—Delay—Discretion—Burden of Showing Error.</p> <p>1. A motion to dismiss an action on tbe ground that plaintiff has, without sufficient excuse, failed to prosecute it to final judgment with reasonable diligence, is addressed to the trial court’s discretion, and the burden of showing an abuse of such discretion is upon the movant; therefore, where nothing further appeared in the record than that the motion was made and denied, the supreme court will not interfere.</p> <p>Same—Dismissal—Delay—Lapse of Time.</p> <p>2. Mere lapse of time in prosecuting an action to final judgment is not sufficient to justify a dismissal.</p> <p>Statutes—Adoption from Other State—Construction.</p> <p>3. Where a statute is adopted from another state, the construction given to it by the supreme court of that state is also adopted.</p> <p>Promissory Notes—Taking Security—When Bar to Aetion—Pleading.</p> <p>4. To constitute the taking of security a bar to an action on a note, under section 6861, Revised Codes, it must be alleged that the security was in the form of a mortgage, or what the law would deem the equivalent of a mortgage; the statute is a limitation upon the rights which usually pertain to property, and its restriction will not be construed to include personal or collateral security, or any form of security not falling within the meaning of “mortgage.”</p> <p>Same—Taking Security—Pleading and Proof.</p> <p>5. Plaintiff brought suit to recover on a promissory note. Defendants answered by alleging, inter alia, that plaintiff had taken “security” for the payment of the note. Section 6861, Revised Codes, provides that where a debt is secured by a mortgage upon real or personal property, recourse must be had to foreclosure proceedings. Defendants offered evidence to show that real estate had been conveyed to plaintiff to secure payment of the note. The court refused the offer. Reid, that the court did not err, in that the allegation in defendants’ answer that plaintiff had taken “security ” was insufficient, under the rule declared in paragraph 4 above, to present an issue coming within the purview of the section, and the evidence was therefore irrelevant and immaterial.</p> <p>Same—Illegality of Contract—Pleading and Proof.</p> <p>6. Wliere defendants in an action on a promissory note had not. alleged in their pleading that the purpose for whieh the note was given was illegal, they were properly denied permission to prove its illegal purpose.</p> <p>Trial—Amendments of Pleadings—Insufficiency of Affidavit—Discretion.</p> <p>7. The trial court did not abuse its discretion in refusing defendants permission to amend their answer during trial, where the affidavit filed in support of the application did not negative the idea that the facts alleged in the proposed amendment were within the knowledge of defendants and their counsel from the commencement of suit.</p> <p>Appeal—Conflicting Evidence—New Trial—Review.</p> <p>8. Where the evidence presents a substantial conflict, the finding of the jury thereon and the court’s action in denying a motion for new trial are conclusive upon the supreme court.</p>

<p>Sales—Contracts—Construction—Subject Matter — Reasonable Certainty—When Unenforceable.</p> <p>Contracts—Subject Matter—How to be Expressed.</p> <p>1. In order to constitute a valid contract, the subject matter of the agreement must be expressed by the parties in such terms that it can be ascertained with a reasonable degree of certainty what their intentions were.</p> <p>Same—Sales—When Agreement Unenforceable.</p> <p>2. Seld, under section 4999, Eevised Codes, that where defendant requested plaintiff firm, at the solicitation of one of its traveling salesmen, on one of its printed order blanks covering many pages and containing a large variety of all kinds of jewelry of different quality and price, to ship to him “the goods listed in this order upon the terms named therein,” and it could not be determined therefrom how many articles of any particular kind or class had been ordered or what prices were to be paid, the memorandum of sale was so indefinite and uncertain in its terms as to make it unenforceable at law.</p>

<p>'Executors and Administrators—Attorneys’ Fees—Alloivance— Review—Discretion.</p> <p>Executors, and Administrators—Allowance of Attorneys’ Pees—Discretion.</p> <p>1. Where the record on appeal from an order allowing the sum of $3,000 to an administrator for attorneys’ fees, on a claim for'$21,500, did not contain any testimony as to what the legal services were reasonably worth, the action of the district court cannot be said to have been in abuse of its discretion. ,</p> <p>Same—Attorneys’ Pees—Apportionment of Amounts Allowed.</p> <p>2. Where the sole question before the district court 'was what reasonable amount should be allowed to an administrator for attorneys’ fees rendered to the estate represented by him, the court was not required to apportion the amount awarded among the different attorneys who performed the services.</p>

<p>Removal of Causes—Petition—Failure to File in Time—Waiver —Jurisdiction—Presumptions— Evidence — Railroads—Trespassers—Personal Injuries—Instructions.</p> <p>Bemoval of Causes—Diverse Citizenship—Petition—Failure to Pile in Time —Waiver.</p> <p>1. In a personal injury action brought jointly against a railway company (citizen of another state) and one of its employees (a citizen of Montana, upon whom service of summons had never been had), on the day set for trial both parties announced that they were ready for trial, counsel for defendant company then knowing that its eodefendant was not subject to the court’s jurisdiction. After the cause had proceeded to the point where plaintiff was about to rest his ease, counsel for the railway company filed a petition for removal of the cause to the federal circuit court, on the ground that its codefendant was present in court, hut that plaintiff refused to serve him with process, that such refusal showed that the action against both defendants had been brought in bad faith so as to prevent removal, and that the cause was then one wholly between citizens of different states, and therefore removable. Upon objection that the petition was presented too late, the motion was denied: Held, that the announcement by plaintiff that he was ready for trial amounted to notice to defendant company that he had elected to proceed against it alone; that the cause thus became at once removable because of the diverse citizenship of the parties; and that by failure to then file its petition for removal, defendant waived the privilege granted by the federal statute (U. S. Comp. Stats. 1901, secs. 2¡ 3, pp. 509, 510.)</p> <p>Same—Jurisdiction of State Court.</p> <p>2. Every court has the power to determine the question of its own jurisdiction, such determination being subject to review by the courts which have jurisdiction for that purpose; and this rule applies to the right of a state court to determine its jurisdiction upon the filing of a petition for removal of the cause to the federal court.</p> <p>Same—Removal After Appeal—Jurisdiction of Supreme Court.</p> <p>3. The contention that the state supreme court should either reverse the action of the district court in refusing to remove the cause to the federal court, or refrain from action, because the latter court, since the filing of the reeord on appeal, had taken jurisdiction as evidenced by an order overruling a motion of plaintiff to remand it to the district court, has no merit, since it may not be assumed that the lower court erred merely because of the action taken by the federal court; nor does it necessarily follow that the latter tribunal, in taking jurisdiction, did so properly.</p> <p>Evidence—Admission of Fact Presumed.</p> <p>4. Error cannot be predicated upon the admission of evidence to establish a fact which may be presumed to exist.</p> <p>Railroads—Brakemen—Scope of Authority—Ejecting Trespassers.</p> <p>5. The presumption obtains that a brakeman on a freight train has, prima facie, authority, by virtue of his employment, to eject trespassers therefrom; therefore, where defendant railway company, in an action seeking damages for injuries sustained by plaintiff in being ejected from one of its freight trains, did not offer any rebutting evidence on ■the question of the duties of a brakeman, it could not complain of the admission of parol and documentary evidence, in the shape of printed rules and bulletins by the company, touching such duties.</p> <p>Same—Ej ecting Trespassers—Evidence—Sufficiency.</p> <p>6. Evidence, in an action against a railway company for injuries caused to plaintiff in being ejected from a freight train by one of defendant’s brakemen, held sufficient to go to the jury on the question of the identity of the person who ejected plaintiff.</p> <p>Same—Ejecting Trespassers—Instructions—Submitting Questions of Law —Harmless Error.</p> <p>7. Plaintiff having testified that, while riding on top of a freight-car, defendant’s brakeman forced him, under threats of violence, to jump from the moving train, and the court in other portions of its charge having assumed, with defendant’s acquiescence, that the brakeman’s conduct was unlawful, an instruction that if plaintiff was on top of the car he was a trespasser, and that defendant could prevent such trespass “by lawful means,” could not have been prejudicial to defendant as leaving the question of law, what constituted the lawful means defendant’s employees could resort to in ejecting trespassers, to be answered by the jury.</p>

<p> Personal Injuries—Railroads—Passengers—Contributory Negligence-r-Pleadings—Complaint—Insufficiency. </p> <p>Complaint—Insufficiency—Objection—Time.</p> <p>1. The objection that a complaint does not state a cause of action may be raised for the first time on a motion for a directed verdict, or at any time.</p> <p>Personal Injuries—Railroads—Passengers — Contributory Negligence— Complaint—Insufficiency.</p> <p>2. Plaintiff’s complaint in an action against a railroad company alleged that defendant’s train on which he was a passenger, while slackening its speed when approaching his destination, did not stop; that it was dark and he could not tell that the train was running at a great rate of speed; that he was directed by defendant’s brakeman to jump, and did so, receiving the injuries complained of. Held, under Kennon v. Gilmer, 4 Mont. 433, that since the proximate cause of his injury was plaintiff’s own act, to-wit, jumping off while the train was in motion, it was incumbent upon him to further allege facts sufficient to show that, in so doing, he was not guilty of contributory negligence, i. e., that he acted as a reasonably prudent person would have acted under like circumstances; having failed to so plead, his complaint did not state a cause of action.</p>

Lynch, Judge. Action by Wakeman Sutton against T. M. Lowry, executor of Silas F. King and others. Judgment for defendants; and from an order granting a new trial, they appeal. The order of the court granting a new trial was arbitrary and not based upon sound discretion.

<p>Deeds — Reformation — Mistake — Nonsuit—Error—Statute of Limitations — Pleadings — Recordation of Instruments — Notice—Laches—Evidence.</p> <p>Statute of Limitations—Pleadings.</p> <p>1. The objection that an action looking to the reformation of a deed was not commenced within the time limited by law could be taken only by answer.</p> <p>Same—Recordation—Notice.</p> <p>2. Held, that the recording of an instrument sought to be reformed, after the statute of limitations had run, because of a mutual mistake of the parties to it, is not alone sufficient to charge plaintiff with constructive notiee of such mistake; but that, in determining the question of notice, either actual or constructive, the recording is to be considered-with other facts and circumstances.</p> <p>Same—Statute of Limitations—Pleadings—Insufficiency.</p> <p>3. Defendants, in attempting to plead the statute of limitations, set forth a section of the statute which had no application; they further alleged that the deed had been recorded, that more than five years had elapsed since the date of recordation, and that therefore the action was barred. Held, that, conceding (but not deciding) that by pleading “the faets showing the defense,” to-wit, the ■ recording of the instrument and'the lapse of five years thereafter, the requirements of section 6575, Revised Codes, relative to the pleading of the statute, were met, the facts so stated were insufficient, under the rule announced in paragraph 2 above, to justify the district court in holding plaintiff's cause of action barred.</p> <p>Same—Evidence—Nonsuit—Error.</p> <p>4. Where the evidence adduced by plaintiff in an action to reform a deed was clear, satisfactory and convincing that the instrument as written did not contain the agreement actually entered into by the parties, that there was a mutual mistake as to a material fact, and that such mistake did not result from plaintiff’s negligence, the court erred in granting a nonsuit.</p> <p>Equity—Statute of Limitations—Laches.</p> <p>5. Obiter: Defendant in an equity case may avail himself of the laches of plaintiff, notwithstanding the statute of limitations has not expired, or in cases where he has neglected to plead the' statute or elected not to do so.</p>

<p>Mines and Mining—Representation Work—Forfeiture—Contiguous Group of Claims — Evidence — Burden of Proof — Equity—Findings—Review.</p> <p>Mining Claims—Contiguous Group—Representation Work—Forfeiture.</p> <p>1. Where the annual work done and improvements made upon one of a group of contiguous quartz lode mining claims have no reference to a general plan for the development of the whole group, nor any reasonable adaptation to that end, the expenditures, no matter how large, cannot be said to have been made in the development of the consolidated claim, so as to prevent forfeiture of those claims in the group upon which no representation work had been performed.</p> <p>Same—Forfeiture—Pleadings—Burden of Proof.</p> <p>2. One claiming the forfeiture of a mining claim for alleged non-representation must plead it specially and has the burden of establishing his contention by clear and convincing proof.</p> <p>Same—Contiguous- Group—Representation Work—Burden of Proof.</p> <p>3. The burden of proving that representation work done upon one of a contiguous group of quartz lode claims was done for the benefit of all, that it was adapted to the development of all, and was intended for that purpose, rests upon him against whom a forfeiture is sought for alleged nonperformance of assessment work upon the other claims in the group.</p> <p>Equity—Findings—Review.</p> <p>4. While in an equity ease the supreme court may examine the evidence and determine the questions of fact for itself, it cannot overturn the findings of the trial court unless there is a decided preponderance of the evidence against them.</p> <p>Mining Claims—Contiguous Group—Representation Work—Evidence.</p> <p>5. Evidence held to justify a finding of the district court that plaintiff mining company had forfeited title to certain of a contiguous group of claims, where it appeared that work performed in driving a tunnel on one claim, alleged to have been done with a view to develop all of them, could not reasonably, in the nature of things, have been intended as a part of a general plan of development for the benefit of all.</p> <p>Same—Contiguous Group—Representation Work—Good Faith.</p> <p>6. The question whether improvements made upon one of a contiguous group of claims were intended for the development of all the claims constituting it, must be determined by the work as manifested by the relation it bears to the claims, irrespective of the good faith entertained by the owner when making the improvements.</p>

<p>Trusts and Trustees—Termination of Trust—Profits—Accounting—Compensation of Trustees—Complaint—Insufficiency— Parties—Equity—Pleadings.</p> <p>Trusts and Trustees—Profits—Accounting—Fixing Compensation—Complaint—Insufficiency.</p> <p>1. The beirs of a decedent and certain claimants entered into a trust agreement whereby the trustees appointed were to receive and hold moneys derived from the estate, until final distribution. When the trust had been partly executed, and before final distribution of the estate, one of the parties to the contract brought suit against the trustees ashing, among other things, that they be made to account for profits received by them from moneys in their hands, and that their compensation be fixed. The complaint did not state to whom the funds belonged, or whether the trustees had made any profit from their use; neither was there any allegation that demand had been made upon them for sueh profits, nor that they had not been paid for their services or were claiming any compensation for them. Held, that the complaint was insufficient to give a eourt of equity jurisdiction for the purposes stated, and that a demurrer thereto was properly sustained.</p> <p>Same—Termination of Trust—Equity.</p> <p>2. Obiter: Where the objects of a trust agreement have been accomplished, and there is no longer any necessity for the intervention of the trustees, a court of equity will abrogate it, in a proper case, and its decision is of no concern to the trustees.</p> <p>Same—Termination of Trust—Trustees—Parties—Complaint—Insufficiency.</p> <p>3. A party invoking the aid of a court of equity must show affirmatively a necessity for its intervention; hence, where plaintiff’s complaint, in an action against the trustees seeking the abrogation of the trust agreement under which they were appointed, made no claim that the defendants had not properly fulfilled their trust, or that the agreement could not be terminated by the parties to it without the intervention of the court, or that complete relief could not be afforded plaintiffs without the presence of the trustees as parties, it was insufficient, and did not state a cause of action against the latter.</p>

<p>Criminal Law—Qramd, Larceny—Livestock—Corpus Delicti— Venue—Evidence—Insufficiency— Confessions—Admissions—Admissibility—Expert Testimony.</p> <p>Grand Larceny—Livestock—Evidence.</p> <p>1. Section 8645, Revised Codes, declaring the stealing of any of the animals enumerated therein to be grand larceny, refers to live animals only; therefore, defendants, charged with stealing certain heifers, the carcasses of whieh, dressed for beef, were found concealed on the range, could be convicted only upon evidence showing beyond. a reasonable doubt that they killed, or took part in killing, the animals.</p> <p>Same—Corpus Delicti—How Established.</p> <p>2. The corpus delicti in a prosecution for grand larceny, as well as in all other crimes, except in eases of unlawful homicide, in whieh eases the death of the person alleged to have been killed must be established directly, may be proved by circumstantial evidence.</p> <p>Same'—Venue—Insufficiency.</p> <p>3. Evidence held insufficient to show that the defendants killed the cattle, which were wont to range near the county and state lines and the carcasses of which were found concealed in a eoulee, in the county in which the venue was laid. The venue must be proved beyond a reasonable doubt. (Mk. Justice Smith dissenting.)</p> <p>Same—Confessions—What does not Constitute.</p> <p>4. Statements made by defendants at the time of their arrest, and not in response to questions put to them by the person arresting, whieh implied guilt and by means of which they sought by corrupt means to influence the person having them in charge to permit defendants to escape, had none of the attributes of a confession, and hence, to make them admissible in evidence, it was not necessary to first show that they were not induced by fear, or threats, or the hope of leniency.</p> <p>Same—Expert Testimony—Admissibility.</p> <p>5. The testimony of persons for many years engaged in the livestock business, that in their opinion the flesh of the cattle found concealed on the range, and with the larceny of which defendants stood charged, was that of animals killed and properly bled, was properly admitted, under section 7887, Revised Codes.</p> <p>Same—Instructions—Refusal—When not Error.</p> <p>6. The refusal of requested instructions was not error, where the ones given covered those refused.</p>

<p>Justices9 Courts — Pleadings — Complaint — Sufficiency —“Account”—Directed Verdict—Error.</p> <p>Justices’ Courts—Complaint—Sufficiency—Copy of Account.</p> <p>1. Held, that the complaint in an action brought in a justice’s court to recover the balance of an account for goods, wares and merchandise, reading as follows: “E. to M. & W. Dr. To balance for merchandise (describing it), $255.12,” was sufficient under sections 7005 and 7007, Bevised Codes; held, further, that the word “account,” as used in the latter section in declaring that a complaint in a justice’s court may, inter alia, be “a copy of the account,” does not mean a list of different items constituting it.</p> <p>Directed Verdict—Plaintiff’s Evidence—Truth of, to be Assumed.</p> <p>2. On motion for a directed verdict, the truth of the evidence tending to support plaintiff’s case is to be assumed, and such evidence must be regarded in the light most favorable to him.</p> <p>Same—Error.</p> <p>3. It was error to direct a verdict for defendant in an action to recover the balance of an account, where plaintiff’s evidence tended to show that the goods were ordered by, and delivered to, defendant, and that the latter made his original promise to pay for them.</p>

<p> Mandamus—Bills of Exceptions—Amendments—Delivery to Judge—Notice—Settlement—Practice. </p> <p>1. Defendant prepared a bill of exceptions to be used on his motion for a new trial, and on July 8 served same on counsel for plaintiff, who, on July 17, served certain proposed amendments. These not having been accepted, counsel for movant, on July 24, delivered the proposed bill and amendments to the judge. At the time noticed for the settlement of the bill, July 30, opposing counsel objected to its settlement on the ground that the papers had not, within ten days after service of the amendments, been presented to the judge for settlement, upon five days’ notice to objecting counsel. The district judge refused to settle the bill. Held, on mandamus, that this was error, inasmuch as under section 6788, Revised Codes, a party may within ten days after service of the amendments (1) present the bin with the amendments to the judge upon five days’ notice to the adverse party, or (2) deliver them to the clerk, or (3) deliver them to the judge, and that defendant, having chosen to deliver them to the judge directly, was relieved from giving the five days’ uoti-’e; held, further, that upon delivery of the papers to him it became the duty of the judge to settle and sign the bill immediately or at some future date fixed for that purpose.</p>

<p>Criminal Law—Robbery—Information—Sufficiency—Waiver— Offer of Proof—Refusal—Evidence—Admissibility—Instructions—Harmless Error.</p> <p>Robbery—Information—Sufficiency.</p> <p>1. An information charging that defendant did willfully, feloniously, etc., and with force and fear, commit the crime of robbery on one M., and taking from his person and immediate presence, with force against his will, certain articles of value, etc., was not fatally defective because charging the offense in the form of participial clauses instead of by direct allegation. The pleading was such as to enable a person of ordinary understanding to know what was intended to be charged, and therefore sufficient, under sections 9147, 9156, Revised Codes.</p> <p>Same.</p> <p>2. Nor was the information above set forth, objectionable because, instead of charging, in the words of the statute (Rev. Codes, sec. 8309), that the taking was accomplished “by means of force or fear,” it alleged that it had been accomplished “with” force and fear; the word “with” being, in this connection, equivalent to the expression “by mean% of.” «</p> <p>Same—Information—Defects—Motion in Arrest—Waiver.</p> <p>3. Defects in an information which, under section 9200, Revised Codes, must be taken advantage of by special demurrer, may not be urged in support of a motion in arrest of judgment; on such a motion all defects, except that of want of jurisdiction and the insufficiency of faets to state a public offense, are deemed waived.</p> <p>Same—Offer of Proof—Exclusion—When Proper.</p> <p>4. Error eannot be predicated on the exclusion of an offer of proof covering a subject fully developed by other testimony.</p> <p>Same-—Evidence—Mental Condition—Remoteness.</p> <p>5. Defendant, charged with robbery, offered testimony to show that the prosecuting witness, when intoxicated, was subject to the hallucination that he was being or had been robbed, and in support thereof tendered proof to show that some fourteen years before he had a similar delusion. Held, that the offer was properly excluded, proof of a single instance of such derangement of mind, at so remote a period, being insufficient to show that the witness was affected with an habitual tendency or disposition to become subject to it whenever intoxicated.</p> <p>Same—Instructions—Definition of Crime—Harmless Error.</p> <p>6. Where the court in other portions of the charge had correctly defined the erime of robbery, its failure to instruct, in a paragraph enumerating the material and necessary allegations in the information which the state was obliged to establish beyond a reasonable doubt, that the property must have heen taken from the person or immediate presence of the prosecuting witness, was'not prejudicial, in the light of the state’s evidence, showing that defendant had assaulted the latter and, after choking and beating him into insensibility, had taken the property in question from Ms person.</p>

<p> Default Judgments—Vacating—Abuse of Discretion. </p> <p>1. Veld, that the district court abused its discretion in vacating a default judgment on. a showing that, while the attorney of the moving party had promised to defend the action, he had failed to file an answer because, being a candidate, for public office, he had been so busily engaged in a canvass for votes that he forgot all about the matter.</p>

Lynch, Judge. Action by I. D. Freund against Thomas J. Murray. Judgment for defendant, and plaintiff appeals. A partner has no more right to commit a tort as against his copartner than an utter stranger to the partnership. Partners may sue each other on any matter not connected with thé partnership as freely, and in precisely the same way, as if they were not partners, for the plain reason that outside of the partnership business they are not partners.

Action by John R. Owens against J. R. Davenport and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

District Court, Fergus County; E. K. Cheadle, Judge. Action by Evan A. Eoss against C. L. Saylor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Personal Injuries—Special Damages—Pleading and Proof— Judicial Notice—Loss of Earnings.</p> <p>Personal Injuries-—Special Damages—Pleading.</p> <p>1. Special damages, i. e., damages which are the natural, but not the necessary, result of an injury, must be specifically pleaded.</p> <p>Same—Special Damages—Pleading—Evidence—Admissibility.</p> <p>2. Plaintiff alleged in his complaint that while employed about a railway locomotive the water gauge thereon exploded, with the result that the sight of his right eye was destroyed. There was no allegation that the left eye had been injured. Over objection, he was permitted to show that, as a result of the accident, the sight of his left eye had been greatly impaired; he did not introduce any testimony that such impairment was the necessary result of the destruction of the right eye. Held, that in the absence of such proof, or an allegation specially pleading injury to the left eye, evidence relative thereto was inadmissible.</p> <p>Same—Judicial Notiee—Laws of Nature.</p> <p>3. "While courts may take judicial notice of the fact that destruction of the sight of one eye impairs the power of vision, they may not assume, without proof, that such destruction necessarily affects the sight of the other eye injuriously.</p> <p>Same—Complaint—Evidence—Inadmissibility.</p> <p>4. Assuming that an allegation in plaintiff’s complaint that he suffered excruciating pain on account of the injury to his right eye was sufficient to admit evidence of pain in the other, it was not broad enough to enable him to show that the sight of the left eye had been greatly impaired.</p> <p>Same—Loss of Earnings—Proof—Inadmissibility.</p> <p>5. It was error to permit plaintiff, under his case as made (paragraph 2 above), to submit evidence of loss of time on account of impairment of the sight of his left eye.</p> <p>Same—Loss of Earnings—Pleading and Proof.</p> <p>6. Quaere-. May plaintiff in a personal injury action prove loss of earnings without specifically alleging the fact of such loss?</p>

<p>Originad Proceedings in the nature of quo warranto by the state, on the relation of Lorin T. Jones, against Fred H. Foster.</p>

Lynch, Judge. Action by McKenzie against John Doran, a justice of the peace, and the sureties on his official bond. Judgment for defendants, and plaintiff appeals. In the brief the following authorities were cited: Engelking v. Von Wamel, 26 Tex. 469; Duffles v. Duffles, 76 Wis. 374, 20 Am. St. Rep. 79, 45 N. W. 522, 8 L. R. A. 420; Mulford v. Clew-ell, 21 Ohio St. 190; Peterson v. Knohle, 35 Wis. 80; Wagner v. Lathers, 26 Wis. 436; Birkhead v. Ward, 35 Pa. Super. Ct.

Action by J. N. Kelly against W. Dixon Ellis and the Briggs & Ellis Company. From a judgment for defendants, plaintiff appeals. That the defendants willfully deceived the plaintiff with reference to his appointment as manager, with the intent to induce him to alter his position, to his injury seems clear. If so, they are liable for any damage which he thereby suffered.

<p> ’Appeal from. District Court, J efferson County• Lew. L. Calla-way, Judge. </p>