Volume 49 — Montana Reports

W. Pierson, Judge. Action by Effie Trogdon against the Hanson Sheep Company, a corporation. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. submitted a brief; Mr. Chas. S. Loud argued the cause orally. submitted a brief, and argued the cause” orally.

M. Clements, Judge. Action by Ellen Kleinschmidt and others, minority stockholders, brought in behalf of the corporation, American Mining Company, Limited, against R. H. Kleinschmidt and others. From a decree for plaintiffs and an order denying them a new trial, defendants appeal. Statement op the Case by the Justice Delivering the Opinion.

'Appeal from District Court, Silver Bow County; Michael Donlan, Judge. Prohibition by tbe state, on relation of Dave Kehoe, as county clerk, recorder, and ex-officio registrar of the county of Silver Bow, against Gus J'. Stromme and others, as county commissioners of such county. From a judgment denying the writ and dismissing the proceeding, the relator appeals.

Original application for writ of mandate, by the state, on relation of the General Electric Company, against A. M. Alderson, secretary of state, to compel the latter to file a copy of its charter, etc.

Miller Smith, Judge. Action by James H. Hicks and another against Albert Rupp and others. From a judgment dismissing the action, and from an order denying a new trial, plaintiffs appeal.

District Court, Cascade County; J. B. Leslie, Judge. Action by Roy J. Lukert against George O. Eldridge. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. submitted a brief, as well as one in reply to that of Respondent, and argued the cause orally.

B. McClernan, Judge. Mandamus by the state, on the relation of Michael J. Dwyer against Lewis J. Duncan, as mayor of the city of Butte. Judgment for plaintiff and defendant appeals. submitted a brief, as well as one in support of his objection to Respondent’s motion to dismiss the appeal; Mr. Botering argued the cause orally. submitted a brief and argued the cause orally.

A. Clark, Judge. Action by Mary Gleim against the Morris State Bank, Charles L. Finch, and others, in which Elizabeth Gibson, as… Held: through a long line of decisions, that an appeal from an order granting or refusing a new trial by a judge who did not try the case, comes before the appellate court under exactly the same conditions and subject to the same presumptions as appeals in cases where the case was tried and order on motion for new trial made by the same…

B. Poindexter, Judge. Action by the Best Manufacturing Company against H. F. Hutton. Plaintiff appeals from the judgment in favor of defendant and from an order denying its motion for a new trial. submitted a brief, and one in reply to that of respondent, and argued the cause orally.

H. Ewing, Judge. In Ee Estate of Mathilda Peterson, Deceased. Petition for distribution by Ellen S. Eustance, to which George Chellquist and another filed objections. From a decree for petitioner, objectors appeal.

'Appeal from District Court, Yellowstone County; Geo. W. Tier son, Judge. Action by the Willoburn Ranch Company against Christian Yegen and Peter Yegen. From a judgment for plaintiff and an order denying them a new trial, defendants appeal.

W. Pierson, Judge. Action by Dan McInness against the Republic Coal Company and others. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. submitted a brief; Mr. Matthews argued the cause orally. submitted a brief and argued the cause orally.

'Appeal from District Court, Ravalli Countyj John E. Patterson, Judge. Action for libel by O. C. Cooper against Miles Romney. Plaintiff appeals from a judgment on order of nonsuit. submitted a brief; Mr. R. F. O’Hara argued the cause orally.

1'Appeal from District Court, Beaverhead County; J. B. Poindexter, Judge. 'Action by E. L. Buries, as administrator of Goldie May Buries, deceased, against the Oregon Short Line Railroad Company and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appealed.

<p> Appeal from District Court, Missoula County; F. C. Webster, Judge. </p> <p>Action by the Northern Pacific Railway Company against A. Hauswirth. From a judgment for defendant, plaintiff appeals.</p>

<p>Sales — Livestock—Breach of Contract — Time of Essence — Evidence— Inadmissibility — Rescission — Duty of Buyer and Seller.</p> <p>Sales — Breach oí 'Contract — Time of Essence — Evidence—Inadmissibility,</p> <p>1. "Where a contract for the sale of sheep was silent as^ to time being of the essence of the contract, it was error, under section 5047, Kevised Codes, which provides that time is never considered as of the essence of a contract, unless by its terms expressly so provided, to permit oral evidence that such was nevertheless the intention of the parties.</p> <p>Same — Rescission—Duty of Buyer and Seller.</p> <p>2. Where time was not of the essence of a contract for the sale of sheep, the buyers eould not, under Revised Codes, section 4936, claim violation of the contract or rescind for nondelivery on the day specified, without giving the seller an opportunity to tender performance, with compensation for delay; and the seller was obliged, within a reasonable time to tender performance, coupled with an offer to compensate for delay.</p> <p>[As to when time is of essence of contracts, see notes in 50 Am. Dec. 597; 104 Am. St. Rep. 265.]</p>

Original application by the state, on the relation of Harry C. Cotter, against the district court of Lewis and Clark county and one of the judges thereof, for a supervisory order annulling an order made in a probate proceeding.

Original application for writ of mandate by the state of Montana, on the relation of C. A. Foster, against John B. Ritch and others as. the Board of Commissioners appointed to adjust the indebtedness and property rights of Valley and Sheridan counties, upon the creation of the latter.

Petition by the state, on the relation of Howard Little, for a writ of prohibition against the district court of the first judicial district of the state, in and for the county of Lewis and Clark, and J. Miller Smith, a judge thereof, consolidated with a petition by the state, on the relation of A. H. McConnell, county attorney, for a writ of certiorari to the same court, and J. M. Clements, the other judge thereof.

Original application for writ of mandate, by the state, on the relation of Royal S. Wood, against the board of county commissioners of Teton county, to compel respondent board to reconsider certain petitions in connection with the creation of Toole eounty.

Albert F. Hale was convicted of murder in tbe second degree, and appeals from the judgment and an order denying him a new trial.

<p> Appeal from District Court, Rosebud County; Geo. W. Pier-son, Judge. </p> <p>Action by George Loeffler against J. S. Dunning. From a judgment for plaintiff, defendant appeals.</p>

W. Pierson, Judge. Action by J. C. Hillman and A. C. Temple, copartners doing business under the firm name of Montana F. P. Gas Machine Company, against the Luzon Cafe Company, a corporation, and others. From a judgment for defendants and an order denying a new trial, plaintiffs appeal.

Crum, Judge. The board of county commissioners of Musselshell county, over the formal protest of Henry Thien and others, granted Manuel Wiltse a license to engage in the liquor business. The protestants thereupon filed their notice of appeal to the district court, but failed to file an undertaking.

Utter, J udge. Action by James Kirk against W. T. Smith. Judgment for plaintiff, and defendant appeals from it and an order denying him a new trial.

<p>Personal Injuries — Highways—Obstmctions—Duty of Counties • — Telephone Companies — Erection of Poles — Negligence— Proximate Cause — Evidence — Insufficiency—Instructions— Inapplicability to Facts — Proper Refusal.</p> <p>Personal Injuries — Negligence—Liability—Proximate Cause.</p> <p>1. To establish the liability of defendant for personal injuries, it must not only appear that he was negligent, and that the plaintiff was injured, but also that his negligence was the proximate cause of the injury.</p> <p>[As to proximate and remote causes of injury from negligence, see notes in 50 Am. Eep. 569; 36 Am. St. Eep. 807. As to respective functions of court and jury with reference to questions of proximate cause, see note in Ann Cas. 1913B, 351.]</p> <p>Same — Highways—Obstructions-—Duty of Counties.</p> <p>2. A county is not required to keep its highways in condition fit for travel for their entire statutory width of sixty feet, its duty being discharged if portions thereof, sufficiently wide to accommodate the travel fairly to be anticipated, are kept in proper condition; the remaining portions may properly be used for purposes inconsistent with their use as driveways, i. e., for piling rocks, constructing drainage ditches, etc.</p> <p>[As to liability of municipality for defects in streets and ways, see notes in 24 Am. Eep. 25; 53 Am. Dec. 92; 9 Ann. Cas. 1156; 11 Ann. Cas. 943.]</p> <p>Same — Highways—Width—Sufficiency—Jury Question.</p> <p>3. Whether the portion of a highway graded or otherwise made suitable for travel is of sufficient width to accommodate the publie is a question of fact.</p> <p>Same — Highways—Duty of Traveler.</p> <p>4. Where a sufficient portion'of a highway is made suitable for travel, the invitation to the public to use it is confined to the prepared or used portion; and for injuries received outside thereof a traveler cannot recover unless he can excuse his presence at the place where he was injured.</p> <p>Same — Telephone Poles — Construction on Highways.</p> <p>5. A telephone company is not a trespasser on a highway nor negligent per se in maintaining a guy wire on a portion of it not intended for travel, section 4400, Revised Codes, giving to such company the right to construct its lines along the highways, provided the traveling publie is not endangered or inconvenienced thereby.</p> <p>Same — Insufficiency of Evidence — Nonsuit.</p> <p>6. Under the rule that where the pleadings or proof show that plaintiff’s own act brought about the personal injury complained of, recovery cannot be had in the absence of explanatory allegation or evidence excusing it, held that a nonsuit was improperly denied where plaintiff’s own testimony, while showing that when driving a horse, under complete control, one wheel of her buggy struek a guy wire placed by defendant telephone company outside the traveled portion of the highway, causing a runaway, was silent as to why she was traveling outside the traveled portion of the road at the time of the accident, whether or not she knew of the location of the wire, etc.</p> <p>Same — Instructions—Inapplicability to Pacts — Proper Refusal.</p> <p>7. The evidence having indisputably shown that plaintiff’s horse was under perfect control, a requested instruction looking to the submission of the question whether the animal was unmanageable at the time of the accident was properly refused because inapplicable to the facts of the case.</p>

Lee McCulloch, Judge. Action by George Meredith and another against the Bitter Root Yalley Irrigation Company, Neis Roman, and others. Judgment for the plaintiffs and defendants Roman and Bennett appeal from it and an order denying their motion for a new trial.

Duncan, Judge. Proceedings by John M. Keith for the settlement of his account as guardian of Eva May Allard, minor. From an order correcting and allowing the account as corrected, and an order denying him a new trial, the guardian appeals.

Miller Smith, a Judge of the First Judicial District, presiding. Election Contest by James R. Stephens against Patrick Nacey. Judgment for the contestee, and contestant appeals. The right to vote is neither a property right nor a right of persons, but a mere political privilege, which the legislature may regulate to any extent not prohibited by the state or federal constitutions. (State v. Superior Court, 60 Wash. 370, 140 Am.

<p>District Judges — Disqualification—Imputed Bias and Prejudice — Affidavit—Notice—Date—Change of Venue — To What Court — Mandamus.</p> <p>District Judges — Disqualification—-Affidavit—-Notice.</p> <p>1. A party filing a disqualifying affidavit or motion for change of venue, under amended section 6315 (Chap. 114, Laws 1909), need not give notice thereof to his adversary.</p> <p>[As to change of venue generally, see note in 74 Am. Dec. 241.]</p> <p>Same — Affidavit-—Date Immaterial.</p> <p>2. The date of a disqualifying affidavit is immaterial.</p> <p>Same — Power of Judges of Same District.</p> <p>3. Where the business of a judicial district had been apportioned between the two judges thereof, under an agreement which did not confer on either exclusive control over any particular ease from its inception to its conclusion, but provided that the judges should alternately hold terms of court in one of the counties comprising the district, leaving either judge with power to do anything in any ease pending in that court which could properly be brought before it, one judge could settle the pleadings in a case and the other try it; and the fact that one heard a demurrer to a pleading did not divest the other of authority to try the case, or to order a change of venue on proper application being made therefor.</p> <p>[As to authority of successor to trial judge to pass upon motion for new trial, see notes in 7 Ann. Cas. 493; 10 Ann. Cas. 327. See, also, note in Ann. Cas. 1914B, 1235.]</p> <p>Same- — Change of Venue — When Compulsory.</p> <p>4. Where a district judge called in to try a case, because of the disqualification of the presiding judge, fails to appear and assume jurisdiction within thirty days after filing of the motion for change of venue, the presiding judge must change the place of trial.</p> <p>Same — Change of Venue — To What Court.</p> <p>5. Where a district judge is disqualified for imputed bias, and the judge ealled in to sit in his place fails for thirty days after motion for change of venue has been filed to appear and assume jurisdiction of the case, the former must transfer it to the nearest district court of another judicial district.</p> <p>Same — “Nearest District Court” — Definition.</p> <p>6. The nearest district court to which a cause must be transferred under .the circumstances adverted to in paragraph 5 above, held to be the court which can be reached by the shortest route in the usual mode of travel.</p>

C. Hurley, Judge. Mandamus by the state, on the relation of James Frost, against L. R. Barnett, treasurer of Dawson county. From an adverse judgment and an order overruling his motion to quash the alternative writ, defendant appeals.

<p>Default Judgments — Vacation—Principal and Agent — Fraud —Brokers—Complaint—Sufficiency.</p> <p>Default Judgments — Vacation—Finding of Trial Court — Conclusive, When.</p> <p>1. Where the disputed questions of fact presented by affidavits filed in support of, and in opposition to, a motion-to open a default, are of such character as to leave the trial eourt in a more advantageous position in considering them than is the supreme court in reviewing the order granting the motion, the finding of the lower court is conclusive.</p> <p>Brokers — Fraud—Complaint—Sufficiency.</p> <p>2. Held that' a complaint alleging that plaintiff employed defendant to sell land for a certain sum at a given commission; that defendant falsely represented to plaintiff that in order to effectuate a sale the selling price would have to be lowered; that this was believed by plaintiff who thereupon executed a deed for such reduced consideration; that at the time such representation was made defendant had negotiated a sale at the price originally fixed; that, plaintiff was thus defrauded out of the difference between the original selling price and the amount actually received by him; and that he had made demand upon defendant for restitution but bad been refused, — was sufficient to constitute a cause of aetion.</p> <p>[As to actions to recover for false representations, see note in 18 Am. St. Rep. 555; and as to same in connection with sales of real estate, see note in 2 Am. Dec. 77.]</p>

W. Pierson, Judge. Suit by E. S. Weleb against M. L. Dean, state hortieulturalist, and another. Judgment for defendants, and plaintiff appeals. The bond and license fee required is a burden upon interstate commerce of which Congress has exclusive control. While different state courts hold different views as to the right of states to burden interstate commerce in various ways, the supreme court of the United States has never varied its position in the matter.

Patterson, Judge. Action by Harry Shapard et al. against the City of Missoula et al. Judgment for plaintiffs and defendants appeal.

Miller Smith, a Judge of the First Judicial District, presiding. Action by the Pittsmont Copper Company, a corporation, against John K. O ’Rourke, as sheriff of Silver Bow county, and another. From an order granting defendants a new trial, plaintiff appeals. The affirmative allegations do not constitute a counterclaim.

<p> Appeal from District Court, Park County; Albert P. Stark, Judge. </p> <p>Action by tbe Wheeler & Motter Mercantile Company against L. T. Moon, garnishee. Judgment for defendant, and plaintiff appeals.</p>

Stark, Judge of the Sixth District, presiding. Action by Ben Cbesnut against A. H. Sales. From a judgment for defendant, plaintiff appeals. When Chesnut made a demand for his mules, after the verdict was rendered in his favor, and such demand was refused by Sales, we contend that this was a separate and distinct tort for which the defendant Sales became liable. The judgment in the former case directed Sales to return the property to Chesnut.

L. Callaioay, one of the Judges of the Fifth District, presiding. Action by Henry M. Parchen against William A. Chessman. From a judgment for plaintiff, defendant appeals. Any attempt to waive the statute of limitations is against public policy and unenforceable, especially when the attempted waiver is for an indefinite time and made a part of the note sued upon. (Nunn v. Edmiston, 9 Tex. Civ. App. 562, 29 S'.

B. Poindexter, Judge. Action by J. H. Rule against Frank Butori and others. Judgment for plaintiff. From an order dismissing the action because judgment was not entered in time, plaintiff appeals.

A. Clark, Judge. Action by Thomas Flynn against Beaverhead County. From a judgment of nonsuit plaintiff appeals. Under the facts in this case, ejectment is the proper remedy. The case of Armstrong v. City of St. Louis, 69 Mo. 309, 33 Am. Rep. 499, is the leading ease on this subject. It holds that ejectment will lie against a city to recover land which the city had wrongfully taken and converted into a street.

W. Pier-son, Judge. Lynn Groom was convicted of a felony and appeals. Held: “The court has no power to excuse jurors summoned on a special venire until they have appeared at the time and place set forth in the venire facias.” (See, also, Thompson v. State, 19 Tex. App. 593; Smith v. State, 133 Ala. 73, 31 South. 942.) Section 9247, Revised Codes, was construed in the case of State ex rel.

Alfred Miller and Otto Peterson, convicted of crime, appealed from the judgment of conviction and an order denying them a new trial.

M. Clements, Judge. Harold S. Hanson was convicted of an attempt to commit the crime of robbery, and appeals from tbe judgment and an order denying bim a new trial. Tbe information filed against tbe defendant is insufficient and defective in tbe following particulars: It fails to allege any overt act. “Indictments for attempts to commit a crime must aver tbe intent and tbe overt act constituting tbe attempt.” (Hogan v. State, 50 Fla. 86, 7 Ann.

<p>Proceedings for the disbarment of R. E. O’Keefe, an attorney at law. Judgment of suspension for the period of thirty days.</p>

Action by Donald Sutherland against C. W. Green and another, partners as Green & Ingham. Judgment for plaintiff and defendants appeal from it and an order denying their motion for a new trial. The evidence introduced over our objections was incompetent, and anything that was said by either Mr. Sutherland or Mr. Green prior to or at the time of the signing of the bill of sale or agreement is incompetent.

Original application by the state, on relation of G. R. Hay, for an injunction restraining A. M. Alderson, as secretary of state, from proceeding to refer a certain law to tbe people for… Held: after the people have spoken and spoken so decisively, we insist that public policy would demand that the amendment should stand. The supreme court of Arizona, in the ease of Allen v. State, 14 Ariz. 458, 44 L. R. A. (n. s.) 468, 130 Pae. 1114, favors the principle here advocated.

J. Lynch, Judge. Action by Robert H. White against the Chicago, Milwaukee & Puget Sound Railway Company and another. From a judgment in favor of plaintiff and an order denying them a new trial, defendants appeal. Instruction numbered 10-A, tendered by the defendants and refused by the court, should have been given. It has the sanction of an eminent court. (Lovely v. Grand Rapids & I. Ry.

E. Patterson, Judge. Action by the Valley Mercantile Company and Ralph C. Stiff against the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiffs and from an order denying it a new trial, the defendant appeals.

Original application by the state, on the relation of George Metcalf and others, for writ' of mandate to compel Frank E. Wileman, as clerk and recorder of Granite county, Montana, to print the names of relators on the official ballot for the general election of 1914 in more than one party column.

Miller Smith, Judge. Action by Mary A. Cole against tbe Helena Light & Railway Company and Frank Yiekery. Judgment for defendants, and plaintiff appeals from it and an order denying her motion for a new trial.

<p>Habeas Corpus — State Militia — Martial Law — Power of Governor — Proclamation —■ Recitals — Conclusiveness—Insurrectiomsts — Arrest amd Detention — Legality—Military Courts— Constitution — Statutes—Repeal.</p> <p>Martial Law — Insurrection—State Militia — -Power of Governor.</p> <p>1. Under section 5, Article VII, of the Constitution, the governor has authority to proclaim the existence of a state. pLjnrmrreetion in~anv portion of the commonwealth and to detail the organized militia to suppress such insurrection, and neither the local authorities nor the supreme court may interfere with his determination in the matter, so long as he remains within the limits established by the Constitution.</p> <p>[As to martial law, see note in Ann. Cas. 1914C, 22. As to martial law other than in t-ime of war, see note in 98 Am. St. Eep. 772.]</p> <p>Same — Placing Troops in Charge of Local Authorities — Discretiom-</p> <p>2. When the governor deems it advisable to call the state militia into active service to suppress an insurrection in a county, he may under section 8967, Revised Codes (but need not), place the troops in charge of the local authorities.</p> <p>Same — Proclamation—Reeitals—Conelusiveness.</p> <p>3. The recitals in the governor’s proclamation that an insurrection exists in one of the conn ties of the state are conclusive, and the conditions thus proclaimed must be presumed to continue until by executive order it shalllie-otherwise declared -</p> <p>Same — Arrest and Detention of Insurrectionists — Legality.</p> <p>4. The state militia, while engaged in suppressing an insurrection pursuant to an order of the governor, may, when necessary to sueh suppression, arrest the. insurrectionists and detain them in custody for delivery to the civil authorities at a time when the necessities of the case no longer require their detention^^</p> <p>Same — Habeas Corpus — -Who may Suspend.</p> <p>5. The suspension of the writ of habeas corpus is a legislative and not an executive function. ^</p> <p>[As to the authority of habeas corpus as paramount to that of all other writs, see note in Ann. Cas. 1914A, 829.]</p> <p>Same — Power of Governor — Limitations.</p> <p>6. Though the governor may impose a degree of military rule upon a county in insurrection, he has no power to proclaim absolute martial law, which means the supremacy of the will of the military commander, the abrogation of all constitutional guaranties and state laws, and the conviction of civilians for crime by military commissions, without trial by jury.</p> <p>[As to habeas corpus to inquire into legality of imprisonment by military authority, see note in Ann. Cas. 1914C, 30.]</p> <p>Same' — “Insurrection”—“W ar.”</p> <p>7. Held, that “insurrection” and “war” are not convertible terms.</p> <p>Same — Military Courts — Unconstitutionality—Defense.</p> <p>8. The possible prolongation of an insurrection is not any reason for upholding the summary trial of civilians hv unconstitutional mtUtftrv courts, upon the argument of convenience that sueh course is preferable to their indefinite detention in custody.</p> <p>[As to the distinction between martial law and military law, see note in 92 Am. Dee. 181.]</p> <p>Same — State Militia — Statutes.</p> <p>9. An Act which, upon submission to the people for their approval or rejection, is rejected, never was law for any purpose, hence the contention that the statute providing for the state militia (Rev. Codes, secs. 1045-1110) having been repealed by Chapter 145, Laws of 1911, which latter was in turn defeated on referendum, there is now no provision of law for a state militia because the defeat of Chapter 145 did not revive the original Act (Rev. Codes, sec. 122), held without merit.</p> <p>Same' — Habeas Corpus — Release of Petitioner — Denial, When.</p> <p>10. Where an abortive attempt to try and punish petitioner for an alleged violation of the laws of the state is shown by the record, he is not, on habeas corpus, entitled to his release, but must be remanded to be dealt with according to law.</p>

Utter, Judge. Action by C. E. Pierson against T. H. Daly. From an order quashing an execution issued by the clerk of the district court on an abstract of a justice’s judgment filed with and docketed by him and striking such abstract from the files, plaintiff appeals.

<p>Contribution — Partnership■ — ■ What Constitutes — Evidence — Insufficiency — Fictitious Name — Disability to Sue — Noncompliance With Statute — Proof Required.</p> <p>Appeal — Implied Findings.</p> <p>1. Where the trial court fails to make formal findings, every finding necessary to support its judgment will be implied.</p> <p>Partnership' — Essentials.</p> <p>2. To constitute an association of two or more persons a copartnership within the meaning of section 5466, Revised Codes, it must be the intention of the parties to carry on some business and to share in the profits, community of interest alone — without power in each member of it to act toward the other in the interchangeable character of principal and agent — being insufficient to create the relationship of copartners.</p> <p>[As to what constitutes a partnership, see note in 115 Am. St. Rep. 400.]</p> <p>Same — Evidence—Insufficiency.</p> <p>3. The bare statement made on the witness-stand by one of a number of persons who jointly bought a stallion, giving their joint and several promissory notes to secure the purchase money, that “there was an association formed among the signers of the notes and those who signed the notes were owners of the shares,” was, in the absence of other facts and circumstances disclosing the intention of the parties, insufficient to show the existence of a copartnership; i. e., that the animal was bought for the purpose of hiring for breeding purposes to members of the public for the mutual profit of the purchasers.</p> <p>[As to when agreements to share profits do not create partnership, see note in 30 Am. St. Rep. 828.]</p> <p>Same — Contribution—Actions at Law.</p> <p>4. While a member of a copartnership may not, until an accounting has been had, maintain an action at law against a copartner to recover a balance alleged to be due him on account of transactions arising out of the copartnership, such an action may be prosecuted by an obligor against his co-obligor to compel reimbursement to plaintiff in the latter’s proportionate share of the common obligation discharged by him.</p> <p>[As to actions for contribution not founded on express promise, see note in 98 Am. St. Rep. 31.]</p> <p>Evidence — Witnesses—Avowal of Ignorance of Fact — Effect.</p> <p>5. The avowal of ignorance of a faet is not proof of the fact by the witness making the avowal, even though the circumstances indicate that he ought to be informed.</p> <p>Partnership — Fictitious Name — Disability to Sue — Affirmative Showing Necessary.</p> <p>6. The disability to maintain certain actions, imposed by section 5505, Revised Codes, upon partners doing business under a fictitious</p> <p>name, because of failure to file tbe certificate requires by tbe preceding section, must be affirmatively shown, — a requirement not met by tbe statement of one copartner to tbe effect that, so far as be knew, bis firm bad not complied with tbe provision of section 5504.</p>

Appeals from, District Court, Silver Bow County; Michael Donlan, Judge. Action by the Centennial Brewing Company against O. Rouleau and Louis Tetreault. From a judgment for plaintiff and from an order denying their motion for a new trial in cause No. 3,409, defendants appeal. In cause No. 3,503, plaintiff appeals from the judgment. (Cause No. 3,409.) Section 7271, Revised Codes, is highly penal, and must be strictly construed.

C. Webster, Judge. Action by Guy Dean and E. T. Elrod, copartners, against John Stewart and Patrick Welch, copartners, and the Chicago, Milwaukee & St. Paul Ry. Company of Montana. From a judgment in favor of plaintiffs, defendants appeal.

Lee McCullough, Judge. Mandamus by Edward Donlan to compel tbe board of county commissioners to issue to him warrants in a certain amount in payment of a bridge. From a judgment for defendants, relator appeals. No express grant of power is to be found in our Codes authorizing boards of county commissioners to purchase private bridges (as distinguished from toll-bridges).

B. Law, Judge. Action by Gary Bros. & Gaffke Company against tbe Chicago, Milwaukee & Puget Sound Railway Company. Judgment for plaintiff. Defendant appeals from the judgment and from an order denying it a new trial.

Lee McCullough, Judge. Action by C. O. Edwards against the Plains Light & Water Company. Judgment for plaintiff. Defendant appeals from the judgment and an order denying its motion for a new trial.

Crum, Judge. Action by John Dubbels against Carl N. Thompson and others. From a judgment in favor of defendant K. Thompson and an order denying him a new trial, plaintiff appeals.

Ayres, Judge of the Tenth Judicial District, presiding. Proceeding by the state, on the accusation of James H. Rowe, Louis Dreibelbis, W. M. Tuohy and A. R. Currie, to remove Tim Driscoll from the office of sheriff of Silver Bow county. From a judgment of removal and from an order denying him a new trial, defendant appeals.

Law, Judge. Action by the Prudential Securities Company against the Three Forks, Helena & Madison Valley Railroad Company. From an order denying defendant’s motion to vacate a receivership, it appeals. The sole question before the court is: Did the judge of the district court abuse his discretion by continuing the receiver upon the facts shown' at the hearing?

Action by John Kimes against the Northern Pacific Railway Company, James II. Daly and others. From a decree in favor of defendants, and from an order denying his motion for a new trial, plaintiff appeals.

Original application for writ of certiorari by tbe state on. tbe relation of A. M. More to review tbe action of tbe district court of Hill county and John W. Tattan, a judge thereof, in directing a liquor license theretofore issued to relator to be canceled.

<p> Appeal from District Court, Bavalli County; B. Lee McCullough, Judge. </p> <p>Action by Percy Pentz against George Corscadden.</p>

Original application for an injunction by the state on the relation of James H. Rowe, to restrain Dave Kehoe, as county clerk and recorder of Silver Bow eounty, from placing certain names on the official ballot.

Mandamus. Original application to compel the district court of the Twelfth Judicial District, in and for the County of Sheridan, and Frank N. Utter, a Judge thereof, to reinstate relator’s notice of intention to move for a new trial in its action against H. G. Hinz, alleged to have been erroneously stricken from the files.

H. Ewing, Judge. Action by Alex Kerr against ‘William and Robert Blaine. From a judgment in favor of defendants, plaintiff appeals. Appellant contends that section 6128, Revised Codes, is not applicable to the sheriff’s sale by virtue of which appellant claims title to the cattle in question for the following reasons: 1. Because the publicity and notoriety creates an exception in favor of public sales.

<p> Appeal from District Court, Ravalli County; R. Lee McCullough, Judge. </p>