Volume 52 — Montana Reports

<p> Appeal from District Court, Meagher Countyj J. A. Matthews, Judge. </p> <p>Action by Joseph H. Freeman against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiff, and defendants appeal from it and an order denying their motion for a new trial.</p>

<p> Appeal from District Gowrt, Lewis and Clark County; E. Lee Word, Judge. </p> <p>Proceedings under the Workmen’s Compensation Law by Lewis and Clark County against the Industrial Accident Board. From the judgment rendered, the board appeals.</p>

Appeal from District Court, Silver Bow County; Michael Donlan, Judge. Action by John Peterson against the City of Bntte. Judgment for plaintiff. Defendant appeals from it and an order denying it a new trial.

McClernan, Judge. Suit by John Sharkey against the City of Butte. Judgment for plaintiff; motion for new trial denied, and the defendant appeals. The proceeding amounts to a collateral attack. A collateral attack upon the city council’s proceedings, like the one • now before the court, cannot be maintained.

Miller Smith, Judge. Suit by Orson H. Dunne, an incompetent, by Anna L. Dunne, his guardian, against Ida Yund and others. From a decree in favor of plaintiff, defendants appeal. The doctrines of equity jurisprudence forbid the granting of any relief because the statutory legal remedy was adequate.

Ayers, Judge of the Tenth District, presiding. Action by tbe Custer Consolidated Mines Company against the City of Helena, in which the Spokane Ranch & Water Company intervened. Judgment for plaintiff and defendant and intervener appeal.

Original application for writ of certiorari by the State, on the relation of George L. Metcalf, against the District Court of the Fourth Judicial District of the State in and for Ravalli County, and R. Lee McCulloch, the judge thereof, to review proceedings resulting in a judgment adjudging relator guilty of contempt of court.

Original application by the State, on the relation of E. N. Brandegee, guardian of Mary Murphy, an incompetent, for a writ of prohibition against J. M. Clements, Judge of the District Court of Lewis and Clark County.

Original application for writ of mandate by the State, on the relation of Theodore Lindsey, against Roy E. Ayers, Judge of the District Court of the Tenth Judicial District in and for the County of Fergus, to compel restoration to the files of a bill of exceptions and settle the same.

<p> Contracts—Rescission—Acceptance of Benefits—Estoppel. </p> <p>1. One who bought what at the time he deemed a right to make immediate homestead entry of public land, but which subsequently proved to be no more than a possessory right on unsurveyed land, and with sueh knowledge entered the land as a homestead when declared open .to settlement, made two partial payments under his agreement, and then, after expiration of two years, brought an action to rescind and recover back his payments, was, under Section 5065, Revised Codes, not entitled to prevail.</p> <p>[As to effect of failure to read contract, or carelessness in executing it on right to rescind, see note in 32 Am. St. Rep. 384.]</p>

<p>Original application for writ of mandate by tbe State, on tbe relation of William Taylor, against A. J. Duncan, as County Clerk of Lewis and Clark County.</p>

E. Patterson, Judge. Action by Margaret Johnson against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. submitted a brief, citing in support of appellant’s contention: Spaulding v. Chicago & N. W. Ry. Co., 33 Wis. 582; Menominee River Sash & Door Co. y. Milwaukee & N. R. Co., 91 Wis. 447, 65 N. W. 176; Huber v. Chicago, M. & St. P. Ry.

'■ Appeal from District Court, Silver Bow County; John B. McClernan, Judge. Proceedings by Hugh Smith, employee, for compensation under the Workmen’s Compensation Act against the City of Butte, employer. The Industrial Accident Board rejected the claim, and on appeal to the District Court the order was affirmed, and the city appeals.

A. Matthews, Judge. Action by Duff Pritchett and R. B. Minty, copartners doing business as Pritchett & Minty, against J. W. Jenkins. From a judgment for plaintiffs and an order denying him a new trial, defendant appeals.

Proceedings for the disbarment of H. W. Bunston. Accused disbarred, with leave to apply for reinstatement after one year upon condition.

B. Mc-Clernan, Judge. Application by the State of Montana, on the relation of Alise B. Scollard, for writ of mandamus against the Board of Examiners for Nurses and the members thereof. From a judgment awarding a peremptory writ and an order denying a new trial, respondents appeal.

'Appeal from District Court, Teton County; J. B. Leslie, Judge. Action by David J. Ryan against A. D. Johnson and others. From a judgment of nonsuit and an order denying a new trial, . plaintiff appeals.

B. Winston, Judge. Action by Lee C. Degenhart against George A Cartier and others. From a judgment for defendants, plaintiff appeals. The authorities often state the maxim of law that there is no wrong without a remedy. Neither is it necessary that there should be precedent for every action for every remedy that is sought in the courts. (Cooley on Tort, 1st ed., 19; 1 R. C. L., 322; Kujek v. Goldman, 150 N. Y. 176, 55 Am.

Lee McCulloch, Judge. Action by Frank J. Pierce against tbe Chicago, Milwaukee & Puget Sound Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Cause submitted on briefs of Counsel. Plaintiff cannot recover for tbe value of tbe timber taken, or for tbe land included witbin tbe right of way, or for damages to timber or land not taken, because at tbe time these acts were committed he did not have title to the land.

Matthews, Judge for the Fourteenth District, presiding. Action by W. D. Crites and J. R. Crites, copartners doing business as Crites & Crites, against the Security State Bank of Havre. From a judgment for plaintiffs and an order denying new trial, defendant appeals. In eases of this kind the courts make a distinction between an action brought by an ordinary depositor for the wrongful dishonor of his cheek and an action brought by a merchant or trader.

Mc~ Clernan, Judge. Action by Louis P. Donovan and another against Mary Jenkins. From a judgment for plaintiffs and an order refusing her a new trial, defendant appeals.

J. Lynch, Judge. Action by Martin E. Slifer against William Yorath. From a judgment for plaintiff and an order denying Ms motion for new trial, defendant appeals.

W. Pierson, Judge. Action by O. S. Chilcott against William Rea and others, copartners doing business under the firm name and style of Pryor Sheep Company. Judgment for plaintiff and defendants appeal from it and an order denying a new trial. The court erred in refusing to tax the costs of the witness? A. M. Goodrich. It allowed the plaintiff fees for “hotel bill, sleeper, expenses and railroad fare” of Goodrich from Topeka, Kansas, to Billings.

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by Alex McDonald against H. G-. Klenze. From a judgment for plaintiff, defendant appeals.</p>

A. Clark, Judge. Action by A. L. Stone against Elbert A. Maynard and others. From the judgment and an order denying him a new trial, plaintiff appeals. The holder of a note is presumptively the owner, and his possession is presumptive evidence of title until rebutted by the defendant. (Whiteford, v. Burckmyer, 1 Gill (Md.), 127, '39 Am. Dee. 640; Pomeroy’s Code Remedies, 128 et seq.; Palmer v. Nassau Bank, 78 111. 380; New Orleans Canal & Banking Co. v. Bailey, 18 La.

C. Hurley, Judge. Action by Estella Bovee against S. H. Helland. Judgment for plaintiff and defendant appeals. In an action at law, the court can impose no costs in the way of attorney’s fee excepting such as are expressly provided for by statute.

Utter, Judge. Action by T. L. Isbell against K. O. Slette and J. J. Higgins, Judgment for plaintiffs; defendants appeal from it and an order denying tbem a new trial. That a valid chattel mortgage may be executed upon crops to be thereafter planted and grown seems to be supported by the decided weight of authority, under the provisions of statutes similar to the chattel mortgage statute of Montana.

Lynch, Judge. Action by the Anaconda Copper Mining Company against the Pilot-Butte Mining Company. From an order granting an injunction pendiente lite, defendant appeals. A consolidated ownership does not change rights. The Badger State owns the vein to the point of its crossing into that claim, to-wit, 100 feet southeasterly from the southwest corner of the Emily and 571 feet southeasterly from the northwest corner of the Badger State.

<p> Criminal Law—Sabeos Corpus—Office of Writ. </p> <p>Habeas Corpus—Writ Does not Lie, When.</p> <p>1. Where the jury found the defendant guilty of assault in the first degree, and, in an endeavor to exercise the discretion vested in them by the Indeterminate Sentence Law (Laws 1915, p. 21), fixed his punishment “at not less than —■— years nor more than ten years” in the state prison, and the judge in pronouncing sentence assessed the punishment at not less than ten nor more than twenty years, instead of requiring the jury to again retire and supply the omission in their verdict, the writ of habeas corpus did not lie.</p> <p>Same—Office of Writ.</p> <p>2. The office of the writ of habeas corpus is not that of an appeal or writ of error to review irregularities in the verdict or judgment.</p> <p>[As to scope of review on habeas corpus, see note in 87 Am. St. Rep. 171.]</p>

Lee Word, a Judge of the First Judicial District, presiding. In the Matter of the estate of Rachel E. Williams, deceased. Proceeding by Andrew J. Davis and Lyman M. Harley for the probate of an alleged will, contested by Dorothy Alice Williams by her guardian, Sibyl Scott. From a judgment for contestant and an order denying a new trial, proponents appeal. Evidence of the wealth of Davis was inadmissible.

Law, Judge. Lewis Keeler was convicted of statutory rape, and from the judgment of conviction and an order denying him a new tria], he appeals. The court erred in making an order excluding the public from the trial of the cause over the objection of the defendant. The attention of the court is called to two cases upon this subject, the case of People v. Hartman, 103 Cal. 242, 42 Am. St. Rep. 108, 37 Pac. 153, and People v. Murray, 89 Mich. 276, 28 Am.

A. Matthews, Judge of the Fourteenth District, presiding. Action by Lizzie O’Connor Fowlie against Thomas Cruse. Judgment for plaintiff. Pending motion for new trial, defendant died, and Biehard Cruse and others administrators with the will annexed, were substituted in his stead. From the judgment and an order denying said motion, defendants appeal.

<p> Deeds of Trust—Mortgages—Redemption—“Right of Redemption”—“Equity of Redemption”—Burden of Proof. </p> <p>Deeds of Trust—Mortgages—Right of Redemption.</p> <p>1. The provisions of sections 6813-6847, Revised Codes, governing the right of redemption, apply as well to a decree enforcing a deed of trust as to one foreclosing a mortgage.</p> <p>Same—“Equity of Redemption”—Definition.</p> <p>2. The “equity of redemption” from a mortgage or trust deed sale is a substantive property right which the mortgagor retains and which may be sold or seized on attachment or execution; it comes into existence when the property is hypothecated, and is terminated by a sale, either under a power of sale or by virtue of a decree.</p> <p>Same—“Right of Redemption”—Definition.</p> <p>3. The “right of redemption” arises only upon such sale, exists for the period fixed by law, and is not property in any sense, but a bare personal privilege of statutory origin to be exercised only by the persons named in the statute in the instances mentioned therein, and within the time and upon the conditions prescribed.</p> <p>Same—“Right of Redemption”—Limited to Judicial Sales.</p> <p>•4. The right of redemption referred to in the statute supra relating to redemptions is limited to judicial sales; hence it has no application to a sale by virtue of a power contained in a mortgage or deed of trust.</p> <p>Same'—Right of Redemption—Burden of Proof.</p> <p>5. The right of redemption being statutory, the burden is upon anyone, claiming by or under it, to show its existence, and that he is in a position to invoke its benefit.</p> <p>[As to who may redeem, see note in 21 Am. St. Rep. 245,]</p>

Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. Action by Lizzie Kennedy against Hugh J. Rogan, as administrator of the estate of Patrick J. Rogan, deceased. Judgment for defendant and plaintiff appeals.

McClernan, Judge. Action by Joseph F. Conway, Sr., against the Monidah Trust, a corporation, and others: From a judgment for plaintiff and an order denying them a new trial, defendants appeal. The custodian was guilty of contributory negligence and assumed the risk of injury to the child. Such neglect on the part of the custodian, where the facts are conceded, constitutes contributory negligence and assumption of risk as a matter of law, and bars recovery.

Matthews, Judge of the Fourteenth District, presiding. Action by tbe Coburn Cattle Company against Louis Hensen and another, copartners doing business under the firm name and style of L. & P. Hensen. From an order granting plaintiff’s motion for new trial defendants appeal.

Duncan, Judge. Action by R. M. Cobban Realty Company, a corporation, against the Chicago, Milwaukee & St. Paul Railway Company of Montana and another. There was a decree for defendants, and from an order denying it a new trial, plaintiff appeals.

McClernan, Judge. Action by Thomas J. Harrington, administrator of the estate of George W. Newkirk, deceased, against the Butte & Superior… Held: “It is a settled rule that a mortgagor cannot maintain ejectment against his mortgagee until the debt is paid.” (Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; Montgomery v. Trumbo, 126 Ind. 331, 26 N. E. 54; Post v. Bank of TJtica, 7 Hall (N. Y.), 391.) “The intention of the parties to the deed at the time it was made is controlling.

N. Utter, Judge. Suit by Clinton J. Poe against Sheridan Connty, the Board' of Connty Commissioners, and others. From a judgment of dismissal, plaintiff appeals. Want of legal capacity to sue refers to a general legal disability, such as infancy, idiocy, lunacy or want of title in the plaintiff to the character in which he sues.

Ayers, Judge of the Tenth District, presiding. Action by Ellen S. Eustance against Judith Francis and' others. From a judgment for plaintiff, defendants appeal. Cause submitted on briefs of counsel.

J. Lynch, Judge. Action by Abraham G. Lewis, as administrator of the estate of Rose Amelia Lewis, deceased, against Charles Steele. Judgment for plaintiff. Defendant appeals. The appellant contends that he is not liable for any tort committed by his minor son during the appellant’s absence unconnected with his business, and without his authority or approval.

'Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. Action by Shadan Lahood against the Continental Telegraph Company and another. Judgment for plaintiff and defendants appeal from it and from an order denying them a new trial.

Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. Action by Pat P. Smith against’ John F. McCormick and Thomas Daly. From an order setting aside a default judgment on application of defendant Daly, plaintiff appeals.

Ayers, of the Tenth District, Judge presiding. Action by C. E. Ward against the State Bank of Yates. Judgment for plaintiff and defendant appeals. Cases such as this are rare, and not many decisions can be cited as bearing directly upon this question. One of the earliest and best considered eases clearly holds that the action is founded on a contract, and that in the absence of proof of special or actual damages, the plaintiff is only entitled to recover nominal damages.

<p> Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge. </p> <p>Action by tbe State against E. E. Turnmire. From a judgment for plaintiff, defendant appeals.</p> <p>Cause submitted on' briefs of Counsel.</p>

E. Patterson, Judge. Action by Angelo De Sandro against tbe Missoula Light and Water Company, and another. Judgment for plaintiff, and defendant corporation appeals from it and an order denying it a new trial.

M. Clements, a Judge of the First District, presiding. Action by the Canyon Creek Irrigation District against Van D. Martin. From a judgment for plaintiff, the defendant appeals.

C. Hurley,, Judge. Action by William Wallace against the Chicago, Milwaukee & Puget Sound Bailway Company and Joseph Feeley. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial. Was Feeley a fellow-servant or a vice-principal?

<p> Appeal from District Court, Fergus County; Boy E. Ayers, Judge. </p> <p>Action by the City of Lewistown against A. W. Warr. Demurrer to complaint sustained and judgment of dismissal entered. Plaintiff appeals.</p>

<p> Appeal from District Court, Fergus County; Boy E. Ayers, Judge. </p> <p>Action by the City of Lewistown against Jennie W. Warren. Judgment for defendant and plaintiff appeals.</p> <p>Cause submitted on briefs of Counsel.</p>

<p> Appeal from, District Court, Fergus County; Boy E. Ayers, Judge. </p> <p>Action by City of Lewistown against Helen Warr. 'Judgment for defendant and plaintiff appeals.</p>

A. Clark, Judge. Action by the First National Bank of Miles City against M. Barrett. From a judgment for defendant and an order denying a new trial, plaintiff appeals. A note which contains a statement of the particular transaction giving rise to the instrument is not thereby rendered nonnegotiable.

Miller Smith, Judge of the First District, presiding. Proceeding by Andrew J. Davis and another for the probate of the will of Rachel E. Williams, deceased, contested by Dorothy Alice Williams, by her guardian, Sibyl Scott. A judgment admitting the instrument to probate, and an order refusing a new trial were reversed on appeal, and a new trial ordered at the cost of proponents.

C. A. Williams was convicted of a violation of the gaming law, and appeals from the judgment of conviction. Cause submitted on briefs of Counsel.

Original application by the State, at the relation of Barney MeGrade and others, for a writ of certiorari, against the District Court of Silver Bow County, and Michael Donlan, a judge thereof.

Lee' Word, Judge. Suit by George H. Hill to enjoin William C. Rae, as State Treasurer of the State of Montana, from issuing, negotiating or selling bonds pursuant to the Farm Loan Act. Judgment for defendant, and plaintiff appeals. In behalf of Respondent, there was a brief by Mr. J. B. Poindexter, Attorney General, Mr. Wm. E. Poorman and Mr. Chas. S. Wagner, Assistant Attorneys General, and oral argument by Mr. Poorman■ and Mr. Wagner.

C. Hurley, Judge. Application by I. S. Honstain for tbe renewal of a saloon license. From a judgment of tbe district court affirming tbe decision of tbe county commissioners refusing tbe petition, tbe petitioner appeals.

<p> Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge. </p> <p>Suit by J. E. Hauf, against School District No. 1 of Corvallis, Ravalli County, and others. From a decree for plaintiff, defendants appeal.</p>

Ayers, Judge. Action by T. A. Berkin and another against Tena De Witt Healy and others. Decree for plaintiffs, and defendants appeal. A mortgagor cannot have a mortgage canceled as a cloud upon his title on the sole ground that it is outlawed, nor can his successor in interest have such relief. Nothing less than payment of the debt will entitle either of them to have the record cleared.

J. Lynch, Judge. Action by Arthur Pascoe against George Nelson and Hans Pederson, copartners, doing business as Nelson & Pederson, and another. Judgment'for plaintiff and defendants appeal from it and an order denying them a new trial.

McClernan, Judge. Injunction by James P. Larkin against the City of Butte and others. From a judgment dismissing the action, plaintiff appeals. Cause submitted on briefs of Counsel.

<p>Contracts—Sales—Offer and Acceptance—Counter Proposals— Effect.</p> <p>Contracts—Offer and Acceptance.</p> <p>1. In order to form a contract, there must be an offer by one party and an unconditional acceptance of it by the other in accordance with its terms, and, if the acceptance falls within or goes beyond the terms of the offer, there is no contract.</p> <p>Same—Sales—Offer—Unconditional Acceptance Necessary.</p> <p>2. Acceptance of an offer of sale of city bonds,—the negotiations being conducted through the medium of correspondence by telegrams and letters,—to which was attached a reservation, giving the buyer the right to examine the legality of the proceedings of the city council leading up to the issuance of the bonds before concluding the purchase, was not unconditional and absolute so as to bind the seller.</p> <p>Dor authorities on the question of time and place of consummation of contract when offer is by letter and acceptance by telegram, or vice versa, see notes in 6L. E. A (n. s.) 1016 and L. R. A. 1916A, 1302.</p> <p>Same—Sales—Buyer Substituting Third Person—Effect.</p> <p>3. Where an offer for the sale of city bonds has been made by the seller to A, the latter could not, by coupling with his acceptance a proposal that B should be substituted in his place as buyer, compel the seller t'o enter into contract relations with B, a stranger about whom he knew nothing, and the seller eould rightfully withdraw his offer without incurring liability to A notwithstanding the latter then—but too late—proposed to assume the position of obligee and accept delivery of the bonds.</p> <p>[As to contracts by telegraph and the admissibility of telegrams as evidence, see notes in 93 Am. Dec. 514; 110 Am. St. Bep. 742.]</p> <p>Same—Confirmation of Sale—“Subject to Written Contract.”</p> <p>4. Where a buyer of municipal bonds indicated in a telegram that he desired to enter into a written contract of sale, the seller’s reply that he confirmed the sale “subject to written contract,” construed as a reservation of the right to reject the formal writing if examination of it disclosed unacceptable terms.</p>

Lee McCulloch, Judge. Action by the Anaconda Copper Mining Company against Ravalli County, and H. L. Hart, County Treasurer. Judgment for defendants, new trial denied and plaintiff appeals. The listing of a portion of the lands in question as mineral and mineral rights was a reassessment of part of the same lands, and to this extent was a double tax, and therefore illegal and void. In Spring Valley Water Co. v. 'Alameda County, 24 Cal.

M. Clements, Judge. Action by George Taylor against J. Combs and another. From a judgment of the district court, dismissing an appeal from a judgment in a justice of the peace court, defendants appeal.

“That a note secured by mortgage is overdue does not prevent one holding it under an apparently valid transfer from the true owner from conferring a good title upon an innocent purchaser for value, although he secured the transfer by fraud.” (Gardner v. Beacon Trust Co., 190 Mass. 27, 112 Am. St. Rep. 303, 5 Ann. Cas. 581, 2 L. R. A. (n. s.) 767, 76 N. E. 455.) In the note to this case many cases are cited and distinguished. The ease of Young Men’s Christian Assn.

Ayers, Judge. Action by David Elijah against William F. Wright. Judgment for defendant and plaintiff appeals from it and an order denying him a new trial.

J. Lynch, Judge. Divorce suit by Minnie Isabel Davidson against James Davidson, in which defendant filed a cross-bill. From a judgment denying relief to either party plaintiff appeals. The right of trial by jury existed at the time of the adoption of the Constitution. It cannot become obsolete, for it is made perpetual by the Constitution. (Kleinschmidt v. Dunphy, 1 Mont. 118; Cunningham v. Northwestern Imp.

J. Lynch, Judge. Action by Edward J. Henroid, as administrator of the estate of Leo Henroid, deceased, against the Gregson Hot Springs Company. Judgment for defendant and plaintiff appeals. Keepers of bathing resorts and plunges where the. people are invited to bathe must adopt every reasonable precaution and every reasonable method to provide assistance to any and all, whether children or adults, who may meet with any accident or misfortune while in bathing.

Original application for writ of review by the state, on the relation of Hattie Sell, against'the District Court of the Tenth Judicial District in and for Fergus County and Roy E. Ayers, Judge thereof.

Original application for writ of review by the State, on the relation of Hattie Sell, against the District Court of the Tenth Judicial District in and for Fergus County and John A. Matthews of the Fourteenth District, Judge presiding.

<p>Taxation—Railroads—Telegraph Lines—By Whom, Assessable— Constitutional Law—Legislative Construction.</p> <p>Taxation—Railroads—Telegraph Lines—By Whom Assessable.</p> <p>1. So much of a telegraph line used exclusively for railroad purposes and extending along the right of way across the state, as is within any given county is assessable by its assessor, and not by the state board of equalization as part of the “roadway,” under the mandate of section 16, Article XII, Constitution, that term ineluding only the bare strip of ground upon whieh the rails are laid.</p> <p>Constitutional Law—Legislative Construction.</p> <p>'2. While the legislative construction of a constitutional provision is not conclusive, it is entitled to the most respectful consideration, particularly when it has been uniform and has extended over a considerable period of time, unchallenged in the courts.</p> <p>For authorities passing on the question of effect of different modes of assessment and procedure in taxation of corporations, see note' in 60 L. R. A. 372.</p>

Ayers, Judge. Action by Frank H. Stokes against W. A. Long. From a judgment for plaintiff and an, order denying Mm a new trial, defendant appeals. To allege that appellant failed to exercise ordinary care and skill in the performance of his duty; failed to use reasonable care and diligence in the exercise of his skill as a physician and treated the fracture of respondent’s leg in a grossly careless, negligent and improper manner, are allegations of bald conclusions of law.

B. Leslie, Judge. Criminal Proceedings by tbe State against tbe Rocky Mountain Elevator Company for unfair discrimination under Chapter 8, Laws of 1913. From an order directing a verdict of not guilty, the State appeals. The information does not state facts sufficient to charge the defendant with an offense against the laws of the state of Montana. The offense with which the defendant is charged is purely statutory. Nothing like it was known at the common law.

Law, Judge. George W. Lewis was convicted of manslaughter, and appeals from the judgment and an order denying him a new trial. The court erred to the prejudice of the defendant in imposing a fine of $50 against Mr. Pease, one of the defendant’s counsel, for contempt, and in making the ruling as set forth in the record.

C. Spencer, Judge. Mandamus proceedings by tbe State of Montana, on relation of F. A. Hauswald, against A. A. Ellis and others, as the Board of County Commissioners of Carbon County. Judgment for plaintiff and defendants appealed. The authority of the county commissioners is given by section 2894. The board is one of limited powers. It can only exercise such powers as are conferred by law or are necessarily implied. (State ex rel.

Duncan, Judge. Consolidated Actions by the Interstate Power Company against the Anaconda Copper Mining Company and another. From judgments for plaintiff and orders denying them new trials, the defendants appeal.

M. Clements, Judge. Action by Mary Batch against the Helena Light & Bailway Company and another. From a judgment for defendant, and an order denying a motion for new trial, plaintiff appeals. Plaintiff having proven by competent testimony the happening of the accident, the burden was then upon the defendants to prove that they had done everything which the law required them to do to avoid the accident. This they failed to do. (Emerson v. Butte Electric By.

Lee Word, Judge. Proceedings by tbe Public Service Commission of Montana against the City of Helena and its executive officers. Judgment for defendants and plaintiff appeals. The business of furnishing water to the inhabitants of a city is a business charged with a public interest. We deem it unnecessary to do more than to enumerate the various tests by which the courts have determined whether or not a particular business is a public utility. They are: 1.

Matthews, Judge. Action by Perry J. Moore against Roy O. Sherman and Helen Pump. From a decree in favor of defendant Sherman and an order denying her motion for a new trial, defendant Pump appeals.

<p>Application by Margaret Satterthwaite for a writ of habeas corpus in behalf of Mamie Satterthwaite.</p>

Original application by the State at the relation of H. L. Wolfe, Jr., as county attorney of Phillips County, Montana, for writ of mandate directed to the District Court of said county, and Honorable Frank N. Utter, judge thereof.

<p> Criminal Law—Defective Information—Dismissal—Filing Neio Information—Hateas Corpus. </p> <p>1. Where an information was dismissed on the motion of the county attorney because of the omission of a material allegation therefrom, and a new information ordered filed by the court, the absence of a statement from the minutes of the eourt that before making the order it entertained the opinion that the objection to the original information could be avoided in the new one,—an entry which might properly have been made but was not required to be made by section 9204, Revised Codes,—was not sufficient ground for the release of the complainant from custody on habeas corpus.</p> <p>[As to when plea of autrefois acquit is sustainable, see notes in 17 Am. Dec. 791; 68 Am. Dec. 536.]</p>

<p>Application of Aaron Hill for writ of habeas corpus.</p>

M. Clements, Judge. Proceeding in mandamus by tbe State on tbe relation of Mary M. Danaher against Sidney Miller, as register of state lands, and S. Y. Stewart, as president of tbe State Board of Land Commissioners. Judgment for defendants. Relatrix appeals from tbe judgment and an order denying a new trial. Respondents argue that tbe governor cannot be mandamused even to perform a ministerial duty. .

Matthewes, Judge of the Fourteenth District, presiding. Action by Maurice C. Kitts against W. R. Woods, Sheriff, and others. Judgment for plaintiff, and defendants appeal from an order denying them a new trial.

E. Erickson, Judge of the Eleventh District, presiding. Action by E. C. Pobl against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment in favor of defendant, plaintiff appeals. Sections 1068 and 2692, Revised Codes, are void as a capitation tax. A poll tax is not a tax upon property. It is a capitation tax; that is, a specific sum levied upon each person so taxed.

McClernan, Judge. Action by J. H. McBain against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant appeals from it and an order denying its motion for a new trial. The plaintiff was not engaged or engaging in interstate.commerce at the time he was hurt. The question whether or not the Federal Employers’ Liability Act applies is determined by the particular service in which the employee was engaged at the time of the injury.

Lee McCulloch, Judge. John A. Russell, convicted of a misdemeanor, appeals from the judgment and an order denying him a new trial. Cause submitted on briefs of counsel.

B. Poindexter, a Judge of the Fifth District, presiding. Action by Leonie Huffine against Alvin R. Lincoln and others. From a judgment in favor of plaintiff, defendants appeal. While from the time of the making of the contract in 1903 until 1910, the contract existed and was capable of being enforced, when defendant Alvin R. Lincoln married, as he had a right to do, he was relieved from performing his part of the contract.

W. Pierson, Judge. Action by the E. B. Ryan Company against Ed. Russell, from a judgment for plaintiff and from an order denying him a new trial, defendant appeals.

J. Lynch, Judge. Action by Michael Herlihy, as executor of the estate of Dennis Herlihy, deceased, against Dan J. Donohue and others. Judgment for plaintiff. Defendants appeal.

<p>, Appeal from District of Ravalli County; Theodore Lentz, Judge.</p>