Volume 4 — Montana Reports

<p>Foreign Corporation — Effects of failure to record charter — May do business — May plead statute of limitations.— The law requiring foreign corporations doing business in this territory to first file charter or act of incorporation, declares the failure to do so to be wilful negligence, and fixes the penalty therefor to be, not disqualification to do business in the "territory, but simply relieves the party suing such corporation from the necessity of proving the incorporation, except by reputation.</p> <p>A foreign corporation doing business openly, without fraudulent concealment, with an office and a managing agent or superintendent within the territory, though- it has not filed its charter, articles of incorporation, or copy thereof, for record as required, is not a foreign resident within the meaning of section 50, Code of Civil Procedure, and a personal judgment could be rendered against it, and it could plead the statute of limitations.</p> <p>Sections 46 and 47, page 419, Codified Statutes, of 1872, construed.</p>

This is an action brought to recover possession of certain goods, wares and merchandise which were taken from plaintiffs’ possession by… Held: notwithstanding the word “immediate ” in the statute, that a bona fide sale of cattle running at large was not fraudulent as against creditors of the vendee, merely because the. sale was not followed by an immediate delivery of the possession.” All laws must he reasonably construed; that is the unvarying rule of construction.

The statute of Montana territory provides that, to make an appeal effectual for any purpose, the appellant shall, within five days after the service of the notice of appeal, file an undertaking. See Code of Civil Procedure of Montana for the year A. D. 1877, p. 150, sec. 409. The notice of appeal was mailed, as it appears by the record, on the 5th day of June, 1880, and directed to W. F. Sanders, Helena, Montana territory.

This is an application made to the supreme court of the territory of Montana, by John Young, agent of the Blackfeet Indians, against the defendant, 0. Imoda, a Koman Catholic priest, to compel the return of two Indian children, alleged to have been taken away from the agency school against the wishes and without the consent of the agent.

1. The complaint states a canse of action, in ordinary and concise language, and is sufficient both under the code, and as containing every essential averment of a bill in equity, to entitle the plaintiff to an accounting. Code of Civil Prac. secs. 81, 83, 98, 117. 2. The right to an accounting on the dissolution of a copartnership follows as a matter of course. Story’s Equity, secs. 671, 672; Story, Part. 347, note 1, 348, 349; Pars.

The briefs in this case and the one following seem to have been prepared as if for one case. PIRST APPEAL. In addition to the points and authorities on file in this cause, and insisting thereon, the following matters are presented for the consideration of the court: This is an appeal from the judgment of the district court, pages 163, 164, of the transcript, setting aside a certain sale of property by the appellant, and making further orders in the premises. i 1.

The same attorneys appear in this as in the preceding ■case, and the briefs seem to have been prepared with reference to both cases. See briefs in that case. SECOND APPEAL.

.1. The motion of plaintiff to strike out sections 1, 2, 3f 7 and 8 of the appellant’s answer, on the ground that the same was irrelevant and immaterial, should have been, overruled. The order of the court below sustaining that motion is erroneous for the reason that the parts stricken out contain allegations which, if proved on the trial, would have been sufficient to defeat a recovery by the' plaintiff in this action.

I. The court below found every issue of fact raised by the pleadings in favor of' the appellant.

This was an action brought by the respondents upon the official bond of W. G-. Edwards, late treasurer of Missoula county. A demurrer was interposed by the defendants in the court below, and overruled. This we think was error. It will be assumed that the “ board of county commissioners ” is not a natural person. If it is a corporation, it must allege how it was created; a failure to do this omits one of the elements of a good cause of action.

The evidence in the case at bar in some essential points is very conflicting. The prosecuting witness, Shelton, testifies he was unarmed at the time of the alleged assault. The defendant and one Sullivan swear positively that Shelton was armed, and that he drew his rewolver and held it in both hands towards Edmonson, before defendant fired.

<p> Appeal from First District, Jefferson County. </p>

1. The grand jury by whom the indictment was found did not have jurisdiction to inquire into the offense charged. The transcript on appeal shows these facts: (а) The appellants, on the first day of the March term, 1881, were in the county jail to answer the charge of murder in the first degree. They were brought into court, duly notified of their rights, and waived all objections to the grand jury.

The legislature of Montana territory, at its eleventh regular session in 1879, passed an act “Incorporating the town of Butte.” Laws 1879,… Held: there were a large number of persons residents of said town of Butte, male citizens of the United States, above the age of twenty-one years, and qualified voters under the general law of the territory, but who were disqualified from voting upon the question of the acceptance of said charter and the officers of said city government…

This action was commenced to recover the amount due on a promissory note made by the respondent and assigned and indorsed to the appellant; complaint in usual form. The respondent admitted the execution and delivery of the note, but denied that the appellant was the owner thereof.

This is a rehearing of the case decided at the January term, 1881. See ante, p. 8, for points decided and argument of counsel.

The appellants rely upon the following points for a reversal of the judgment in this case: I. The court erred in refusing to permit Geo. Foote and O. B. Totten to testify concerning the usages, customs and regulations in force in the county or district in which the property in controversy was situate. In actions respecting mining- claims, proof must be admitted 'of the customs, usages and regulations established and in force at the bar or diggings embracing such claim.

The record in this case discloses the following state of facts: That plaintiff filed his complaint in said cause in the district court, second judicial district, Deer Lodge county, Montana territory, in which he alleges that on or about the 9th day of August, A. D. 1879, he was in the quiet and peaceable possession of the property therein described; that defendants, at said date, entered upon said property, and dug and extracted ore therefrom to his damage in the sum of…

The transcript shows, and it is conceded, that this action was based upon a demand made by Cornelius Hedges, then probate judge of Lewis and Clarke county, against said county for services as probate judge in seventeen criminal cases tried or “ heard ” between Augusts and December 15, 1880, amounting, as claimed, to $3é8. Of this claim the county commissioners allowed and paid $51, being $3 for each trial, and disallowed tbe balance, $297.

who filed no separate brief in this case, but relied wholly upon considerations presented in the previous case of Hedges v. Commissioners of Lewis and Clarice County. The questions involved on this appeal are not difficult; they depend for their solution upon a proper construction of the statute.

The defendant was tried for an assault with the intent to commit murder, and found guilty by the jury of assault and battery. Held: charged with gunpowder and a leaden bullet, which pistol the said Patrick Dooley then and there shot off against the said Julius, etc., in this manner, and by means aforesaid did unlawfully wilfully and feloniously strike, penetrate and wound said Julius,” etc. That this constitutes a full and complete accusation of the crime of…

The evidence in this cause was insufficient to justify and sustain the verdict. The plaintiffs’ evidence shows that the locating and marking of boundaries on the ground of the Triumph lode claim, under which plaintiffs claim, was by stakes set two thousand feet apart (Transcript, p. 57), while the ground claimed by plaintiffs, according to the record of the claim, was only one thousand five hundred feet.

1. The offer of the plaintiff to prove his actual possession and occupancy of the property was an offer to establish title as against one who in no way connects himself with a better one. Ahvood v. Tricott, 17 Cal. 37; English v. Johnson, id. 107; Hess v. Winder, 30 Cal. 355. And this principle is especially applicable when the question is one barely of right of possession under the act of congress, when the better title must prevail.

There is practically but one question presented by the record in this case, and that is as to the consideration for the agreement sued upon and set forth in the complaint. Is there a sufficient consideration shown to support the contract, or is it a mere nudum pactum? This case has once before occupied the attention of this court (see 3 Mont. 380), and this identical contract was then subjected to judicial consideration and interpretation.

This action was commenced on the 16th day of December, 1879, to recover judgment against the defendant on a promissory note made by Mm and payable to plaintiff, said note bearing date June 1, 1879, payable December 1, 1879, for $1,511.50.

This action was commenced to recover the sum of $323.70 upon a verbal agreement made with reference to the sale of cattle, as alleged by the plaintiff in his complaint.

<p>Sole Traders’ Act — Remedial legislation — Essentials.—This act of February 4, 1874, of the Montana legislature (see Revised Statutes of 1879, p. 589), is of the nature of remedial legislation, and entitled to a liberab construction. It is as essential that the declaration required by law should state that the married woman intends to do business “ on her own account,” as “in her own name.” The two requirements are not synonymous, but each a distinct essential.</p> <p>The statute is in the nature of a legislative grant. It confers title when complied with. The omission of these essential words, “on her own account,” is fatal to the declaration.</p>

<p>Placer Mining Grounds — How held —When open.— The United States law of July 26,1866, gives to all citizens, and those who have declared their intention to become such, the right to explore and occupy the mineral lands of the United States, subject to the rules and regulations prescribed by law, and the local rules and customs of miners not in conflict with such law. Such local rules and customs become, by adoption, part of the law of the land. And a person, who is competent, having taken up and held such mining ground, and this fact appearing by the pleadings and findings, has acquired inchoate title, and the right to exclusive possession. A grant is presumed. Such ground so held cannot be considered unoccupied public domain subject to the appropriation of any one else.</p>

The court erred in allowing defendants to introduce in evidence the certified copy of the statement of location of the Sankie lode without proof of the loss of the original statement of location. It also erred in allowing the introduction in evidence of the certified copy of the deed from Ford to Cameron without proof of the loss of the original.

This action was brought in the court below upon an account stated against the defendants as copartners. An action upon the same demand had theretofore been instituted by respondents against them as such copartners, upon the same demand, in a court of competent jurisdiction in this territory.

1. The verdict was against the weight of evidence. There was not sufficient to justify the verdict, and it was against law. (а) The plaintiff failed to show title in himself. (б) He failed to show that his location contained a vein ■or lode containing precious metals. Overman 8. M. Co. v. Ceredran, 15 Nev. 152; Laws U. S. sec. 2320; Laws of M. T. 1861, p. 327, secs. 2, 5; Foote v. Nat. M. & Ex.

Defendants should have been permitted to amend their answer as asked (see pp. 19 and 20 of transcript), so as to present, their defense, and to make their answer conform to the evidence given. Stringer v. Davis, 30 Oal. 320; Valencia v. Couch, 32 Cal. 344; Hirshfield v. Aiken, 3 Mont. 453; Hartly v. Preston, 2 Mont. 415; Wormal v. Reins, 1 Mont. 630; secs. 114, 117, Practice Act.

75. The action was for injuries received by plaintiff while a passenger on defendants’ coach, on the 30th of June, 1879, between the towns of Deer Lodge and Helena. The answer denies negligence on the part of defendants, and alleges contributory neglect on the part of plaintiff as the direct cause of the injury. See Answer, Transcript, pp. 10, 11. Defendants filed a general demurrer to the amended complaint, which was overruled by the court. Transcript, pp. 7, 9.

The answer of defendant is ambiguous and uncertain in the particulars specified in plaintiff’s demurrer thereto, and the demurrer should have been sustained. 2. The court erred in sustaining defendant’s motion for a non-suit as to the first cause of action set up in plaintiff’s complaint. 3. The court erred in permitting the defendant to read in evidence his deed to lot No. 15, in block No. 37.

Rehearing of the case reported in 3 Mont. 480. Appealed from first district, Gallatin county. Three propositions are discussed in the opinion in this case, in 3 Montana, p. 480, which will be considered in their order. 1. The transcript shows that the appellants objected to the testimony of the respondent, on the ground that it was incompetent. No objection was made in the court below to the competency of Story as a witness, and the same is deemed waived.

1. The indictment was defective in this: that the description of the property was loose and indefinite. It should have given the number and denomination of the bills alleged to be stolen, or excused the failure to do so, by proper averments. People v. Ball, 14 Cal. 101; People v. Bogart, 36 Cal. 245; Commonwealth v. Sawtello, 11 Cush. 142; Merwin v. People, 26 Mich. 298; Same Case, reported in 12 Am. Rep. 314; 2 Parker’s Grim. Rep. 37; 2 Bishop Grim.

I. The complaint alleges that Black, “ by and through his duly authorized agent and attorney in fact, Z. H. Daniels,” executed and delivered a certain promissory note; that Black, ‘ ‘ by and through his duly authorized agent and attorney in fact, Z. H. Daniels,” executed and delivered, “under his hand and seal,” the mortgage sued on; that “ said mortgage was duly acknowledged and certified so as to entitle it to be recorded,” and that Story has some interest or lien which is…

<p> Appeal- from Third District, Lewis and Clarice County. </p>

This was an action of .ejectment to recover the possession of lot 8, in block 30, in the Helena town site, county of Lewis and Clarke, and also to recover the rents and profits thereof. The plaintiff in her complaint avers that she is the owner of the said lot and entitled to the possession thereof, and that in October, A. D. 1877, the defendant ousted her from the possession thereof.

This was an action commenced by Mary Herman, a married woman, against Chas. M. Jeffries, the sheriff of Lewis and Clarke county, for the possession of certain personal property which the said Jeffries, as such sheriff, had theretofore levied an execution upon as the property of Jacob Herman, her husband. The verdict was for the plaintiff, and. the defendant appealed.

This action is a bill to quiet title to the premises described in plaintiffs’ complaint, brought under section 354, Code of Civil Procedure. Appellants claim the premises as and for placer mining purposes, and respondents by virtue of a location of a quartz lode, located under the name of the Welcome Stranger lode, with three hundred feet of surface ground on each side of said lode. See Complaint, pp. 1 to 3, and Answer, 4 to 5, inclusive.

<p>Mineral Lands — Disabilities of an alien — Effect of such land passing into the possession of an alien — Possession and right of purchase1 inseparable.— The exploration and purchase of the mineral lands of' the United States are by law (see R. S. U. S. sec. 2319, p. 427) free only to citizens of the United States, or those who have declared their intention to become such. An alien can neither locate, possess, purchase- or acquire title by patent to such mineral lands.</p> <p>A possessory title of mineral land, founded on a valid location, and held by compliance with local mining laws, may be transferred from one to another, so long as it does not pass into the hands of one incapable of acquiring complete title, in which latter case the grant reverts to government, and the land becomes subject to relocation.</p> <p>The right of possession cannot be held by one incapable of holding-by purchase from government, else the government might be deprived of its power to sell forever. Possession and the right and power to-purchase are inseparable.</p>

Appellants claim a reversal of this cause, as is shown by exception No. 2, on pp. 45, 46 and 47 of transcript on appeal. The question presented for the determination of the court is: Can a title to placer mining ground be acquired by purchase, accompanied by actual delivery of the possession of the premises, and followed by continuous possession to the date of the bringing of this suit, there being no deeds to any portion of said premises?

The action is ejectment, and the following are the issues made by the pleadings: The appellant alleges title in himself, demand of possession, and unlawful detention by the respondents. Held: under the statute of limitation, we should refrain from the citation of authorities but for the position assumed by counsel for respondents. See Adams on Ejectment (4th ed.), 558, 559-. In the case of La Frambois v. Jackson ex dem.

This is an appeal from the judgment roll, on which alone the case can be considered, and the portion of the record asked to be stricken out is no part of the judgment roll. The judgment roll is such papers only as are designated by statute. Sec. 294, subd. 2, Practice Act; Nev. & Sac. C. Co.-y. Kidd, 43 Cal. 180; Shattuck y. Hayes, 21 Cal. 51; Wait’s Practice, vol. 3, pp. 584, 715. There is no bill of exceptions in this case.

County. This action was brought to try the title or right of possession of the respective parties in and to a certain piece, parcel or lot of mining ground, claimed by the plaintiffs and appellants as the “Keg” lode mining claim, and by the defendants and respondents as the “Goldsmith” lode mining claim.