Volume 54 — Montana Reports

A. Thompson, Judge. Action by Guy E. Padden against Dora Murgittroyd and another. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. Cause submitted on briefs of Counsel.

O’Hern, Judge. Action by the Baker State Bank against J. M. Grant and others. From a judgment for plaintiff and from an order denying them a new trial, defendants appeal.

B. Winston, Judge. Action by the Brunswick-Balke-Collender Company against W. I. Higgins. Judgment for plaintiff. Defendant appeals from the judgment and order denying him a new trial.

B. Winston, Judge of the Third District, presiding. Proceeding by Emma Riley for letters of administration in the Matter of the Estate of Joseph P. Riley, deceased. From an order granting letters to Mary F. Mouat, Emma Riley appeals.

Lee McCulloch, Judge. Action by tbe state against F. A. Tuffs. From a judgment of guilty and from an order denying him a new trial, defendant appeals. An “itinerant vender” has been defined to be a person who sells and delivers the identical goods he carries with him. (State v. Lee, 113 N. C. 681, 37 Am. St. Rep. 640, 18 S. E. 713.) Only the person who itinerates for trading purposes is a peddler.

B. McClernan, Judge. Action by John Rude, administrator of the estate of Magna Rude, deceased, against J. W. Marshall. From a judgment for plaintiff and an order denying him a new trial, defendant appeals.

<p> Appeal from District Court, Carbon County; Geo. W. Pierson, J udge. </p> <p>Action by Edward Olcott against "W. H. Gebo. 'Judgment for plaintiff and defendant appeals.</p>

Law, Judge. Action by W. 0; Armitage against tbe Cbieago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant' appeals.

Appeals from District Court, Musselshell County; Chas. L. Crum, Judge. Action by W. G. Jarrett and others against Jim Hart. From a judgment in favor of plaintiffs and several orders made after final judgment, defendant appeals.

Lee Word, Judge. W. H. Hopkins was convicted of a misdemeanor committed by practicing osteopathy without obtaining a license, and appeals from the judgment and an order denying him a new trial. If the legislative intent was to include within the meaning of sections 1594-1606 of our Political Code one who is engaged as a chiropractor, then to that extent the sections are unconstitutional because repugnant to Article Y, section 23 of the Constitution of the state of Montana.

W. Pierson, Judge. Action by George F. Bennighoff against E. L. Robbins, as executor of the estate of John D. Losekamp, deceased. From a judgment for defendant, and an order denying plaintiff’s motion for new trial, plaintiff appeals. The agreement in suit is not affected by the statute of frauds for the following reasons: 1. The elements of an agreement to answer for the debt, default or miscarriage of another are lacking.

■ B. McClermn, Judge. Suit by the Butte Miner Company, a corporation, against the M. J. Connell Company, a corporation, and W. J. Ruffner, its receiver. From an order allowing the receiver compensation, the M. J. Connell Company appeals.

Patterson, Judge. Action by Clara B. Anderson, by John Gr. Anderson, guardian ad litem, against the Missoula Street Railway Company. From a judgment for plaintiff and an order overruling its motion for a new trial, defendant appeals.

Appeal from District Court, Hill County, in the Twelfth Judicial District; Charles L. Crum, Judge of the Fifteenth District, presiding. Action by tbe American Surety Company of ■ New York against Herman F. Kartowitz. From an order denying a motion to discharge an attachment, defendant appeals.

L. Crum, Judge. Action by the Northern Pacific Railway Company against the County of Musselshell and the treasurer thereof to restrain the issuance of a tax deed. From a judgment entered after sustaining defendants’ demurrer to the complaint, plaintiff appeals. According to the decision in Northern Pac. Ry.

B. McClernan, a Judge of the First District, presiding. Action by Paul H. Roberts against Clarence C. Sinnott. Judgment for plaintiff. Defendant appeals from the judgment and from an order denying a new trial. Affirmed. On motion for rehearing, order of affirmance vacated on condition that appellant file a proper transcript on appeal.

<p>Counterclaims — TJnjustifiáb le Verdicí.</p> <p>1. Where, in an action on a promissory note, the total of defendant’s counterclaims could not' be made to equal the amount admittedly due plaintiff, a verdict in favor of the former was unjustifiable.</p>

<p>Water Rights — Appeal and Error — Right of Appeal — Estoppel —Acquiescence in Decree.</p> <p>Right of Appeal — E'stoppel.</p> <p>1. Where a party has recourse to a judgment as an active instrument for his benefit, he may not thereafter prosecute an appeal from it.</p> <p>Water Rights — Right of Appeal — Estoppel by Acquiescence in Decree.</p> <p>2. Held, under the above rule, that plaintiffs in a water right suit estopped themselves from prosecuting an appeal from the decree in the provisions of which they acquiesced during the entire irrigating season following its entry by consenting to the appointment of a water commissioner to apportion the water, of the stream in controversy as decreed, by contributing to the payment of his compensation, by prosecuting such officer for contempt, as well as by soliciting the appointment of a new commissioner for the second season following rendition of the decree.</p> <p>[As to equitable estoppel as defense to suits to restrain diversion and use of water, see note in Ann. Cas. 1914B, 996.]</p>

W. Pierson, Judge. Action by the Minneapolis Steel & Machinery Company against A. L. Thomas and others. Judgment for defendants and plaintiff appeals from it and an order denying him a new trial.

B. Mc-Clernan, Judge. Action by Alexander Leggat and another against the city of Butte. From a judgment of dismissal, plaintiffs appeal.

Action by tbe Dover Lumber Company against Jobn W. Whitcomb and others. Judgment for plaintiff and Whitcomb Bros., appeal. Plaintiff, to be entitled to judgment, must establish by a preponderance of the evidence: 1. That at the time the suit was instituted, it was the absolute owner (for no qualified ownership by lien or otherwise is claimed in the complaint) and lawfully entitled to the immediate and exclusive possession of the property in controversy in this suit. 2.

<p>At Chambers.</p> <p>In the Matter of Application of J. P. Hughes, convicted of rape, for a writ of habeas corpus.</p>

A. Clark, Judge. Suit by George B. Cox against M. S. Hall and another. From a decree for plaintiff and an order denying a new trial, defendants appeal. It does not appear from the allegations of the complaint either that the mistake was mutual or that it did not occur by or result from the negligence of the plaintiff.

C. Hurley, Judge. Louis Siefe was convicted of maliciously burning property, and appeals from the judgment and an order denying him a new trial.

Sattes, deceased, against the Second Judicial District Court in and for Silver Bow County and John Y. Dwyer, a Judge thereof, to set aside an order allowing attorney’s fees. Order vacated.

Lee McCulloch. Action by Ella Falligan against School District No. 1 of Ravalli County, and the Board of Trustees of said district. Plaintiff appeals from a judgment entered after a general demurrer to the complaint had been sustained.

W. Pierson, Judge. Gust Kanakaris was convicted of a violation of certain provisions of Chapter 1, Laws of 1911, and from the judgment and order denying his motion for new trial he appeals.

M. Clements, Judge. Chauncey A. Sheldon was convicted of mayhem, and from the judgment and order denying him a new trial he appeals. The court’s instructions on the burden of proof on the question of insanity were erroneous and conflicting. It is well settled in this state that when conflicting propositions of law are given to a jury on a material point, one of which is correct and the other incorrect, as here, the error is fatal. (State v. Peel, 23 Mont. 358, 75 Am.

O’Eern, Judge. Denver and Oscar Woods were convicted of grand larceny, and appeal from the judgments of conviction, and from an order denying their motions for new trial.

McClernan, Judge. Action by Josephine Garvin against the Butte Electric Railway Company and another. From a judgment against defendant company it appeals. Statement of the Case by the Judge Delivering the Opinion.

<p>Mortgages — Judgment Liens — Priority of Equitable Titles — ■ Public Lands — Attachment.</p> <p>Mortgages — Judgment Liens — Priority of Equitable Titles.</p> <p>1. The lien of a judgment is a general one, and must yield to all prior equitable titles in others;</p> <p>Public Lands — Attachment.</p> <p>2. An attachment does not lie against the inchoate right an entryman of desert land has therein before issuance of patent.</p> <p>Same — Entry not Assignable.</p> <p>3. A desert land entry is not assignable to or for the benefit of a corporation or association, under the Act of Congress of March 28, 1908. (Chap. 112, see. 2, 35 Stat. 52.)</p> <p>[As to encumbrances by pre-emptors and other claimants, see note in 52 Am. St. Hep. 249.]</p>

V. Dwyer, Judge. Frank Fisher and John 0 ’Neill convicted of mnrder in the first degree, appeal from the judgment of conviction and an order denying their motions for a new trial.

Dwyer, Judge. Sherman A. Powell was convicted of murder in the first degree, and, from the judgment and an order denying new trial, he appeals.

District Court, Silver Bow County; J. J. Lynch, Judge. Action by Peter 0 ’Brien against Gus Stromme and others, as members of the county board of health. Judgment of nonsuit and plaintiff appeals. Where a duty which is purely ministerial is violated or negligently performed by a public officer, the party injured thereby may have redress by action. (Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463, 53 Am.

Ayers, Judge. Action by E. J. Barry against W. W. Badger, Robert F. Turnbull and others, copartners doing business under the firm name of Gold Reef Lease. Prom an order of nonsuit and denial of a new trial, plaintiff appeals.

<p> Appeal from District Court, Fergus County; Roy E. Ayers, Judge. </p> <p>Condemnation Proceedings by the Great Northern Railway Company against George P. Fiske. From judgment on the award as made by the commissioners, plaintiff appeals.</p>

'Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge. Injunction by Wells Fargo & Co. against John J. Harrington, County Treasurer of Silver Bow County, and another. From a judgment in favor of plaintiff, defendants appeal. Franchises are property and taxable. (Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 41 L. Ed. 965, 17 Sup. Ct. Bep. 604; Board of Commrs. v. Rocky Mountain N. P. Co., 15 Colo App. 189, 61 Pac. 494; Iron Silver Min.

<p> Appeal from District Court, Silver Bow County; J. B. Mc-Clernmi, Judge. </p> <p>Injunction by the American Express Company against John J. Harrington, County Treasurer of Silver Bow County, and another. From a judgment in favor of plaintiff, the defendants appeal.</p>

Tattan, Judge. Action by Hugh S. Grant against F. N. Williams, as Justice of the Peace of Chinook Township, and others. From a judgment for defendants, plaintiff appeals. The complaint states a good cause of action for malicious prosecution in the furtherance of a criminal conspiracy. A justice of the peace has no original jurisdiction in proceedings brought for the violation of a town ordinance. Of such proceedings the police court has exclusive jurisdiction.

M. Clements, Judge. - Action by Benjamin L. Brush against the City uf Helena. Judgment for plaintiff and defendant appeals. If the transaction here involved was unlawful, plaintiff was in pari delicto, and the court will leave him where it finds him. (Glass v. Basin & Bay State Min.

B. Mc-Clernan, Judge. Suit by William E. Thomas against Carl H. Horst, as administrator of the estate of Barbara H. Horst, deceased, and others. Judgment for defendants, and plaintiff appeals. We have no legal title — this has been repeatedly held. The only remedy is, as said by the supreme court of the United States, “the remedy of the aggrieved party must be sought by him in a court of equity.” (Steel v. St. Lowis Smelting etc. Co., 106 U. S. 447, 27 L. Ed. 229, 1 Sup. Ct.

Lenz, Judge. Action by George McCormick against C. Stimson and A. L. Crawford. Judgment for plaintiff and C. Stimson appeals. An agreement to contribute labor or property in consideration of receiving a part of tbe profits of some enterprise does not create a partnership, where such profits are paid as compensation for the thing contributed. {Denny v. Cabot, 6 Met.

Matthews, Judge of the Fourteenth District, presiding. Action by Walter Cooper and another against the city of Bozeman for an injunction. From a judgment in favor of defendant, plaintiff appeals. The legislature has general curative power over void municipal ordinances.

B. MeCiernan, Judge. Action by the Old Kentucky Distillery against the StrombergMullins Company. Judgment for plaintiff and defendant appeals. Grant became the owner of the whisky when the respondent accepted his order and approved it. Then the general rule of determining when title to property passes should be applicable.

Action by Mr. J. English against Shirley H. Jenks. From a judgment by default, defendant appeals. Where the judgment-roll shows serviee is constructive, the presumption that the court had jurisdiction ceases, and the burden of establishing jurisdiction is thrown upon the party claiming under the judgment. (1 Freeman on Judgments, secs. 127, 131; Palmer v. McMaster, 8 Mont. 186-192, 19 Pac. 585; Burke v. Inter-State Savings etc. Assn., 25 Mont. 315, 87 Am.

Leonard De Kalb, Judge. Suit by Robert E. Hamilton to enjoin the Board of County Commissioners of Fergus County from' delivering certain bonds. From a judgment dismissing the complaint and dissolving the temporary injunction, plaintiff appeals.

A. Clark, Judge. Action by Thomas Flynn against the county of Beaverhead. Judgment of nonsuit in favor of defendant, and plaintiff appeals. It was argued by respondent in the lower court that appellant consented to the taking of his land by the county for road purposes and may not now be heard to complain.

N.-Utter, Judge. Action by the J. I. Case Threshing Machine Company against John H. Simpson. From a default judgment for plaintiff and an order denying his motion to vacate the same, defendant appeals.

Matthews, Judge. Actions by T. J. McCarthy against the State Bank of Townsend .and others (No. 3,841), and by the State Bank of Townsend against Gavin W. Hamilton, T. J. McCarthy and others (No. 3,846). T. J. McCarthy appeals from the judgment in the first cause, and from an order of dismissal of a petition after demurrer sustained, made in the second. The appeals were consolidated.

Original application by tbe State, on relation of Bert G. Paige, for writ of prohibition to tbe District Court of tbe Fifth Judicial District in and for tbe County of Madison and William A. Clark, a Judge thereof.

'Appeal from District Court, Big Horn County; Chas. A. Taylor, Judge. Proceeding under tbe Workmen’s Compensation Act by Kate L. Wiggins for compensation for the death of Herbert L. Wiggins, deceased. Held: supporting the decision of the county court judge of Kerry, that the death was not occasioned by accident arising out of the employment. (See, also, Warner v. Couchman, [1911] 1 K. B. 351, 4 B. W. C. C. 32; N&wman v. Newman, 169 App.

<p>Original application, on the relation of Anthony Wieck, for writ of certiorari running to the District Court of the County of Hill. Writ denied.</p>

Matthews, Judge. Action by Scott Dewell against the Northern Pacific Railway Company. From the judgment and certain orders both parties appeal. Order denying new trial affirmed. The statute allowing attorneys’ fees as a penalty imposed upon railway companies for a violation of a police regulation requiring them to fence their tracks is not unconstitutional.

McClernan, Judge. Action by L. H. Stanhope against W. A. Shambow and others. Judgment for defendants, and plaintiff appeals.

Ayers, Judge. Action by Peter Morelli against tbe Twohy Bros. Company and another. From an order denying a hew trial after judgment of nonsuit, plaintiff appeals. Tbe trial court sustained tbe motion of defendants for nonsuit upon two grounds, as stated in his ruling, namely: That plaintiff was engaged in making a dangerous place safe, and that the foreman was a fellow-servant of plaintiff. In doing so it committed error.

C. Spencer, Judge. Action by the Aetna Accident & Liability Company against H. B. Miller, as receiver of the Farmers’ State Bank of Bridger, Montana. Judgment for the receiver and plaintiff appeals. Practically a parallel set of facts and constitutional and Code provisions to the case at bar are to be found in the cases of In re Carnegie Trust Co., 151 App.

Original application for writ of injunction by tbe state, on tbe relation of M. Cryderman, against F. A. Wienrich and others, as the Board of County Commissioners of Sheridan County.

B. Rhoades, Judge. Two Proceedings by tbe State, on tbe relation of S. C. Ford, Attorney General, against C. W. Young and others. From an order in each suit refusing to dissolve a temporary injunction, defendants appeal.

3. Ewing, Judge. Action for possession of real estate by Lovinia A. Collins against Mary J. Thode. Judgment for plaintiff, and the named defendant appeals. The court invaded the province of the jury in directing what its verdict should be in this case.

Appeal from District Court, Fergus County; Boy E. Ayers, Judge. Action by Margaret Young against Montford Bray. From a judgment for plaintiff and an order denying new trial, defendant appeals.

<p>(In Chambers.)</p> <p>Original application of William Londos for a writ of habeas corpus. Writ quashed and complainant remanded to custody.</p>

A. Clark, Judge. Action by Rose Heavey against Patrick Laden. Verdict for defendant. From an order granting plaintiff’s motion for,new trial, defendant appeals.

Lee McCulloch, Judge. Action by George Schwab against Worth MeVey. Judgment on directed verdict for defendant and order denying new trial, and plaintiff appeals.

Taltan, Judge. Action by Hugh L. Grant against W. H. Lutz, L. Y. Bogy and Edward Price, and F. N. Williams as Justice of the Peace. From a judgment in favor of the first three named defendants, plaintiff appeals. In order to constitute a cause of action for malicious prosecution the act of putting the machinery of the law in operation against appellant must have been done maliciously and without probable cause.

Appeal from District Court, Chouteau Cou/nty; John W. Tat-tan, Judge. Action by Albert H. Davis against Samuel Y. Stewart, as Governor and others, constituting the State Land Board. Judgment for defendants and plaintiff appeals.

Lee McCulloch, Judge. Action by the Como Orchard Land Company against Stuart H. Markham and another. From judgment for plaintiff, defendants appeal.

'Appeal from District Court, Missoula County; Theo. Lentz, Judge. Action by William H. Glover against the Chicago, Milwaukee & St. Paul Railway Company and another. From a judgment for plaintiff, and an order denying them a new trial, defendants appeal.

Appeal from District Court, Silver Bow County; Michael Dordan, Judge. ‘John Caterni was convicted of murder, and appeals from the judgment and an order denying his motion for a new trial.

Supervisory Control by the State, on the relation of Mary J. Topley, against the District Court of the Fourth Judicial District in and for the County of Ravalli and R. Lee MeCulloeh, a Judge thereof, to review an order refusing to set aside a deeree of divorce entered by default in the case of John W. Topley against relatrix.

Tat- ’ tan, Judge. Action for divorce by Florence Thrift against Harmon Thrift. From an order denying defendant’s motion to have eliminated from the decree certain • provisions, he appeals.

Winston, Judge. Action by Linus Lindeman against John F. Pinson and Bertha Pinson. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial. In an action by a vendee for recovery of the purchase price upon alleged defects in a title, such vendee must specifically allege the defects upon which he relies and must prove the same by competent evidence. (Miller v. SheTburn, 15 N. D. 182, 107 N. W. 51; Meyer v. Madreperla, 68 N. J. L. 258, 96 Am.

<p>Application for Writ of Supervisory Control to review an order of the District Court of Hill County refusing to annul an order appointing a receiver.</p>

<p>Attorneys — Conviction of Felony — Disbarment.</p> <p>1. The name of an attorney convicted of a felony, will, under section 6410, Revised Codes, be stricken from the roll of attorneys, without formal charge or notice to him, upon lodgment of a certified copy of the record of conviction, after the judgment has become final either by reason of failure to appeal or for some other cause.</p> <p>[As to causes and proceedings for disbarment of attorneys, and the power of courts to disbar, see notes in 95 Am. Dec. 333; 45 Am. St. Rep. 71.] *</p>

<p>Attorneys — Practicing Without License — Contempt.</p> <p>Attorneys — Practicing Law — What Constitutes.</p> <p>1. One who appears as an attorney of record in a cause pending in the district court, files papers in behalf of a party thereto, advertises himself as an attorney in newspapers, on letter-heads used by him in his correspondence, or by a sign displayed in front of his office, practices law in a court of record and is guilty of contempt of the supreme court if he does so without being first duly admitted to practice law in the state.</p> <p>[As to practicing law without a license as contempt of court, see note in Ann. Cas. 1917B, 1200.]</p> <p>Same — Limit of Power of District Judges.</p> <p>2. A district judge is without authority to grant anyone the privilege of appearing in his court to represent a client, unless such person is duly admitted to practice law in the state or he is a nonresident and has been admitted in the highest court of the state in which he resides, and in the latter case only for the purpose of conducting a particular cause, and upon motion of a member of the bar of Montana, and not to practice generally for any length of time.</p> <p>Same — Practicing Without License — What not Defense.</p> <p>3. Since a district judge has no authority to permit one to practice law without having been admitted to the bar, such person cannot justify his violation of the law in this regard by alleging such permission as his excuse.</p>

'Appeal from District Court, Lewis and Clark County; B. Lee Word, Judge. Action by George H. Hill and others against the county of Lewis and Clark. Judgment for plaintiff and defendant appeals. In the ease at bar the assessment was made in the name of “S. T. Hauser Estate,” and not to the heirs or executors, as required by law. In Trowbridge v. Moran, 78 N. Y. 439,-the court held that an assessment made to “Estate of A B” was not made to an owner as required by statute.

Appeals from District Cowrt, Lewis and Clark County; J. M. Clements, Judge. Action by August Tietjen against Lena Heberlein. From a judgment for plaintiff and an order denying her a new trial, defendant appeals.

Appeals from District Court, Hill County, in the Twelfth Judicial District; Wm. A. Clark, a Judge of the Fifth District, presiding. Action by W. T. Chealey against B. D. Purdy and others. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial.

Ayers, Judge. Action by C. W. Buntin, as administrator of the estate of John Zuke, deceased, against the Chicago, Milwaukee & St. Paul Railway Company and James Hopkins. Judgment for defendants. Plaintiff appeals from an order denying him a new trial.

Ayers, Judge. ■ Action by the Chicago, Milwaukee & St. Paul Railway Company against Rufus G. Poland, treasurer of Fergus county, and the City of Lewistown. From a judgment for plaintiff, defendants appeal.

Original application by the State, on the relation of Will A. Campbell and others, for writ of injunction against Samuel V. Stewart, Governor, and others, as members of the State Board of Examiners. Demurrer to complaint sustained and proceeding dismissed.

Appeals from District Court, Carbon County; Geo. W. Pier-son, Judge. In an Action by the State of Montana on the relation of D. M. Kelly, Attorney General, against the Farmers ’ State Bank of Bridger, James S. Tebbs and C. W. Taggart filed their petition asking that H. B. Miller, receiver of said bank, be required to recognize a claim against the bank as a preferred one. From a judgment against them and from an order denying their motion for a new trial, petitioners appeal.

Appeals from District Court, Flathead County; T. A. Thompson, Judge. Action by A. D. Tetrault against A. J. Ingraham, Sheriff, and the Kalispell Mercantile Company. Plaintiff had judgment, and defendants appeal from it and an order denying them a new trial.

Appeals from District Court, Custer County; Daniel L. O’Hern, Judge. Action by George W. Farr against Henry Stein. From a judgment in favor of plaintiff and an order denying his motion for a new trial, defendant appeals.

J. Lynch, Judge. Certiorari by the State on the relation of John F. O’Brien, against the Mayor of the City of Butte and the Examining and Trial Board of the Police Department of said city to review the action of respondents in discharging relator from the police force. From a judgment dismissing the proceedings, he appeals. The sufficiency of the charges is one of law for the court. (McNiff v. City of Waterbury, 82 Conn. 43, 135 Am.

Appeals from District Court, Silver Bow County; John B. McClernan, Judge. Action by A. J. Herzig against A. C. and Annabell Sandberg. Prom a judgment for plaintiff and an order denying them a new trial, defendants appeal. Citing upon the question that it was error to deny the right to cross-examine plaintiff whether or not he had been drinking during the afternoon of the accident: People y. Eastwood, 14 N. Y. 562; Commonwealth y. Sturtivant, 117 Mass. 122, 134, 19 Am.

Appeals from District Court, Carbon County; A. C. Spencer, Judge. Action by tbe United States National Bank of Red Lodge, Montana, against Harry Shupak and Joe Kuchinski, copartners as Shupak & Kuchinski. From a judgment in favor of plaintiff and an order denying their motion for a new trial, defendants appeal.

<p>Partnership — Evidences of Existence — Formation — Intent— Common Property — Profit-sharing—Sales—Failure of Consideration — Breaches of Warranty.</p> <p>Appeal and Error — Directed Verdict — Question Determinable.</p> <p>1. Where a judgment is based on a directed verdict, the question on appeal is, not whether the inferences necessary to maintain the court’s action are permissible from the evidence, but whether they are commanded by it.</p> <p>Partnership — Evidence—Insufficiency—Directed Verdict — Error.</p> <p>2. Evidence held sufficient to permit the inference of the existence of a partnership, but insufficient to command sueh inference, and that therefore the court erred in directing a verdict in favor of plaintiff, who sought to hold defendants as copartners for the cost price of farming machinery.</p> <p>Same — Formation—Intent.</p> <p>3. No one who has not held himself out as a partner is liable as such unless he is a partner in fact, and whether he is such in fact is a question of intent.</p> <p>Same — Presence or Absence of Term “Partnership” in Agreement— Effect.</p> <p>4. Though the use of the word “partnership” in an agreement by individuals to enter into a eommon enterprise is not decisive, its presence or absence is evidence of considerable value in determining the relationship intended to be created.</p> <p>Same — Common Property — Right of Disposition.</p> <p>5. Where none of the persons alleged to have constituted a farming partnership had any power to dispose of the interests of the others in the land intended to be farmed, such land could not constitute the partnership fund or common property.</p> <p>Same — Profit-sharing.</p> <p>6. Profit-sharing is persuasive of the existence of a partnership. [As to when agreements to share profits do not create partnership,</p> <p>see note in 30 Am. St. Rep. 828.]</p> <p>Sales — Failure of Consideration — Breaches of Warranty — Availability of Defenses.</p> <p>7. The rules that failure of consideration cannot be raised by one who accepts and retains property sold, and that breaches of warranty after acceptance cannot be urged as a defense but only as counterclaims, apply only where the acceptance was unqualified or Unconditional.</p> <p>Pleading — Inconsistent Defenses — Admissibility oí Evidence.</p> <p>8. Since a defendant may, under section 6549, Revised Codes, interpose illogical or inconsistent defenses, it is error to exclude evidence offered in support thereof.</p>

Ayers, Judge. Action by Claus Borgeson against T. J. Tubb. Judgment for plaintiff and defendant appeals from an order denying him a new trial. The things alleged as acts constituting adverse possession fall short in law of constituting adverse possession. (1) Inclosures. An inclosure of a smaller tract with a larger one not claimed adversely does not constitute a sufficient inclosure of the tracts to satisfy the law in this respect.

'Appeals from District Court, Gallatin Countyj Ben B. Law, Judge. Action by Henry O. Sebeytt against tbe Gallatin Valley Milling Company, a corporation. From a judgment in favor of plaintiff and an order denying its motion for a new trial, defendant appeals.

Original application by tbe State, on the relation of Rollin P. Holcomb, for writ of supervisory control to the District Court of the Seventeenth Judicial District in and for Phillips County, and John Hurly, Judge thereof, to annul an order vacating an order directing testimony to be taken for the purpose of perpetuation.

Original application for writ of certiorari by the State on the relation of Oliver and Anna Van, running to the District Court of the Fourteenth Judicial District, in and for the County of Wheatland and John A. Matthews, Judge thereof, to annul a judgment declaring a bond, executed by relators, as forfeited.

Original application for writ of supervisory control by the State on the relation of Pansy Brashear against the District Court of Silver Bow County and J. J. Lynch, a Judge thereof, to annul an order adjudging relatrix guilty of contempt.

Consolidated appeals from District Court, Cascade County; J. B. Leslie, Judge. Actions by the Great Falls Townsite Company against John and Annie Kowell. Plaintiff appeals from a judgment in favor of defendants, and from an order denying it a new trial.

Appeal from District Court, Silver Bow County, in the Second Judicial Districtj Albert P. Stark, Judge of the Sixth District, Presiding. Action by L. Wilton Strong against the Bntte Central & Boston Copper Corporation, Austin M. Pinkham et al. Judgment for plaintiff and the above-named defendants appeal.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Action by E. A. Roberts and D. M. Morgan against George Oechsli, P. A. Coiner and E. E Mayer. Judgment for plaintiffs and defendants appeal from it and from an order denying their motion for a new trial.

<p>Pleading — Complaint—Inconsistent Allegations — Effect.</p> <p>1. Where allegations of the complaint are directly contrary to each other, so that proof of one would disprove the other, they are self-destructive, the court must disregard both and construe the pleading as though neither were contained therein.</p> <p>[As to inconsistent defenses within rules of pleading, see note in Ann. Cas. 1917C, 704.]</p>

Proceedings for the disbarment of John L. Waddell, an attorney at law. Adjudged that the name of accused be stricken from the roll of attorneys and counselors at law.

Original application for writ of supervisory control by tlie State on the relation of the Interstate Lumber Company against the District Court of’ the First Judicial District in and for the County of Lewis and Clark, and R. Lee Word, a Judge thereof, to annul an order directing the transfer of a cause to the District Court of Silver Bow County.

<p>Claim and Delivery — Pleading and Practice — Counterclaim— Wrongful Detention — Measure of Damages — Instructions— Disregard by Jury — -New Trial.</p> <p>Pleading and Practice — Counterclaim—Nature of Pleading.</p> <p>1. A counterclaim must be in existence and matured for action at tbe time of the commencement of the suit in which it is pleaded.</p> <p>[As to scope and office of counterclaim under the Codes, see note in 89 Am. Dec. 482.]</p> <p>Claim and Delivery — Detention of Property — Measure of Damages — “Usable Value.”</p> <p>2. In a claim and delivery action the measure of damages for the wrongful detention of property having a usable value, as distinguished from its value for sale or consumption, is the reasonable value of its use from the date of seizure to the time of trial, provided there is no allegation of special damages and the party claiming damages had the right to use the property, was in a situation to use it and could have done so but for the wrongful act's of defendant.</p> <p>Same — Damages—Evidence—Insufficiency.</p> <p>3. Evidence held insufficient to justify an award of damages for more than nominal damages for the wrongful detention of hotel and saloon furnishings.</p> <p>Verdiet Against Law — Instructions—Disregard by Jury.</p> <p>4. A verdict rendered contrary to the court’s instruction is against law and will be set aside.</p>

B. Rhoades, Judge. Action by T. W. and Naomi Masterson against E. J. Hubbert. From an order appointing a receiver without notice, defendant appeals.

<p>Original application for writ of injunction.</p>