Volume 42 — Montana Reports

<p> Appeal from District Court, Silver Bow County; Jeremiah J. Dynch, Judge. </p> <p>Action by John Turk against John Rudman. From a judgment for plaintiff, and an order denying his motion for a new trial; defendant appeals.</p> <p>Rudman alleges fraud, and the burden was upon him to make good his allegations by clear and satisfactory evidence, such as would preponderate over the presumption of innocence. (Butte Hardware Co. v. Knox, 28 Mont. Ill, 72 Pac. 301; Power & Bro. v. Turner, 37 Mont. 521, 543, 97 Pac. 950; McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754; Marsh v. Cramer, 16 Colo. 331r 27 Pac. 169; Penn Life his. Co. v. Savings Bank, 72 Fed. 413, 19 C. C. Á. 286, 73 Fed. 653, 19 C. C. A. 316, 38 L. R. A. 33; New York Life Ins. Co. v. Davis, 96 Ya. 737, 32.S. E. 475, 44 L. R. A. 305.) Under section 5011 of the Revised Codes, the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. (Mueller v. Benkes, 31 Mont. 100, 77 Pac. 512; Noyes v. Young, 32 Mont. 226, 79 Pac. 1063; Castor v. Bernstein, 2 Cal. App. 703, 84'Pae. 244.)</p> <p>Making payments upon the note many months after the discovery of the error or mistake relative to the location of the tunnel, as Rudman did, renewing the note, making a new contract, or remaining in possession and making improvements, amounted to a ratification. (Grindrod v. Anglo-American Bondi Co., 34 Mont. 169, 85 Pac. 891; Morgan v. Nowlin, 126 Mich. 105, 85 N. W. 468; Young v. Shepard’s Estate, 124 Mich. 552,. 83 N. "W. 403; Davis v. Henry, 4 W. Ya. 571, 6 Morr. Min. Rep. 680; Lee v. McClelland, 120 Cal. 147, 52 Pac. 300; Vaughn v. Smith, 34 Or. 54, 55 Pae. 99.)</p> <p>In matters of opinion every one is presumed to rely upon his own judgment. Statements that a mine is rich in coal, that a. certain profit would be made, that the ore on the dump would pay for the value of the stock, that large dividends would be paid, that a well will supply water for a certain number of cattle, as to the quantity of wood which the timber upon property would make, of the quality of the soil beneath the surface, and estimates of amounts and quantities, are each mere predictions and hence matters of opinion only, on which the purchaser is not justified in relying, and therefore not actionable. (Page on Contracts, sec. 98; Lawrence v. Gayetty, 78 Cal. 126, 12 Am. St. Bep. 29, 20 Pae. 382; Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Fargo Gaslight & Coke Co. v. Fargo G. & E. Co., 4 N. D. 219, 59 N. W. 1066, 37 L. B. A. 593; Southern Development Co. v. Silva, 125 TJ. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678; Tuck v. Dowing, 76 111. 71, 7 Morr. Min. Bep. 84, 104; Butte Hardware Co. v. Knox, 28 Mont. Ill, 72 Pac. 301; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; Bondurant v. Crawford, 22 Iowa, 40; Longshore v. Jack, 30 Iowa, 298.)</p>

Mc-Clernan, Judge. Action- by Terry A. John against the Northern Pacific Railway Company and another. From a judgment against the de-' fendant named, and from an. order denying a motion for new trial, it appeals. The pass exemption contract is a complete defense.

Original application for writ of mandate, by the state of Montana, on the relation of H. W. Stringfellow, against tbe Board of County Commissioners of Chouteau County. In the petition presented to the board of county commissioners it is recited that the signers to the petition are taxpayers and voters of Chouteau county.

B. Callaway, Judge. Action by A. F. Waldorf against William G. Phillips and another. From a judgment for plaintiff, and from an order refusing a new trial, defendants appeal.

<p> Parent and Child—Personal Injuries—Loss of Services—New Trial^-Insufficiency of Evidence—Supreme Court—Former Decision—Bes Judicata. </p> <p>Appeal—Former Decision—Bes Judicata—Pleadings and Proof—Variance —Amendment.</p> <p>1. Held—on appeal from an order granting a new trial to a parent in an action seeking damages for the loss of Ms child’s services, on a complaint and evidence substantially the same as the pleading and proof of the infant in a prior action against the same defendant, a judgment in which prior cause had been reversed on account of variance amounting to a failure of proof—that the former decision of the supreme court was not conclusive of the father’s right to recover, since such a holding would preclude the plaintiff from exercising his privilege of amending Ms complaint to meet Ms proof.</p> <p>V erdict—Evidence—Sufficiency.</p> <p>2. In civil actions, where the evidence is conflicting, a preponderance of the evidence is the least that will support a verdict. (Revised Codes, sec. 8028.),</p> <p>Same.</p> <p>3. Where, in civil actions, the evidence is not conflicting, the verdict must be in favor of the party who has the affirmative of an issue and who has produced the uneontradieted evidence in support of it.</p> <p>Same—Insufficiency of Evidence—New Trial—When Proper.</p> <p>4. One who has recovered a verdict in his favor in a sum less than he deems himself entitled to under the evidence, may, under subdivision 6, section 6794, Revised Codes, ask for a new trial on the ground of insufficiency of the evidence to sustain the verdict.</p> <p>Personal Injuries—Parent and Child—Loss of Services—Measure of Damages—Discretion of Jury.</p> <p>5. In an aetion by a parent to recover for the loss of services of his minor child occasioned by personal injuries, it being practically impossible to determine with any degree of certainty the earning capacity of a infant during minority, much must be left to the enlightened consciences of the jurors in this regard, aided by the circumstances of each particular case.</p>

L. Callaway, Judge. Action by John M. Gilman against tbe O. W. Dart Hardware Company. Judgment for tbe plaintiff, and tbe defendant appeals from it and an order denying a new trial.

Original application by the attorney general, on behalf of the state, for a writ of prohibition commanding the district court for Sanders county and the… Held: administered and disposed of only in accordance with the terms and conditions of the grant. (State v. Cook, 17 Mont. 529, 43 Pac. 928; Roach v. Gooding, 11 Idaho, 244, 81 Pac. 645; State v. McMillan, 12 N. D. 280, 96 N. W. 310; State v. Maynard, 31 Wash. 132, 71 Pae. 775; also, State v. Toole, 26 Mont. 22, 91 Am.

C. Webster, Judge. T. C. Penny was convicted lor keeping open and maintaining a theater on Sunday, and he appeals from the judgment of conviction and an order denying him a new trial.

<p>Cities and Towns—Defective Sidewalks—Personal Injuries— Statutory Notice—Constitutional Law—Class Legislation.</p> <p>Cities and Towns—Defective Sidewalks—Notice—Statutory Construction.</p> <p>1. The words “any defect in any sidewalk,” found in the provision of section 3289, Revised Codes, requiring notice to cities or towns of personal injuries alleged to have been suffered by reason of “any defect in” a sidewalk, before the municipality shall be liable in damages therefor, have reference to any and every defect, deficiency or obstruction likely to interfere with the proper use of the walk,—such as an accumulation of snow and ice, etc.,—and not merely to some structural deficiency in the walk itself.</p> <p>Same—Notice—Purpose of Statute.</p> <p>2. Under section 3289 requiring notice to a municipality of personal injuries received by reason of any defect in a sidewalk, the purpose of which is to enable the city to avoid litigation if investigation discloses a legal liability on its part, it is not sufficient that the municipal officers have notice of the defect, but knowledge of the injury must be brought home to them before liability may be said to attach to the municipality.</p> <p>Statutes—Constitutional Law—Class Legislation.</p> <p>3. A. statute is not open to constitutional objection on the sole ground that it is class legislation; if the classification therein made is reasonable, and all members of a given class receive equal protection under it, it will be upheld.</p> <p>Cities and Towns—Notice of Personal Injuries—Statutory Requirement—■ Constitutional Law—Class Legislation.</p> <p>4. IS eld, under the rule declared in paragraph 3 above, that section 3289, Revised Codes, making the giving of notice of a personal injury, suffered on account of a defective sidewalk, a sine qua non to the recovery of damages from a city or town, is not obnoxious to the constitutional provision prohibiting class legislation, on the alleged ground that an unjust discrimination is thereby made in favor of municipalities, as against all other defendants in personal injury actions.</p>

Miller Smith, Judge. Mandamus by tbe state, on tbe relation of M. H. Gerry, Jr., member of the board of park commissioners of the city of Helena, against Frank J. Edwards, as mayor of the city, and others as members of the city council, to compel a levy of taxes. From a judgment dismissing the proceedings, relator appeals.

B. Poindexter, Judge. Action by Jacob Frederick against It. S. Hale. From a judgment for plaintiff and from an order denying Mm a new trial, defendant appeals. There was a fatal variance between the pleadings and proof. (See Geer v. County Board, 97 Fed. 435, 38 C. 0. A. 250; Batteree v. Bailway Co., 36 Tes. Civ. App. 197, 81 S. W. 566; Williams v. Bailway Co., 34 Tex. Civ. App. 145, 78 S. W. 45; Lake St. By. Co. v. Collins, 118 111. App. 270; Western By.

<p> Appeals—Statutory Time for Talcing—Noncompliance—Dismissal. </p> <p>1. An appeal from a special order, made after final judgment, ordered dismissed for want of jurisdiction in tbe supreme eourt to entertain it, where the notice of appeal was not filed and served until two days after the statutory period (sixty days) within which an appeal from such an order may be taken, had expired.</p>

<p>Judgment on Appeal—Entry by Clerk of District Court— Ministerial Duty—Mandamus.</p> <p>Judgment on Appeal—Entry by Clerk of District Court—Ministerial Duty.</p> <p>1. The duty which section 7120, Revised Codes, imposes upon the clerk of the district court in requiring him to 6nter on his docket the judgment of the supreme court rendered in any cause before it on appeal, is a purely ministerial one.</p> <p>Statutes—Adoption from Other State—Rule of Interpretation.</p> <p>2. Where legislation is adopted from a sister state after interpretation by the highest court of that state, it will be held to have been adopted with the construction thus placed upon it.</p> <p>Judgment on Appeal—Entry—Clerk of District Court—Mandamus.</p> <p>3. Since the duty of entering a judgment rendered by the supreme court in disposing of an appeal rests upon the clerk of the district court from which the appeal was taken, such court, or its judge, may not be compelled by mandamus to perform the act thus imposed by law upon the clerk.</p>

Original application for writ of mandate by the state, on the relation of W. H. Haviland, against M. Kerr Beadle, as county clerk of the county of Silver Bow, to require respondent to omit from the official ballot names of candidates for state senator nominated by political convention.

Application on the relation of James H. King, for writ of supervisory control to the District Court of the Second Judicial District, in and for the county of Silver Bow, and Hon. Michael Donlan, a judge thereof, to compel confirmation of a sale of personalty of a decedent’s estate.

<p> Depositions—Stipulations—Guaranty—Burden of Proof—Evidence—Costs—Appeal—Harmless Error. </p> <p>Stipulations—-Conformity to Stipulation.</p> <p>1. The parties stipulated that the depositions of plaintiff and another should be taken before a certain notary, at his offiee, between the hours of 10 o’clock A. M. and 4 o’clock P. M. on January 30, 1909, and, if not completed on that day, might be continued from day to day thereafter and over Sundays at the same place until completed. The caption of the deposition taken recited that, pursuant to the stipulation, such witnesses appeared on January 30, 1909, and thereafter at the hearings adjourned from day to day at his offiee, etc., and the notary’s certificate certified that the witnesses were duly sworn and the depositions were taken at the time and place named in the stipulation, to-wit, at the notary’s office, and on January 30, 1909, between the hours of 10 A. M. and 12 M. on that day and thereafter at adjourned hearings, to-wit, on March 2, 1909, between the hours of 2 P. M. and 3 P. M., and on March 3, 1909, between the hours of 11 A. M. and 12 M. Meld, that the depositions were taken in substantial compliance with the stipulation.</p> <p>Appeal and Error—Harmless Error—Admission of Evidence.</p> <p>2. In an action by the lessor on a guaranty of rent, there was no reversible error in permitting the lessor to testify that the lessee signed the lease, where the answer admitted that he rented the premises and defendant, in letters to lessor’s agent, after the lessee’s default, did not deny that the lessee was plaintiff’s tenant or that defendant had guaranteed the rent, and a witness testified that defendant told him that the signature to the guaranty was the defeudant’s, and that defendant had seen the lessee sign the lease.</p> <p>Same—Harmless Error—Exclusion of Evidence—Evidence Favorable to Complaining Party.</p> <p>3. In an action on defendant’s guaranty of rent, any error in not permitting that part of plaintiff’s deposition to be read which stated that he himself was a lessee, and that the premises were unoccupied after his sublessee had abandoned them, despite his efforts to re-lease, was not prejudicial to defendant, such testimony being in plaintiff’s favor.</p> <p>Witnesses—Admission.</p> <p>4. Anything a party said on or off the witness-stand is admissible in evidence against him, if relevant and material.</p> <p>Evidence—Admission.</p> <p>5. Evidence of defendant’s admissions, at the first trial in an action on his guaranty of rent, that the rent was unpaid, had the same effect as such an admission in his pleading.</p> <p>Guaranty—Actions—Burden of Proof.</p> <p>6. The complaint, in an action on defendant’s guaranty for the payment of rent, Begun August 14, 1908, alleged that the rent had not been paid to plaintiff, and the answer, filed on December 10th, alleged that defendant had not sufficient knowledge or information upon which to base a belief, and plaintiff’s deposition, taken about March 3, 1909, and read in evidence on June 3d, stated that all of the rent remained unpaid. Seld, that the burden was on defendant, at a second trial in whieh the samo depositions were put in evidence, to show that the rent had been paid between the dates of the taking of plaintiff’s deposition and the second trial.</p> <p>Appeal and Error—Questions Eeviewable.</p> <p>7. An order overruling a motion to tax costs was reviewable on appeal from the judgment, an order taxing costs not being appealable.</p> <p>Same—Bill of Exceptions—Necessity.</p> <p>8. Error in overruling a motion to tax costs should be preserved by a bill of exceptions containing the proceedings on the motion, but may be reviewed where such proceedings are fully set out in a statement of the case.</p> <p>Costs—Verified Memorandum—Effeet.</p> <p>9. The verified memorandum of costs and disbursements prepared by the successful party is prima fade evidence that the amounts named therein were necessarily expended, placing the burden of overcoming such showing upon the other party.</p> <p>Same—Costs of Witnesses—Immaterial Witnesses.</p> <p>10. In absence of bad faith' by the successful party in introducing a witness, the fact that such witness’ testimony was mostly incompetent will not prevent the taxation, as costs, of his mileage and per diem,.</p> <p>Same—Taking Depositions—Notary’s Fees.</p> <p>11. In taxing costs, the amount of a notary’s fee, for taking depositions in another state, will not be computed according to the statutes of Montana, but a sum whieh was reasonable under the circumstances at the place the depositions were taken will be allowed.</p> <p>Same—Depositions.</p> <p>12. The cost of taking a party’s deposition for himself is not taxable as costs against the other party.</p>

<p>Personal Injuries—Master and Servant—Assumption of Bisk—• Appreciation of Danger — Negligence — Instructions — Contributory Negligence—Special Defense—Pleading—Excessive Verdict.</p> <p>Personal Injuries—Master and Servant—Assumption of Bisk—Appreciation of Danger—Evidence.</p> <p>1. In a personal injury action-by a smelter employee against his employer, it was not reversible error to permit plaintiff to testify that he did not appreciate the danger into which obedience to an order of a shift-boss would place him.</p> <p>Same—“Appreciation of Danger”—Definition.</p> <p>2. By the term “appreciation of danger,” as applied to the law of master and servant in personal injury actions, is meant the state of mind of the servant when he acted, i. e., that he formed a judgment as to the future and that his judgment was right.</p> <p>Same—Assumption of Risk—Evidence.</p> <p>3. In order to successfully charge plaintiff with assumption of risk, defendant employer must show not only that the former knew of the danger incident to his employment, but also that he appreciated, or as a reasonably prudent person should have appreciated, it.</p> <p>Same—Evidence—Admissibility.</p> <p>4. Testimony of plaintiff tending to describe his surroundings at the time of the accident was properly admitted, though, in doing so, he detailed the difficulties he encountered in extricating himself from his perilous situation after his injury, on account of not finding a board on the trestle on which he was engaged at the time, whieh had been at that place theretofore.</p> <p>Same—Evidence—Admissibility—Harmless Error. •</p> <p>5. The admission in evidence of a conversation between plaintiff and defendant’s superintendent, had long after the accident, while the former was in the employ of defendant, in the course of whieh the plaintiff asked the superintendent if “he could do anything for me— for my foot” (which was burned), to which the latter replied in the negative, was nonprejudieial error. It was immaterial and of no consequence to either party.</p> <p>Same—Negligence—Instructions.</p> <p>6. An offered instruction in a personal injury aetion which ignored the question of plaintiff’s negligence having been a proximate or contributing cause of Ms injury, but made his bare negligence determinative of Ms right to recover, was properly refused.</p> <p>Same—Contributory Negligence—Special Defense—Pleadings.</p> <p>7. The defense of contributory negligence is a special one, and must be pleaded and proved by the defendant.</p> <p>Same—Excessive Verdict.</p> <p>8. A verdict for $5,000 in favor of plaintiff, a smelter employee, whose foot was burned, which injury, however, as testified by his physician, was permanently healed in about eight weeks after the accident, held excessive and reduced to $3,000.</p>

'Application by the state, on the relation of Ella F. Bordeaux, against Hon. J. Miller Smith, judge of the first judicial district, for writ of mandate.

<p>Supervisory Control—Discharge of Policeman—Review.</p> <p>1. Dnder Revised Codes, section 3308, providing that the judgment of tbe examining and trial board of tbe police department dismissing an officer for misconduct shall be final on questions of fact, but that the district court of the proper county shall have jurisdiction in a suit brought by the officer to determine whether the essential requirements of law have been complied with in the matter of his trial, such an officer could not obtain a review of the proceedings in the supreme court on application for a writ of supervisory control on the grounds that the charges filed against him did not state sufficient facts to constitute a cause of action, and that the evidence was not sufficient to support the findings, since these were questions of law whieh could be considered in the district court.</p>

<p>Probate Proceedings—Letters of Administration—New Trial— When Refusal Proper—Appeal—Dismissal.</p> <p>Probate Proceedings—Appeal from Order—Dismissal, When.</p> <p>1. An appeal from an order appointing an administrator and denying a counter-application for such appointment, will be dismissed if not taken within the sixty days, after entry of the order, allowed by section 7098, Revised Codes, for taking such an appeal.</p> <p>Same—New Trial—When Refusal Proper.</p> <p>2. New trials in probate proceedings are proper only in cases involving issues of fact which are based upon formal pleadings authorized by the Codes.</p> <p>Same—New Trial—Appeal—Dismissal.</p> <p>3. Where two applications for letters of administration were heard together, and issue was not joined as to any fact alleged in either petition, a motion for a new trial did not lie in favor of the unsuccessful petitioner, under the rule declared in paragraph 2, supra; and therefore an appeal from the order denying the motion ordered dismissed.</p>

<p>Railroads—Injuries at Grossings—Warning Signals—Excessive Speed—' ‘Concurrent ’ ’ Negligence—Variance—Complaint— Sufficiency.</p> <p>Railroads—Injuries at Crossings—“Concurrent” Negligence—Complaint.</p> <p>1. The allegations of the complaint in an action to recover damages from a railway company for injuries said to have been caused by the running away of plaintiff’s team while crossing its track, said runaway being due to defendant’s negligence in failing to give proper signals of the approach of its train, running it at an excessive rate of speed, etc., held, not to charge the several acts of negligence as “concurrent,” 1. e., so far interdependent that proof of all was essential to make out a case.</p> <p>Same—Warning Signals—Immaterial Variance.</p> <p>2. Proof of a violation of the statutory requirement (Revised Codes, sec. 4289) which made it incumbent upon defendant railway company to cause proper warning signals of the approach of its train to be given within a distance of from fifty to eighty rods from the crossing where the injury to plaintiff occurred, was of itself sufficient to make out a prima fade case of negligence; so that a variance between an averment that defendant was negligent in failing to give any warning, and evidence which tended to show that, while warning was given, it was not until the train was within about one hundred feet from the crossing, was immaterial.</p> <p>Same—Excessive Speed of Trains—Jury Question.</p> <p>3. Held, that the question whether the speed of twenty-five miles per hour maintained by defendant’s train within city limits, over a crossing the view of which was obstructed to plaintiff by a string of cars standing near by, and without giving any warning signals of its approach until within about one hundred feet of the crossing, was excessive, was one for the determination of the jury, under the circumstances, and not one of law. ,.</p> <p>Same—Complaint—Sufficiency.</p> <p>4. Complaint, though indefinite in some of its allegations respecting the causal connection between some of the acts of negligence charged and plaintiff’s injury, held sufficient to state a cause of action in the absence of a special demurrer or motion to make more specific.</p>

<p> Equity—Fraud—Mining Claims—Leases—Cancellation—Evidence—Findings—Conclusiveness—Placer Claims—“Known” Veins Within Boundaries of. </p> <p>Equity—Findings—-When Conclusive.</p> <p>1. On appeal in equity eases the findings of the trial court will be sustained, unless it appears that the evidence preponderates against them.</p> <p>Lode Mining Claims—Leases—Fraud—Cancellation—Evidence.</p> <p>2. Evidence in an action to cancel a contract of lease and bond on a mining claim, for fraud alleged to have been perpetrated by the lessees on the lessors so as to induce the latter to enter into it, held, not to preponderate against the trial court’s findings in favor of defendants.</p> <p>Same—Validity, When on Patented Placer Claims—“Known” Veins— Proof.</p> <p>3. A quartz lode claim upon a patented placer depends, for its ultimate validity and value, upon the ability of the locators to prove that at the time application for patent to the placer claim was made, it (the placer) was known to contain the vein upon whieh discovery of the quartz claim was made. (TJ. S. Eev. Stats., sec. 2333.)</p> <p>Same—Value of Quartz Lode Within Boundaries of Placer—Evidence.</p> <p>4. Where at the time a contract of lease and bond on a quartz lode mining claim, located upon a patented placer, was entered into, said claim was a mere prospect, the location of which was incomplete, and without ore of commercial value in sight, the court was warranted in finding that the claim then did not have a value greater than $500, even though subsequent development had demonstrated that the property was of much greater value.</p>

<p>1Electricity—Personal Injuries—Master and Servant—Contributory Negligence—Assumption of Bisk—Pleading—Evidence— Insufficiency.</p> <p>Appeal and Error—Objections—Pleading—Necessity.</p> <p>1. An objection to the sufficiency oí defendant’s plea of contributory negligence need not be considered on appeal, where it was not raised in the trial court.</p> <p>Negligence—Contributory Negligenee—Pleading.</p> <p>2. Contributory negligence should be pleaded' with the same degree of particularity required in pleading negligence.</p> <p>Master and Servant—Injuries—Action—Pleading—Assumption of Bisk.</p> <p>3. The principles relating to the particularity and sufficiency of pleas of negligence and contributory negligence apply to the plea of assumption of risk.</p> <p>Same—Injuries—Action—Jury Question—Contributory Negligence.</p> <p>4. In an employee’s action for injuries by contact with an electric wire, claimed to have been caused by defendant’s negligence in not informing plaintiff as to the amount of current carried by the wire, etc., evidence held not to warrant a finding of contributory negligence as a matter of law.</p> <p>Same—Injuries—Evidence—Insufficiency.</p> <p>5. In a servant’s action for injuries by contact with an eleetrie wire, claimed to have been caused by his employer’s negligence in failing to inform him of the strength of the current in the wires, evidence held not to sustain a verdict for plaintiff.</p>

<p> Default Judgment—Vacation—Discretion—Injunction—Motion to Dissolve—Appearance. </p> <p>Injunction—Preliminary Injunction—Effect.</p> <p>1. The office of a preliminary injunction is to preserve the status quo until on final hearing the court may grant full relief.</p> <p>Appearance—Preliminary Injunction—Motion to Dissolve.</p> <p>2. A motion to dissolve a temporary injunction is not an appearance in the action.</p> <p>Judgment by Default—Eailure to Answer.</p> <p>3. Under Revised Codes, section 6719, permitting judgments by default on failure to answer or to challenge the jurisdiction of the court by answer, demurrer, motion, or special appearance, coupled with a motion, within the time specified in the summons, or such further time as may be granted, etc., a mere appearance by the defendant will not prevent the entering of his default.</p> <p>•Same—Pleading—Motion to Vacate Preliminary Injunction.</p> <p>4. Section 6719, Revised Codes, provides for a default for want of answer, demurrer, motion, or special appearance, coupled with a motion, etc., filed within the time required for answer, and section 7149 declares that after appearance, a defendant, or his attorney, is entitled to notice of all subsequent proceedings of which notice is required to be given. Held, that where defendants filed no pleadings except a motion to dissolve a preliminary injunction, until after the time to answer had expired, their default was properly entered without notice, though such motion be regarded as an appearance.</p> <p>Appeal and Error—Judgment by Default—Vacation—Discretion.</p> <p>5. Where defendant’s default was properly entered, whether it should be set aside was within the sound discretion of the trial court, with the exereise of which the appellate court will not interfere except in case of abuse.</p> <p>Judgment by Default—Vacation—Mistake — Inadvertence — Surprise or Excusable Negleet.</p> <p>6. Where defendant’s attorney mistakenly determined that there was no necessity for appearing in the main action, until the day set for hearing a motion to dissolve a preliminary injunction, which was subsequent to the expiration of the time to answer fixed by the summons, and no attempt was made to file any pleading in accordance with the mandate of the summons, defendants were not entitled to the vacation of a judgment entered against them by default, on the ground of mistake, inadvertence, surprise, or excusable neglect.</p> <p>Same—Vacation—Merits.</p> <p>7. Defendants, in a suit to establish water rights, were not entitled to a vacation of a default judgment, where no answer stating a valid defense was presented, and the affidavit in support of the motion failed to show that defendants had a valid defense on the merits.'</p> <p>Same—Vacation—Answer.</p> <p>8. While a general denial will suffice in a proper case as an answer, if made within the time required, an answer making a prima fade showing of a good defense is essential to the opening of a default.</p>

<p> Personal Injuries—Master and Servant—Negligence—Complaint —Sufficiency—Evidence—Offer of Proof—Excessive Verdict. </p> <p>Master and Servant—Personal Injuries—Negligence—Proximate Cause— Complaint—Sufficiency.</p> <p>1. Plaintiff, a boy thirteen years old, was injured while operating a pug-mill in defendant’s brick factory. The complaint alleged that plaintiff was directed to use a hose to turn water on the clay and feel it as it emerged from the machine; that there was danger in such operation; that defendants knew of the need of instruction as to such danger, and that it was their duty to use reasonable care to give plaintiff such instructions in regard to the performance of his duties as would have enabled him to sense and avoid the danger; that this they negligently and carelessly failed to do; that at the time of his injury, he was feeling the clay with his right hand and wetting it with the hose in his left hand, whereupon the left hand, while holding the hose, was carried forward against the knives of the machine and injured. Seld, that the complaint was not defective for failure to allege that defendants’ negligence in failing to instruct plaintiff was the cause of the injury.</p> <p>Same—Negligence—Pleading—Characterization of Acts.</p> <p>2. Where the doing of certain acts under certain circumstances constitutes negligence, it is sufficient, after specifying the acts, to allege that they were negligently done, or if a failure to do certain acts constitutes negligence, then it is sufficient after specifying the acta to say that defendant negligently failed to do them.</p> <p>Same—Safe Place to Work—Safe Appliances.</p> <p>3. A master is bound to use ordinary care to furnish a servant with a safe place to work, and reasonably safe appliances.</p> <p>Same—Complaint—W arning.</p> <p>4. Where a complaint for injuries to a servant alleged negligence in failing to warn, it was not objectionable for failure to allege the particular warning required, or the particular danger to be apprehended, in the absence of a special demurrer for uncertainty.</p> <p>Same—Negligence—Failure to Warn—Evidence.</p> <p>5. In an action for injuries to a minor servant while operating a pug-mill in a brick factory, evidence held to justify a finding that defendants were negligent in failing to warn plaintiff of the danger in doing his work in the manner he did, and that such negligence was the proximate cause of the accident.</p> <p>Same—Method of Work—Improbable Injury.</p> <p>6. Where plaintiff, a minor, operating a pug-mill, was injured while doing the work according to directions, and such method was in itself dangerous and resulted in his injury, defendants were chargeable with actual knowledge of the dangers to be apprehended, and hence it was immaterial that the immediate cause of the injury was an accelerated flow of water through a hose, which was a wholly fortuitous occurrence, provided plaintiff did not contribute thereto.</p> <p>Same—Duty of Master—Anticipation of Dangers.</p> <p>7. Where defendants furnished plaintiff water in a hose with which to wet down clay as it emerged from a pug-mill in a brick factory, they were chargeable with notice of how the water would flow in the hose, and that a sudden acceleration in the pressure of the water might cause the hands of a boy of plaintiff’s age to be thrown against the knives of the machine and injured, and hence bound to take steps to guard against such an injury.</p> <p>Appeal and Error—Objections—Review.</p> <p>8. An objection to evidence not made at the trial cannot be reviewed on appeal.</p> <p>Same—Exclusion of Evidence—Offer of Proof—Necessity.</p> <p>9. The sustaining of an objection to a question is not reviewable, where no offer of proof is made, and the evidence expected is not disclosed.</p> <p>Trial—Evidence—Materiality—Motion to Strike.</p> <p>10. Where plaintiff, a boy thirteen years old, was injured while operating a pug-mill in a brick factory, proof that he occasionally threw mud balls and threw water at the men was properly stricken, where no causal connection was shown between such acts and the injury.</p> <p>^ Appeal and Error—Objection to Instruction.</p> <p>11. Where an objection made to an instruction on appeal was not presented to the trial court, it should not be considered.</p> <p>Personal Injuries—Amount ^Recovered—Excessive Verdict.</p> <p>12. Plaintiff, a boy thirteen years old, was employed to wet and wateh clay coming from a pug-mill in a brick factory, and as he was doing so his hand was carried against certain knives and injured. He was in a hospital over a week, and suffered pain in his hand and shoulder. It was six weeks before his hand healed, during which time he suffered pain and loss of sleep. When it healed, it was found that he had lost the 'use of one and perhaps two of his fingers, though it was problematical whether sueh condition was permanent. The hand was quite badly torn, and his physician testified that he treated it in the neighborhood of two months, and that after healing resultant tenderness to pressure in the palm of the hand might result and that it would be susceptible to the influence of heat and cold. Held, that while a verdict for $10,000 was excessive and should be reduced to $4,000, it was not so excessive as to evince passion and prejudice on the part of the jury.</p>

<p>Unlawful Detainer—Injunction Pendente Lite—When Proper— Municipal Corporations—Disposition of Garbage—Nuisances— Insolvency—Complaint—Sufficiency.</p> <p>Temporary Injunction—When Proper.</p> <p>1. Held, that injunction lies in aid of an action for unlawful detainer, even though such action is summary and usually speedy and adequate to oust defendant from his unlawful possession, where, owing to the peculiar character in which the property is intended to be enjoyed, or where the rights obstructed by defendant are of such a nature that the damages sustained are incapable of computation in money, provisional relief is imperatively neeessary to preserve the subject of litigation until final judgment.</p> <p>Injunction—Repetition of Trespasses.</p> <p>2. Belief by way of injunction may be granted to protect the owner of land against a repetition of wanton trespasses for which adequate compensation cannot be given by way of damages.</p> <p>Same — Municipal Corporations — Disposition of Garbage — Interference With.</p> <p>3. A city leased certain lands owned by it, and lying about a mile-from its limits, to defendant for agricultural purposes, reserving to itself a small portion thereof for dumping ground of its garbage, burial of dead animals, etc., and making it the duty of the lessee, as. part consideration for the contract, to make speedy disposition of such refuse, the employees of the city to have free access to the land at all times for dumping purposes. The lessee having failed to perform the-duties imposed upon him by the agreement, the city abrogated it, and brought an action for unlawful detainer, and as ancillary relief asked, that pending suit, defendant be enjoined from interfering with its agents and employees in the use of the land reserved for the purposes indicated. Held, under the rule declared by paragraph 1 above, that the district court properly granted an injunction pendente lite.</p> <p>Same—Insolvency—Complaint—Sufficiency.</p> <p>4. The damages likely to result to plaintiff city from the wrongful acts of defendant in interfering with its employees in the speedy disposition of the garbage, dead animals, etc., during the heat of the summer, and thus endangering the health of its inhabitants, having been such as to be incapable of measurement in money, the absence of an allegation in the complaint that defendant was insolvent did not render the pleading insufficient to warrant the granting of a temporary injunction. Under such circumstances injunctive relief was proper, irrespective of the financial condition of defendant.</p>

<p> Appeal and Error—Notice of Appeal—Service on “Adverse Party”—Judgment—Direct and Collateral Attach—Jurisdiction—Waiver. </p> <p>Notice of Appeal—Service on “Adverse Parties.”</p> <p>1. An adverse party, within the meaning of section 7100, Revised Codes, which requires the notice of appeal to be served upon the “adverse party,” is one who is shown by the record to have an interest in opposing the object sought to be accomplished by the appeal.</p> <p>Same.</p> <p>2. A person to whom, subsequent to the commencement of mortgage foreclosure proceedings, one of the defendants had by bargain and sale deed transferred an interest in the real property theretofore acquired at an execution sale, but who had not thereafter been made a party defendant by substitution or otherwise, was not a party to the record, and therefore not an “adverse party” upon whom service of notice of appeal was necessary.</p> <p>Same.</p> <p>3. After real property had been sold to satisfy a judgment for wages due and a sheriff’s certificate issued to the purchaser, the owner mortgaged the premises and, upon subsequent foreclosure proceedings, defaulted. A separate decree was entered against her, the cause proceeding to trial as against her codefendant, the holder of a sheriff’s deed subsequently issued, and resulting in favor of the mortgagee. Held, that the original owner was, under the circumstances, not an “adverse party” upon whom service of notice of appeal was necessary to give the appellate court jurisdiction.</p> <p>Judgment—Collateral and Direct Attack.</p> <p>4. Where the main purpose of an action was to have a judgment set aside which operated as an obstruction to the sale of mortgaged property under a foreclosure decree, the complaint assailing such judgment on the ground that it was void ab initio for want of jurisdiction of both the subject matter and the parties in the court rendering it, the attack was direct and not collateral; therefore, all the proceedings by means of which jurisdiction was sought to be conferred were properly admitted in evidence.</p> <p>Same—Jurisdiction—Appeal from Justice’s Court—Presumptions.</p> <p>5. As in the ease of a judgment pronounced by a justice’s court, so in that of one rendered by the district court on appeal from that court, no presumption attaches in favor of such judgment until it affirmatively appears from the proceedings that it had jurisdiction to render it.</p> <p>Notice of Appeal—Waiver—Jurisdiction.</p> <p>6. The notice of appeal from a justice’s to the district court answers the purpose of a summons, and service thereof may be waived by a general appearance of the adverse party and submission to a trial and judgment; but tbe parties can in no case waive jurisdiction of the subject matter or confer it by consent.</p>

Winston, Judge. Action by Deer Lodge County against tbe United States Fidelity & Guaranty Company of Baltimore, to recover on an official bond. Judgment for plaintiff, and defendant appeals. An official bond must be signed by the principal, and, if not, it is void as to him and the sureties thereon.

<p>Criminal Law—Instructions—Bill of Exceptions—Necessity.</p> <p>1. Bevised Codes, section 9271, paragraph 4, prohibiting reversal by the supreme court for error in instructions where such error was not specifically pointed out and excepted to at the settlement of the instructions and the error and exception incorporated and settled in a bill of exceptions, is mandatory, so that error in instructions cannot be considered on appeal in a criminal ease where the reéord does not contain a bill of exceptions.</p>

<p> Life Insurance—Mutual Benefit Associations—Evidence—Trial —Reopening Case—Discretion. </p> <p>Insurance—Action on Mutual Benefit Certificate—Sufficiency of Evidence.</p> <p>1. In an action on a mutual benefit certificate, where plaintiff alleged that insured, at his death, was a member of defendant association, in good standing, and defendant denied such allegations and alleged affirmatively that insured had failed to pay or tender his monthly dues for certain months, thereby being suspended from membership, and plaintiff by reply alleged that the dues for one of such months were paid, but admitted that the dues for the other months in question were not paid, alleging that tender of such dues was made and refused, there was nothing for defendant to do but to rebut, if it could, any evidence as to tender, the default in payment of dues under the by-laws having resulted, ipso facto, in suspension of the member, and, where plaintiff rested her case without attempting to prove the tender, a nonsuit was properly granted.</p> <p>Trial—Reception of Evidence—Reopening Case.</p> <p>2. Where, in an action on a benefit certificate, defendant alleged failure to pay dues, and plaintiff in reply alleged tender and refusal to aecept, and plaintiff at the trial rested her case without attempting to prove the tender, whereupon defendant moved for a nonsuit, the court on plaintiff’s motion should have allowed her to reopen her case to prove the affirmative matter in the reply.</p>

<p> Claim and Delivery—Execution—Appeal—Stay Bonds—Liability of Sureties—Complaint—Sufficiency. </p> <p>Pleadings—Complaint—Sufficiency—How Tested.</p> <p>1. Where plaintiff in stating his cause of action shows a right in himself, a corresponding duty owed him by the defendant concerning that right, and a breach of such duty by the defendant, the statement of a cause of action is complete.</p> <p>Claim and Delivery—Execution—Action on Stay Bond—Complaint— Sufficiency.</p> <p>2. The complaint in an action on an undertaking given to stay execution pending appeal from a judgment in favor of plaintiff in claim and delivery, which alleged that the bond was given by defendants to procure a stay of execution; that the judgment appealed from was affirmed; that the property had not been returned nor any part of its valué paid, and that execution had been issued and returned wholly unsatisfied, was sufficient to state a cause of action.</p> <p>Same—Complaint—Indefiniteness—General Demurrer.</p> <p>3. The complaint above referred to, while indefinite in that it failed to allege specifically that the amount of the stay bond was fixed by the court (Reyised Codes, sec. 7103), was sufficient to withstand attack by general demurrer, the undertaking itself, containing such reeital, having been set forth in full in the complaint.</p> <p>Same—Complaint—Sufficiency.</p> <p>4. Since the filing of the undertaking required by section 7103, Revised Codes, operates ipso facto to stay execution, the fact that it was stayed need not be specifically alleged in the complaint in an action to recover on such undertaking.</p> <p>Same—Stay Bond—Breach—What Constitutes.</p> <p>5. The condition of the stay bond, that appellants (defendants in an action in claim and delivery) would obey the order of the supreme court on appeal, was broken when, after affirmance of the judgment in favor of plaintiff, they failed to either deliver up the property in controversy or pay him the value thereof, the order of affirmance having been tantamount to a direction to them to submit to and satisfy the judgment; henee the contention of defendant sureties that a breach of the condition of the undertaking had not been shown because the appellate court had made no direct order was without merit.</p> <p>Same—Sufficiency of Undertaking—Description of Subject Matter.</p> <p>6. The undertaking filed by appellants (defendants in claim and delivery) contained three obligations, the first in the form of the usual undertaking on appeal, describing the judgment sought to have reviewed. The third, in the form of that required to be given under section 7103, Revised Codes, to stay execution pending appeal, simply referred to “said judgment so appealed from.” Held, in an action to recover on the last that the judgment was sufficiently identified by the words quoted. (Revised Codes, see. 7107.)</p>

<p>Assignment—Counterclaims—Conversion—Waiver of Tort—Assumpsit—Nonpayment—Pleading and Proof—Variance. W1</p> <p>Pleading and Proof—Variance.</p> <p>1. Plaintiffs alleged in tbeir complaint in an action to recover on an assignment of wages that such assignment had been made to them as a firm. One of them, in narrating at the trial the circumstances leading to the transaction, used terms which, standing alone, would lead to an inference that he alone was concerned in it. Seld that, viewing the evidence as a whole, there was no variance between it and the pleading in this regard.</p> <p>■Conversion—Waiver of Tort—Assumpsit.</p> <p>2. Where one’s goods are taken and converted by another, the owner may, if the facts warrant it, proceed either in claim and delivery ór for damages for their conversion, or he may waive the tort and sue upon an implied promise for the value of the goods.</p> <p>■Counterclaim—Nature of Pleading—Sufficiency—How Determined.</p> <p>3. A counterclaim is in effect a complaint on the part of defendant against plaintiff, and its sufficiency as a pleading must be determined by the same rules which are applied in ascertaining the sufficiency of a complaint.</p> <p>Breach of Contract—Nonpayment—Pleading and Proof.</p> <p>4. In an action for the breach of a contract, whether express or implied, where the failure to pay constitutes the breach, the plaintiff must allege, and thereupon prove, nonpayment.</p> <p>Assignment—Wages—Counterclaim—Nonpayment—Burden of Proof.</p> <p>5. Plaintiffs sued defendant railway company to recover on an assignment of wages to them by one of its trainmen. Defendant as a setoff or counterclaim alleged that the assignor had converted goods belonging to it and thereby become indebted to it in a certain sum, and that such amount had not been paid. Held, that the allegation of nonpayment in the counterclaim was a material one, the burden of proving which rested upon defendant, and that for failure to substantiate its claim in this regard, verdict properly went against it.</p>

<p> Default Judgments—Vacation—Discretion—Summons—Service by Publication—Affidavit of Merits—Contents. </p> <p>Summons by Publication—Statutory Construction.</p> <p>1. Held, that the requirement of section 6521, Bevised Codes, that where publication of summons is necessary it must be made “once a week for four successive weeks,” is satisfied by publication thereof once in each of four successive weeks, and that such provision does not mean that the period of publication must cover four full weeks, or twenty-eight days.</p> <p>Affidavits—Information and Belief—Sufficiency.</p> <p>2. Where the statute, either in express terms or by implication, requires a sworn statement as to facts which it is impossible to make in any other manner than on information and belief, an affidavit in that form meets the demands of such statute.</p> <p>Summons by Publication—Affidavit—Information and Belief—Sufficiency.</p> <p>3. Held, under the rule declared in paragraph 2 above, that the statements required by section 6520, Bevised Codes, of one who desires an order for the publication of summons on a nonresident defendant, vie., that the plaintiff has a cause of aetion against defendant and that the latter is a necessary or proper party to the aetion, may properly be made on information and belief.</p> <p>Default Judgments—Vacation—Affidavit of Merits—Conelusiveness.</p> <p>4. In passing upon the sufficiency of an affidavit of merits filed in support of a motion to set aside a default judgment, the district court will eonfine itself to an investigation thereof with a view to determining whether a prima facie defense is made out, and will not examine it to ascertain whether, taking the statements therein contained as true, plaintiff in alleging certain matters in his complaint and affidavit for publication of summons practiced deceit upon the court in procuring the order for publication.</p> <p>Same—-Vacation—Summons—Constructive Service—Discretion.</p> <p>5. Held, that the application of a defaulting nonresident defendant not personally served with summons, like that of one who has been personally served but who, through mistake, inadvertence, surprise or excusable neglect suffered default to be taken against him, to have the judgment set aside, is addressed to the sound legal discretion of the district court, and that the movant must show (1) that he did not have actual notice of the pendency of the action in time to make a defense, (2) that he proceeded promptly to have the default set aside, (3) that he has prima facie a defense upon the merits, and (4) that the judgment, if permitted to stand, will affect him injuriously.</p> <p>Same—Summons—Constructive Service—Mail—-Presumptions.</p> <p>6. Defendants, to each of whom copies of the summons and complaint were mailed at their known places of residence, are presumed, under section 7962, Bevised Codes, to have had actual notice of the pendency of the action.</p> <p>Same—Vacation—Insufficient Slowing.</p> <p>7. Where nonresident defendants, upon whom constructive service of summons had been had, after default moved the court to set aside the judgment but failed to make a showing that they proceeded promptly for vacation of the default, and as proof of the fact that they did not have actual notice of the pendency of the action in time to make a defense offered the affidavit of a resident who could speak only from information and belief, the court held not to have abused its discretion in refusing to set aside the judgment.</p>

<p> Appeal from District Court, Jefferson County; Lew. L. Callaway, Judge. </p> <p>Action by Alexander S. Street and others against the Delta Mining Company. From a judgment for defendant, plaintiffs appeal.</p> <p>The Rolf declaratory statement is fatally defective, for the reason that it does not state that the vein is cut ten feet below the surface. (Dolan v. Passmore, 34 Mont. 277, 85 Pae. 1034.) The respondent is bound by the description of the discovery work in the declaratory statement, and can prove no other than that in the declaratory statement; in other words, respondent is bound by its record. (Sickles’ Mining Law and Decisions, p. 47.)</p> <p>The Wickes (Heuer location) declaratory statement is invalid, for the reason that the dimensions of the discovery cut are not given. (Hahn v. James, 29 Mont. 1, 73 Pac. 965; Helena etc. Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455.)</p> <p>The Wiekes (McCabe and King location) declaratory statement is invalid, for the reason that it is not stated therein that a well-defined crevice or valuable deposit is disclosed in the discovery cut. The description of the cut is as follows: “Since and within sixty days from the date of this location, the following work has been performed upon said lead, viz.: At the- point of discovery a cut the dimensions of which are ten by four feet and ten feet in depth is run.” Such a cut as here described is not the equivalent of a shaft, wherein a well-defined crevice or valuable deposit must be disclosed. (Terrible M. Co. v. Argentine M. Co., 89 Fed. 583; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 7 Sup. Ct. 1356, 30 L. Ed. 1140.) In Van Zandt v. Argentine M. Co., 8 Fed. 725, 728, 2 McCrary, 159, it is said: “A location rests on what may be found in the discovery shaft; and if nothing is found there, or if what is found there does not extend beyond the limits of the shaft, the discovery of a body of ore elsewhere in the claim will not avail.” (Lindley on Mines, see. 345; Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948; McMillan v. Ferrum M. Co., 32 Colo. 38, 105 Am. St. Rep. 64, 74 Pae. 461.) Since a vein must be disclosed in the discovery cut, it must appear from the record that a vein has been disclosed in the cut, for the»record cannot be supplemented by oral proof of what has been done. (Dolan v. Passmore, 34 Mont. 277, 85 Pac. 1034.) While on the subject of this declaratory statement, the insufficiency of the evidence to support it may be pointed out. Mr. Pennington was the only witness who testified concerning the location of this claim. His testimony is entirely void of any evidence of discovery work, if any, done on this claim. The discovery is barely mentioned. A court cannot presume the performance of statutory requirements which are conditions precedent to the acquiring of title to mineral lands. (.Zeckendorf v. Hutchinson, 1 N. M. 476.) The declaratory statement is not prima facie evidence of due location of respondent’s lode. (TJinta etc. Co. v. Creede etc. Co., 119 Fed., 164.) And all the necessary steps to make a location must be proved at trial. (Mutchmor v. McCarty, 149. Cal. 603, 87 Pac. 85 •, Bryan v. McCaig, 10 Colo. 309, 15 Pac. 413.)</p> <p>The next question is whether the abandonment of a prior location will inure to the benefit of a later location on the same ground-—supposing for the purpose of this that Heuer’s locations of the Wickes and the Rolf were valid locations at the time of the location of the June Bug. It has been decided by the supreme court of Montana, in Helena etc. Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455, following Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, that the abandonment of the prior location inures to the benefit of a later location. We are aware that the supreme court of the United States in Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. 994., 16 L. R. A., n. s., 162, has modified the ease of Lavagnino v, Uhlig in respect to abandonment. The facts in the Baggaley and Lavagnino Cases are different from the facts in the Farrell Case and the case here. In the former cases the time for the completion of the first locations had not expired when the second locations were made, and the prior locations were never completed. In the latter cases the first locations had been completed before the second locations were made—all the time assuming, but not admitting, that the Wickes and the Eolf claims were valid. There would seem to be no difference in principle between the abandonment of an incomplete location after second location and the abandonment of a complete location after second location, for both operate equally to devest the first locator of all his rights. And on the authority of the Baggaley Case it is •submitted that the right, if any, of the locator of the Wickes and Eolf inured to the benefit of the locators of the June Bug. (See, also, Morrison’s Mining Eights, 14th ed., 99, where the Baggaley Case is cited with approval.)</p> <p>The testimony of Street is to the effect that Heuer had in November, 1902, expressed1 his intention to abandon and had abandoned his ground. A mining claim may be abandoned either expressly or impliedly. It may be effected by a plain declaration of an intention to abandon. (North A. E. Co. v. Adams, 104 Fed. 404, 45 C. C. A. 185.) A mining claim may also be abandoned by the locator giving others permission to enter and locate. (Conn v. Oberto, 32 Colo. 313, 76 Pac. 369; Oberto v. Smith, 37 Colo. 21, 86 Pac. 86.) Now, if a locator can give permission to others to enter and locate, and such permission operates as an abandonment of the prior location, why cannot a prior locator, after entry and location by a second locator, ratify the entry and location of the second' locator, and by such ratification the rights of the second locator attach as if permission to enter had been given before the second location? In the case of Oberto v. Smith, 37 Colo. 21, 86 Pac. 86, three-fourths of the prior locators gave Oberto permission to enter and locate. Oberto did enter and locate before the fourth prior locator gave permission. The fourth prior locator, after Oberto’s location, ratified the acts of the other prior locators, and the court held Oberto’s location good and that the ratification related back to the date of the first permission to locate.</p> <p>The evidence is insufficient to show that veins are disclosed in the discoveries made by McCabe and King, namely the Wickes, the Covelite, the Mammoth, the Daisy, the Song Bird and the Ruby. The statute requires “a well-defined crevice or valuable deposit.” (Laws 1901, p. 140.) A well-defined “crevice” means a mineral-bearing vein. (Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948,'958.) “To constitute a vein it is not absolutely necessary that there should be a clean fissure filled with mineral, but it may and does exist when filled in places with other matter. The fissure should, of course, have form, and be well defined' with hanging and foot walls.” (Consolidated etc. Co. v. Champion M. Co., 63 Fed. 540; Van Zandt v. Argentine M. Co., 8 Fed. 725, 2 McCrary, 159; Terrible M. Co. v. Argentine M. Co., 89 Fed. 583.)</p> <p>It is claimed by appellants that the declaratory statement of the Rolf is fatally defective, for the reason that it does not contain the statement that the vein is cut ten feet below the surface. This question was not raised upon the trial of the case, and is not now before this court. The objection to its introduction was that in referring to the Alta-Califomia (patented) claim, it was too indefinite in its description of natural objects or monuments whereby to identify the claim. The statement also refers to the adjoining claim on the north as the “Wickes” claim. The Wickes location had been previously made, and the declaratory statement filed a month before. Under the circumstances, we respectfully submit that a reference to these claims, they both being of record, and one of them patented, was a sufficient reference to a natural object within the provisions of the statute. (Tiggemam v. Mrslalc, 40 Mont. 19, 105 Pae. 77.)</p> <p>It is contended that the declaratory statement as filed should show that the vein was cut ten feet deep. The cut made on the Rolf was an open cut. And under the statute (Pol. Code, 1895, sec. 3611), the cut need not have been ten feet deep, and eonsequently need not have cut the .vein at that depth. All that was required was a cut ten feet in length along the lode from the point -of discovery. The declaratory statement recites that the locator dug a cut at the point of discovery of the following dimensions: Fifteen feet long, four feet wide and ten feet deep, wherein is disclosed a well-defined crevice and valuable deposit of ore. Within the rule declared in Giberson v. Tuolumne Copper Min. Co., 41 Mont. 396, 109 Pac. 974, the declaratory statement of the Eolf in this respect was sufficient.</p> <p>It is said that the declaratory statement of the Eolf does not show where the lead was discovered, and does not state that the discovery work was ten feet along the vein. In the case of Giber-son v. Tuolumne Copper Min. Co., supra, with reference to this point, it was held that a substantial compliance with the statute in this regard is all that is required. However, before appellants can complain, they must have then completed a proper location. (Thornton y. Kaufman, 40 Mont. 282, 135 Am. St. Eep. 618, 106; Pac. 361.)</p> <p>No better statement of the location of the appellants’ alleged discovery of the June Bug is contained in their declaratory statement. So if full rein be given to the argument advanced by appellants, they have hoisted themselves on their own petard, and have no valid location themselves, and therefore will not be heard to complain of respondents. “A subsequent locator is not in a position to complain until he has completed a valid location. A party not interested in the ground in controversy and1 having-no right therein cannot object to the acts of defendants. ’ ’ (Wilson v. Freema/n, 29 Mont. 470, 75 Pac. 84, 68 L. E. A. 833; Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 Pac. 995; Thornton v. Kaufman, supra.) “The filing of a defective certificate of location of a mining claim or failure to file any certificate does not invalidate the claim, and this is so even where the certificate is void.” (Gibson v. Hjul (Nev.), 108 Pac. 759; Fordv. Campbell, 29 Nev. 578, 92 Pac. 206, 208, and cases cited.) Both statements being in pari materia, and respondent’s location being the senior, appellants would have no right as against it.. “Location notices must receive a liberal construction to the end. of upholding them when in good faith.” {Bismarck Mountain G. M. Co. v. North Sunbeam G. M. Co., 14 Idaho, 516, 95 Pac. 14; Farmington G. M. Co. v. Bhymney G. & C. Co., 20 Utah, 363. 77 Am. St. Rep. 913, 58 Pae. 832; Eilers v. Boatman, 111 U. S. 356, 4 Sup. Ct. 432, 28 L. Ed. 454.)</p> <p>It is said by appellants that the declaratory statement is not prima facie ■ evidence of the due location of respondent’s lode. “A declaratory statement is prima facie evidence of the facts required by law to be stated therein.” (Lindley on Mines, sec. 392, and eases cited; O’Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. 421, 29 L. Ed. 669; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Hammer v. Garfield etc. M. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964; 27 Cyc. 577 (B).) It should be liberally construed, and substantial compliance with the statute is all that is required. {Bismarck etc. M. Co. v. North Sunbeam G. M. Co., supra.)</p> <p>It is said that the next question is whether the abandonment of a prior location will inure to the benefit of a later location on the same ground. That a location, to be good, must be good when made, and that each claimant must stand upon his own location and take only what it will give him under' the law, see Lockhart v. Farrell, 31 Utah, 155, 86 Pac. 1077. The case of Helena etc. Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455, relied upon by the appellants, simply followed the ease of Lavagnino v. Vhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, which ease has been modified by the United States supreme court in the case of Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. 994, 997, as is admitted by the appellants. The case of Farrell v. Lockhart is also thoroughly exploited by the supreme court of Utah, in which it was originally decided, in the ease of Lockhart v. Farrell, supra.</p> <p>In Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. 994, 997, the supreme court said: “We are of the opinion, and so hold, that ground embraced in a mining location may become a part of the public domain so as to be subject to another location before the expiration of -the statutory period for performing annual labor, if, at the time when' the second location was made, there had' been an actual abandonment of the claim by the first locator.” We also refer the court to the case of Lozar v. Neill, 37 Mont. 287, 96 Pac. 343, in which this court held that in an adverse suit, in order to establish a prima facie case, plaintiff must show that the ground was not covered by a prior location, or if so, that such location is invalid or .abandoned. “Abandonment must be proved as a fact. It operates instanter. In order to be susceptible of proof, the intention must be evidenced by •some physical act. Because of this, some courts have held that abandonment consists of an act and intent.” (27 Cyc. 597-599.) But abandonment does not operate retroactively. It has no relation back. “If one abandons his location, and relocates the •ground, such relocation does not relate back,, but takes effect from its date.” (27 Cyc. 602; Gheesman v. Shreeve, 47 Fed. 787.)</p>

<p> Cities and Towns—Streets—Acquisition by Prescription—Payment of Taxes—Estoppel. </p> <p>Cities and Towns—Streets—Title by Prescription.</p> <p>1. Where a city had continuously and uninterruptedly, as well as adversely under a claim of right, used a strip of land as a public highway for over twenty years, such highway was established by prescription.</p> <p>Same—Assertion of Ownership—What Insufficient.</p> <p>2. Mere verbal assertion of ownership by the reeord owner of a strip ■of land, used adversely under a claim of right by a city for street purposes, with his full knowledge, was not sufficient to prevent the running of the statute under which the city acquired its prescriptive right; to make his protest effectual it was incumbent upon him to assert his claim by some means calculated to interrupt travel over it, or to institute an action to have his rights judicially determined.</p> <p>Same—Payment of Taxes—Estoppel.</p> <p>3. Defendant city was not estopped to assert that its right to the land in controversy had been acquired by prescription, because of its aceepttance of taxes thereon from plaintiff which had been erroneously assessed and collected by officers over whom, under certain statutes, it had no control.</p>

<p> Taxation—Zfnpatented Mining Claims—Surface Ground—Irregularity of Assessment—Remedy. </p> <p>Taxation—Restraining Assessment—Judgment—Conelusiveness — Questions Determined.</p> <p>1. A decree enjoining collection of assessment for taxes of a parcel of ground designated as a mining claim until the claim shall have been purchased from the United States as provided by law, rendered on a complaint alleging that an assessment on the claim was unlawful because the legal title thereto was in the United States, merely adjudges the mining claim, as such, not subject to taxation, because the legal title remains in the United States, and does not determine the question of the right to tax the surface ground when the same is used and has a separate and independent value for other than mining purposes.</p> <p>Same—Assessment of Mining Claim—What Constitutes.</p> <p>2. A locator of an unpatented mining claim was informed by the chairman of the board of county commissioners that a notice would be sent to him requiring him to show cause why the claim should not.be assessed. He used the ground for townsite and building purposes. He waived notice, and on the hearing the board ordered the ground assessed for townsite purposes, over the locator’s objection that title was not in him. Reid, that the assessment of the ground was on its use for townsite and building purposes, and not on an unpatented mining claim as such.</p> <p>Same—“Property” Subject to Taxation—Unpatented Mining Claims.</p> <p>3. Under Constitution, Article XII, sections 1-3, 17, requiring a uniform rate of taxation of property not exempt, enumerating what property shall be exempt, declaring that all mining claims after purchase from the United States shall be taxed at a specified valuation, unless the surface ground is used for other than mining purposes and has a separate value for such other purpose, in which case the surface ground so used shall be taxed at its value for such other purposes, and defining “property” as ineluding moneys, credits, bonds, stocks, franchises, and all other matters and things capable of private ownership, and under Revised Codes, sections 2498-2500, providing that all property is subject to taxation, except that specially exempted, the surface ground of an unpatented mining claim when used for other than mining purposes and when it has a separate value for such other purposes is subject to taxation.</p> <p>Same—Assessment—Validity. ^</p> <p>4. Where a house on premises is separately assessed, the words in the assessment of the real estate, “and the house upon which is numbered 38,” are simply descriptive, serving to identify the ground, and the assessment of the real estate is not void on the ground that it cannot be ascertained whether it includes the house, and, if it does, it is void because the house has been separately assessed.</p> <p>Same—Irregularity in Assessment—Remedy.</p> <p>5. Under Revised Codes, section 2741, forbidding atf injunction to restrain the collection of any tax, except where the tax is illegal, or where the property is exempt, the court may not restrain the collection of a tax levied on the surface of an unpatented mining claim having a separate and independent value because of its use for other than mining purposes, on the ground that the assessor failed to set forth in the assessment the faet that the surface ground was assessed for other than mining purposes, but the remedy is by an action at law under section 2742 to recover the taxes paid under protest, which remedy is by section 2745, exclusive.</p>

<p> Corporations—Insolvency—Receivership—In Aid of Execution —Stockholders. </p> <p>Corporations—Insolvency—Receivership.</p> <p>1. That a corporation is insolvent does not alone justify the appointment of a receiver at the suit of a judgment creditor.</p> <p>Same—Receivership—Grounds.</p> <p>2. A judgment creditor of an insolvent corporation may enforce a liability against stockholders accruing through a failure to comply with the law or to pay for subscribed stock, and it is not necessary to appoint a receiver to enforce it.</p> <p>Same.</p> <p>3. That a judgment creditor of an insolvent foreign corporation may not, in the courts of a sister state, enforce the liability against stockholders accruing through a failure to comply with the law or to pay for subscribed stock must be pleaded, to be available as a ground for the appointment of a receiver of the corporation at the suit of the creditor.</p> <p>Same.</p> <p>4. Where one obtaining in the district court of the state a judgment against a foreign corporation doing business in the state was unable to obtain satisfaction of the judgment by execution against the corporation, whose property was in the hands of nonresidents, he could go into the courts of a sister state and enforce his rights, so that it was not necessary to appoint a receiver of the corporation for that purpose.</p> <p>Same.</p> <p>5. That a sale of the assets of a foreign corporation located in Montana, by order of a court in a sister state, was void did not require the appointment of a receiver at the suit of a judgment creditor of the corporation; the property not being in danger of being wasted and the purchaser not being insolvent.</p> <p>Receivers—Appointment—Grounds.</p> <p>6. Revised Codes, section 6698, providing for the appointment of a receiver after judgment to carry the judgment into effect, does not authorize the appointment of a receiver when a money judgment has been recovered in a simple aetion at law, as the' creditor can himself take the necessary steps to enforce the judgment.</p> <p>Execution—Appointment of Receiver—Grounds.</p> <p>7. Revised Codes, section 6698, providing for the appointment of a receiver in proceedings in aid of execution, when an execution has been returned unsatisfied, does not authorize the appointment of a receiver, where no proceedings in aid of execution have been had and no property has been discovered of which a receiver can take possession.</p>

<p> Specific Performance—Real Property—Public Lands—Mineral and Agricultural—Validity of Claims—Fraud—Compromise Agreements—Public Policy—Contracts—Construction. </p> <p>Plaeer Mining Claims—Location—Extent of Deposits—Sufficiency.</p> <p>1. The failure of the locator of a plaeer mining claim to develop a paying property -within a given time does not of itself stamp the location fraudulent; if mineral sufficient in quantity was found to justify the locator in spending time and money in the prosecution of development work, with a reasonable expectation of finding gold in paying quantities, his claim will be held valid as against the assertion that he made the location knowing it to have been nonmineral in character.</p> <p>Specific Performance—Fraud—Burden of Proof.</p> <p>2. One who claims that he was induced to enter into a contract through fraud, in that a certain fact was concealed from him, has the burden of proving that the fact alleged to have been concealed was a material one, and that but for the concealment he would not have become a party to the agreement.</p> <p>Same—Publie Lands—Rival Claims—Compromise Agreement—Consideration.</p> <p>3. Where both plaintiff and defendant in a suit looking to the specific performance of a contract to convey lands had a claim to three fortyaere tracts, which he was asserting, the relinquishment by plaintiff of his claim to one of them in favor of defendant, for the purpose of - effecting a compromise and facilitating the issuance of patent was a sufficient consideration for the contract sued upon.</p> <p>Same—Contracts—When Against Publie Poliey.</p> <p>4. A contract will not be held void as against publie policy unless it in itself requires the doing of something which adversely affeets the public welfare, or is forbidden by law, or the consideration of which is illegal or immoral.</p> <p>Same—Contracts—Fraud on Third Party.</p> <p>5. A court of equity will not lend its aid to carrying the object of an illegal contract into effect; neither will it declare an agreement which is fair and just as between the parties and under a specific enforcement of which each party will receive what he agreed he should receive, void as against publie poliey because at the time of its execution one of the parties gave voiee to the notion that by virtue of its terms he would be enabled to defraud a third party.</p> <p>Same—Public Lands—Mineral and Agricultural—Validity of Claims.</p> <p>6. Certain public lands may be valuable for both mineral and agricultural purposes; hence one person may assert a mineral application and another an agricultural one for the same parcel of land, without the conduct of either being open to the imputation of fraud.</p> <p>Same—Mineral and Agricultural Lands—Rival Claimants—Compromise Agreement—V alidity.</p> <p>7. Where the same public lands were entered by one party under a mineral application and by another under an agricultural one, and such lands had little value for either purpose, and there was a bona fide contest before the land department as to the particular use for which they had the greater value, an amicable settlement of the controversy by a division of the land between the rival claimants may not be said to have been illegal.</p> <p>Same—Public Lands—Entry Under Scrip—Contract to Convey—Publie Policy.</p> <p>8. A contract made by an entryman upon public lands under a soldier’s additional homestead serip, to convey title to a portion of the land upon issuance of patent, is not against public poliey, is not prohibited by law and may be enforced.</p> <p>Same—Public Lands—Conveyance—-Fraud—Pleading and Proof.</p> <p>9. One contending that a contract entered into between himself, as a qualified entryman upon public lands, and a person who was disqualified, by the terms of which the former was to secure patent to such lands and thereafter convey to the latter, should not be specifically enforced because fraudulent, must plead, and has the burden of proving, that the transferee was disqualified to take patent in his own name.</p> <p>Same—Publie Lands—Procuring Patent—Division of Expense—Contract— Construction.</p> <p>10. Where it was agreed between two claimants to public land that patent should be secured in the name of one, the other to bear one-half the expense of procuring it, the parties being unable to arrive at or fix the exact amount thereof, the contract must be construed to mean one-half of the reasonable expense and not one-half of sueh expense as the patentee saw fit arbitrarily to incur.</p>

<p> Building and Loan Associations—Looms—Mortgage Foreclosure —Bights of Members—Statutes—Pleading and Proof—Parol Evidence—When Inadmissib le—Interest—Presumptions. </p> <p>Written Contracts—Parol Evidence—When Inadmissible.</p> <p>1. Where, in an action on a written contract, there was not any issue of fraud or mistake in the execution of, or any imperfection in, the writing, but the provisions of such instrument were plain and unambiguous, parol evidence, the tendency of whieh was to vary the terms thereof, was properly excluded.</p> <p>Building and Loan Associations—Cancellation of Loans—Statutes—Pleadings—Evidence—Proper Exclusion.</p> <p>2. Defendants in a foreclosure suit who sought to avoid payment of a note, given to plaintiff building and loan association, in the manner provided in the contract, by offering evidence tending to show that the loan was canceled by compliance on their part with the provisions of section 4193, Bevised Codes, prescribing the method of payment by whieh members of building and loan associations may have their loans canceled, should have pleaded their membership; in the absence of such pleading the evidence offered was incompetent.</p> <p>Same—Loans—Due Dates—Presumptions—Interest.</p> <p>3. Where the complaint in a suit by a building and loan association to foreclose a mortgage securing a note, monthly payments upon which were to be made upon certain dates, did not allege when plaintiff elected to exercise its option to treat all unpaid installments as immediately due and payable, it may be assumed that the election was made on the date the complaint was filed; hence interest upon the installments then due and to become due was to be calculated with reference to such date.</p> <p> Appeal from District Court, Deer Lodge County; Geo. B. Winston, Judge. </p>

<p> 'Master and Servant—Railroads—Personal Injuries—Expert and Opinion Evidence—Instructions. </p> <p>'Evidence—Examination of Expert—Responsiveness of Answer.</p> <p>1. In an aetion for the death of a railroad engineer by the explosion of a boiler, an expert witness was asked what in his opinion was the cause of the explosion, and, after stating the cause, the witness continued that the boiler-maker, instead of going to work to inspect the boiler “and see if those bolts would stand another hammering, which would be done the proper way by having another man holding on the other end of the bolts, and split that thread on the inside of the crown sheet.” Held, that the court improperly refused to strike out as not responsive that part of the answer relating to what the boiler-maker should have done.</p> <p>Appeal and Error—Harmless Error—Admission of Evidence—Irresponsive Answers.</p> <p>2. Such error could not have prejudiced defendant railroad company, where the proper manner of repairing the boiler and fire-box was shown at length by both parties.</p> <p>Evidence—Expert Testimony.</p> <p>3. Revised Codes, section 7887, permitting a witness to give his opinion of a question of science, art, or trade, when he is skilled therein, means that an expert witness may give Ins opinion upon or about a question of science, art or trade.</p> <p>Same—Opinion Evidence—Expert Testimony—Subjects.</p> <p>4. Where, though the conclusions to be drawn depend upon facts peculiarly within the knowledge of persons whose experience or study enables them to speak authoritatively upon the subject, the jury are able intelligently to draw conclusions from such facts when testified to by experts, it is their sole province to do so; but if the conclusions to be drawn, as well as facts, depend upon professional or scientific knowledge, which one of ordinary training or intelligence does not have, the expert witnesses may give their conclusions from the facts as well as testify to the facts themselves.</p> <p>Same.</p> <p>5. A witness could testify as to whether a railroad engine boiler was in a reasonably safe condition for use, after it had been repaired by placing a patch on the flange joining the flue-sheet and the crown-sheet, where the question depended on whether the patch had been properly put on, since the jury might not be able to intelligently draw a conclusion on that question even if the condition of the boiler was shown by the evidence.</p> <p>Same—Conclusions—N egligenee.</p> <p>6. Where it was a proper subject of expert testimony whether a boiler was in a reasonably safe condition for use after it was repaired, the expert could testify that it was negligence to use the boiler in that condition, the value of his opinion being for the jury.</p> <p>Same—Expert Testimony—Province of Court.</p> <p>7. It is for the trial court to determine in the first instance whether a subject is proper for expert testimony, and when it cannot say as a matter of law that the jurors are as competent to determine the question as experts having a special knowledge, gained from experience, expert testimony may be admitted.</p> <p>Appeal and Error—Harmless Error.</p> <p>8. Revised Codes, section 6593, prohibiting a reversal because of error in the proceedings whieh does not affect the substantial rights of the parties, was intended to prevent reversals of eases wherein substantial justice was done at trial, and to speedily terminate litigation, where that can be done without working injustice.</p> <p>Same—Harmless Error—Admission of Evidence.</p> <p>9. Where every opportunity was given the parties to thoroughly investigate, by offering expert testimony, the causes of a boiler explosion, and no competent testimony on the subject was excluded, the fact that defendant was compelled to rebut expert testimony offered by plaintiff and erroneously admitted, by offering other expert testimony, was not ground for reversing a judgment for plaintiff; the expert testimony on the subject being sharply conflicting, and the jury having found for plaintiff after inspecting the wrecked boiler.</p> <p>Trial—Evidence—Motion to Strike—Sufficiency.</p> <p>10. Defendant railroad company cannot complain, in an action for an engineer’s death caused by the explosion of a boiler, of a ruling denying the quoted part of a motion to strike from the reeord “all of the testimony relating to the alleged defects in the boiler, except that relating to the patch and the cracks,” and especially the testimony relating to the defective stay-bolts, for the reason that it in no manner relates to the explosion as a producing cause; the motion not being sufficiently specific to inelude evidence as to any part of the boiler, except that relating to the stay-bolts, which latter evidence was stricken.</p> <p>Master and Servant—Injuries—Actions—Admission of Evidence.</p> <p>11. In an action against a railroad company for an engineer’s death from a boiler explosion, it was proper to exclude evidence that there was a popular but erroneous impression that metal with holes in it, when heated, expanded toward the holes and made them smaller; the popular impression being immaterial.</p> <p>Same—Instructions—Conformity to Evidence.</p> <p>12. Where, in an action for a railroad engineer’s death from a boiler explosion, the complaint alleged generally that the boiler was worn out and defective, and there was no motion to make the allegation more specific, and a number of witnesses testified that each of several defects named contributed more or less to make the boiler weak and unsafe, a requested instruction, that the jury should not consider any defects determining the cause of the explosion unless they believed that the explosion would not have occurred without sueh defects, was properly refused, as any defect which contributed generally to the unsafe condition of the boiler was a proximate cause of the explosion, though it alone would not have caused the explosion.</p>

<p> Appeal from District Court, Lewis & Clark County; J, Miller Smith, Judge. </p> <p>Action by Charles Buis and another against the Northern Pacific Railway Company. From a judgment for plaintiffs and an order denying a motion for a new trial, defendant appeals.</p> <p>(Cause submitted on briefs in ease of Copenhaver v. Northern Pacific Railway Co., ante, p. 453.)</p>

<p> Bills of Exceptions—Settlement—Noncompliance With Statute—Cumng Defect—New Trial—Record. </p> <p>Bill of Exceptions—Settlement—Noncompliance "With Statute—Effect. '</p> <p>1. Where a party proceeded to settlement of his bill of exceptions; under the first mode provided by section 6788, Revised Codes, viz.: by presenting it, with amendments (which were objected to), to the judge, but not within ten days after service of the amendments nor upon five days’ notice to the adverse party, the bill must be disregarded.</p> <p>Same—Curing Defect—What Unavailable.</p> <p>2. The defect resulting from the failure of appellant to present his proposed bill of exceptions and amendments within ten days after the service of the amendments and on five days’ notice to the adverse party, was not cured by withdrawal of his objections to the amendments, after the lapse of the ten days and on the day designated in the notice of settlement.</p> <p>New Trial Motion—Record—Statute—Substantial Compliance.</p> <p>3. A motion for new trial is statutory, and to be effective, the record made in support of it must be formulated in substantial compliance with the statute.</p>

M. Clements, Judge. Suit by Benjamin. H. Tatem, as trustee, against the Eglanol Mining Company, Henry H. Fay and others, interveners. From a decree for defendant and from an order denying him a new trial, plaintiff appeals.

<p> Justices’ Courts—Appearance—Waiver of Summons—Jurisdiction—Certiorari—When Improper Remedy. </p> <p>Justices’ Courts—Appearance—Waiver of Summons.</p> <p>1. By joining with Ms codefendant in a motion to dismiss an action against them, in a justice’s court, a party waived service of summons and appeared for all purposes.</p> <p>Certiorari—Appeal.</p> <p>2. Where the remedy by appeal is available, eertiorari does not lie. Justices’ Courts—Jurisdiction—Certiorari—Where Improper- Remedy.</p> <p>3. After a justice of the peace had entered an order dismissing an action for nonappearance of plaintiff, he subsequently on motion of plaintiff vacated the judgment of dismissal. Defendants suffered judgment by default to be rendered against them and then applied to the district court for a writ of review looking to the annulment of the judgment for want of jurisdiction in the justice at the time it was rendered. The judgment was annulled. Held, that the court erred, inasmuch as the propriety of the action of the justice in setting aside the order of dismissal could have been reviewed on appeal, and that therefore certiorari did not lie.</p>

<p>Default Judgments—Vacation on Condition — Payment of Costs—Order of Court—Contemporaneous Constructions—Theory of Case—Estates of Decedents—Pleadings — Service— Time—Prohibition.</p> <p>District Courts—Orders—Contemporaneous Construction—Conclusiveness.</p> <p>1. The rule that, where the terms of an agreement are in any respect doubtful or uncertain, and the parties thereto have by their own conduct placed a construction upon it which is reasonable, sueh construction will be adopted by the courts, held applicable to an order of court.</p> <p>Same—Theory of Case—Appeal.</p> <p>2. Where a cause has been tried on a well-defined theory in the district court, neither party will be permitted on appeal to assume a position antagonistic to such theory.</p> <p>Default Judgments—Vacation on Condition—Payment of Costs—Construction of Order.</p> <p>3. For failure to file a reply to their seeond amended answer within a certain time, a judgment by default was entered in defendants’ favor. On the third day thereafter plaintiff moved the court to set aside the judgment, assigning as grounds of the motion, inadvertence and excusable neglect. This the court did, “conditioned upon plaintiff paying within five days all costs incurred by defendants since the filing of the second amended answer.” At the same time the court granted plaintiff five days within which to file a reply and set the cause for trial, counsel for both parties waiving jury trial. Veld, under the doctrine of contemporaneous construction, as evidenced by the conduct of both court and counsel, that the order setting aside the default judgment did not make the payment of costs incurred by defendants a condition precedent to its becoming effective.</p> <p>Same — When Premature — Estates of Decedents — Pleadings — Service — Time.</p> <p>4. Where one1 of several defendants, represented by the same counsel, died pending the action, the authority of sueh counsel to represent him ceased until substitution of his administrator. In the interim between the date of his death and sueh substitution, plaintiff was unable to serve its reply upon anyone representing decedent’s estate, but was entitled to a reasonable time after substitution udthin which to do so. Henee, where no time to file such pleading after substitution was allowed, the entry of default, so far as it affected the estate of deceased, was premature and the judgment a nullity.</p>

Miller Smith, Judge. Action by E. E. Esselstyn to enjoin George B. Holmes from using a certain trade name in the sale of coal handled by him. Defendant had judgment, and plaintiff appeals. A competitor in trade will be enjoined from using a name or designation for a product which had theretofore been adopted and used by another, and under which a business had been built up and a demand created for such product under such designation.

Tattan, Judge. Action by Mary A. Kyle, as administratrix of the estate of D. C. Kyle, deceased, against J. D. Chester. Judgment for defendant, and plaintiff appeals. Cause submitted on briefs of counsel. The ground of the motion to dissolve the attachment, in the lower court, was “that the cause of action set forth in said complaint is not an action upon a contract, express or implied, for the direct payment of money.

B. Poindexter, Judge. Action by O. H. Lewis against Margaret Patton and others. From an order denying a temporary injunction, plaintiff appeals. There are two important limitations upon the rule declared in Great Falls W. W. Co. v. Great Northern By. Co., 21 Mont. 487, 54 Pac. 963, since affirmed in Prentice v. McKay, 38 Mont. 114, 98 Pac. 1081, and Archer v. Chicago etc. By.

• Appeal from District Court, Granite County; Geo. B. Winston, Judge. Action by John A. Featherman and others against D. W. Hennessy and others. From a judgment establishing the relative water rights of the defendants James McGowan and the Oro y Plata Mining Company, and an order denying him a new trial, McGowan appeals.

Lynch, Judge. Action by Poly dor Vadnais, and another against the East Butte Extension Copper Mining Company. From a judgment for plaintiffs and an order refusing to set aside a default, defendant appeals. Cause submitted on brief of counsel.

McClernan, Judge. Action by A. E. Whipps against T. V. Lowney and others. From a judgment for defendants, plaintiff appeals. Cause submitted on briefs of counsel. In passing upon the motion for a new trial the district judge held that this case was determined by the case of Merchants’ & Miners’ Bank v. Barnes, 18 Mont. 335, 56 Am. St. Rep. 586, 45 Pac. 218, 47 L. R. A. 737.

Winston, Judge. Action by Charles Gregory against the Chicago, Milwaukee & Puget Sound Railway Company and others, to recover damages for personal injuries. Plaintiff had judgment, and the above-named defendant appeals from the judgment and from an order denying it a new trial.

Mc-Clernan, Judge. Action by Maurice Eisenberg against A. W. Goldsmith, executor of the last will and testament of H. L. Frank, deceased, to have defendant declared a trustee of an undivided one-eighth interest in certain mining property, in favor of plaintiff and for an accounting. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.