Volume 5 — Montana Reports

This action was commenced by Adam H. Van Brocklin and Thomas Mallett to recover damages upon an injunction undertaking. Mallett died before judgment was entered, and the action was continued in the name of Van Brocklin as the surviving partner. Van Brocklin died after the entry of judgment in his favor and before the motion for a new trial had been heard. Nahum Parker was appointed administrator of the estate of said Van Brocklin, and the action was continued in his name. 1.

1. [Respondent brought this action to obtain a divorce from appellant John H. Black, and also alimony. The complaint alleged that respondent had inherited certain property from her father before her marriage; that appellant John H. Black put the proceeds thereof into money, and that the same was invested in certain real and personal property in Gallatin county in the name of appellant David Black, to defraud plaintiff. 2.

I. This is an action of ejectment for lots 16 and 17, in block “A,” of Black’s addition to the town of Bozeman.

This is an appeal from a judgment of the second judicial district court overruling defendant’s demurrer, and from the whole of said judgment. The action is brought to recover the possession of real property in the town of Walkerville.

This was an action upon an agreement set out in the plaintiff’s complaint for a balance due in “furnishing beef at the Crow Indian Agency.” The contract sued on was in writing between appellant and respondent, and is found on page 11 of record, and is marked “ Exhibit A.” 'Respondent seeks to vary the terms of this contract so as to exclude the cause of action sued on, by showing that a certain contract between him and the United States for furnishing this beef provided for…

<p>Town Site ^ Act— Power of probate judge— Grant comes from congress, to the occupants — No power to deed, any street or alley.</p> <p>If, at the time of the entry of town site by probate judge, certain lots therein were adjacent to what was used and recognized as an alley, this right and interest of the occupants of such lots in such alley was as much to be respected as their interest in the lots. '</p> <p>The grant came from congress, representing the general government, which alone had title, and conld make any valid dedication or disposition of the land; and this grant should be so construed as to he effectual.</p> <p>The probate judge was only trustee to convey from government to the occupants the right and interest held by them, and which became valid when recognized by the government. The probate judge could neither give, take away or change those rights of occupants. His deed for ground occupied as street or alley is wholly void. And any survey or plat made by the probate judge that did not coincide or correspond with the rights of occupants could not acquire any force or validity by approval of the county commissioners under legislative act. No protest to an unauthorized act was necessary to save the rights of occupants from forfeiture.</p> <p>The provision of the territorial statute dedicating the streets and alleys, shown on probate judge’s survey, to the public use forever, is of no consequence unless such survey and plat conform to the prior rights of occupants. '</p> <p>The powers of the probate judge are exhausted when he has conveyed to occupants their lots, according to their several rights and intex-ests.</p>

<p>Practice.— The practice of the jurisdiction must prevail in cases under the United States statute. In suits to quiet title, the action must be by party in interest, and both possession and title must be shown.</p> <p>Actions to determine right to the possession of mining ground, under section 2326, U. S. Revised Statutes, must be according to the forms and practice of the jurisdiction where suit is begun.</p> <p>In this jurisdiction, plaintiff in possession brings action to quiet title; if out of possession, his action must be in the nature of ejectment.</p> <p>In the former case he must allege and prove ownership and possession of premises in controversy, failing which he will be nonsuited.</p>

<p>Jury — Challenge to panel — How deficiencies are to be supplied — Jurors in United States cases, hoio drawn.</p> <p>It was no ground for challenge to the panel, in a territorial ease, that jurors for trial of United States cases had been drawn from the box provided by the county commissioners, so long as a full panel was left at the commencement of the pending trial.</p> <p>After having been furnished a full panel out of the box furnished by the county commissioners, for the pending trial, further deficiencies are required by law to be supplied by citizens of the vicinity, summoned by the sheriff under order of court.</p> <p>It is right that jurors in United States cases should be drawn from the box furnished by the county commissioners.</p> <p>It is of no interest to the prisoner to know, and he has no right to inquire, how many names remain in the box after his panel has been supplied, for such names could not be drawn in his trial in any issue.</p>

<p> Appeal from First District, Beaver Head County. </p>

<p>County Clerk’s Salary — No extra compensation allowed.</p> <p>Since the passage of the “act in relation to the fees of county clerks,” approved July 32, 1879, county clei’ks are not entitled to any extra compensation for any services x-equix-ed to be performed by them for the county. The salary fixed by that act was intended to be full compensation for all services rendered by them to the county in any manner whatsoever. And the county is prohibited from paying any other compensation.</p>

<p>Pleading — Denial — New matter — Void for uncertainty.</p> <p>An answer filed six months after filing a complaint, which simply denies that plaintiffs are then the owners and in actual possession of premises claimed, is a virtual confession of the complaint, and is not a denial.</p> <p>That is not new matter in an answer which might have been shown under the general denial.</p> <p>Where pleadings show a quartz location to be excessive beyond the lawful limits, the same is void for uncertainty.</p> <p>Hamwirth v. Butcher, 4 Mont. 299, reaffirmed.</p>

<p> Appeal from Third District, Lewis and Clarke County. </p> <p>This is an appeal from a judgment entered in favor of the plaintiff. The opinion states the facts.</p> <p>I. The plaintiff’s complaint herein is insufficient, because it does not show any such title in plaintiff, by grant or patent from the United States, as carries with it “livery of seizin,” nor is there any allegation of actual prior possession which, without such grant or patent, would sustain his action of ejectment.</p> <p>2. The words in section 3 of the charter of the N. P. E. E. Co. which, unexplained, would import a grant in prcesenti, are specially restricted by the provisions of the following sections, to wit: Sections 4, 5, 6, 8 and 9, and perhaps section 20. See 13 U. S. Statutes at Large, pp. 369 et seq.</p> <p>a. Section 4 prescribes when the grant shall take effect and how it shall be completed, to wit: “When twenty-five consecutive miles of the road shall be completed, and after the report of commissioners, etc., patents shall be issued to the company conveying the additional sections,” etc.</p> <p>5. Section 5 imposes other conditions, prescribing how the road shall be constructed, . . . the necessary culverts, bridges, . . . gauge, etc.</p> <p>. c. Section 6 specially exempts certain lands from the provisions of the act, and virtually provides that the lands reserved shall not be disposed of to any other parties than the N. P. E. E. Co. (under the provisions of the act).</p> <p>cl. Section 8 makes a further condition, that the said company receives said grants, rights and privileges on the condition that it shall commence work on the road within two years, etc.</p> <p>e. Section 9 specifically qualifies and interprets the words used in the previous section 3 (which alone would import an absolute grant or grant in prcesenti) by the following words: “That the United States make the several ‘conditioned grants herein,’ etc., upon the ‘further condition,’ ” etc. It therefore appears that this grant is not an absolute grant conveying all of the interest of the United States in the said odd sections at the passage of the act, but is in reality a grant of an incorporeal right in said lands, accompanied by certain conditions, upon the performance of which conditions the act provides how and when the title shall vest in the company, to wit: “ The lands shall be conveyed by patents, when each twenty-five miles of the road shall be completed,” and not before.</p> <p>3. By the provisions of the charter of the road accepted by the railroad company, a contract exists between the United States and the railroad company by which the United States places itself in the position of a trustee for the railroad company (when the company shall designate its route), and agrees that upon so doing the government will reserve from sale, etc., the odd sections, to be conveyed to the company upon the performance of certain acts, and such trust may be created in this manner and is known as an implied or resulting trust (see Bouvier’s Institutes, vol. 1, sec. 1901); the legal title or estate remaining in the United States, and the company having but an equitable estate, upon which no> action of ejectment can be maintained by the company. See 32 Cal. 458, and cases there cited.</p> <p>4. Whenever privileges are granted to a corporation and the grant comes under revision in the courts, such privileges are to be strictly construed against the corporation and in favor of the public, and nothing passes but what is granted in clear and explicit terms. Bice v. B. B. Co. 1 Black (U. S.), 380, and cases there cited. The word “grant,” therefore, as used in the act with the conditions therein named, must be construed strictly against the company, and must receive only its restricted signification; ánd thus considered, only an incorporeal right in the thing granted is conveyed, to wit, the right to receive a patent for the odd sections upon performing certain conditions. Bouvier’s Institutes, vol. 1, sec. 2050 et seq. “The word ‘grant ’ is not a technical word like the word enfeoff, and although, if used broadly, without limitation or restriction, it would carry an estate or interest in the thing granted, still it may b.e used in a more restricted sense, and be so limited that the grantee will take but a mere naked trust or power to dispose of the thing granted. Intention must be deduced from the whole statute and every part of it.” 1 Black, 378. In this case a trust would result in favor of the company, to be determined upon its completing the road opposite to the odd sections claimed; the United States acting as trustee and reserving the legal title until the performance of such conditions by the road.</p> <p>5. The general words, “That there be and is hereby granted,” in the third section of the charter, are restrained by the particular words designating when and how these words may become effective, in the fourth section, and especially the words in the ninth section, where congress, in defining the same, has designated the grants as “conditioned grants,” and these latter control, being in subsequent clauses or sections of the statute to that section containing the general words of present grant. Sedgy wick on Stat. and Const. Law, p. 60.</p> <p>6. “ The court, if possible, must give the statute such a' construction as will enable it to have effect; that is, it must be construed in accordance with legislative intent.” Cooley’s Const. Lim. 223. Congress intended that a Pacific railroad should be built, and did not intend to convey one-half of a strip of country eighty miles wide and two thousand miles or thereabouts in length to a company without compensation or security, which latter would be the effect should the courts hold that an absolute grant was made in section 3 of the charter. If the title passed at once without regard to conditions, then a purchaser from the N. P. R. R. Co., or the corporation itself, might never have built a mile of road and still would acquire this vast tract of land without consideration. Such 'a position, we respectfully submit, is wholly untenable. As to this intention of congress all the sections named are referred to, but especially sec. 20, p. 372, of vol. 13, where the intention is plainly stated thus: “That the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said road,” etc., . . . “ congress may at any time, having due regard for the rights of said N. P. R. R. Co., add to, alter-, amend or repeal this act.”</p> <p>Appellant concludes by quoting the following from the case of The United States v. Wm. Childers, in the United States district court, district of Oregon, the opinion by Deady, justice, to which opinion in full, attention is specially called as covering the question raised in this case: “And although there is no express declaration in the North Pacific Act, that the title shall not vest in the corporation until the completion of the road or portions of it, yet the legal effect of the clauses therein, which provide for conveying and confirming the title to the company by patent only upon the completion of the road or portions of it, is the same.”</p> <p>My conclusion, then, is, that the legal title to the unearned portions of this grant, the odd numbered sections opposite to which the road has not been completed and accepted, is still in the United States.</p> <p>1. Whoso, has the title to real estate may always recover its possession, except, possibly, when (a) another has the equitable estate as against the bare legal title; or (5) it be incumbered with a trust.</p> <p>2. Even in the last two instances the holder of the legal title may recover possession as against all the world, except (a) the owner of the equitable estate in one case, and the cestui que trust in the other.</p> <p>3. Majors has not the equitable estate in these lands, nor is he any cestui que trust of them, nor are the lands held in trust, nor is there any equitable estate in these lands out in any other person whatever.</p> <p>4. One single question remains. In whom is this title? If in the plaintiff, this judgment should be affirmed.</p> <p>5. By section 3 of the act incorporating this plaintiff it is provided “That there be and is hereby granted” this land.</p> <p>6. This phrase has been five times interpreted by the supreme court of the United States (Bice v. B. B. 1 Black, 358; Schulenberg v. Harrimcm, 21 Wall. 44; L. L. & G. v. U. S. 92 U. S. 133; M. K. & T. v. K. B. B. 91 U. S. 491; Baldwin v. B. B. 103 U. S. 426) to mean words of present grant, taking effect on approval of the act if. lands were sufficiently described, and if not, then so soon as they were ascertained so that the act could attach to them.</p> <p>1. The word “title,” used in these decisions, is a technical word with a definite, specific meaning, and they settle when the title vests in a beneficiary holding by Such a grant.</p> <p>8. There is no discord in these decisions on this one point.</p> <p>9. Analyzing the statutes involved in these decisions, we shall find that all controversy has turned on the proposition whether the conceded effect of the phrase, “That there be and is hereby granted,” is or is not in the particular instance modified by words subsequently inserted in the statute.</p> <p>10. The subsequently used and modifying words in the statute under discussion in 1 Black, 358, were: “ No title shall vest in the said territory of Minnesota at a, . . . until,” etc.; and the court held that these words did restrain the granting clause of the act.</p> <p>11. In 21 Wall. 44, the qualifying words in the subsequent part of the statute were, if there was a breach of the condition, that “the lands unsold should revert to the United States; ” but the court held these words in no way impaired the grant, either before or after a breach of the condition.</p> <p>12. There were no qualifying words in the statute in 103 U. S. p. 426, and as there are in plaintiffs’ act of incorporation no such qualifying words as are discussed in 1 Black or 21 Wallace, those cases are of no use, except as showing the legal effect of the phrase “that there be and is hereby granted. ”</p> <p>13. The only phrase which can be claimed as qualifying the words of present grant in plaintiffs’ act of incorporation are those providing for patent on completion of sections of road.</p> <p>14. We are so habituated to seeing government lands pass by patent rather than by law, that, when patents are provided to be issued, by force of habit we thoughtlessly attribute to them the function of conveying the title. But this conclusion' is by force of habit rather than by logic or authority.</p> <p>15. Let us see if the supreme court of the United States, having before them a statute with words of present grant followed by provisions that, on completion of certain sections of road,' a patent should issue, have determined whether or not such provisions as to patent subsequently issuing on acceptance by president of completed sections of road do qualify, impair or delay passing of title. If such a case can be found, it will be precisely in point, and are exact authorities.</p> <p>16. In M., K. & T. By Co. v. K. P. By Co. 91 U. B. 191-501, the court had under consideration rights based on a statute in all particulars involved in this contention substantially like the act of July 2, 1861. There was thereby granted to companies lands to aid in the construction of three or four roads, to which grants there were attached, as there are here, conditions subsequent. It was provided that when forty miles were completed, commissioners appointed by the president were to examine the sections, and, if approved by them, they were to report to the president, when patents were to be issued “conveying the right and title ” to said lands to the company so constructing said road. While the verbiage is different, certainly in every particular useful or instructive in this discussion, the law is like unto that of tlie Northern Pacific Eailroad Company’s grant. What the court say in that case is wholly inconsistent with the theory of the appellant’s counsel in this case, and being from a court of commanding authority, it is conclusive of this case.</p> <p>17. In 10 Cal. p. 589, is Ferris v. Coover, a case equally useful if not so authoritative in this discussion.</p> <p>18. The right to occupy the public domain is granted to citizens of the United Btates, and those who have declared their intention to become such, and they may, by processes given by law, ripen their possession into a title. While thus in possession they maintain trespass against intruders and vindicate an inchoate title as being efficient to protect their possession as against every one but the United States. The United States, however, while they thus occupy by their executive department, assume to protect the land occupied from timber depredations and some other forms of waste, even as against the occupier, until title is perfected in him, in which doubtless they would be aided by the judicial department of the government if invoked; and this shows that partial, incomplete titles are sufficient to base an ejectment on as against an intruder who is a man thereon without claim of right.</p> <p>19. No lawyer in the fierce political contention going on over this grant has ever suggested hut that some action, which was equivalent to re-entry for breach of condition, -was necessary if the government would restore these lands to the public domain. But if the act of 1864 vested no interest in these lands in the company, then these lawyers are all wrong.</p> <p>20. In 1883, on completion of road, if the company should go to the government and say, “I have built the road and you agreed on certain conditions to give me land if I would build it, and I want the land,” it would be necessary, if the grant was in futuro, to set forth the conditions, and aver that they had been complied with! It would be a good defense to say: you did not complete the road July 4, 1879. If that was the situation, then the interior department has long been giving to this company patents without authority of law. But this is not the case. The company has title to this land. Congress, each member, all parties, rival railroads, recognize this. Congress is even now deliberating whether it has any power to take that interest away. Upon that question the judiciary committee of the house, able as to lawyers, are divided; a majority saying that an act passed taking away, in form, those lands from this company, would fall within the inhibition of the constitution forbidding impairment of the obligation of contracts, and would therefore be void.</p> <p>21. We also refer the court to the opinion of Judge Black, a lawyer of standing, who, advising a former committee of the house of representatives in congress of the status of this grant, clearly places a complete title in the company. We cannot deny the ingenuity or plausibility of the counsel for appellant. But the plausibility of bis whole argument results from his having blotted out of a statute of the United States, two words. To this it may be replied that two words are not very many, or it may be said the words are small. Neither statement can be denied; but those two words are in the statute; they were put there by a congress which knew their meaning, and, on just such occasions as this, meant they should stay. Those two words are the last two words on the first line of sec. 3, p. 367, vol. 13, U. S. Stats, at Large.</p> <p>22. We concede that the plaintiff is only entitled to patents where road is completed, examined and approved in sections, but that is not the question. The question is, what function do the patents fulfil in the relations of the company to the United States? Appellant’s counsel insists that those patents are efficient to, and do, convey to the plaintiff a title. This we deny. They particularize and select singly the sections to which the company has a title already; they keep the records of the general land office straight as to what is designated; they confirm an already granted right; they operate as a further assurance where no further assurance, indeed, is needed. The word “hereby” is an exact equivalent to the words “by these presents.” So the statute is a conveyance as well as a law,</p> <p>23. Counsel for appellant finds much comfort and rests with confidence on the word “ conditioned ” in section 9. Now, no one ever denied that this was a conditional grant, but why calling a grant on condition a “conditioned grant ” detracts from its force as a grant is not seen. That is merely a name given by congress to a grant made in prior sections of the statute, and a fit enough name it is. It seems to us the poet’s statement as to how a rose by another name would smell, is the only authority we need quote in answer to this point.</p> <p>24. As to appellant’s argument that the company might own all this or sell all this land and never build the road, that is true. It excites fears even now; for so far as we know, sections 8 and 9 are not on record with the various recorders of counties through which this road is to run, and this fear brings us to the exact quality of title that is in the company; and we claim that a complete title now vests in the company. So long as the title remains in the company it is perfect, exact, full; but it would be liable, were it not for section 9, to be terminated by a breach of the conditions and an insistence on the breach and proper action by the government. But while the title remains in the company it is complete in the company. Its infirmity does not detract from the strength of title while it remains in statu quo, only that possibly a time may come when it will pass just as complete to the United States as it now is in the plaintiff.</p> <p>25. Nor does section 20 militate to destroy section 3 of the act and its efficiency. It is not claimed that congress has altered, amended, added to or repealed the act in any particular touching the efficient granting clause in section 3, and until this is done it is not seen how the presence of that section can explain, limit or detract from the fulness of the grant until action is taken thereunder.</p> <p>26. Congress is not now talking about rescinding a contract to convey; it is considering a proceeding equivalent to a re-entry upon lands already conveyed for the breach of a condition in the statute conveying the lands. "We refer the court to the reports of the committee on judiciary.</p> <p>27. All this discussion is upon the hypothesis that it is a controversy between the railroad company and the United States, but it appears from the complaint that the defendant is an intruder,</p> <p>28. It seems clear to us there was no error in the judgment. below, and that the case should be affirmed,</p>

<p>Practice.— Territorial district courts, sitting to hear and determine causes arising under the constitution and laws of the United States, have the same jurisdiction as United States circuit and district courts. An action brought to determine a controversy arising under an act of congress, involving the existence, effect and operation of such act, and especially when brought against a corporation chartered by act of congress, is properly brought in such court.</p> <p>What is properly included in right of way, and with it exempt from taxation.— The right of way of a railroad chartered by act of congress through the public lands is an easement therein, and personal property attached to the soil, within the boundaries of such right of way, become part of the land, and are included in the exemption from taxation granted thereto, and any tax levied upon any p>art of the property so exempt is void.</p> <p>Power of congress in malcing grants — Reservations and restrictions— Vested rights under contract — Fourteenth amendment — Its limitations apply only to slates. — ■ Congress has power to charter railroads, make grants of land to them, and exempt their right of way from taxation. The government may dispose of its own property on such terms and conditions as it sees fit, and congress is the sole judge thereof. The charter of such railroads is a contract, and the grant is for a consideration, and rights that become vested thereunder cannot be invalidated by legislative action. The fourteenth amendment is a limitation upon the power of the states, in the matter of taxation among other things, hut it is not a limitation upon the power of congress in disposing of the property of the United States.</p> <p>Assessment, to be valid, must comply with the statute.— An assessment must he made in substantial compliance with law to be valid. Under the statutes of Montana, real and personal property must be listed and valued separately so that the county commissioners may act as a board of equalization thereon. A demand must also be made of the proper officer to render a list of property under oath.</p> <p>When equity will interpose to prevent collection of a tax.— Equity will interpose to prevent the collection of an illegal tax, when it would cast a cloud upon the title; and a tax regular upon its face creates a lien upon real estate against which it is assessed, and is a cloud upon the title, and a tax deed, by law made prima facie evidence of title, would also cloud a title. Not so, if the tax is illegal on its face. Equity will interfere to prevent the collection of a tax upon property exempt from taxation; to prevent a multiplicity of suits; to prevent the destruction of a franchise; to protect the quiet enjoyment of an easement ; and to protect rights, the evidence of which is liable to be lost.</p>

<p>Appeal from Jefferson County, Third Judicial District.</p>

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

<p>Defect in Names of Parties — How taken advantage of.— The only method of taking advantage of the defect of names of parties to an action at law is by demurrer to the pleading. It cannot be raised in the appellate court for the first time. Wiébold v. Herman, 2 Mont. 609; and Nichols v. Dobbins, 2 Mont. 540, considered and distinguished.</p> <p>Reviving a judgment — Limits of court's authority.— The law authorizing the issue of execution on judgment after five years (R. S. sec. 813, Code Civ. Proc.) limits the exercise of the power to a compliance with statute, and grants no power to modify the judgment, or the record on which it was based. An attempt to do so is acting without jurisdiction, and is so far void.</p>

<p>Practice — Motion for new trial must specify errors.— Where a motion for a new trial was made, and overruled before the statement on the motion was settled, the appellate court will only consider such matters as were before the court when the motion for a new trial was before it. The burden of proof is upon the one making the motion to specify the errors.</p>

<p>Conviction or Murder — Testimony required — Insufficient proof.— A conviction of murder, arrived at through, testimony of a single witness, which is substantially contradicted by other witnesses, and itself contradictory of evidence formerly given by the same witness before the coroner, may be set aside, as such testimony cannot convince to a moral certainty, which is the' certainty required in a criminal case.</p>

<p>Indictment for Murder — Allegation — Weapon in hand of accused.— In an indictment for murder, the allegation that at the time of the perpetration of the crime the weapon was in the hands of the defendant, is not necessary to a full description of the crime, nor in order to inform the defendant of the particulars of the charge which he is to meet, and, if inserted, need not be proved.</p> <p>Same — Must support judgment — Question may be raised on appeal.— The indictment must support the judgment, and the question whether it does or not can be first raised in the appellate court.</p> <p>Same — Technical conclusion — Statute on subject.— The reason for the technical conclusion of indictments for murder at common law all disappear under statutes defining the degrees of the crime, and providing that the jury shall designate the degree in their verdict. R. S. p. 311, § 171, subds. 5, 6.</p> <p>Appeal — Testimony taken in court below.— Testimony cannot be brought before the appellate court for review except by statement on motion for a new trial.</p>

<p>Practice — Appeal — Notice of appeal — Service upon cleric.— An appeal can only be taken from the district court to the supreme court by the service of a notice upon the clerk of the court where the judgment was entered, státing that the appellant appeals from the judgment.</p> <p>Same — Notice — Service upon prosecuting attorney. — In a criminal case, if an appeal is taken by a defendant, a notice similar to that which is required to be served upon the clerk must be served upon the prosecuting attorney as well.</p> <p>Same — Insufficient service. — A notice served upon the prosecuting attorney, and filed with the clerk, is not sufficient to enable the appellate court to entertain the appeal.</p> <p>Same — Filing of transcript —Time of such filing — Directory.—If an appeal is taken by a substantial compliance with the statute, and thereby the lower court has lost and the supreme court acquired jurisdiction of the case, the matter as to the time when the transcript should be filed is directory and not mandatory. Territory v. Floioers, 2 Mont. 392.</p>

<p>Criminal Prosecution — Evidence — Proof must go to entire transaction.— In a criminal case the prosecution cannot select out part of a transaction and ask a conviction thereon, when testimony showing the whole thereof is within its reach.</p> <p>Same — Refusal by prosecution to call acknowledged witness to the proceeding.— The refusal by a prosecuting attorney to call as a witness one who was present during the commission of the crime, and so stated as present by such attorney to the jury, is ground for a reversal of judgment.</p>

<p>Practice — Motion for new trial — Review — Deficient record.— A decision upon a motion for a new trial may not be reviewed in the appellate court when the record does not show that any motion for anew ■ trial was filed in the lower court, nor that any notice of motion designating the errors complained of was filed or served upon the opposite party.</p>

<p>Practice — Appeal — Order appointing receiver.— An order appointing a receiver is not subject to appeal.</p>

<p> Appeal from Second District, Missoula County. </p>

1. The damages are excessive. In a case where no gross carelessness or recklessness is shown, damages should he limited to compensation for injuries sustained, and should not be punitive or exemplary. The verdict in this case allows greater damages than are ever allowed where the highest degree of negligence was proved. Courts will set aside verdicts for excessive damages. 47 Barb. 196; 36 Cal. 481; Hilliard on New Trials (2d ed.), p. 576, sec. 34, note and cases.

The court erred in giving judgment for plaintiffs without the jury first finding upon all facts submitted. The patent is a bar to plaintiffs’ recovery unless it was shown that defendant knew of the existence of the lead, or, at least, that the existence of the lead was generally known. The reservations in placer patents of all quartz leads known to exist are void.

The complaint does not state facts sufficient to constitute a cause of action. There is no allegation whose money was received, for whose use, no allegations of demand and omission or refusal to pay. The answer set up new matter which was not denied. After verdict the court allows a replication to be filed. There was verdict for interest as well as amount claimed, while the complaint and prayer failed to ask for interest.

The court erred in admitting in evidence the certificate of location of the Julia lode for the following reasons: 1st. It was too indefinite in its description. Faxan v. Barnard, 4 Eed. Reporter, p. J02. 2d. The statement was not sworn to as to all the essential facts. Russell v. Hoyt, 4 Mont. 412. 3d. The verification is not signed by the locator, who only makes his mark, and there is no witness to such mark.

This is an appeal from the judgment of the district court in and for Gallatin county, finding the defendant guilty and assessing against him a fine for a violation of the act approved July 22, 1879, found on page 5 of the Montana laws of the extraordinary session, on an agreed statement of facts.

<p> Appeal from First District, Custer County. </p> <p>The facts were similar to those in Territory v. Farnsworth, ante, p. 303.</p>

There was no sale of the bullion to the plaintiff. The carrier was only agent of vendor. The evidence and findings show only an executory contract. They do not sustain the judgment. The first assignment of error is improperly made, in that it does not point out the particular finding the evidence fails to support. The findings are findings of fact and are supported by the evidence. The findings support the judgment in this: 1.

1. It has been determined that the equities of the appellants are superior to those of respondent. That is to say, appellants having a claim against Drake, Clark-son & Co., and Clarkson, one of the firm, having a claim against appellants, that the equities of respondent to have its claim set off against Clarkson is superior to the right of respondent McG-regor to enforce an assignment of the Clarkson judgment against appellant.

<p>Personal Property — Conditional sale — Performance of condition — Title, when passes — Bona fide purchaser.— A sale of chattels, on. condition that the title to the property should not pass until payment of the purchase price, although accompanied by a change of possession, confers no title on the vendee or his bona fide purchaser, until performance of the condition, notwithstanding the vendor took the notes of the vendee for the purchase price, provided such notes had not been negotiated.</p> <p>Evidence. — Proof of contents of an instrument is admissible when loss of instrument is shown.</p>

This cause was decided in the court below in favor of defendants on their demurrer to plaintiff’s complaint. Held: and which as appears from the allegations of the complaint was in fact held, on the 7th day of November, thereafter. R. S. Mont. p. 516, sec. 517; p. 601, secs. 936, 937. This beiDg the case, the said Briggs and Hubbell could not in any event be entitled to the offices referred to, as is claimed for them in this action.

This was an action in the nature of an action of ejectment on the part of the respondents to recover the possession of certain real estate claimed by respondents as part of the Pawnbroker lode, and by the defendants as part of the Butte town site; the said premises being lots, streets and alleys in said town site. The appeal is taken by two of the parties defendants, interested in the judgment herein, namely, the city of Butte and Edwin H. Irvine.

The court erred in not giving defendant’s third instruction asked and refused (which see, page 13), and in not granting defendant’s motion for non-suit (see p. 13, also, of record), which both involve the same question, to wit: the facts being undisputed, the want of delivery of possession is a question of law alone for the court to determine.

<p>Partnership, How Created — Sharing in profits not conclusive.— "Where there is no partnership inter se there can be none as to third persons, unless the party sought to be held as a partner has, by his acts, put himself in such a position that he is estopped from denying that he is a partner. But the weight of modern authority is, that the mere sharing of profits, although cogent evidence of a partnership, is not conclusive, so as to make him who receives such profits a partner in the business or enterprise by which they are earned.</p>

The proper rule is that where power is given to public officers, in the language of sec. 74§, Revised Statutes, p. 5G6, or in equivalent language, “ whenever the public interests or individual rights call for its exercise, the language used, though permissive in form, is in fact peremptory.” The word “ may,” in this section, should be construed to mean “shall.” Supervisors v. U. 8. 4 Wall. 445; Malcolm v. Rogers, 15 Am.

<p>Partnership — Assignment by one partner of partnership property. An assignment made by one member of a partnership firm of the property, real and personal, of the partnership in favor of a creditor or creditors of the firm, without the authority of his copartner, is void; and such property, in the hands of the assignee to whom it has been assigned, cannot be considered and treated as a trust for any purpose whatsoever.</p> <p>Same — Complaint — Authority of copartner must affirmatively appear, else demurrable. — If the assignment is so made with the authority or consent of the copartner, it must affirmatively appear in the complaint of the plaintiff, or the failure to give such authority or consent satisfactorily explained; otherwise the complaint will be open to general demurrer.</p> <p>Attaching Creditors — Priority.— Among attaching creditors the first in point of time is the first in point of right, and is entitled to the preference.</p>

The court erred in refusing to give the following instruction asked for: “It is charged in the indictment that the defendant broke and entered the dwelling-house of one Eli D. Holland. This is a material charge and must be proven as alleged beyond a reasonable doubt.

The appellant respectfully submits the following proposition as conclusive of the issues involved in this case: The complaint sets out a contract between the parties, which is presumed to be in writing, is not immoral or contraiy to public policy, and is not impeached on account of fraud, misrepresentation or mistake.

The pleadings show that property remained in hands of defendant, and the prayer of the answer is only for costs. The judgment for return of property, or payment of its value, $450, was erroneous. Gould v. Scanned, 13 Cal. 430. Answer should have alleged delivery of property to plaintiffs and sustained it by proof to warrant the judgment. Nickerson v. Ohatterton, 7 Cal. 568; Sterling v. Hanson, 1 Cal. 478; Gregory v. Nelson, 41 Cal. 278.

Prior to act of February 19, 1881, the law did not require payment of mortgage before levy of attachment. See R. S. p. 595. At time of levy plaintiffs’ mortgage had not matured, and Morrison and Riggs had an attachable interest. Goulet v. Asseler, 22 N. Y. 227; Hathaway v. Brayman, 42 N. Y. 322; Jones on Chat. Mort. 556-561; Herman on Chat. Mort. pp. 377-389. The answer denies conversion and shows only substitution of defendants to rights of Morrison and Riggs.

The only defense attempted in the case rests upon the insufficiency of the description of the premises sold in the written memorandum subscribed by defendant. The complaint sets forth a good cause of action, as was held in overruling the demurrer. It is proper to amplify the description. Richards v. Snider, 3 Pacific Eep. 177; Meade v. Parker, 115 Mass. 413. .

This mortgage for pre-existing debt is valid. Jones on Chat. Mort. sec. 81; 1 Col. 225; 3 Wis. 491. This transaction is to be determined by Laws of 12th Session, p. 4, secs. 2-4. Was this chattel mortgage good against creditors? A chattel mortgage is a present transfer of title of mortgaged property, subject to be defeated only by payment of the sum that it was given to secure. 54 N. Y. 18; 12 Wis. 498; 36 Cal. 414.

A motion to strike out counterclaim from answer is equivalent to demurrer, and exceptions are deemed as taken thereto. R S. p. 91, sec. 280. Can a liability created by an executor in his official capacity be offset against a suit brought on a claim due the estate? It is not such a claim as is provable against the estate, but one that should be settled by him and included for allowance among administration expenses.

There is but a single question presented in this record: Does the complaint state facts sufficient to constitute a cause of action? The complaint avers that the parties to this action, with one other person, were co-tenants, owning as such the Belle of the Boulder and Eclipse quartz lodes; the plaintiff owning one-half thereof, and the defendant owning the undivided one-fourth thereof.

<p>Formation of Joey — Filling panel.— Upon the preliminary examination of the jurors in this case it appeared that several of them were residents of Silver Bow county, that county having been created out of Deer Lodge county after the jurors had been drawn and summoned for the pending term of the district court for the latter county. Held, that the panel should be filled as required by the act of the twelfth session, page 58.</p> <p>Waiver of Defective Formation of Jury. — Any defect in the formation of the jury is cured, if the parties subsequently waive the-jury and consent to a trial by the court.</p> <p>Damages against the Appellant Will be Awarded, under the-twenty-third rule of the supreme court, if it satisfactorily appears, from the record, that the appeal was taken for delay.</p>

This is an appeal from an order of the district court of the third judicial district, refusing the prayer of the petitioners, pursuant to section 6, ch. 217, first session of the XXXVIIIth congress, entitled “An act granting lands to aid in the construction, etc., of the Northern Pacific Railroad.” First. ' The act, as its title implies, relates to the granting of lands (in aid of the construction, etc.).

The undertaking in attachment need not be signed by the plaintiff. It is enough if signed by two sufficient sureties. See Statutes, Laws of Twelfth Session, p. 9; Wait’s Pr. vol. 2, p. 151. A defective undertaking may be amended. 12 Howard, 381; 10 Abb. Pr. 424; 6 Barb. 173; Drake on Attachment, secs. 146-148. The undertaking was defective in two particulars.

<p>Construction on Statute — “Proceeding.”—The application, fora writ of attachment is such a “proceeding” as is provided for in sec. 114, Code of Civil Procedure, p. 60, in which, amendments are allowed.</p> <p>Other points same as in Pierse v. Miles, ante, p. 549.</p>

The statute of Montana under which plaintiff brings action against the railroad company is unconstitutional and void, because: 1. It is incompetent for territorial legislature, a creature of congress, to attach conditions, limitations and restrictions upon a corporation chartered by congress. 2. Said statute seeks to clothe with judicial powers a tribunal unknown to the organic act of the territory. 3.

.There was no sufficient description of the property alleged to have been taken, nor was the want of such description properly accounted for. The allegation that a particular description of the property is unknown to the grand jury is a material allegation and must be proved as alleged. The evidence before the grand and petit jury showed that a particular description was known, and on this ground the appellant was entitled to acquittal.

The judgment was not void because summons was served on Sunday. Sec. 514, Code of Civ. Pro., only applies to judicial proceedings. See 22 N. T. 82; 54 Ind. 311; 12 Ohio St. 132; 4 Wall. 498. Not illegal by common law. 26 Cal. 526; 64 111. 243; 13 Nev. 213; 14 N. C. 181; .31 N. H. 490. Application to set aside judgment was not made in the time required by statute. See Code of Civ. Pro. sec. 114.

This is an action brought by the respondent here, plaintiff in the court below, to recover the amount of two assessments made by the trustees of respondent on the stockholders of the corporation. The action was brought originally in the probate court of Silver Bow county. A. general demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

<p>Divorce — Extreme cruelty — Whipping wife — Justification.—One beating or whipping of a wife by her husband is sufficient to warrant a divorce, on the ground of extreme cruelty; and the husband cannot justify such conduct by any words of the wife provoking him to the assault.</p>

Plaintiff, on the 12th day of April, 1883, filed in the district court of Custer county his petition for a writ of certiorari, praying for the review and annulment of an order passed by the… Held: as they were, by the persons named, their right to hold and exercise the same cannot be drawn in question collaterally in this proceeding, which was instituted for a totally different purpose. Commonwecdth v. McCombs, 56 Pa.

<p> Appeal from Second District, Silver Bow County. </p>

<p>Criminal Law — Verdict, when will be sustained on appeal. — In a criminal case, a new trial will be granted if the testimony preponderates against a verdict of conviction. But, upon a mere question of fact, it requires a strong, clear case to authorize the appellate court to set aside such verdict for the reason that the same is not warranted by the evidence.</p> <p>The Evidence Reviewed and Held Sueeicient to sustain a conviction of an attempt to murder.</p>

<p>Attachment op Cattle — Return — Identification of ■property taken.— Where an officer justifies the taking of certain cattle, each marked with a different brand, under a return which describes them as “ sis head branded with different brands,” parol evidence is admissible to identify the cattle seized with those claimed.</p>