Volume 6 — Montana Reports

<p>Appeal from. Third District, Lewis and Cla/rke County.</p> <p>The opinion states the facts.</p>

<p>Appeal from First District, Gallatin County. ■</p> <p>The opinion states the facts.</p>

<p>Practice — New trial — Appeal — Record must contain motion and notice. — An order on a motion for a new trial will not be reviewed on appeal wlien the record fails to show that any motion for a new trial was filed in the lower court, or that any notice of motion designating the errors complained of was filed or served upon the opposite party.</p> <p>Instructions — General objection to, insufficient. — A general objection to each and all of instructions given that they are not law, or are misleading to the jury, is not enough.</p> <p>Same — Review of instructions — Record must contain evidence.— An exception to instructions will not be considered on appeal, unless the evidence is embodied in a bill of exceptions properly signed by the trial judge.</p>

The opinion states the facts. Taking money from one dead-drunk or asleep is larceny, not robbery. Whart. Crim. Law, sec. 855; 53 Cal. 58; 16. N. C. 120; 25 Ind. 403. Voluntary confessions of specific charges are admissible under legal conditions, but will not sustain a conviction without corroborative proof of the corpus delicti. Whart. Crim. Ev. sec. 632 et seq. • 1 Greenl. Ev. secs. 216, 211; Territory v. Me Clip, 1 Mont. 394. 1.

<p>Criminal Law — Conspiracy to cheat county — Indictment.—An indictment, under section 187, division 8, of the Revised Statutes, for a conspiracy to cheat and defraud a county, must allege the means by which the conspiracy was to be accomplished. An allegation that the defendants conspired “to cheat and defraud” is not sufficient.</p> <p>Practice — Insufficiency of indictment— Objection hoio raised. — An objection that an indictment does not state facts sufficient to consti-' tute a public offense cannot be raised in the supreme court for the first time. It must be taken advantage of on the trial, or on motion to arrest judgment. If such motion be made, but not insisted upon by the defendant, or acted upon by the court, it will be deemed to have ' been waived.</p>

<p>Appeal from Second District, Deer Lodge County.</p> <p>The opinion states the facts.</p>

<p>Appeal from First District, Gallatin County.</p> <p>The opinion states the facts.</p>

<p>Practice — Order dismissing appeal — Judgment must be entered, on. — An entry in the record of the district court, granting a motion to dismiss an appeal from the probate court, is not a judgment. In order to enable the party against whom, the motion was granted to appeal, judgment-must have been entered in pursuance of such order.</p>

<p>Practice — New trial — Appeal — Review of evidence. — la the absence of a motion for a new trial the supreme court will not consider whether or not the findings are supported by the evidence.</p> <p>Judgment — Presumption in support of.- — All facts which are necessary to support the judgment and which come within the issues raised by the pleadings, although not expressed, will be presumed to be in accordance with the judgment.</p> <p>Mining Water-ditch — Appropriation of water — Rights of miners working in same gulch. — In a mining-gulch, when water appropriated by a ditch for the purpose of being used upon a mining claim has served its purpose upon such claim, it must be discharged therefrom for use by fee owners of claims below, for use upon their claims. The mining claimant below is entitled to the water of the stream flowing down the gulch, subject to the prior appropriation of the water by the owners of claims above him for use upon such claims, and subject only to the reasonable diminution and deterioration by its necessary use upon such upper claims.</p>

<p>Appeal from First District, Gallatin County.</p> <p>The opinion states the facts.</p>

The opinion states the facts. 1. Foreign corporations have no legal existence in any state or territory other than that of their creation. Dank of Augusta v. Earle, 13 Pet. (H. S.) 538. 2.

<p>Northern Pacific Eailroad Company — Land grant — Act of congress construed. — The act of congress granting lands in aid of the Northern Pacific Eailroad is not only a law but a conveyance, and imports a present and immediate transfer of title to the company of the lands described in the grant, which takes effect by relation as of the date of the act, whenever the lands so conveyed are designated by the definite location of the line of the road.</p> <p>Same — Fixing general route of road — Reservation of land— Right to maintain ejectment.— Under such act, whenever the general route of the road had been fixed the lands thereby granted were reserved from sale and held for the company, Whether before or after the same had been surveyed; and thereafter no person could acquire any title thereto or interest therein, save by the act of the company. Such reservation was equivalent to a sale of the lands to the company, to the extent of giving it the right to protect the same as against all other persons. Having the exclusive right to sell the lands and to deliver possession, the company, to all intents and purposes, had the possession; and this, accompanied with the right to sell and to convey title, gave the company the right to protect their possession by action of ejectment or otherwise.</p> <p>Pleading — Ejectment — Averments of complaint.— A complaint in ejectment is good if it aver the seizin of the plaintiff, the possession of the defendant at the time of the commencement of the action, and the withholding of the possession.</p>

The opinion states the facts.' They cite the cases quoted in the opinion, and note the distinction of the case of State v. Loope, 26 Ind. 106, upon which the court below based its decision.

Appeals from, Second District, Silver Bovj Comity. The opinion states the facts. Held: that all the elements of estoppel were not contained in defendants’ plea, and several extreme authorities were cited to support the objection; and while we do not admit that the facts in this case are lacking in a single element required by any authority that may be cited, we insist that the few authorities relied upon by respondents…

<p>New Trial — Notice of — Insufficiency in, cured by stipulation. — A notice of motion for a new trial, which insufficiently designates on what the motion will be based, whether on the minutes of the court, a statement of the case, or a bill of exceptions, is cured by a stipulation that a statement of the case might be used on the motion. .</p> <p>Same — Notice of hearing not required. — When a sufficient notice of motion for a new trial has been served on the adverse party, no formal written application in addition is necessary in order to bring the motion to a hearing.</p>

<p>Appeal from Third District, leivis and Clarice County.</p> <p>The opinion states the facts,</p>

<p>Assignment for Benefit of Creditors — Attachment by consenting creditor.— A creditor of an insolvent who, after consenting to an assignment by him of all his property for the benefit of creditors, under which he is certain to receive his proportion of property assigned, cannot, without attacking the assignment for fraud or otherwise, procure au attachment against the property of the insolvent.</p>

<p>Appeal from Second District, Missoula County.-</p> <p>The opinion states the facts.</p>

<p> Appeal from. Third, District, Lewis and Clarke County. </p> <p>The opinion states the facts.</p>

The opinion states the facts. Appellant substantially complied with the statute and is entitled to. its benefits and protection. Though list ivas filed before marriage, it was in contemplation, and the name of her intended husband was given. The statute does not make this record a notice. Marriages are matter of record. The statute is remedial and should be liberally construed. Appellant was entitled to sue alone. At common law the wife’s chattels vest in husband.

<p>Appeal from Second District, Deer Lodge Oounty.</p> <p>The opinion states the facts.</p>

<p>Appeal from Second District, Sil/oer Bow County.</p> <p>The opinion states the facts.</p>

<p>Monet Laid Out and Expended — Claim against estate.— Money-laid out and expended in favor of another, after his death becomes a claim against his estate, and must be presented to his executor or administrator for allowance.</p> <p>Evidence — Exception to ruling must be reserved — Appeal.— If competent evidence be rejected, the question of its admissibility should be presented to the appellate court by an exception taken at the time and properly saved. If no exception be taken to the action of the trial court in admitting evidence for a limited purpose, the supreme court will not review its action.</p> <p>Trust — Creation of in property of another.— One who does not own or have any interest in property cannot create a trust in the same in favor of another, or by verbal declarations validate an account of his against such other.</p>

<p> Appeal from First District, Gallatin County. </p> <p>The opinion states the facts.</p>

<p>Mining Location — Annual worlc — House for miners.— The annual work required by the act of May 10, 1873 (U. S. R. S. sec. 2334), to be performed in order to retain a mining claim must be done either within the claim, or, if off from it, as a necessary means of extracting the ore therefrom. The erection of a dwelling-house without the boundaries of the claim, for the convenience and shelter of miners, cannot be considered as a part of such annual work.</p>

<p> Appeal from First District, Custer County. </p> <p>The opinion states the facts.</p>

<p> Appeal from First District, Gallatin Gownty. </p> <p>The opinion states the facts.</p>

<p>Appeal from Third District, Lewis and Clarice County.</p> <p>The opinion states the facts.</p>

<p>Northern Pacific Railroad Company —Franchise of cannot be impaired.— The franchise of the Northern Pacific Railroad was given by act of congress, and the road made a military and post road for the benefit of the government of the United States, and whatever is necessary and useful in operating the road belongs to and goes with the franchise, and no law of this territory, or any other jurisdiction less than that which created it, can in any manner rightfully invade or impair the privileges and immunities thus conferred.</p> <p>Same — Office safe cannot be taken on execution. — If an office safe at a depot on said road, in which the agent of the company deposits and keeps his daily receipts of money and valuable papers, is useful and facilitates the operation of the road, it cannot be seized on execution against the company. The finding of the jury, that the safe in question was not necessary or useful for such purpose, reviewed, and held contrary to the evidence.</p>

<p>Mining Claim — Placer location — Quartz lode within boundaries — Adverse claim — Application for patent. — Where an application for a patent to a placer claim is made, a subsequent locator of a quartz lode within the boundaries thereof must file his adverse claim during the period of publication of the notice of such application; otherwise he is barred from questioning the validity of such placer location.</p> <p>Same — Right to possession of vein within placer.— Such placer claimant is entitled to the possession of a quartz lode within the boundaries of his claim if he had no knowledge of the existence thereof at the time he applied for a patent.</p> <p>Same — No presumption as to existence of vein.— The discovery of a quartz lode two or three hundred feet outside of the boundaries of a placer claim raises no presumption that such lode extends within the placer boundaries, when there is no surface indication thereof.</p>

<p> Appeal from Second District, Deer Lodge County. </p> <p>The opinion states the facts.</p>

The opinion states tbe facts. There was no eviction, as alleged in complaint, to support tbe judgment, and none proved, such as would have entitled plaintiff to maintain action. 3 Neb. 76; 1 Neb. 133; 38 Mich. 90; 27 Kan. 691; 5 Ool.. 210; Sedgw. on Damages, 152-158; 3 Mont. 379, 172. No technical eviction was necessary to the maintenance of the action or for the substantial conformity of the proof, to the allegations.

<p> Appeal from Second District, Deer Lodge County. </p> <p>The opinion states the facts.</p>

The opinion states the facts. cites the following cases as authority for vacating this judgment: 33 Oal. 325; 34 id. 235; 41 id. 17; 49 id. 33; 53 id. 69; 62 id. 263; 60 id. 362; 61 id. 296; 12 Kan. 340; 13 Nev. 195-202; 16 id. 373.

<p>Agreement to Pat Draft — Conditional draft. — Defendant agreed in writing to pay to plaintiff, thirty days from date, a certain sum of money upon the order of one Laundrie. The order as drawn directed payment to be made subject to the condition that any differences between the drawer and payee should be deducted therefrom. Held, that ■ the plaintiff was entitled to recover upon the order from the drawer upon showing that no such differences existed.</p> <p>Such Agreement Cannot be Varied by Parol Evidence as to the understanding between, the parties at the time of its execution.</p> <p>The Prayer is No Part oe the Complaint ; and a party is entitled to the relief which the facts alleged and proved warrant.</p> <p>Introduction op Immaterial Evidence, if without prejudice to the party complaining, will not warrant a reversal.</p>

The opinion states the facts. Stoppage in transitu is a legal right of vendor. Story on Sales, pp. 318, 326. Insolvency of vendee means only inability to pay. Parsons on Cont. vol. 1, chap. 6, pp. 595-6; 4 Cush. 134. It makes no difference if the sale was on credit. Story on Sales, p. 327. The goods were still in transit. Story on Sales, p. 342; 30'Pa. St. 254; 23 Wend. 611; Smith’s Mere! Law, p. 6S2, sec. 3’; 7 Cal. 213; 37 id. 630; 23 Cal. 509; 12 Ohio St. 515.

<p>Appeal from Second District, Silver Bow County.</p> <p>The opinion states the facts.</p>

<p>Facts Within the Issues, Not Expressly Found, and necessary to support the judgment, are presumed to have been in accordance with the judgment.</p> <p>Where There is No Replication, All Affirmative Material Allegations of the answer will be presumed to be admitted.</p> <p>Taxation— When assessor may make assessment — Failure of' tax payer to furnish list.— An assessor, under section 1011 of the fifth division of the Eevised Statutes, is authorized to list and assess the property of a tax payer, upon the failure of the latter to furnish the list required by such section, A formal demand by the assessor on the tax payer for a list is not necessary, when it appears that an effort to make a demand was made, and the tax payer evaded the furnishing of the list.</p> <p>Same — Reason of failure to make list need not he entered on roll.— The failure of the assessor to write in the assessment roll, when the assessment is made by himself, that the tax payer “refused to list,” or such other words as will express the cause why the person required to make the list did not make it, will not invalidate the assessment.</p> <p>Finding that the Assessor Adopted the Assessment is equivalent to a finding that the assessment made by-the assessor was delivered to him and entered on the tax list.</p> <p>Failure to Deliver the List and Assessment to the Clerk, when the tax list had passed from him into the hands of the treasurer, did not invalidate the assessment.</p>

<p>Verdict — Evidence — Excessive damages.— In an action to recover for work and labor, and for money advanced, the evidence reviewed and held to support the findings, and not to show that the verdict was excessive, or to have been given under the influence of passion or prejudice.</p>

<p>Jury Trial — Formation of jury — When special venire may issue.— A party lias a right under 12th Session Laws, 57, 58, to have a full panel from which to. select a jury .for the trial of his cause; and not until it is ascertained that a jury cannot be obtained from the panel thus provided can a special venire rightfully issue. If the full panel of twenty-four becomes depleted by reason of sickness or other cause during the term, it is the duty of the court to cause the same to be filled from the one hundred names selected by the commissioners. If a special venire is issued before the regular panel of twenty-four has become exhausted in the formation of a jury for a particular cause, or if a party is required to select a jury for such cause from a panel of less than twenty-four regular jurors, or if, the regular panel not being full, resort is had to an open special venire to complete the jury for the pending trial, the jury so formed is not such as a party is entitled to, and it is error to compel him to proceed to trial before such jury.</p> <p>Promise to Marry — Presumption arising from unlawful cohabitation.— Where a man and woman have unlawfully cohabited together for a long period, a statement by him to her that he would sell his property and thereafter he and she would seek some other country and spend their lives together, raises no presumption of a promise of marriage. The presumption, if any, would be that if they lived together, it would be in the same manner and upon the same terms as formerly. Whether any presumption would arise from such a state of facts is for the jury to determine, and not for the court.</p> <p>Breach op Promise to Marry — Measure of damages.— In an action by a woman for breach of promise to marry, in determining the damages, where no special damages are alleged, the jury may take into view the money value or worldly advantages, separate from considerations of sentiment and affection, of the marriage, .which would have given her a permanent home and an advantageous establishment; and if her affections were in fact implicated, and she had become attached to the defendant, the injury to her affections may be considered as an. additional element of damages; otherwise, however, if the evidence fails to show that her affections have been wounded.</p> <p>Same — Punitive damages, when alloiced.— Punitive or vindictive damages are not recoverable in such action, unless it is shown that the breach of the contract was wanton or malicious, or that the defendant unnecessarily wounded the feelings or injured the reputation of the plaintiff. Such damages are not recoverable unless the same are pleaded;''</p> <p>Same — Evidence of subsequent unlawful cohabitation — Continuance.— In such action, evidence that the plaintiff, at the time of the commencement of the.action, was living as the mistress of another man, is admissible in mitigation of damages. And where a continuance is asked, within a reasonable time after issue is joined, to enable the defendant to procure witnesses to prove such fact, a refusal to grant the continuance is error.</p>

<p>Attachment — Dissolution—Motion for, when to be made. — A motion to discharge an attachment is too late if made after the expiration of the time to answer; and calling it a “substituted motion” will not help it. Code Civil Proc. Mont. § 198.</p> <p>Same — Substituted motion.— A substituted motion can be entertained only when an original has been filed in time, and cannot be produced.</p>

<p>Appeal from. Second District, Deer Lodge County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Evidence — Confession — Statement by an interpreter.— A statement to third party, by an interpreter, of admissions by the accused, though made in their presence, cannot bind. them, when it appears that they did not understand the language in which it was made.</p> <p>Same — Evidence of admissions — Hearsay evidence.— Evidence of a statement made by an interpreter as to admissions made to him is hearsay evidence, and inadmissible.</p>

<p>Appeal from First District, Gallatin County.</p>

<p>Practice — Appeal — Sufficiency of evidence to sustain judgment.— The supreme court will not consider whether the evidence is sufficient to sustain the verdict, or whether it is contrary to law, unless those questions are raised in the manner prescribed by Code Mont. §408, subd. 6, as amended by Laws of 1881.</p>

<p>Appeal from First District, GallaUn Gounty.</p>

<p>Banks and Banking — Collections—Bank liable for agent's default, Y/here a bank accepts a draft from a customer for collection, without any special contract as to its liability, and transmits it for collection to an agent, who collects it, and fails to account for the proceeds, the bank is liable to its customer for the amount collected on such draft.</p>

Appeal from, Third District, Lewis and Clarke County. Action to recover for a loss'in the negligent transportation of government supplies. Judgment for defendant. Plaintiff appealed.

<p>Appeal from Second District, Silver Bow Bounty.</p> <p>The facts are stated in the opinion.</p>

<p>New Trial — On appeal — Conflict of testimony.— The appellate court, on an appeal from an order denying a motion for new trial alone, on the ground that the evidence did not support the verdict, will not reverse such order, where there has been a conflict of testimony in the court below.</p> <p>Appeal — What is open — Allegation in answer not refuted — No objection below.— A defendant cannot rely on an appeal from an order denying a motion for a new trial upon a failure of the plaintiff to reply to an allegation in the answei-, which the appellant claims was new mattei-, when the point was not x'aised in the court below, either on the trial or on the motion for a new trial, and where the appellant treated it as denied, and produced evidence in support of it.</p>

<p>Appeal from First District, Dawson County.</p> <p>Action against surety on undertaking to prevent attachment. Demurrer to complaint overruled. Defendant appeals.</p>

<p>Rat,tt, — Conditional sale — Title does not pass till condition is performed. — Where, on a sale of chattels, it is agreed between the parties that the property shall be delivered to the purchaser, but that the title shall remain in the seller, and the purchaser shall not be the owner thereof until he has paid the purchase money in full, the property is not subject to attachment for such purchaser’s debts, but the ownership remains in the seller; following Heinbockle v. Zugbaum, 5 Mont. 345.</p> <p>Same — Absolute sale — Note and mortgage for purchase price. — If the seller, at the time of the delivery of the property, takes a note from the purchaser for the purchase price, and takes a mortgage on other property to secure the note, then the sale is an absolute sale, notwithstanding an agreement between the parties that the title to the property sold should not pass until the note was paid.</p> <p>Same — Redhibitory action— New trial. — Where, in an action of claim and delivery, the plaintiff asserts a conditional sale, and defendant maintains a sale absolute, and the evidence shows an absolute sale, the trial judge ought promptly to set aside a general verdict in plaintiff’s favor, and graut a new trial.</p> <p>Same — Absolute or conditional — .Evidence.—In an action of claim and delivery for goods alleged by plaintiff to have been sold on the condition that the title should not pass until the purchase money was paid in full, but claimed by defendant to have been sold absolutely, where it appears that the property was delivered to the purchaser; that he was charged up with the purchase price on plaintiff’s books; that he gave to plaintiff a note for the amount of the purchase money, bearing interest, and a mortgage on other chattels than those purchased to secure such note; and that the cattle, when levied on under writs of attachment against the purchaser, were found in his possession,— it will be held that the salé was an absolute sale, and that the property was subject to attachment for the purchaser’s debts.</p>

Suit to protect title to a certain tract of land known as the town site of Cooke.” Oil demurrer to the complaint, the court rendered judgment for defendant. Plaintiff appealed.

<p>Insane Persons — Inquisition—Defeats in — Habeas corpus. — Where, on a hearing upon the return to a writ of habeas corpus for the discharge of a person adjudged insane, it appeal’s that the jury who examined the relator failed to certify upon oath that the charge was correct, and that only two jurors, qualified to do so, signed the verdict, he will be discharged from custody.</p> <p>Same — Constitutional law — General laws Montana, fifth division, section 711; act of March 7, 1883.— General Laws Montana, fifth division, section 711, providing for the examination and commitment and custody of persons charged and found insane, though imperfect in its protective requirements, is not unconstitutional. But in cases of such sum mary proceedings the law is mandatory, and every step provided must be strictly pursued.</p>

<p>Set-off and Counter-claim — Action in tort — Counter-claim on account — Demurrable.— An action brought to recover damages for the wrongful issuance of an execution, upou a judgment previously recovered against plaintiff by defendant, but alleged by him to have been satisfied, and bn account of the levy of such execution upon money of She plaintiff in the hands of the sheriff is founded in tort, aud the fact that plaintiff claims judgment only for the amount seized, with interest, does not alter its nature, and defendant cannot, under the Montana statutes, set up in his answer, by way of counter-claim, an indebtedness to her of the plaintiff upon an account.</p> <p>Same — Evidence—Payment of a judgment.— In such a case, where defendant in his answer denies the payment of the judgment in respect of which the wrongful execution was issued, and the record shows that a certain sum had been paid to defendant’s attorneys to be applied on the judgment (which purported to be a balance), and in full thereof, evidence is admissible to show that certain amounts of money had been paid to defendant’s attorneys to be applied on such judgment..</p>

<p>Banks and Banking — Certificate of deposit — Signed, by cashier — jBank liable.— A batik ordered certain goods from plaintiffs on behalf of third parties. These parties-being unable to pay at the time, the then acting cashier of the bank took their paper, and sent to plaintiffs a certificate of deposit payable in three months, and regular in form, except that it was signed by him in his name alone, and not as cashier. Held, that the proceeding was in the ordinary course of business, and the cashier did not exceed his authority, and the bank was consequently liable.</p>

<p>Taxation — National bank stock taxable in territories — .Revised Statutes United States, section 5819.— Revised Statutes United States, section 5219, providing that shares of any national banking association may be taxed as other personal property in the state in which such association is located, and the taxation thereof may be regulated by the legislature of such state subject to the restriction that the taxation shall not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of such state, extends and applies to territories as well as states, and the shares of national banks in Montana are taxable as other personal property.</p> <p>Same — Equalisation — National bank stock and mines — Laws Montana, twelfth session, page 67 — Revised Statutes Montana, section 1015. In an action to recover taxes upon certain shares of national bank stock it appeared, upon an agreed statement of facts, that by Laws Montana, twelfth session, page 67, stocks or shares in any bank or company, incorporated or otherwise, are subject to taxation, except that where the entire capital stock of any incorporated company shall be invested in assessable property in the territory Of Montana, such stock shall not be taxed; that in the county suing, shares of stock in corporations whose entire capital stock was invested in assessable property in the territory were not taxed; that mining claims not patented were not assessed or taxed at all, and where patented, were assessed at the government price of $5 per acre without regard to their market value; that there were a large number of mining corporations whose entire capital stock was invested in assessable property; and that part of said property consisted of mining claims; that defendant’s shares of bank t stock -were taxed at the market value. Held, such statement did not show such a discrimination against defendant in the taxation of his bank shares as brought the case within the restriction imposed by Kevised Statutes United States, section 5219; and that shares of bank stock and of capital invested in mines being different classes of property, where the rate of taxation in each case is the same upon the amount assessed, “ discrimination” will not apply between them.</p>

<p>Husband and Wife — Divorce — Advisory verdict set aside — Revised. Statutes Montana, section SOS. — Under Revised Statutes Montana, section 508, divorce cases are of chancery jurisdiction, and iu such cases the decree must proceed from the chancellor, and verdicts or special findings, being advisory in such cases, may be approved or disregarded as the conscience of the chancellor may demand.</p> <p>Appeal— Order denying new trial — Decree presumed in accord with evidence.— On an appeal from an order denying a motion for a new trial, there being no evidence before the appellate court, the judgment and decree below will' be presumed to bo supported by the evidence-until the contrary appears.</p>

<p>Statute of Limitations — Conflict of laws — Debt.— E. contracted a debt in Canada. Afterwards he removed to Nevada, and there remained until an action would have been barred by the law of Nevada. He then emigrated to the territory of Montana. Held, that the statute of limitations of Nevada constitutes no defense to an action brought against E. in Montana.</p>

<p> Appeal from Second Distinct, Beaverhead Oounty. </p> <p>Indictment for murder. Conviction below. Defendant appeals.</p>

<p>Appeal from Second District, Silver Bow County.</p> <p>Action on replevin bond. On demurrer.</p>

<p>Eeplevin — Redelivery bonds — Common law bond — Revised Statutes Montana, page 69, section 163.— Although a bond' signed by defendants in replevin as principals and two other persons as sureties for a delivery of the property replevied is not in compliance with Eevised Statutes Montana, page 69, section 163, which requires an “ undertaking signed by two or more sufficient sureties,” the statute not requiring the principals to sign the undertaking, yet it is a good common law bond, and not being prohibited by statute nor against public policy, aii action may be maintained thereon upon failure of the defendant in replevin to comply with the terms of the judgment in the replevin suit.</p> <p>Same — Pleading — Assignment of bond to plaintiff. — It is not necessary to allege in the complaint the assignment of such a bond by the officer in whose favor it is made, to the plaintiff.</p> <p>Same — Filing bond with clerk.— The failure to file a redelivery bond with the clerk of court does not defeat the right to recover thereon.</p>

The United States has commenced this action against the Northern Pacific Railroad Company to compel an accounting and recover a sum of money by it alleged as due. This is not a case where the United States by its laws can dictate just such policj7 and decision as its representatives for the time being may desire, but is a case that must stand upon those principles of law and equity that every litigant in court is authorized to evoke.

<p>Wills — Probate — Notice of hearing — Publication—Revised Statutes of Montana, page 195, sections 13, 16.— Under the Revised Statutes of Montana, page 195, section 13, requiring that notice of the hearing of a petition for the probate of a will shall be published at least three times, upon three different days of publication, when published in a weekly newspaper, and section 16, page 195, providing that at the time of hearing the court must require proof that the notice has been given, which, being made, it must hear proof of the will, the court has no jurisdiction until these requirements are complied with ; and where the notice of hearing is published only twice, in a weekly paper, an order admitting a will to probate and appointing an administrator with the will annexed is void.</p> <p>Same — Revocation — Impeaching decree admitting to probate — Probate courts — Revised Statutes of Montana, page 192, section 1.— Although, under the Revised Statutes of Montana, page 192, section 1, the records, judgments and decrees of courts of probate in the territory have the same force and effect as those of courts of general jurisdiction therein, yet, where an order of a probate court admitting a will to probate recites that notice of hearing proof of the will was published according to law, such order is not conclusive on that point when the records show that the notice was not published the number of times required by law.</p>

Action to recover value of wood cut on public lands. Demurrer to complaint. Plaintiff appeals. I. Appellant’s counsel in his brief has assigned error only as to one of the grounds upon which the demurrer is based. This is that the court below was wrong in holding that the rules and regulations prescribed by the secretary of the interior were not sufficiently pleaded by reference merely to the date of their approval.

' Thiety-three actions in ejectment. Judgments for . plaintiff Murray. Defendants appeal. These actions, called the “ Smoke-house Lode Cases,” are on all-four's with the Silver Bow M. do M. Co. v. Clark, 5 Mont. 378, and Talbot v. King, 6 Mont. 76.

<p>Mining Claim — Silver King mining claim — Not affected by Butte town site patent.— The facts being on all-fours with the facts in Murray v. Buol, ante, p. 397, both as to the town site patent and the mineral patent, held, following those cases, that the town site patent to Butte City does not cover the mineral ground included within the limits of the Silver King lode, but that the said lode is expressly reserved from the operation of the same by the terms of the patent itself, and by the act of congress, and that the exceptions made by the mineral patent are unauthorized by law and void, and that the Silver King patent conveys a perfect title to the surface ground in controversy, to which the defendants have no claim whatever.</p> <p>Same — Statute of limitations — Mining claim — Issue of patent.— The statute of limitations cannot ran against a mining claim until the patent thereto has been issued, any state or territorial legislation to the contrary notwithstanding.</p>

<p>Railroad Companies — Right of way of another company located through a canyon — Injunction—Revised Statutes Montana, division 5, article S, chapter 15, section S09.— Where one railroad company, duly authorized, has built its road-bed, and obtained its right of way and grounds for station-buildings, machine-shops, side tracks, etc., through a defile or canyon, the court will grant an injunction in its favor, restraining another railroad corporation, authorized to build to the same point, from going upon or interfering with the track or right of way of the corporation first in possession until an adjustment of rights can be made by the court under the general railroad law. R. S. Mont. p. 464, div. 5, art. 3, ch. 15, § 809.</p> <p>Same — Right to take right of way of another railroad — Necessity.— One railroad corporation is not empowered, under the general railroad act (R. S. Mont. div. 5, art. 3, ch. 15), to be the judge of the necessity of the taking or using the road-bed or right of way, built or secured by another railroad company through a canyon or defilfe, but the necessity is a question for decision in the district court of the county in which the canyon is located.</p>

<p>Public Lauds — Pre-emption — Mortgage before “final receipt”— Revised Statutes United States, section 2262. — “Mortgage” is included ■within the w.ords “grant or conveyance,” as used in Revised Statutes United States, section 2262, providing that any grant or conveyance made by a settler of lands pre-empted before “ final receipt, shall be null and void, except in the hands of a bona fide purchaser for value.”</p> <p>Mortgage — Foreclosure — Appurtenant uiater-ditch.— The question whether a water-ditch upon certain premises is appurtenant thereto cannot be considered in an action for the foreclosure of a mortgage on the land, when the ditch is not mentioned in the mortgage, nor in any of the pleadings except the replication.</p> <p>Practice — Appeal — Insufficient evidence —Want of particularity— Code Civil Procedure Montana, section 2S7, subdivision S. — When the ground upon which a motion for new trial in a civil action is based is the insufficiency of the evidence to justify the judgment of the trial court, and the statement does not specify the particulars in which the evidence is alleged to be insufficient, that question will not be considered on appeal.</p> <p>Same — Exception not reserved. — When the statement, on appeal in a civil case, contains no exceptions, and there is no bill of exceptions in the transcript, alleged errors in the admission of evidence cannot be considered.</p>

<p>Fraudulent Conveyance — Pleading — Revised Statutes Montana, page 486, section 169.— Under Revised Statutes Montana, page 436, section 169, an assignment of goods without an actual delivery of possession is conclusive evidence of fraud as against creditors of the assignor; and where, in an action of claim and delivery by the assignee of goods ■ against a sheriff who had attached the goods as those of the assignor, an allegation in the defendant’s answer that the assignment is fraudulent as to the attaching creditor, and that the possession of the goods never passed from the assignor to the plaintiff, presents a proper and material issue and should not be stricken out.</p>

<p>Statute of Another State — Effect.— Where a legislature adopts a statute from another state, it will be presumed to have adopted that statute as interpreted theretofore by the courts of that state; and adopting the statute as it was originally enacted, disregarding a subsequent amendment, it will be presumed to have adopted the interpretation of the statute as made prior to the amendment.</p> <p>Homestead —Partnership lands. — Under Revised Statutes Montana, sections 811, 318, allowing a householder a homestead, no homestead can be set apart by a partner from land held by the partnership, as against a firm creditor. So, where a creditor of the firm attaches real estate belonging to the firm, the members cannot by mutual releases destroy the nature of the property, or of the tenancy, so that one of them can annul the lien of attachment by claiming a part of the land as a homestead.</p>

This is a preliminary motion to dismiss an appeal, made before the bearing. The order of May 27, 1881, referred to in the opinion, in addition to determining what amount of the- proceeds was due to each of the respective parties, also ordered the clerk to pay the same, and take receipts therefor, whereupon he should be released and discharged from further liability.

<p> Appeal from, First District, Gallai/in Oounty. </p> <p>' Action for partition and sale. Judgment for modifying final decree. Defendant appeals.</p>

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

<p>Murder — Evidence — Cross-examination — Res gestee. — On the trial of an indictment for murder it appeared from the testimony that the defendant had had no opportunity to abuse the deceased, his daughter, until noon on Sunday, and the testimony of a witness on direct examination had shown the whereabouts of deceased, defendant, and other persons, on Sunday afternoon, and that they were around the house together, and that deceased was in bad condition all day Sunday. The testimony had not as yet shown that the defendant or any other particular person had then committed the act. A question was asked the witness on cross-examination whether she saw any person whipping or abusing deceased on the Saturday before the Sunday. Held, that it was proper cross-examination, and also admissible as part of the res gestee.</p> <p>Same.— The defendant’s wife had been jointly indicted with him, but had been granted a separate trial. A witness had testified on direct examination to facts tending to show that the defendant only had opportunity to do the beating of which the deceased died. Held, that it was proper on cross-exami nation to ask whether witness knew of her own knowledge who did the beating, and whether defendant’s wife was in the habit of abusing and beating deceased, and that such testitirnony was also admissible as part of the res gestee.</p> <p>Same — New trial — When granted — Moral certainty.— Where there is no direct testimony that the accused, who was indicted for the murder of his child by beating, did the killing, and the circumstances do not point to him more than to any other of the persons capable of commiting the crime (of whom there were several about the premises at the time it was done) as its perpetrator, the evidence is not sufficient to satisfy the mind of the guilt of the accused to amoral certainty, and a new trial should be granted.</p> <p>Witness — Cross-examination — Failure to make witness his own.— The error of the trial court in not permitting proper cross-examination is not cured by the failure of the party cross-examining to make the witness his own witness.</p> <p>Criminal Law — Appeal — New trial refused — Time for taking — Revised Statutes of Montana, page 339, section 393. — Under section 393 of the criminal practice act (E. S. Mont. p. 339), providing that on an appeal to the supreme court by the defendant any decision or intermediate order made in the case may be reviewed, an order overruling a motion for a new trial in a murder case may be reviewed on an appeal from the judgment; and the appeal being from the judgment, it is not necessary that it should be taken within sixty days from the overruling of the motion, as in civil cases. It may be taken any time within six months from the rendition of judgment.</p> <p>Same — Insufficiency of evidence — Specification of deficiency. — The .criminal practice act of Montana containing no provision requiring a defendant excepting to the sufficiency of the evidence to sustain the verdict to specify wherein it is deficient, as required in civil cases, an exception taken in the language of the statute, without such specification, is sufficient.</p> <p>Same — Specification of errors.— Under the criminal practice act of Montana no independent specification of errors, on appeal, or on an order overruling a motion for a new trial, is required.</p> <p>Same — New trial — Service of notice— Waiver.— Where, in a criminal action, it appears that the notice of motion for a new trial was filed, and that counsel on both sides appeared and argued the motion, that is equivalent to waiver of service of the notice.</p>

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

<p>Sheriff — Fee for hoarding prisoners.— See Lane v. Board Co. Com’rs Missoula Co. ante, p. 473.</p> <p>Statutes — Repeal — Reference to title. — The Montana act of February, 1885 (Laws Fourteenth Sess. 106, 107), entitled “An act to amend an act to regulate the fees of sheriffs for the board of prisoners, approved February 10, 1881,” and providing “that the above-recited act be so amended as to read as follows,” is valid, although the act intended to be amended is thus recited in the title only, and not in the body of the act. The intent of the legislature plainly appearing, mere rules of statutory construction should not be permitted to defeat that intent.</p>

<p>Appeal from Third District, Lewis and Clarice County.</p> <p>Action to recover on a contract, and to foreclose a builder’s lien. Judgment for plaintiff. Defendant appeals.</p>

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

<p> Appeal from First District, Gallatin County. </p> <p>Action upon an account. Judgment for defendants Maclay and others. Plaintiff appeals.</p>

<p>Appeal from First District, Yellowstone County.</p> <p>Action oh account. Judgment for plaintiff. Defendant appeals.</p>

I. The charter of the city of Helena gives to the city council power: a. To make regulations to secure the general health of the inhabitants.” Page 8, sec. 7. b. “ To provide the city with water, erect hydrants and pumps, build cisterns and dig wells in the streets for the supply of engines and buckets.” Page 8, sec. 8. e. “ To provide for the prevention and extinguishment of fires.” Page 9, sec. 18. d. “ To establish and open- drains, canals and sewers.” Page 26, sec. 9. e.…

Petition in probate court for the decision of certain questions arising under the will of W. P. Chadwick. Judgment for petitioners. Defendants appealed. IN HOMESTEAD CASE. The homestead is an exemption law; as such is wholly of statutory creation, and cannot be extended beyond the purposes of its creation.

<p>Appeal from First District, Custer County.</p> <p>Action by William Diamond, respondent, against the Northern Pacific Railroad Company, appellant, for damages for fire.</p>

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

The acknowledgment of the mortgage held sufficient in the opinion below was in the words following: “Territory of Montana, County of Gallatin — ss.: Be it remembered that on this 23d day of April, A. D. 1878, personally appeared before me, the undersigned, notary public in and for said county and territory, L. M. Black, by Z. H. Daniels, one of his attorneys in fact, and who is personally known to me to be the person described in and ivho executed the foregoing mortgage, and…

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