Volume 8 — Montana Reports

STATEMENT. The defendant, Charles Clayton, was tried and convicted for the murder of Zodoc C. Maddox, in the District Court of Silver Bow County, at the October term, 1887. The verdict of the jury was murder in the second degree, and the defendant was sentenced to imprisonment in the penitentiary for a term of fifteen years. He appealed from the judgment of the said court, and its order denying a motion for a new trial.

STATEMENT. This action was brought by the United States, as plaintiff, against the defendant, Benjamin F. Bisel, for the purpose of compelling him to remove certain fences with which he had enclosed a portion of the public domain, reserved for school purposes under section 1946 of the United States Revised Statutes, and to enjoin him from again enclosing said land.

STATEMENT. In behalf of the United States, as plaintiff, an action was brought against the defendant, Marion Flaherty, to compel him to remove certain fences with which he had enclosed a certain portion of the public domain, reserved as school land under section 1946 of the United States Revised Statutes, in Gallatin County, and to enjoin him from again erecting the same.

STATEMENT. An action in ejectment for the recovery of two mining claims. Held: was that the notice of sale did not comply either with the requirements of the statute, or the terms of the mortgage. In Fee v. Swingly there was no foreclosure or sale by action or otherwise. It is like Teal v. Walker in this respect.

STATEMENT. The defendant, William H. Burgess, was indicted for the murder of one Dennis O’Brien, by the grand jury of Fergus County, Montana… Held: that under the Organic Act, which is similar to that of Montana, such jurisdiction is exclusively within the federal courts (Scott v. U. S. 1 Wyom. 40); and that even in civil matters, the territorial courts have no jurisdiction over such places (Brown v. llges, 1 ' Wyom. 202); and that persons residing and carrying on business…

STATEMENT. An action in the District Court of Deer Lodge County, brought by the United States, as plaintiff, to recover the value of certain wood, alleged to have been unlawfully cut upon unsurveyed mineral lands of the public domain, between December, 1884, and December, 1885. Upon the trial, an objection to evidence offered by the plaintiff was sustained, and thereupon the plaintiff allowed judgment to be entered in favor of the defendants, and appealed.

STATEMENT. The defendant, Dennis Mantón, was indicted for the murder of his wife, Susan E. Mantón. He left her lying outside of their house in the snow one winter-flight, and death resulted from the exposure. He was tried in the District Court of Deer Lodge County, at the April term, in 1887, found guilty of murder in the second degree, and sentenced to twenty years in the penitentiary.

STATEMENT. The defendant, John A. Bowand, was tried at the April term, 1888, of the District Court of Deer Lodge County, for the killing of Joseph Bussiere, in Silver Bow County, on the twenty-sixth day of April, 1887. He had obtained a change of venue from Silver Bow County, in which the indictment against him had been found, to Deer Lodge. The jury in the case found him guilty of murder in the second degree, and fixed the punishment at imprisonment for life.

STATEMENT. At the June term, 1888, of the Fourth Judicial District Court, sitting at Great Falls, Cascade County, for the trial and determination of causes arising under the Constitution and laws of the United States within the said district, the grand jury of said court found an indictment against the defendant, John J. Weikel, and Jesse E. Beckwith and George Morris, for counterfeiting silver coin of the United Stales in the county of Fergus.

STATEMENT. The appellant in this case, Edward W. Underwood, was convicted in the District Court of Deer Lodge County, at the October term, 1887, for obtaining money under false pretenses. He was sentenced to one year in the penitentiary at hard labor, and to pay the costs of the prosecution. The confession referred to in the opinion was made by Underwood to Thomas Trevaille, the officer who arrested him and who had him in charge,on his way to jail.

STATEMENT. Two appeals of the Territory from judgments of the District Court affirming judgments of a justice of the peace, discharging defendants. The defendant Jinks had been arrested and tried for offering for sale, and selling within the Territory, prairie chickens, which had been killed outside of the Territory; and the defendant Bernheim was tried at the same time for a similar alleged offense.

Appealfrom the First Judicial District, Lewis and Clarice County. STATEMENT. The defendant, Benjamin E. Harris, was convicted in the District Court of Lewis and Clarke County of the offense of having carried on a lottery and prize distribution business without a license. He was fined ten dollars. A motion for a new trial having been overruled, the defendant appealed, alleging error in the instructions to the jury upon the trial. .

STATEMENT. The indictment was as follows;— “ The grand jurors of the grand jury of the Territory of Montana, in and for the county of Lewis and Clark, duly impaneled, sworn, and charged at the July tenn, 1887; of the Third Judicial District Court, in and for said county of Lewis and Clark, begun and held at Helena, the county seat of said county, on the fifth day of July, A. D. 1887, to inquire into, and true presentment make of all public offenses against the laws of said…

STATEMENT. The defendant, George Mooney, was convicted of embezzlement in the District Court of Deer Lodge County, and sentenced to a term of one year in the penitentiary.

District, Deer Lodge County. STATEMENT. A defendant, charged with the crime of having converted to his own use certain money belonging to one Barker, and in his hands as a bailee, had been bound over to await the action of the grand jury, and in default of bail, committed to prison by a probate judge.

Appealfrani the First Judicial District, Lewis and Clarke Comity. STATEMENT. The indictment in the first count charged the defendant with a violation of section 590, division 5, Compiled Statutes, in negotiating a policy of insurance upon the property of one Morris Susman, in and for a foreign insurance company, which had not complied with the requirements of the statutes of the Territory, so as to be qualified for the transaction of business.

STATEMENT. The indictment set forth the offense of the defendant in the following language: “That one Joseph Mackey, late of the county of Deer Lodge, Montana Territory, on or about the fifth day of July, A. D. 1887, at the county of Deer Lodge, and Territory of Montana, did wilfully and unlawfully obliterate, deface, and destroy a notice of location, placed upon the Oregon Quartz Lode Mining Claim by one Steven Severson and James Meyer, lawfully claiming said Oregon Lode…

STATEMENT. The plaintiff, Emma J. Palmer, whose maiden name was Lena Emma Owens, brought an action against the sheriff of Deer Lodge County, for the value of forty-five head of horses, which he had taken possession of, and sold, under the terms of a chattel mortgage, executed by William J. Palmer, plaintiff’s husband, to James A. Murray, one of his creditors, embracing the said horses and other personal property.

STATEMENT. The plaintiff, a married woman, brought an action for conversion against the defendant, a sheriff, who had levied upon certain personal property, at the instance of certain creditors of the plaintiff’s husband. Plaintiff alleged ownership in the chattels converted, and also claimed them as her separate property by virtue of a list of separate property, filed by her on the day of her marriage, in order to exempt the same from her husband’s debts, under the statute.

STATEMENT. An action in claim and delivery was brought by the plaintiffs against the defendants for the possession of certain horses, seized by the latter, under an execution in a suit of creditors ¡against a mortgagor, who had executed a mortgage on the same to the plaintiffs. An affidavit and undertaking having been filed, the said horses were turned over to the plaintiffs by the coroner of the county, acting as sheriff.

The plaintiff, Frederick Billings, brought an action of ejeetment in the District Court of Yellowstone County, against the defendants, Frank and Fred Sanderson, for the possession of certain land. The complaint was filed July 16, 1885, and summons was served August 1, 1885.

STATEMENT. The plaintiff, through an agent, acting in his behalf, had purchased a horse from the defendant, who refused to deliver possession, on the ground that the full consideration of the sale had not been paid him. Plaintiff brought suit in claim and delivery for the animal, and the trial resulting in a verdict and judgment against him, appealed. The opinion states the facts in full. There was only one consideration, the payment of three hundred and fifty dollars.

STATEMENT. The plaintiff had filed an amended complaint by leave of court, and thereupon the defendant was ordered to file his answer within two days. He obeyed the order, but excepted to the same. A motion for a continuance made by the defendant was also overruled by the District Court. The defendant offered no evidence upon the trial, and judgment was rendered against him.

STATEMENT. This was an action brought by the plaintiffs for the purpose of determining by a decree of court that they were the owners of, and entitled to a two-thirds interest in a certain irrigating ditch and water right, of which the defendant claimed the exclusive ownership. The case was tried without a jury, and resulted in a decree that the plaintiffs were entitled to a one-half interest in the property aforesaid. Defendant appealed.

STATEMENT. The plaintiffs in this action sought to enforce the specific performance of a verbal agreement. They claimed the defendant had agreed to deed to them an undivided one-half interest in a certain mine, upon his obtaining a United States patent to the same, in consideration of their abstaining from filing an adverse claim to his application for such patent, and paying half the expenses of procuring it. They averred part performance of the agreement.

STATEMENT. An action brought in the District Court under section 2326, United States Bevised Statutes, to decide a controversy arising in the United States land office, upon application by the defendants for patents to two mining claims with which a location of another mining claim owned by the plaintiffs was in conflict. From a judgment in favor of the plaintiffs the defendants appealed.

STATEMENT. This was an action,' bronght in the District Court of Silver Bow County, by the plaintiff, Dennis O’Donnell, against the defendants, John Glenn, John B. Cameron, Sahína H. Hale, George F. Hale, Alfred W. Hale, and Michael McNamee, who had made application in the United States land office at Helena, Montana, for a patent to certain mining ground, located as the “Argonaut Lode,” which was in conflict with a location known as the “Slap Jack Lode,” under which…

STATEMENT. The plaintiffs brought this action to establish their title to an Interest in a mining claim, for which the defendants had made application for a patent adversely to themselves.

The facts appear in the opinion. The record raises but one question, and that is whether an injunction will lie to restrain a trespass, it not appearing that the injury will be irreparable, or that it cannot be compensated in damages. The authorities seem to preponderate very decidedly in favor of the proposition, that in such a ease an injunction will not lie. (Jerome v. Boss, 7 Johns. Ch. 315; 11 Am.

STATEMENT. The action was to recover two hundred and fifty dollars, the value of a horse killed by a train on the track of the Montana Union Bailway Company. The plaintiff recovered a judgment for said sum. - If the defendant railroad company exercises due care, it is guilty of no negligence, and if the accident was unavoidable, then the plaintiff cannot recover. ( Walsh v. V. & T. R. R. Co. 8 Nev. 110; A. T. & S. F. R. R. Co. v. Belts, 10 Colo. 431; W. St. L. & P. Ry.

STATEMENT. The action was to recover the value of two horses killed by trains on the track of the Northern Pacific Bailroad. The case was instituted in a Justice’s Court, appealed to the District Court, and on motion transferred and tried in the District Court of Gallatin County, sitting to hear United States canses. The plaintiff recovered a judgment for three hundred dollars damages.

STATEMENT. The action was for the recovery of one thousand dollars, alleged to be due under a contract in reference to a negotiation for a sale of a certain mine. Upon the first trial the defendant obtained a judgment, which was reversed on appeal. (IJuntoon v. Lloyd, 7 Mont. 365.) A second trial had at the June term of the District Court, in and for Silver Bow County, resulted in another judgment in favor of the defendant, from which the plaintiff again appealed.

STATEMENT. The complaint in tills action was as follows: — The plaintiff complains and alleges: I. That on the twenty-seventh day of December, 1886, at Billings, in the county of Yellowstone, and Territory of Montana, the defendants, John J. Walk and Emma Walk, his wife, Jerome J. Mickey and Margaret M. Mickey, his wife, and Clara M. Leathe, made their promissory note, bearing date on that day, in the words and figures following, to wit: — ■ $12,500 Billings, Montana, 27th…

STATEMENT. The plaintiffs recorded declaratory statement of the location of the Justice Lode referred to another mining claim, called the Isabell, as the natural object or permanent monument with reference to which it had been located. The other facts appear in the opinion. The plaintiffs in the case were Joseph Flick, George Travis, George B. Foote, and Harry B. Comly.

STATEMENT. The order of court amending the decree recited that the record of the cause on the previous trial, and the proofs adduced, established the term “miner’s measurement,” to be “running water measured in the usual mode, under a six-inch pressure.” It then read as follows: “It is therefore ordered and adjudged that the said decree be so corrected and amended, by inserting therein after the words ‘miner’s measurement,’ wherever the same occur therein, the following…

STATEMENT. The respondent in this case made complaint against one Isaac Morehouse, charging him with the crime of adultery. The said Morehouse having been arrested and brought before a magistrate, a day was fixed for the hearing, and a subpoena duly served upon the respondent to appear and testify.

The opinion was delivered on a rehearing of Palmer v, Murray, ante, page 174. It is claimed that the case of Pandall v. Qreenhood, 3 Mont. 506, is conclusive. That was a case in replevin, and so far as the present appeal is concerned, the rule of damages is the same in replevin as in trover. In that case the opinion of the court as to interest is as follows: -“The claims and demands upon which interest is allowed depend entirely upon the statute.

The facts appear in the opinion. The theory of the defense is, that the complaining witness and the defendant being partners in the stolen property, no larceny could have been committed. The evidence shows that although they may have been partners as to third persons, they were not such as between themselves, and the only question before the court upon the motion, was whether there was a partnership inter se.

The question of law before this court is, whether a conviction of petit larceny is a bar to a prosecution for burglary, when the two offenses grew out of the same transactions.

STATEMENT. This is an appeal from a judgment and order overruling a motion for a new trial. The action was instituted in Jefferson County by respondent, Phineas B. Ingalls, against William L. Austin, and was brought for the purpose of procuring a dissolution of an alleged copartnership between the parties, and an accounting for certain moneys alleged to have been received by appellant for certain ores sold by the copartnership to the Toston Smelting Company.

STATEMENT. This suit was instituted in Jefferson County for the purpose of enjoining the defendant from cutting timber upon a mill site alleged to have been owned by appellants, and from destroying a water ditch. An injunction was granted.

The opinion states the facts. The appellants contend that Gamp had no authority to buy wool for them, or to bind them on drafts.

STATEMENT. . The defendant, George Godas, a half breed, was indicted at the November term, 1887, of the District Court in and for the county of Lewis and Clarke, for the murder of a half breed named John Embody. He was tried at the April term, 1888, of said court, and found guilty of murder in the first degree. The evidence upon which he was convicted was circumstantial.

STATEMENT. It appeared from the indictment that the defendants, with other unknown persons in disguises, entered the cabin of Samuel Tolman and Lewis Demars, and after beating them, drove them away with threats from their premises, in order to prevent their working a certain mining claim known as the “ Charles Clark, No. 2,” situated in the Flint Creek Mining District, Deer Lodge County., which had been located partly for their benefit, although the said Tolman and Demars…

The opinion states the points involved. The demurrer to the indictment is not well taken. It is based upon three grounds, viz.: (1) Ambiguity in reciting an attempt to assault, and in charging an attempt to commit murder. (2) That no public offense is charged in the indictment.

statement. The plaintiff brought an action in forcible entry and detainer before a justice of the peace of Jefferson County. The complaint alleged that while the plaintiff was in the possession of certain land the defendant entered thereon by breaking down a portion of the fence enclosing the same, and cut and removed certain growing crops therefrom; and that he was unlawfully detaining and withholding the possession of the premises from the plaintiff.

The opinion states the facts. Appellants claim that the court below erred in granting a new trial, because the notice of motion was insufficient, and not as required by law.

The opinion states the facts. In making out the defense of fraud in this action (on a promissory note) the defendants should have alleged and proved that the representations made by the vendor in the sale of the property were false, and that he knew them to be false, and intended to deceive the defendants. (Sharp v. Mayor, 25 How. Pr. 389; Addington v. Allen, 11 Wend. 374; Barber v. Morgan, 51 Barb. 116; Van De Sande v. Hall, 13 How. Pr. 458; Palmer v. Smedley, 18 How.

The facts sufficiently appear in the opinion. The general verdict was rendered at the request of the court. The action is to abate two nuisances. This is the nature of the action. (Parke v. Kilham, 8 Cal. 78; 68 Am. Dec. 310; Toulumne Water Co. v. Chapman, 8 Cal. 392; Fabian v. Collins, 3 Mont. 224; Grigsby v. Clear Lake Water Co. 40 Cal. 397; ■Courtwright v. Bear It. & A. W. & M. Co. 30 Cal. 576; Liana v. Klumphe, 29 Cal. 157; Comp. Stats.

The opinion and syllabus sufficiently state the case. It might be contended that bonds are not a payment, but the same suggestion would apply with equal or greater force to a warrant. Bather should it be said that as a warrant is not a cash payment, the act did not contemplate a direct Cash payment in either instance.

We respectfully submit that the complaint in the above cause did state facts sufficient to constitute a cause of action. The statute of Montana Territory, giving to those who perform labor or work upon a mining claim a mechanic’s lien for such work and labor, was strictly complied with by the above plaintiff as set out in said complaint.

The facts sufficiently appear in the syllabus and opinion. The adjustment and payment thereunder were final. After the adjustment and promise to pay the amount thereof, a new contract existed, and the company will be estopped from setting up any breach of the policy conditions to defeat a suit upon the contract; and e converso, of course. (Smith v. Glen Falls Ins. Co. 62 N. Y. 85; Nat. Life Ins. Co. v. Minch, 53 1ST. Y. 144; Godchaux v. Merchants’ Mutual Ins. Co. 34 La.

<p> Appeal from the Second Judicial District, Silver Bow County. </p> <p>For the facts and briefs see the case of SavUle v. JEtna Insurance Company, ante, page 419.</p>

STATEMENT. This case was decided at the July term, 1888. (Territory v. Rowand, ante, p. 110.) The present opinion was upon a rehearing of the appeal for which leave had been granted. The facts and instruction No. 8 (referred to by the court) appear in the former decision.

STATEMENT. The plaintiff William Kelley, while at work in a mine belonging to the defendant, the Cable Company, of which he was an employee, struck his pick against some giant powder and sustained severe injuries from the explosion which ensued.

This case was before the Supreme Court on a former appeal. (See Chauvin v. Valiton, 7 Mont. 581.) One Osborne, a retail liquor dealer in Butte City, Silver Bow County, was indebted to the county for his license (due under § 801, fifth div. Rev. Stats, of 1879) and had failed to pay the same.

STATEMENT. The history of this case is about as follows: The city council of the city of Helena enacted an ordinance, No. 93, approved November 22, 1886, by the mayor, by which was granted to George F. Woolston a franchise to lay water mains within the limits of the city of Helena, and to construct and maintain a system of water-works for the purpose of supplying the city and its inhabitants with water for domestic, manufacturing, and other purposes.

The opinion contains the facts. ■ Is the surviving partner a representative person in the sense contemplated by law, witli regard to his duties and privileges. We think not. Held: that an action in equity can be maintained, only by alleging the insolvency of the surviving partner and when the property of the estate of the deceased partner is sought. (Andrews v. Sullivan, 2 Gilm. 327; 43 Am. Dec. 53; Pearson v. Keedy, 6 Mon. B. 128; 43 Am.

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

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

The facts of this case involved the same principles of law decided in the case of Krueger v. Speith, ante, page 482. Appeal from, the Third Judicial District, Gallatin County. The following authorities conclusively show that a surviving partner is liable at law for all firm debts, and that the firm assets are subject to levy in his possession for partnership debts : Story on Partnership, §§ 361, 362, and cases there cited; First Nat.

At the time of the entry of the town site the parties, whose successors in interest the defendants claim tó be, were trespassers upon the public lands of the United States, having no right or title, and no incipiency of a right or title to the premises; only a potentiality under the town-site act.

The opinion states the case. The defendant’s notice of location read “placer mining or stone quarry claim,” and the trial court erred in holding that such a notice was for a placer mining claim and admitting it in evidence. The words “placer mining claim,” or the words “placer claim,” has a well-defined meaning, and is construed to mean “ deposits of the precious metals, not in place.” This term has never been applied to other than gold deposits.