Volume 41 — Montana Reports

B. Winston, Judge. Action by Sidney A. Kelly against Annie M. Hynes and others. There was a decree in favor of plaintiff, and defendants, Annie M. Hynes, Thomas F. Hynes, and R. R. McLeod and the defendants Granite Bi-Metallic Consolidated Mining Company and Fred Bnrr & Granite Ditch Company appeaL

<p> Directed Verdict—Judgment—When on Merits—Bes Adjudicata. </p> <p>Directed Verdict—-Judgment—Nature of.</p> <p>1. A judgment on a directed verdict may or may not oe a judgment on the merits, dependent upon the question decided by the court and the scope of the ruling.</p> <p> Judgment—Bes Adjudicata. </p> <p>2. A litigant has no right, as against the same adversary, to have a question, either of law or fact, relating to the same cause of aetion, twice adjudicated in the same or another court of lite jurisdiction, unless a re-examination of it has been regularly ordered1.</p> <p>Same—Directed Verdict—Bes Adjudicata.</p> <p>3. Plaintiff brought an aetion in the circuit court of the United States against a street railway company to recover damages for personal injuries. The judgment in that court recited that, after the impaneling of a jury, evidence was submitted by both parties, and at its conclusion a verdict was directed in favor of defendant. Plaintiff subsequently instituted suit in the state court on the same cause of action against the same defendant. Held, that the judgment in the federal court was upon the merits, and a bar to the aetion in the state court.</p>

Lynch, Judge. Action by William A. Paine and others, copartners under the firm name of Paine, Webber & Co., against the British-Butte Mining Company. From a judgment for defendant on sustaining a demurrer to the complaint, plaintiffs appeal.

Miller Smith, Judge. Action by Jo-bn H. Bumping against Eva Bumping. From-an order allowing defendant $50 suit money, and $150 to cover-the cost of the stenographer’s transcription of Ms notes, plaintiff appeals.

E. Erickson,. Judge. Proceedings by Mathilda Tremblay for the probate of the-will of John Hobbins, deceased, in which Mary H. Roe appeared as a contestant. From a judgment denying the probate, eontestee appeals. The contestant is not an “interested party,” within the meaning of the law, so as to permit her to contest this will.

Action by Alta Miley against the Northern Pacific Eailway Company. From a judgment for plaintiff and from an order denying it a new trial, defendant appeals.

Action by T. F. Archer and others against the Chicago, Milwaukee & St. Paul Railway Company of Montana. From an order granting defendant a new trial, plaintiffs appeal.. When plaintiffs built tbeir dam and tbeir ditch on Bach-man’s land, they were state agents in charge of a public use, and had the right to acquire a fee for their dam site, and. an irrevocable easement for their ditch right of way, by condemnation, had Bachman been unwilling to bestow it upon them.

B. C. Stewart, Judge. Action by J. T. Murphy and another, copartners, doing business under the firm name and style of Murphy & Eyan, against Walter Cooper. From a judgment for plaintiffs and an order overruling his motion for a new trial, defendant appeals.

Application by tbe state, on the relation of Wallace Coburn, ' for writ of prohibition, against the district court of the ninth judicial district in and for the county of Broadwater and Hon. W. R. C. Stewart, Judge thereof.

. Lynch, Judge. Action by R. B. McIntyre against the Montana Gold Mountain Mining Company and others. From a judgment for plaintiff and an order denying his motion for a new trial, defendant. John MacGinniss appeals. No particular form of lien statement is required. All that is necessary is that the language used in the statement must convey and express in an intelligent manner the meaning and intent of the statute.

Original Application for prohibition by the state, on the relation of H. D. Rosenstein, against the District Court in and for Silver Bow county and Jeremiah J. Lynch, judge thereof.

Miller Smith, Judge. Action by W. B. Dolenty against the Rocky Mountain Bell Telephone Company. Judgment for defendant, and plaintiff appeals from it and an order denying a new trial. It is conceded that an obligation cannot be garnished until :it has accrued; the profits to arise under a contract hot yet performed are not subject to garnishment.

McClernan, Judge. Action by 3ohn A. Coleman against the Northern Pacific Bail-way Company. Judgment for plaintiff, and defendant appeals from it and an order denying a new trial.

Suit by Kate M. Officer agaiust J. E. Swindlehurst and another. From a decree for plaintiff and from an order denying a new trial, defendants appeal. Services of a son or daughter, rendered while remaining in the father’s family after becoming of age without a contract for payment, are deemed gratuitous.

Action by William D. White and another against Fred W. Barling. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

Mc-Clerna/n, Judge. Action by Court Thurman against the Pittsburg and Montana Copper Company and another. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.

Lynch, Judge. Action by Charles J. Johnson, as administrator of the estate-of Fred Simila, deceased, against the Butte and Superior Copper Company, Limited. Judgment of dismissal for defendant,, and plaintiff appeals. The rules of pleading are general. They -are designed to-embrace all persons, natural or artificial, capable of suing or being sued. Corporations are bound by the same rules of pleading that bind a natural person.

<p>'Accident Insurance—Notice and Troof of Death—Evidence— Sufficiency—Waiver—Exposure to Danger—Attempt to Save. Life.</p> <p>Accident Insurance—Notice and Proof of Death.</p> <p>1. While the giving of notice and the furnishing of proof of death,, called for by the provisions of an accident insurance policy, are distinct and separate acts, proof of death, when seasonably made, may also serve the purpose of notice; but a mere informal notice does not ordinarily supply the place of formal proof.</p> <p>Same—Proof of Death—Evidence—Nature and Sufficiency.</p> <p>2. The proof of death required to be made by the terms of a policy of accident insurance need not consist of formal depositions or sworn statements of eye-witnesses, but evidence in any form, when substantial and trustworthy enough to enable the insurer to form an intelligent estimate of his rights and liabilities' under his contract, is sufficient, and it is for the court, and not for the insurer, to say whether-it gives substantially the information stipulated for in the policy.</p> <p>Same—Notice and Proof of Death—Sufficiency—Waiver.</p> <p>3. When notice of a casualty and proof of resulting death are incorporated in the same communication to the insurer, and the proof of the cause of death, with the attendant facts, meets all the requirements of the policy, except that the statement is not as full as it might be, the failure of the insurer to demand more explicit proof is a waiver of his right to thereafter object to its sufficiency.</p> <p>Same—Attempt to Save Life—Negligence.</p> <p>4. The law will not impute negligence to^one who, in an attempt to save human life, is injured, unless the attempt be made under such circumstances as to constitute it rashness in the estimation of prudent persons.</p> <p>Same—Attempt to Save Life-—Exposure to Unnecessary Danger—Jury Question.</p> <p>5. Held, that the question whether the death of a miner who, while attempting to rescue a fellow-workman who had been overcome by noxious gases, was himself overcome and died from the effects of the inhalation of such gases, resulted from an unnecessary exposure to danger so as to absolve the defendant company from liability under a provision in its contract of insurance, was one for the jury.</p>

Lynch, Judge. Action by F. P. Alywin against E. A. Morley and. others. From a judgment for defendant Estella Conroy against E. A. Morley and another, and from an order denying them a new trial, the latter appeal.

Myers, Judge. Action by the McGowan Commercial Company against the Midland Coal and Lumber Company. From an order granting a new trial after judgment of nonsuit, defendant appeals.

Suit by Rudolf Yon Tobel to enjoin the city of Lewistown from taking a portion of plaintiff’s property for street purposes. From a decree for plaintiff and an order denying a new trial,, defendant appeals. “Dedication is the act of devoting or giving property for some proper public object, in such manner as to conclude the owner.” (5 Am. & Eng.

<p> Personal Injuries—Electric Wires—Instructions—Harmless Error—Special Interrogatories—Discretion—Jury. </p> <p>Appeal—Instructions—Objections and Exceptions—Beview.</p> <p>1. Under subdivision 5 of section 6746, Bevised Codes, the supreme court cannot reverse a judgment and direet a new trial for error in an instruction, unless at the time of settlement in the trial court 'specific objection was made to it, pointing out the error alleged, and an exception preserved to the action of the court in overruling the objection.</p> <p>Personal Injuries—Instructions—Conformity to Issues—Harmless Error.</p> <p>2. Though the district court erred, in an action to recover damages for the death of an employee occasioned by coming in contact with a highly charged electric wire, in submitting an instruction upon an issue of negligence not involved in the case as tried, such error was nonprejudieial to defendant, in view of the fact that the instruction placed an additional burden upon plaintiff which, under the theory of the case, he was not bound to assume.</p> <p>Trial—Special Interrogatories—Discretion.</p> <p>.3. The submission of special interrogatories to the jury is a matter confided to the discretion of the district court.</p> <p>Same—Special Interrogatories—Improper Eorm.</p> <p>4. A special interrogatory involving two questions, one of which might, under the testimony, have been answered in the affirmative, while to the other an affirmative or negative answer could have been given, was improper.</p> <p>Same—Special Interrogatories—Withdrawal.</p> <p>5. By accepting a general verdict without requiring the jury to answer a special interrogatory submitted to them, the court in effeet withdrew it from their consideration, which it was within its discretion to do.</p> <p>Same—Wry—Discharge—Beeall.</p> <p>6. After the jury has been finally discharged from consideration of a case, they may not, except upon consent of all parties, be recalled to answer a special interrogatory submitted to them but whieh they failed to answer when returning their verdict.</p> <p>Appeal—Conflicting Evidence—"Verdict—C'onclusiveness.</p> <p>7. The verdict of the jury will not be disturbed on appeal on the alleged ground that the evidence is insufficient to justify it, where from the testimony before them they could have found the issues in favor of either party.</p> <p>(Mr. Justice Smith dissenting in part.)</p>

<p>Foreign Corporations■—Increase of Capital Stock—Certificate— Filing Fee—Secretary of State.</p> <p>1. Each of two foreign corporations, one witb a capital stock of' $10,250,000, and tbe other with one of $2,000,000, upon entering the state to transact business had paid the full legal fees for filing its articles of incorporation. Subsequently the former absorbed the latter ■ and increased its capital stock, the certificate presented to the Secretary of State for filing showing its capitalization then to be $14,000,000. Held, that the secretary was not required to deduct the amount of the’ capital stock of the absorbed corporation—upon which the fees had once been paid—from the amount shown by the certificate of increase, but properly charged a fee based upon the difference between its former capitalization and the present one.</p>

Miller Smith, Judge of the First Jiidicial District, presiding. Action by the State Bank of Moore against John R. Forsytb. Judgment for defendant, and plaintiff appeals from it and an order denying it a new trial. A contemporaneous parol agreement between the parties to a note that it was not to be enforced as between the parties constitutes no defense to the note.

Lynch, Judge. Action by E. E. Moyse, against tbe Northern Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal. The complaint is framed on the theory of liability to plaintiff, as one of its servants, for injuries received while in the active discharge of his duties in the course of his employment.

<p> Counties—Townships—Changing Boundaries—Powers of Board of Commissioners. </p> <p>Counties—Board of Commissioners—Powers.</p> <p>1. The board of county commissioners is a body of limited jurisdiction, and before a power may be exercised by it, the authority for the action must be found written in the law, or it must be clearly implied from some express grant of power.</p> <p>Same—“Township”—Definition.</p> <p>2. A township is a subdivision of a county.</p> <p>Same—Townships—Changing Boundaries—Extent of Power of Board of Commissioners.</p> <p>3. Held, that while the board of county commissioners has the power, under section 2894, Revised Codes, to change the boundaries of a county, or to abolish a township altogether, its authority in this respect is limited to the extent that there must always be at least two townships in each county; hence in abolishing all but one township in a county the commissioners acted in excess of their jurisdiction.</p>

<p>!'Landlord and Tenant—Oral Leases—Nature of Occupancy— Evidence—Trial—-Amendment of Pleading—Discretion.</p> <p>Trial—Pleadings—Amendment—Discretion.</p> <p>1. The allowance of an amendment to defendant’s answer, during trial, was within the sound legal discretion of the district court; in the absence of a showing of abuse thereof, its action will not be disturbed on appeal.</p> <p>Same—Amendment of Pleadings—Objection—When Too Late.</p> <p>2. An objection to the allowance of an amendment of the answer, in an action for unlawful detainer, on the ground that it was not verified, not made until after the amendment had been allowed, was too. late.</p> <p>Landlord and Tenant—Oral Leases—Nature of Occupancy—Evidence.</p> <p>3. Evidence in an action for rent held to justify a verdict that defendant’s occupancy was under an oral lease from year to year, and not under one from month to month; plaintiff eould not, therefore, rightfully increase the amount of the rental during the term of such lease.</p>

Lynch, Judge. Action by James Pearce against the Butte Electric Railway ‘Company, a corporation. Judgment for plaintiff, and defendant appeals. A complaint against a defendant named as a corporation which does not sufficiently and clearly allege the corporate ■capacity of such defendant is open to attack on general demurrer as not stating a cause of action. A failure to make such allegation is fatal to the complaint. {Oroville etc. By.

Myers, Judge. Action by James Davidson against D. O’Donnell, as justice of the peace in and for Thompson township, Sanders county, and the United States Fidelity & Guaranty Company. Judgment for plaintiff. Defendants appeal from an order denying them a new trial.

<p> Street Railways—Passengers—Personal Injuries—Master and Servant—Joinder of Parties Defendant—Complaint—Sufficiency—Failure of Proof. </p> <p>Master and Servant—Passengers—Personal Injuries—Parties Defendant— Joinder.</p> <p>1. Held, that a master and his servant may properly be joined as de- ■ fendants in an action for personal injuries, directly caused by the negligence of the servant, for which negligent act the master is responsible under the doctrine of respondeat superior.</p> <p>Personal Injuries—Street Railways—Passengers—Complaint—Sufficiency.</p> <p>2. The complaint in an aetion against a street railway company to recover damages for injuries sustained in being thrown from the steps of the ear while waiting to alight at his destination, and after the eai’ had stopped but before plaintiff had time to step off, held sufficient to state a cause of aetion.</p> <p>Same—Complaint—Evidence—Failure of Proof.</p> <p>3. Plaintiff alleged in his complaint against a street railway company that while he was at his destination and in the aet of stepping off defendant’s car (thus implying that the car had stopped), it was negligently started with a sudden jerk, causing him to be thrown to the ground and injured. The testimony showed that while the speed of the ear had slackened, it did not stop but, having run by his destination at a slow rate of speed, suddenly accelerated its speed, causing plaintiff to fall. Held, that there was sueh a variance as amounted to a failure of proof.</p> <p>Same—Passengers—Alighting from Car While in Motion—Responsibility of Carrier.</p> <p>i. Where a passenger alleges in his pleadings, or shows by his proof, that he alighted from defendant’s ear while the same was in motion, he must also show his reason for so doing, i. e., that the proximate cause of his injury, was negligence on the part of defendant. The mere fact that he was injured is not alone sufficient to charge the carrier with responsibility therefor, unless the injury is caused by some agency for which the carrier is responsible.</p>

<p>Carriers—Railroads—Carriage of Livestock—Wrongful Acceptance for Transportation—-Liability of Carrier—Damages— Evidence—Sufficiency.</p> <p>Complaint—Ambiguity—Special Demurrer.</p> <p>1. Ambiguity in a eomplaint can be reached by special demurrer only.</p> <p>Same—Sufficiency.</p> <p>2. Under the rule that if a complaint states facts sufficient to -warrant a recovery upon any theory, it must be sustained, a complaint against a railway company to recover damages for injury to livestock wrongfully accepted by the carrier for transportation when it knew, or should have known, that delivery at the plaee of destination was impossible under the then existing conditions of its road, though rendered ambiguous by unnecessary allegations specifying the elements of damage, held sufficient in the absence of a special demurrer.</p> <p>Eailroads—Carriage of Livestock—Wrongful Acceptance for Transportation—Evidence—Immateriality.</p> <p>3. In an action against a common carrier for wrongfully accepting livestock for transportation when it had not the facilities to- make delivery, a contract offered in evidence, modifying and limiting defendant’s ordinary obligations, was properly excluded, sinee, being unable to perform its contract of carriage and delivery, it was immaterial whether defendant had been relieved by the stipulations of the special agreement from any of the obligations ordinarily incident to a contract of carriage.</p> <p>Same—Evidence—Proper Exclusion.</p> <p>4. The special contract referred to in paragraph 3 above was further properly excluded because made between plaintiffs and a carrier other than the one sued, even though such other road was only a division of the defendant named and plaintiffs understood that such was the case.</p> <p>Same—Carriage of Livestock—Liability of Carrier.</p> <p>5. If a common carrier accepts property for transportation when he knows, or by the exercise of ordinary care should know, that it is likely to be exposed to injury because he has not suitable facilities for its transportation, he is liable for the resultant loss.</p> <p>Same—Acceptance for Transportation—Care Bequired.</p> <p>6. Plaintiffs, in order to make out a prima facie ease against defendant carrier, were required only to show that they delivered the livestock to defendant, that it failed to carry the animals to their destination and deliver them, and that loss resulted; the burden was then upon defendant company to- prove that at the time of its acceptance of the property for carriage it could not by the exercise of ordinary care have known or anticipated that it could not discharge the obligation thus assumed; and the fact that after acceptance of the animals its road was disabled by unprecedented floods was no defense, if from information at hand it should have foreseen that event.</p> <p>.Same—Damages—Evidence—Sufficiency.</p> <p>7. Evidence relative to plaintiffs’ damages held to furnish some tangible basis for an estimate by the jury, and that while the verdict was for an amount much less than that fiied by the only witness who testified in relation thereto, it should not be set aside on the ground that there was no evidence to support it.</p>

Action by Ernest Bracey and others, by Alice Bracey, their guardian, and by herself in her own right, against the Northwestern- Improvement Company and another. From a judgment for defendants, plaintiffs appeal.

.. Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by S. L. Solem against the Connecticut Fire Insurance' Company of Hartford, Connecticut. Judgment for plaintiff, and defendant appeals therefrom and from an order denying it a new trial.

<p> Inheritance Taxes—Estates of Nonresident Decedents—Constitution—Statutory Construction—Effect of Amendments—Pro-hate Proceedings—Powers of District Courts. </p> <p>Estates—Nonresident Decedents—Inheritance Taxes.</p> <p>1. Held, that where administration of the estate of a nonresident testator is ancillary only, and in order to distribute it under the terms of the will it is necessary that it be delivered to the exeeutor in the jurisdiction in which the decedent resided at the time of his death, the inheritance tax provided for by section 7724, Revised Codes, must be collected upon the amount so delivered.</p> <p>Statutory Construction—Effect of Amendments.</p> <p>2. Where, at the time of the enactment of a statute, the Codes contained a provision touching the same subject, the later legislation must be construed as controlling in so far as it is inconsistent with the earlier enactment.</p> <p>Probate Proceedings—Powers of District Courts.</p> <p>3. District courts, when sitting in probate, have no other powers than those expressly conferred by statute; their proceedings are regulated thereby and are in rem.</p> <p>Statutory Construction—Constitutionality.</p> <p>4. If possible, a statute must be so construed as to uphold its .constitutionality.</p> <p>Inheritance Taxes—Statute—Constitutionality.</p> <p>5. Held, that the statute providing for an inheritance tax (sections 7724-7751) is not unconstitutional on the alleged ground that it fails to provide for notice to nonresident distributees of the appraisement of the estate for the purpose of fixing the tax, but that under sections 7738 and 7741, such a reasonable notice is provided, and an opportunity to be heard given, as not to leave the legislation open to the objection that it fails to provide due process of law.</p>

<p> Cities and Towns—Police Department—Metropolitan Police Law —Contempt—Costs—Contemnor not Liable. </p> <p>Mandamus—Return—Contents.</p> <p>1. The return to a peremptory writ of mandate should contain a certificate of compliance, unless something impossible or unlawful is commanded, or such a change of conditions has taken place as to make compliance improper, in whieh case the facts should be stated.</p> <p>Same—Contempt—Violation of Metropolitan Police Law—Evidence—Sufficiency.</p> <p>2. Where, after the mayor of a city had been directed by writ of mandate to reinstate certain policemen in their respective offices from which they had been ousted contrary to the provisions of the Metropolitan Police Law (Revised Codes, secs. 3304-3317), his action in instructing the chief of police to include two special policemen, whose appointment had theretofore been made without warrant of law and whose continued employment would consume the funds available for police purposes, to the exclusion of those whose reinstatement had been ordered, among those who were to be regularly employed, ■constituted sufficient justification for finding him guilty of contempt of court.</p> <p>Same—Contempt—Who may be Guilty of.</p> <p>3. It was not neeessary that aldermen of a city, who, knowing of the issuance of a writ of mandate to the mayor commanding him to reinstate in office certain polieemen, theretofore unlawfully removed, and ordering their salaries to be paid, by their concerted aetion assisted</p> <p>the latter in defeating the purpose of the order of court, should have been parties to the original mandamus proceeding or served with the writ, to make punishment for their contumacious conduct in obstructing the administration of the law proper.</p> <p>Same—Scope of Order—Law of the Case.</p> <p>4. By affirming the judgment of the district court directing, on proceedings in mandamus, the reinstatement of polieemen to their offices and the emoluments thereof, the supreme court impliedly held that the remedy by writ of mandate was available to secure to a public officer the salary attached to Ms office; hence argument on the question, on application for a writ of supervisory control to annul a judgment in contempt, was foreclosed.</p> <p>Same—Contempt—Costs—Contemnor not Liable.</p> <p>5. That portion of the judgment of conviction for contempt requiring the contemnors to pay the costs incident to the proceedings, in addition to the fines imposed, was without warrant in law, and therefore unenforceable.</p>

Mc-Clernan, Judge. Mandamus by tbe state, on tbe relation of William J. Buckner, against the mayor of the city of Butte, Charles P. Nevin, incum- „ bent, to compel the reinstatement of relator as captain of police. From a judgment awarding a peremptory writ and from an order denying a new trial, defendant appeals. The exercise of the power to appoint officers must pursue the mode prescribed by the statute conferring the power. (23 Am. & Eng.

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by John J. McHatton against Louis Girard. From an order granting defendant a new trial, plaintiff appeals.</p>

<p> Conversion—Complaint—Sufficiency—Certainty. </p> <p>1. The complaint in an action for the conversion of a steer, a general demurrer to which had been sustained by the trial court, examined and held not to be .so ambiguous, unintelligible and uncertain as to fail to set forth the plaintiff’s cause of aetion in such language as to enable a person to determine from its reading what the faets relied upon by plaintiff were.</p>

<p>Mines and Mining—'Adverse Suits—Declaratory Statements— Sufficiency—Amended Statements—Effect — Trial — Amendments of Pleadings After Judgment—Harmless Error.</p> <p>Mines and Mining—Declaratory Statements—Sufficiency.</p> <p>1. A declaratory statement of the location of a quartz lode mining claim, from the recitals in which it was fairly inferable that the discovery shaft cut the vein at a depth of at least ten feet below the surface, was a substantial compliance with the statute, and therefore sufficient.</p> <p>Same—Declaratory Statements—Exclusion from Evidence—When Proper.</p> <p>2. A declaratory statement of the location of a quartz lode claim was properly excluded where the party offering it had-failed to make a preliminary showing relative to the dimensions of the posts used for marking the boundaries, or those of the mounds of earth or roek surrounding each post, or how far they had been set in the ground.</p> <p>Same.</p> <p>3. Where some time prior to discovery of a vein of mineral-bearing roek in place by defendant in an adverse suit, plaintiffs had completed their location of the ground in controversy by filing an amended declaratory statement which cured errors in the description of natural objects and permanent monuments in, and related baek to, the original statement, the court properly excluded a like statement offered by defendant, since the latter paper could not operate to cut off the intervening rights of plaintiffs.</p> <p>Same—Trial—Pleadings—Amendments After Judgment—Harmless Error.</p> <p>4. Where in an adverse suit, after ordering a decree in favor of plaintiffs, the trial court permitted them .to amend their complaint to admit proof of a seeond amended .declaratory statement, and to introduce it in evidence, any error in such action was without prejudice to defendant, such paper not having been necessary to plaintiffs’ case.</p>

Edward Moxley was convicted of the crime of receiving stolen property. He appeals from the judgment of conviction. The general rule of law is that all descriptive matters in the information, although unnecessarily particular, must be proved as laid. (22 Cyc. 48; State v. McDonald, 10 Mont. 22, 24 Am. St. Rep. 25, 24 Pac. 628; McAllister v. State, 55 Tex. Cr. 264, 116 S. W. 582.) The ownership of the property must be proved as laid in the indictment.

Lynch, Judge. Action by Marguerite Townsend against tbe city of Butte. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. The allegation charging the defendant city with negligence is not sufficient to state a cause of action. It fails to state whether the plaintiff fell by reason of the snow on the ice, or by reason of the slipperiness of the ice, or whether it was caused by the ice being slanting or smooth.

<p> Quasi Contracts—“Obligation”—Statute of Limitations. </p> <p>Contracts—“Quasi Contracts”-—Definition.</p> <p>1. Where one has received money which, though not bound to do so by express contract, he in equity and good conscience ought to turn over to him from whom he received it, the law implies a promise on his part to that effect, and the obligation, thus created or implied by law, is termed a “quasi contract,” as distinguished from a contract as defined in sections 4965 and 4966, Revised Codes.</p> <p>Same—Not Pounded on Writing—“Obligation”—Statute of Limitations.</p> <p>2. Pending a deal for the purchase of real property, plaintiff paid to defendant $5,000 on the purchase price. Before the negotiations had ripened into a contract they failed, and defendant returned $4,000 of the money paid, but refused to turn over the balance. There was not any agreement between them that all the money should be returned to the prospective purchaser in ease the transfer was not made. The action to recover the balance of $1,000 was not brought until more than three years had elapsed after payment of the money to defendant. Held, that the action was one upon an “obligation,” within the meaning of subdivision 3 of section 6447, Revised Codes, which provides that an action upon an obligation, not founded upon an instrument in writing other -than a contract, etc., must be commenced within three years, and hence was barred under said section.</p>

<p> Money Lent—Complaint—Sufficiency—Demand—When Unnecessary—Appeal—Burden of Showing Error—Offer of Proof. </p> <p>(Complaint—Sufficiency—How Tested.</p> <p>1. In testing the sufficiency of a complaint when attacked by general demurrer or by any other means of raising the question, the court will not confine itself to determining whether it states a cause of action for the particular relief prayed for, but if upon any view the plaintiff is entitled to relief, the pleading will be sustained.</p> <p>Money Lent—Complaint—Demand.</p> <p>2. Plaintiff alleged in her complaint that she loaned a specified sum ■of money to defendant company, for which a receipt was issued to ker; that none of the principal and only part of the interest had Leen repaid, etc. Held, that the complaint was sufficient to warrant recovery for money lent; that the allegation that defendant gave a receipt to plaintiff did not convert the action into one to recover upon a certificate of deposit, so as to make the pleading insufficient for failure to allege a demand; but that such allegation was a pleading of evidence, and therefore immaterial.</p> <p>Same—Demand—When Unnecessary..</p> <p>3. The general rule that where money is to become due only after demand, it is necessary for plaintiff to allege, and prove, that this requirement had been met, does not apply where defendant denies all liability. Under such circumstances a demand would be useless, and hence is not required by law.</p> <p>Appeal—Presumptions—Burden of Showing Error.</p> <p>4. On appeal the presumption obtains that the trial court did not commit error. The burden, therefore, rests upon appellant to show that error was in fact committed.</p> <p>Same—Exelusion of Evidence—Absence of Offer of Proof.</p> <p>5. Where the testimony of a witness was presented in the record in narrative form, and there appeared therein not any question or offer of proof to suggest what evidence the witness might have given in reply to an interrogatory, the answer to which was excluded, the supreme court will not determine whether the trial court erred in its ruling.</p> <p>Same—Exclusion of Evidence—Error Cured by Subsequent Admission.</p> <p>6 Error in excluding evidence is cured by the subsequent admission of testimony eliciting substantially the information sought in the first instance.</p>

Lynch, Judge. Action by Howard K. Welch and another, doing business as Welch & Harrington, against W. H. Nichols and another. There was a verdict and judgment for plaintiffs against defendant W. H. Nichols, and from an order granting Mm a new trial, plaintiffs appeal. Where evidence is conflicting, the jury’s verdict will not be disturbed, unless clearly unsupported by the evidence before them.

Myers, Judge. Thomas Trosper was convicted of grand larceny, and appeals from the judgment and from an order denying him a new trial. The testimony fails to show any animus furandi, any guilty intent, any identification even of the animal alleged to be the property of the prosecuting witness. (Watson v. State (Tex. Cr.

Mc-Clernan, Judge. Suit by James A. Murray against tbe Butte-Monitor Tunnel Mining Company and others. Judgment for defendants, and plaintiff appeals. Where, in- a case of -this character, inadequacy of consideration -and mental weakness are found, the court will presume either imposition or undue influence, and unless the bona-fides of the transaction are fully shown, the alleged sale will be set aside. (Allore v. Jewell, 94 TJ.

Lynch, Judge. Action by Margaret A. Beeler and others against the Butte & London Copper Development Company. Judgment for plaintiffs. Held: upon motion for a nonsuit, that a prima facie ease had been made .out for plaintiffs. The court could not, therefore, direct a verdict for defendants. (McKay v. Montana Union Ry.

Action by Marie Neary, widow and beir at law of James S.. Neary, deceased, and others, minors and heirs at law of the-deceased, by their guardian ad litem, Marie Neary, against the Northern Pacific Railway Company and another. From a judgment for plaintiffs, defendants appeal. The gravamen of respondents’ ease was the wanton action of' defendants resulting in the death of Neary.

McClernan, Judge. Action by Louis Kipp and others against the Davis-Daly Copper Company. From an order granting plaintiffs an injunction, defendant appeals. Whether or not the construction, maintenance and operation of the street railroad in question is within the purposes for which a street may be lawfully used is, it seems to us, answered by certain provisions of' the Constitution and statutory law of the state.

<p>Original application for writ of mandate by the state, on relation of John M. Johnson against John A. Collins, sheriff of Cascade county.</p>

Original application by tbe state, on tbe relation of J. H. Rowling and others, for a writ of supervisory control to tbe district conrt of the second judicial district in and for Silver Bow county and Honorable John B. McClernan, a judge thereof.

Myers, Judge. Action by W. P. 0 ’Brien against F. H. Drinkenberg, as mayor, and others, as aldermen, of the town of Hamilton. Held: in this state, to be directory rather than mandatory. (Marth v. City of Kingfisher, 22 Okl. 602, 98 Pac. 436; Belknap v. Miller, 52 111. App. 617; Striker v. Kelly, 7 Hill (N. Y.), 9; State v. Minneapolis B. Co., 39 Minn. 219, 39 N. W. 153; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22, 18 Am.

B. Winston, Judge. Action by the Consolidated Gold and Sapphire Mining Company against A. D. Struthers and others. From an order granting an injunction pendente lite, defendants appeal.

The Northern Pacific Railway Company was convicted of requiring one of its trainmen to work for more than sixteen consecutive hours, and appeals from the judgment and an order denying it a new trial.

B. Winston, Judge. Action by tbe Consolidated Gold and Sapphire Mining Company against A. D. Struthers and another. Held: however, that the receipt was a final receipt, which it was not, and could not be, yet it would not be sufficient to support an action in ejectment. (See Penn v. Holme, 21 How. (U. S.) 481, 16 L. Ed. 198; Hooper v. Scheimer, 23 How. (U. S.) 235, 16 L. Ed. 452; Langdon v. Sherwood, 124 U. S. 74, 8 Sup. Ct. 429, 31 L. Ed. 344.)

R_ Winston, Judge. Mandamus by tbe state, on tbe relation of Harry G-. Driffill. against tbe city of Anaconda and others. From a judgment for relator and from an order refusing a new trial, defendants appeal.

Frederick Byrd was convicted of murder in the second degree, and appeals from the judgment and an order denying him a new trial. The court erred in excusing witness Salminen. Trial courts are not at liberty to exercise their caprice in excusing jurors from ' the trial of a case on the drawing of their names. (State v. Mc-Hatton, 10 Mont. 370, 25 Pac. 1046; Boles v. State, 24 Miss. 445; Williams y. State, 32 Miss. 389, 66 Am.

<p>'Appeal from District Court, Madison County/ Llew. L. Calla-way, Judge.</p>