Volume 61 — Montana Reports

<p> Appeal from District Court, Rosebud County; George P. Jones, Judge. </p> <p>Action by Hans J. Larson against Claude 0. Marcy, Ollie Harding and others. Judgment' for defendants. Plaintiff appeals.</p> <p>It is alleged by plaintiff that the defendants executed the note, whereas it appears from the note itself, and from the evidence touching its execution, that the note was in fact executed solely by C. 0. Marcy, he signing the name C. 0. Marcy and Company, and placing the initial “C” thereunder. There is no allegation of agency, and the question of agency must be eliminated from a consideration of this cause of action. Defendants are sought to be held liable as a group of individuals upon a note which was executed by one member of the group in a fictitious name. Section 5866 of the Revised Codes of Montana of 1907 provides as follows: “No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided, but one who signs in a trade or assumed name will be liable to the same extent as if he had signed his own name.” In the light of this statutory provision it seems idle to enter into a further discussion as to the liability of the female respondents under this second cause of action. The section above referred to has been, thoroughly construed by this court, and these decisions are decisive of the question and utterly defeat the position taken by the appellant. (Kohrs v. Smith, 45 Mont. 467, 124 Pae. 275 ;■ First Nat. Bank v. Cottonwood Land Co., 51 Mont. 544, 154 Pae. 582; Young v. Bray, 54 Mont. 415, 170 Pae. 1044.) The same question is also considered by the supreme court of the state of Washington in the case of Seattle Shoe Co. v. Packard, 43 Wash. 527, 117 Am. St. Rep. 1064, 86 Pac. 845. (See, also, First Nat. Bank & Trust Co. v. Flournoy, 24 N. M, 256, 171 Pac. 793.) The appellant Larson loaned his money, as he says, to the respondents, for a period of two years. It follows that they must have agreed that they would repay the loan with interest at the end of that time. The contract would not be enforceable unless it were in writing, and the promissory note executed and delivered formed the writing which satisfied the law. It was executed by an agent, and the authority to execute such an instrument must be in writing. It is not contended in this case that any such authority existed, fin attempt was made by counsel for the appellant to show a ratification by the female respondents of the act of the respondent C. 0. Marcy, but section 5425 of the Revised Codes provides that “A ratification can be made only in the manner that would have been necessary to confer original authority for the act ratified, or where an oral authorization would suffice, by accepting or restraining the benefit of the act, with notice thereof.” There is no contention on the part of the appellant, and there is no evidence in the record to the effect, that the act of C. 0. Marcy was ratified.</p> <p>Counsel for appellant suggest in their brief that the female respondents are estopped to contest appellant’s claim, and presumably to deny the agency on the part of C. 0. Marcy. To be availed of, estoppel must be pleaded. (Stafford v. Hornbuckle, 3 Mont. 485; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994; City of Butte v. Mikosowitz, 39 Mont. 350, 102 Pae. 593.)</p> <p>Much stress was laid by counsel for appellant upon the fact that the female respondents did not notify Larson of their repudiation of the note in question. Their silence raises no estoppel against them. They knew nothing of the transaction until some time after it had occurred. They had been guilty of no misrepresentations and of no fraud. They had received no benefits from the transaction. They were entire strangers to the transaction, and no duty devolved upon them to take any action whatsoever. Their silence in no wise changed the situation of the appellant. As to the powers of an agent, and the authority of an agent in transactions of this character, where it is sought to bind an alleged principal or principals, we invite the court’s attention to the cases of Seattle Shoe Co. v. Packard, supra; Selena National Bank v. Pocky Mountain Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 829.</p>

<p>Attachment — Improper Issuance of Writ — Warranty—Breach.</p> <p>Attachment — When Writ may Issue — Determinable from Complaint.</p> <p>1. The question whether an action is one in which a writ of attachment may issue under section 6656, Revised Codes, must be determined upon the complaint alone.</p> <p>Same — Action for Breach of Warranty — Improper Issuance of Writ.</p> <p>2. An' action by the buyer of an automobile to recover its purchase price with interest thereon from the date of sale because of failure ■of title in the seller was not one upon a contract for the direct payment of money, and therefore an attachment issued therein was properly dissolved.</p>

H. Ewing, Judge. Action by Fred Shaffroth against “The Tribune.” Judgment for defendant. Plaintiff appeals. In Landon v. Watkins 61 Minn. 137, 63 N. W. 615, the court said that in determining whether a publication is libelous per se, the head-line of the article should be considered.

Taylor, Judge. Action by O. K. Grimstad and Rodrwood Brown, copartners under the firm name and style of Grimstad & Brown, against John A. and Clara E. Johnson. From a judgment in favor of the former, plaintiffs appeal. The only question in this action is whether or not attorneys for the wife can recover from her husband for services rendered at her instance and. request in a divorce proceeding which she voluntarily commenced and later had dismissed.

Appeals from District Court, Yellowstone County; Charles A. Taylor, Judge. George T. Riggs was convicted of murder in the first degree, and appeals from the judgment and from an order denying him a new trial. The court erred in permitting evidence to be admitted concerning remote quarrels between the defendant and the deceased.

Appeals from District Court, Big Horn County; Charles A. Taylor, Judge. Action by Jessie W. Ebeling against tbe Bankers’ Casualty Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. There can be no question as to tbe validity or enforceability of a provision in an accident insurance policy to tbe effect that in tbe event of increased occupational hazard tbe insurance shall be decreased proportionately. (Standard Life & Acc. Ins.

Appeals from, District Court, Beaverhead County; Jos. C. Smith, Judge. Action by Ruby R. Williams against tbe Mutual Life Insurance Company of New York. Judgment for plaintiff, new trial denied, and defendant appeals from the judgment and the order.

'Appeal from District Court, Chouteau County; John W. Tattan, Judge. Action by Wearn Bowe and others against the EmersonBrantingham Implement Company. Judgment for defendant, and from an order refusing a new. trial, plaintiffs appeal.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by the McCaull-Webster Elevator Company against A. 0. Root. From a judgment for plaintiff, and an order overruling his motion for a new trial, defendant appeals. The contract in question is executed by one party only, to-wit, the appellant.

Appeals from District Court, Silver Bow County; John V. Dwyer, Judge. Action by George H. Wort-raau and Louis Frank, a copartnership doing business under the firm name and style of the George H. Wortman' Company, against the Luna Park Amusement Company. From a judgment for defendant and an order denying a motion for a new trial, plaintiffs appeal.

<p>Sales — Breach of Contract — Nonsuit—Failure to Stand upon Motion — Appeal and Error — Waiver.</p> <p>Appeal and Error — Preliminary Motions — Pules of Court — Pailure to Object — Waiver.</p> <p>1. Where preliminary motions and technical objections which should have been raised and settled in advance of the trial under the rules of court were not made by defendant until the commencement of the taking of the testimony on the day of trial, they will on appeal be treated as waived.</p> <p>Nonsuit — Pailure to Stand upon Motion — Waiver.</p> <p>2. Where, instead of standing upon his motion for nonsuit made at the close of plaintiff’s case on the ground of failure of proof, defendant in his cross-examination of plaintiff on rebuttal supplied the defect, he was in no position to predicate error-on the refusal of the motion.</p>

'Appeal from District Court, Fergus County; Roy E. Ayers, Judge. Action by Fred R. Munger against Andrew J. Nelson. 'Judgment for defendant and plaintiff appeals. The motion to set aside plaintiff’s default for failure to file ■ a reply should have been granted because the proper remedy when the plaintiff fails to reply is a motion for judgment on the pleadings.

Appeals from District Court, Powell County; George B. Winston, Judge. Action by Mary B. Ryan against School District No. 1 of Powell County. Judgment for plaintiff and defendant appeals from it and from an order denying a new trial.

Appeals from District Court, Missoula County; B. Lee Mc-Culloch, Judge. Search-warrant proceeding instituted by the state on the relation of J. T. Green against M. F’. Wright. Judgment for plaintiff. Defendant appeals from the judgment on an order denying him a new trial.

Appeals from District Court of Missoula County; R. Lee McCulloch, Judge. Proceeding instituted by the State on the relation of Leonard Goodwin under the Prohibition Enforcement Act. Judgment for plaintiff. Claimants and defendants Ora Dishmon and another appeal from the judgment and from an order denying them a new trial.

<p>Personal Injuries — Master and Servant — Assumption of Risk —Safe Place to Work — Nonsuit.</p> <p>Personal Injuries — Master and Servant — Assumption of Risk — Defense Dies, When.</p> <p>1. The defense of assumption of risk is available to an employer, ■where, though plaintiff’s injury resulted from a hazard brought about by the failure of defendant to discharge his primary duty to provide a reasonably safe place in which or reasonably safe appliances with which to work, plaintiff was aware of the thus increased hazard, or the hazard was so obvious that an ordinarily prudent man placed in the same circumstances would have known and appreciated it, but continued in the employment without complaint or protest.</p> <p>1. On assumption of obvious risks of hazardous employment, see note in 1 L. R. A. (n. s.) 272.</p> <p>On servant’s knowledge as element of defense of contributory negligence in entering or remaining in employment, see note in 49 L. R. A. 33.</p> <p>The question, May servant assume risk of dangers created by the master’s negligence? is discussed in notes in 4 D. R. A. (n. s.) 848- 28 L. R. A. (n. s.) 1215, 1250.</p> <p>Same — To Farm Laborer — Unguarded Circular Saw — Safe Place to Work —Assumption of Eisk — When Nonsuit Proper.</p> <p>2. Held, under the above rule, that where plaintiff, a farm-hand aged twenty-six years, who had been directed by the foreman to assist his coemployees in cutting stovewood with a circular saw which was located in the open the same as it had been during the three years of his employment and was unprovided with a guard, and with the operation of which he was thoroughly familiar, voluntarily assumed to aet as sawyer and in its operation slipped on icy ground covered with newly fallen snow and was injured by coming in contact with the revolving saw, he assumed the risk and judgment of nonsuit was proper.</p> <p>2. Liability of master for injuries to servant by saw operated by machinery, see note in Ann. Cas. 1913C, 125.</p>

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Action by E. S. Robinson against Mike Gordon. From a judgment for plaintiff and from an order overruling Ms motion for new trial, defendant appeals.

<p>Personal Injuries — Master and Servant — Employment of Minors — Goniplaint — Insufficiency — Amendment — When Denial Proper — Nonsuit.</p> <p>Personal Injuries — Master and Servant — Employment of Minor — Complaint — Insufficiency.</p> <p>1. The complaint in an action by a minor against a railway company to recover damages tor personal injuries under section 1746, Bevised Codes, making it negligence per se for an employer to hire a child under sixteen years of age, must allege that defendant employed plaintiff knowing him to have been under that age.</p> <p>Same — Complaint—Insufficiency—-Amendment—Denial, When not Error.</p> <p>2. Befusal to permit plaintiff to amend his complaint at the close of his case was not error where the contemplated amendment, if permitted, would not have rendered the pleading sufficient.</p> <p>Same — -Negligence—Complaint—Knowledge of Defeet — Insufficiency.</p> <p>3. Complaint charging negligence on the part of defendant railway company in permitting an apron iron,- with its convex side upward, to lie between the traeks near its roundhouse and shops where plaintiff, a call-boy, stepped upon it in the dark, causing him to fall and be injured, held insufficient for failure to allege when defendant actually learned, or had opportunity to learn, of its presence at the place of the accident.</p> <p>Same — Evidence—Nonsuit—When Proper.</p> <p>4. Testimony of plaintiff examined and held insufficient to make out a prima faeie case of negligence.</p>

Appeals from District Court, Beaverhead County; Jos. C. Smith, Judge. Action by James Smallborn against Rebecca Freeman. From a default judgment for plaintiff and an order denying a motion to vacate and set aside the default, defendant appeals. Under the showing made by appellant, she was entitled, as a matter of right, to relief from default.

Jones, Judge. Action by W. H. Johnson and another, copartners, against A. M. Lundeen and another, in which the Bank of Twin Bridges was served with execution and notice of garnishment, and from an order that it pay over money to be applied to the judgment in the action. The bank appeals.

Appeals from District Court, Lewis and Ciarle County; ~W. H. Doorman, Judge. Action by Anna E. Mettler against tbe Ames Realty Company. From judgment of dismissal and from order denying an injunction, plaintiff appeals.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by Jacob Sklar against James C. Belcher. Judgment for plaintiff, and defendant appeals from it and from an order denying a new trial. Counsel for the appellant state in their brief that the original contract, which is marked Plaintiff’s Exhibit “A,” was really between the Lewistown Hide & Fnr Company and James C. Belcher.

Duncan, Judge. Petition by J. M. Keith, for an order directing payment of claims by Andrew Stinger, administrator of the estate of Louise Stinger, deceased. Petition denied, and from an order granting a motion for new trial, the administrator and other objectors appeal.

Jones, Judge. Action by J. W. Bowers against tbe Chicago, Milwaukee & St. Paul Railway Company, a corporation. Judgment for plaintiff and defendant appeals. In suits for damages on account of injury to animals on railroad tracks, the place where the animal came upon the track is nearly always a controlling element in determining the liability of the company.

Appeals from District Court, Custer County, in the Sixteenth Judicial District; Boy E. Ayers, a Judge of the Tenth District, presiding. Action by the First National Bank of Reeder, North Dakota, against A. B. Middleton, Sheriff of Custer County, Montana, and another. From the judgment for defendants and an order denying a new trial, plaintiff appeals. Cause submitted on briefs of Counsel.

Appeals from District Court, Broadwater County; John A. Matthews, Judge. Action by tbe State of Montana, for tbe use and benefit of tbe Broadwater Farms Company and others similarly situated, against the Broadwater Elevator Company and others. From a judgment in their favor deemed inadequate, and from an order denying their motion for a new trial, the plaintiffs appeal.

Appeals from District Court, Sanders County; Asa L. Duncan, Judge. Action by K. Kozasa against tbe Northern Pacific Railway Company and another. Judgment for plaintiff and defendants appeal from it and from an order overruling their motion for a new trial. The court erred in overruling defendants’ demurrer to the second cause of action. It contains no allegation of facts to. show what the alleged acts of coercion, threats and intimidation consisted of.

Appeals from District Court, Cascade County; J. B. Leslie, Judge. Action by F. A. Patrick & Co. against L. M. McDonnell, assignee of P. A. St. Amonr. From a judgment for defendant and an order overruling motion for new trial, plaintiff appeals.

Appeals from District Court, Cascade County; J. B. Leslie, Judge. Action by tbe Commercial National Bank of Great Falls against J. W. Tbrasber. From judgement for plaintiff and order denying new trial, defendant appeals.

'Appeals from, District Court, Broadwater Comity; John A. Matthews, Judge. Action by M. H. Crowley and others against Nick Rorvig. From a judgment for defendant and an order refusing them a new trial, plaintiffs appeal. Respondent will undoubtedly cite a long list of cases holding that an agent cannot make a contract with his wife in matters affecting the agency. These cases, commencing with the case of Davoue v. Fanning, 2 Johns.

A. Thompson, Judge. Separate Actions by the Great Northern Railway Company against Flathead County and another, tried together by stipulation. Judgment for plaintiff and defendants appeal.

'Appeals from District Court, Flathead County; C. W. Pomeroy, Judge. Peter Paine was convicted of selling intoxicating liquor, and from the judgment and order denying new trial, he appeals. Cause submitted on briefs of Counsel. Defendant in a criminal action cannot submit bis defense to a jury through instructions of the court unless he first offers some evidence on which such instructions may be based.

Action by Mary A. Marcellus against Frank E. Wrigbt and others. From an order annulling an order overruling motion for new trial, the defendants appeal. The record is barren of any justification for the order in question. On the face of the record the situation here presented has no exact precedent and few analogies.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by Peter Hoffman against E. B. Boehl and another. From a judgment for plaintiff and an order overruling defendants’ motion for a new trial, Boehl appeals. There is not a case in the boohs which would countenance a recovery against the owner of an automobile upon the facts of this ease.

Appeals from District Court, Missoula County; R. Lee McCulloch, Judge. Action by Frank Nelson against William E. Gough and another. Judgment for plaintiff, and from it and an order denying a new trial, defendants appeal. Cause submitted on briefs of Counsel.

!Appeals from District Court, Gallatin County; Ben B. Law, Judge. Action by George Bennett against Vina Meeker. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Citing: Harpending v. Meyer, 55 Cal. 555; Havird v. Lung, 19 Idaho, 790, 115 Pac. 930; Yore v. Murphy, 18 Mont. 342, 45 Pae. 217; Dee v. Hyland, 3 Utah, 308, 3 Pae. 388; Leavitt v. Shook, .47 Or. 239, 83 Pac. 391.

B. Leslie, Judge. Action by E. K. Hindéragér against John MacGinniss. From an order denying motion to set aside a default judgment, defendant appeals.

Appeals from District Court, Yellowstone County; Chas. A. Taylor, Judge. Action by Russell White Bear against Anna Barth, executrix of the estate of A. H. Barth, deceased, and Charles McDaniels. From a judgment for defendants, and from an order denying his motion for a new trial, plaintiff appeals.

'Appeals from District Court, Yellowstone County; A. G. Spencer, Judge. Action by D. M. Ferry & Co. against Claud E. Forquer. From judgment for plaintiff and from an order denying a new trial, defendant appeals.

Original proceedings in certiorari by tbe State of Montana, on tbe relation of B. K. 0’Grady and another, against tbe District Court of tbe Twentieth Judicial District in and for tbe County of Sheridan, and Carl D. Borton, Judge presiding, to review proceedings in which relators were adjudged guilty of contempt.

Appeals from District Court,, Flathead County; T. A. Thompson, Judge. Action by Sadie L. Bryson, Administratrix of tbe Estate of John A. Bryson, deceased, against the Great Northern Railway Company. Judgment for plaintiff, and from it and an order denying a new trial, defendant appeals. The complaint does not state a cause of action.

Appeals from District Court, Gallatin County; B. B. Law, Judge. Action by Jess S. Ray against the Gallatin Valley Railway Company. Judgment for plaintiff, and defendant appeals from it and from an order overruling its motion for a new trial. The court erred in refusing to substitute the director-general of railroads and to dismiss as to this defendant.

Appeals from District Court, Missoula County; Theodore Lentz, Judge. Action by the Missoula Trust, & Savings Bank against the Northwestern Abstract & Title Insurance Company; R. C. W. Friday, Intervener. From orders denying plaintiff the right to institute an action against intervener for recovery of attached property, it appeals.

Appeal from District Court, Yellowstone County; A. C. Spencer, Judge. William F. Harrington was convicted of violation of the liquor laws and appeals from the judgment.

Appeals from District Court, Hill County; W. B. Rhoades, Judge. Action by Charles Wegge against the Great Northern Railway Company and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. The verdict is so excessive as to entitle defendants to a new trial.

Appeals from District Court, Cascade County; John J. Greene, Judge Action by Abram Hassan against John T. Earll, Sr. From a judgment of dismissal and an order denying a new trial, plaintiff appeals. While not specifically so found by the trial judge, the fair deduction from the findings is that the court took the view that even though the money was received by respondent without lawful authority, the appellant may not recover it in this action.

Appeals from District Court, Prairie County; George P. ' Jones, Judge. Action by Mrs. Effa Evelyn Hunt against Oliver Yan to recover damages for assault and battery. From a judgment for plaintiff, and from the order denying defendant’s motion for a new trial, defendant appeals.

Appeals from, District Court, Carter County; Geo. P. Jones, Judge. Action by tbe Midland Coal & Lumber Company against Richard W. Ferguson and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

'Appeals from. District Court, Beaverhead County; William A. Clarh, Judge. Action by the American Savings Bank & Trust Company against Clara Chapman. From a judgment for defendant and an order denying its motion for a new trial plaintiff appeals. Cause submitted on briefs of Counsel.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Assad Juhrey, charged under the name of M. A. Juhrey, was convicted of murder in the first degree, and appeals from the judgment of conviction and from the order overruling his motion for a new trial. Affirmed.

Original application for Writ of Certiorari by the State, on the relation of Emanuel Weisz, against the District Court of the Sixteenth Judicial District of Montana for the County of Garfield and the Judges thereof. Has this court jurisdiction? The naturalization law (Act of June 29, 1906) makes no provision for an appeal from the judgment of the court on the application for citizenship. In State ex rel. Gorelick v. Superior Court, Kings Co., Wash., 75 Wash. 239, Ann.

<p> Appeal from. District Court, Silver Bow County; John V. Dwyer, Judge. </p> <p>Action by the Montana Auto & Garage Company against James Kearney. From judgment for defendant, plaintiff appeals.</p>

Appeals from, District Court, Cascade County; R. R. Diving, Judge. Action by Daisey E. Smith against the Franklin Fire Insnranee Company of Philadelphia, Pennsylvania. Judgment for tbe plaintiff upon defendant’s default, an a from the order overruling motion to vacate the judgment and to permit defendant to file an answer, defendant appeals.

Appeals from District Court, Musselshell County; Geo. P. Jones, Judge. Action by Charles L. Gay against Lavina State Bank. Judgment for plaintiff and defendant appeals from the judgment and from the order overruling its motion for a new trial. It is settled that the clerk or subagent of a local insurance agent, while conducting insurance business, is the agent of the insurance company, and his acts are just as binding on the company as though he were duly commissioned.

Appeals from District Court, Powell County; George B. Winston, Judge. William Fountain was convicted of murder in tbe second degree, and appeals from tbe judgment of conviction and from an order denying a new trial.

J. Dousman, Judge. Action by Editb Smith, as administratrix of the estate of. David M. Smith, against the Chicago, Milwaukee & St. Paul Bailway Company. Judgment for defendant on an instructed verdict and plaintiff appeals.

Appeals from District Court, Missoula County; Theodore Lentz, Judge. Joe Vuckovich, convicted of murder in the first degree, appeals from the judgment and an order denying his motion for a new trial.

Appeals from Silver Bow County; Edwin M. Lamb, Judge. Action by Helen Lowney, by William Lowney, her guardian ad litem, against the Butte Electric Railway Company and Wilber A. Hoar. Held: operates ipso facto as an exoneration of the company, it cannot be doubted that it constitutes an adjudication upon the facts, a finding by the jury that the evidence was not sufficient to convince them of the guilt of the servant without whose fault the company itself is guiltless.

Appeals from District Court, Gramte County; TTieo. Lentz, Judge. Action against D. J. O’Connor, substituted for the Henderson Mining Company, and others, to remove clouds upon the title to mining claims to enable him to obtain bidders on execution sale under a judgment in a mechanic’s lien foreclosure proceeding. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Appeals from District Court, Deer Lodge County; George B. Winston, Judge. Action by Neis Beckman against tbe National Council of Knights & Ladies of Security. Judgment for plaintiff, and from it and an order refusing it a new trial defendant appeals. Where a material false representation or breach of warranty is shown by the uncontradieted évidence, and no waiver thereof by the insurer is proved, a nonsuit should be granted or a verdict directed for defendant.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by Frank Roban against Sherman & Reed, a corporation, and another. Judgment for the plaintiff, and defendants appeal from the judgment and from the order denying their motion for a new trial. The latter part of instruction No. 5 directs the jury to find for the plaintiff as to negligence of the defendant, a corporation.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by Harry W. Lamont against Ole G. Yinger and another to recover possession of an undivided interest in real estate. Judgment for plaintiff and defendant Yinger appealed from the judgment and from an order denying a new trial. This is a collateral attack upon the order of sale and the order confirming the sale.

Appeals from District Court, Ravalli County; Theodore Lentz, Judge. Action by L. C. Snell against tbe North British and Mercantile Insurance Company of London and Edinburgh. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Exact literal compliance with the policy requirements is, of course, not required; but substantial compliance is.

Original application by tbe State, on tbe relation of William EL Houston, for Writ of Prohibition directed to tbe District Court of tbe Fourth Judicial District in and for tbe County of Missoula and Charles W. Pomeroy, Judge presiding.

Appeals from District Court, Yellowstone County; A. C. Spencer, Judge. Action by H. G. Cook and another against the Northern Pacific Eailway Company. Both parties appeal from the judgment and from orders denying them new trials.

Tattan, Judge. Action by C. H. Fontaine against Jennie Lyng, as executrix of the last will and testament and estate of Halvor 0. Lyng, deceased, and others.' Decree for plaintiff, and defendants appeal. The alleged misrepresentations in respect to the location of the bam and its proximity to water are not made the basis of any claim for damages.

<p>New Coimties — 'Adjustment of Indebtedness — Constitution—■ “County Property” — Incomplete Bridges — Record Books— Mandamus.</p> <p>Constitution — Words and Phrases — Interpretation.</p> <p>1. In ascertaining the meaning of words used in the Constitution, they will be presumed to have been used in the sense in which they were used generally at the time the Constitution was adopted, and interpreted in the light of the statutes then existing and continued in force by schedule 1 of that instrument.</p> <p>New Counties — “County Property” — Adjustment of Indebtedness.</p> <p>2. “Property of the county” within the meaning of section 3, Article XVI, Constitution, under which, when a new county is created, the net indebtedness of the old county, its ratable proportion of which the new one must pay, is to be determined by deducting from its total indebtedness the value of all property of the old county, held to mean such property as a county holds and can sell.</p> <p>Constitution — Legislative Construction — How to be Viewed.</p> <p>3. While legislative construction of a term used in the Constitution is not binding upon the courts, it is entitled to most respectful consideration.</p> <p>New Counties — Bridges—Property of State.</p> <p>4. A completed bridge used by the public is a part of the public highway and belongs to the state, and is therefore not county property such as may be considered in adjusting the indebtedness between an old and a new county.</p> <p>2. New counties and their relation to old counties, see note in 20 Am. St. Eep. 676.</p> <p>Counties — Construction and Maintenance of Bridges.</p> <p>5. While the obligation to build and maintain highways, including bridges, primarily devolves upon the state, it may impose, and in Montana has imposed, that duty upon the counties and municipalities.</p> <p>New Counties — -Incomplete Bridges not County Property — Adjustment of Indebtedness.</p> <p>6. Reid, that a partly finished bridge constructed with funds obtained by a bond issue is not such county property as it may sell, and therefore cannot be taken into consideration as county property (paragraph 2) in the adjustment of indebtedness between an old and a new county.</p> <p>Mandamus — Lies When.</p> <p>7. The writ of mandate lies only to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, and therefore will not issue to do a thing beyond the power or duty of the person sought to be compelled.</p> <p>New Counties — Indebtedness—Adjustment—Mandamus—When not Proper Remedy.</p> <p>8. Reid, that where the board -of commissioners of a county a portion of which was thereafter included in a new county, in order to obtain favorable action by the electors of that portion on a proposed issue of road bonds, passed a resolution, amounting to a promise merely, that in the event the bonds were authorized, a certain proportion of the receipts would be devoted to road improvement in their district, their breach of trust in thereafter failing to carry out their promise could not be remedied by writ of mandate to compel the board of adjusters of the indebtedness between the old and the new county to charge the old county with the amount the district should have received under the resolution, the New Counties Act (Laws 1919, Chap. 226) not authorizing the adjusters to take such action.</p> <p>Same — County Records — Not County Property to Enter into Adjustment of Indebtedness.</p> <p>9. Public reeord books of a county are not county property to be taken into consideration by a board of adjustment of eountv indebtedness between an old and a new county.</p>

Appeals from District Court, Silver Bow County; Edivin M. Lamb, Judge. Action by Kate Kiley,' administratrix of the estate of Catherine Sullivan against Kate Danahey. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>Appeal from District Court, Missoula County; Theodore Lentz, Judge.</p>

<p>Original applications for Writs of Habeas Corpus to fix bail.</p>

<p>Original applications for "Writs of Habeas Corpus to fix bail.</p>

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p>