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Full text of "Reports of Cases Argued and Determined in the Supreme Court of the State of ..."

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I 



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ov^ 2-\ 

BEPOBTS 



CASES ASGUED ASD DETERMINED 



SUPREME COURT 



OV TKB 



STATE OF MONTANA, 



▲T 



THE DECEMBER TERM, 1893, AKD THE MARCH AKD JUNE 
TERMS, 1894. 



BY 

TLETCHEB MADDOX, 

BBPO&TBS. 



Volume XIY. 



BAN FRANdSOO: 
BA.NCBOPT-WHITNEY COMPANY, 

Ii4W PVBUtXXU AND JOM BOOEnLLBU. 

1895. 



A^*^' 



S'r- 



Ekitered aooording to Aet of OongroH m tho jmt 1898^ 

By BANCROFT- WHITNBY COMPANT, 

In the Offioe of the Libnma of OomgieM^ at WMhmgtoB. 



62c.y. >^^^. // /fy^ ^ 



Bam VBAxaacos 

TBS FXLIinipBOIXtMS SUKTBOrm COKPAXT* 
TTFOaftAFHBBI AMD BnBIOTTnBai 



JUDGES 

or 

The Supreme Court of the State of Montana^ 



Hon. WiLUAH T. Pekbbbton, Chief Josdoe. 

Hon. Edoab N. Habwood, ) 

> AflBOdflte Josboob 
Hon. WmJAM H. Db Witt,) 



OFFICEBS OF THE OOUBT, 

Hknbi J. HAfflncTiTi, Attorney GenecaL 
Smr JAiOH WsBfirTEBy Clerk. . 
Flktohsb Maddoz, Beporter. 



ATTORNEYS AM) COUNSELORS AT LAW. 

AxmirrED ibom BnniiBBa 18^ IBH, to DiamD 81, 18M. 



BEAOH, EMOBTV. 
BENDEB, JOHN O. 
BBAZELT09, JOHN 7, 
GOOMBE, BOBEBT 
OBULL, ELDOBN J. 
CULLEN, W. E., Jb. 
ETAN8, L. OBYIS 
QBINDBOD, EDWABD 
HABDEST7, JESSE 
HATHHOBN, FEED. H. 



HAYWABD» ABTHUB P. 
JACKSON* EVAN O. 
KENNEDY, EDWABD B. 
KIBK, JOHN W. 
LEEHT, HAUBIOE D. 
NASH, FBANK N. 
PIEBSON, GEOBOB W* 
BSOTOB, OHABLEB H. 
fiANNEB, 8TDNEY 
8TEBBINB, OHABLES B. 



/ 



JUDGES AND JUDICIAL DBTEIGTS. 



The First Jadioial District embraces the Connfy of Lewis 
and Clarke; Wiujam H. Hunt and Horagb B. BUCK| 
Judges; residing at Helena. • 

The Second Jadidal District embraces the Coonty of Silver 
Bow; John J. MoHattok and William O. Spebb, Jadges; 
residing at Butte. 

The Third Jadicial District embraces the Gonnties of Deer 
Lodge and Qranite; Theodore Bbantlet, Jadge; residing 
at Deer Lodge. 

The Fourth Judicial District embraces the Gonnties of Mis- 
soula and Bavalli; Fbakk H. Woodt, Judge; residing at 
Missoula. 

The Fifth Judidal^istrict embraces*the Counties of Beaveiw 
headj Jefferson, and Madison; Fbank Showebs, Judge; resid- 
ing at Boulder. 

The Sixth Judicial District embraces the Counties of Park 
and Meagher; Frai;k HENRf, Judge; residing at Livbgston. 

The Seventh Judicial District embraces the Counties of 
Yellowstone^ Custer, and Dawson; Oeobge B. MilbubN| 
Judge; residing at Miles City.f 

The Eighth Judicial District embraces the Connty of Cas- 
cade; Chables H. Benton, Judge; residing at Great Falls; 

The Ninth Judicial District embraces the County of Ghd- 
latin; Fbane K. Abmstbong, Judge; residing at Boseman. 

The Tenth Judicial District embraces the Counties of Flat- 
head, Teton, Choteau, Valley, and Fergus; Dudley Du Bosb, 
Judge; residing at Fort Benton* 



TABLE OP CASES KEPOBTED. 



Aadmca* Steto t. ^ Ml 



Wftlli „,.., 4e2 

Bttker, Elliion T. « 96 

Baniftrd, QoaldT 886 

Bknvk, BteteasnLfirato&T , li 

Bfolrabarg^^ohaionT 606 

BUttaltJOdBiohmidtT , 81 

Bomd of OommiirionOTi of CtolUiin Ooimtyt OtQwUy T . , . . . ^ 299 

Board of Hedind Examlnen t. Kellogg 348 

Bookwallv TtOi«riid«««*««##«»^ • ••••.. 68 

Bni<hwsfit»TiflirT«j<^.i//«4««. .<..««••••••. 906 

BroolwT. Jozdan 876 



Oidwily OHjof ] 

Garothen, Kayer t 974 

Ontmi^.*OlBrir.-....'....^.-..%««...w#. •«•••• «. '. ••• 801 

OkMT.BelKM^]>iatrioi>H«mWr8,]liaioiikiOouty. 186 

Oiia^BtBtoer re). JofaoKm ▼«///./< ###««« •#.•••» • ••• 690 

Ctaeyr. Wright;. ..:;.:si««i.ii/o. «•##«#«##«««• 816 

Chamben,'T]Mmaa T;-.....M«...tii%*.iati4«**.. •.••«• 498 

Cltyof BomaaiTT. OidweU....i.«i..«i*i«..N»....^..« • 480 

City of Helena, WbMalMr ▼....•.*.... ^ 194 

Clark, Oamai T ;.:...i.-^. .«.!««••• •••••••••t*!. « 801 

OoekrillT. Davie 181 

OonradiBeebwalierT.. %•••.. «..«••.« 69 

OookTi OreeBOQf^.'a V ^,%^-.-^^<^v^«. •..•••••••••••••••••••••••«•••••••«•••••••• 869 

OocA, Slate eiiekBailej ▼••*«««« 889 

Oook,BteteesreLIIerfoBdT^«#^^^«»..««»*^..^ •• •..•« 901 

Crowley t. Board of Ooininiarimiera of Gallatin Oonn^ 999 

Ofoii»T.Xa.lIott ^ 866 

Omi; MUUgaa ▼ * 866 

Daly-r. lOleii. ••....^^^•.*. 90 

DmTfe, CoekrUlT #^/ii.^/^#««^^^###..#«*.w * •• 181 

]>ett],8weelMrT * 466 

Beitrfadrr. Steam Bredge< and AnialgMiiatov • • « 961 

I)litvtet'eoiBr^efTUffdJidMaiNa«ciot»Btate»Bd.Cota^ 476 

l>oooTaa;ifelM»'T«....i%» •»%»••»#• ..•••••••••••• • « 78 

Xloiiyef^'Blate ▼.•.'.•.'.•.-. %%.###«#^##^^#. ••«#*« «..^ 70 

lfeindiig;- TUu i ni l^aii^ jb Oo»p^ay-Vm>. >..>^^-.^...^»»»»r»«.»«.. r 648 



yiii Tabls of Cassb Bbpobtxd, 

Sdiall, KoChiire ▼. •«••••» WB 

Bightti Jndioba Diftrioi Oorat, State « leL New Toik Bbi^ Oo. 177 

EUiMB T. Bttkor M 

BDgluh, State T , ^ 8M 

Xnrin. Knih t W 

Unkelfteiii T. Finkelstetn 1 

OmlTint.lCaoMiiiisgaiidlCiUiiigGompaay M6 

Qouldy. Barnard ••• ••••. 886 

Grand Opera Honae Company T. Kagoiie- •.. 668 

aiaTee,8eUT. 811 

Great NorfhemBailwayi State esreLHaekeUT.r • 881 

Greenongh, OookT • •• 868 

GreiMr, Klelneohmidt ▼ « • 486 

Griggs T. Ealifpel Mereaniile OoBpaay.i 800 

flaggin T. Baile k. 111!I*** ^ 

Hanke, Kline t •••• •'•• 881 

HarTey.BraithiraiteTw ..•.. 808 

HUl.MayT 888 

In re MoniUerat's Eitate. ^ 816 

In re Bioker'a Estate , 168 

Jeffries y. Montana Milling Oompasy ••• 118 

Johnson ▼• Beilenberg * • •••• 608 

Jordan, Brooke T. • • , •••••••••• 876 

Kalispel Marftan^le Company, Griggs t. •• ••••' 800 

Kane, FarrottT • 88 

Kellogg, Board of Medical fUaminersT. « 818 

KeUogg, State y 661 

Kellogg, State ex rel. Baldwin y. , 688 

Kleineohmidiy. BlnseL « ••••• 81 

Kleinsohmidt y. Qreiser *.. 486 

Kline T. Hanke , • 881 

La Mott, Crowe y. 866 

Lay y. Nixon 84 

Leggatty. Le^^ti 104 

Logan y. Blekards • 884 

Mao Mining and Milling Company, Galyia ▼ • ••• 808 

Magoiie, Grand •Opeva House Oo.y. • • 668 

Manhattan Milling Company y. Sweteland 968 

Marion, State y 468 

Marthiy.Maxey 86 

Maxey, Martin y. 86 

Maxey,Byan y «••••• •* • 81 

Mayer y. Carotheis 874 

May y. Hill 888 

MoOnlloh y.Prioe • 880 

MoDeyitt, ParxDtty.. ...^ 808 

MoDonaldT» Montana Wood Company 88 



Tablb of Oasxb Bbpobtxi). iz 

■flQlaMH,8teteT. M 

MoQpivvT^JUiaU. SM 

McB9Uj, ll«nitt ▼ fiS 

MerrittT.lIdKAlly - M 

MUm, Btly T.........5.- tO 

IfUUgui ▼. Onff. • M6 

MoiitHUiliaiiiigOompwyT. J«fflrifli : 118 

MontMu Wood Oompwy, ICdDooAldT 88 

MoiTii^ WaOdiia ▼ 86A 

Morrifon T. Morrison ...• •.» 8 

]IoiiiUttmi'tIiteto,Iiire 816 

]fiieU«r,.Wa]i]iT 78 

MiiUar^QiiizkT 497 

MntfaT.Erwin « 827 



IT. DonoTaa • •••••# •••• •• 78 

HiiOD^LijT 84 

OVciU. . Walfon T • ..•••• 197 

0BMi»8tetoT ^ 008 



FuioUt.K«d9..> ••*. 88 

Parrot! ▼,llp]}«TiU ^ 808 

Peno PJaoer Mining Co. T. Bokrei&er 181 

Pxieo, MeCoUoh ▼ 880 

QoirkT.MoUer 487 



IT. Baoich ••••« 886 

Bejnolds, State «x reL Marion t • 888 

Biekirdi, LoguiT 884 

Biek«r'sEttete»Inre 168 

ByanT. Maawy 81 

i 

Bailo T. Haggin • 78 

BGhriiner,PainFlaeer Mining GompanyT. 181 

861loo^Di•tricl Number 8, liia8onla!Connty,Oaa6T 188 

BaeondJndidalDiatrieiOonrt, State as reL Marion ▼. 898 

BeUT.OraTaa 841 

SeTanthJodidalDiatrietOoorl^BteteasraLHendriekBT. 462 

ttmplrina t. Simpirfni 886 

Stete ax ral.BaU«yT.Oook, Auditor. 888 

Stete «z raL Baldwin T. Kellogg 488 

State ax raL Benton ▼. Banm 18 

State az vaL Oolamaa t. Diatriot Oonrt of Third Jndieial Biatrtet 476 

Stete ez raL Haskell T. Great Northern Bailway Oompany 881 

Steto ax iel.HendriflkaT.SeTanthJndioial Diatriot Ooort 462 

State ex raL Harford T.Oook 801 

State ex roL Johnion ▼. Oaie • 690 

State ex reL Marion T.Beynolda 888 

Stete ex nL New Torkjaheep Oompany t. Bighth Jndidal Diftriel Oonri.,.. 677 

State ax nL Nixon T.SeoondJndioial Diatriot Oonrt 898 

State ex laLMoOormiokT. Woody. 466 

State ▼. Indenon 641 

Stete T.DoDjM... fvv ••••^••••••••» ^® 



X Tabu m Oasbs Bepobtbd. 

SteteT.BngUili WB 

BtntaT.KeUoflg ^. *•««.. 4Sk 

BtetoT.MarioiL •«..«•..• 4BS 

State T. McQinniai .•.*....•.■»•-••««.*•>••-•••«• .••••.^•. • ••• 468 

fliteto T. Omea. 668 

ai>«ia.Iteedg» and Afnalgamntor, Deitarkih ¥. / Ml 

atenoionT.Oad«8lL *. ^ ni 

BwMtnE v; DttU. 496 

B^ato j^p ^ , ll^n^^ffytT^ IffiUing Oomptny t • S69 

Thamltng t.DqIEbj.. •••••»•••» 667 

ThoniM .T« Obamben* 4tt 

TiiooiaaKaii0 4 Oomp«i7T.Dawniiig*».» *..^».., 8A8 

ViMon, Waited. 4M 

WaiteT^YiJwm * i06 

Walsh T. MueUer 76 

WatUaa.T.Botds. 8M 

Wateo&T.O'HaOL -, 197 

Wells, Barden t. i62 

WhUtakirT.CtityoCHfilma lU 

Woodf, BtetoaxxttLMoOosmiflkv ,,... 406 

Wrighl»Oasflf f •816 



TABLE OF CASES CITED. 



AdtlftT. Bnd7,4HlU.690; 40 Am. I>fO. 300 WB 

AmjT. Saperrifora, 11 WalL186 288 

An^ewi T. Are, 104 KaM. 234 446 

Arnold T. BinoUbr, 12 Mont 348-61 62, 68» 77, 4d6 

A«iideaT« Nizoii,4 How. 467 220 

BMrY.Chdir,7Wiib.681 464 

fiarbtt T. Briiooe, 8 Mont. 214 61 

Barber Y.BH4dod, 9 Mont. 841 207 

BurnejT. Banndert, 16 Hov. 585 189 

finiielt T. Drew, 4 Luis. 444 86 

B&tenun T. Baperior Oonrt, 64 Gal. 285 595,508 

Banm, la re, 10 Mont. 228 19 

fiajT. Coddington, 5 Johns. Oh. 54; 20 Johns. 687 674 

BtekettT.8e]oTer.7 0al.215;68Am.Deo.287 257,268 

BeUy. Moniaon. lPet.852 224-226 

Bennett T.Whitney, 94 N. 7. 802 288 

Bidden T.Brizwlira, 66 Oal. 882 225 

BfsaeU T. Spring YaUey, 124 U.B. 225 58 

Bookwmlter T. <S>nrad, 14 Mont 62 205 

BoD ohand y. Diss, 8 Denlo, 288 58 

Boulder YaUey eto. Go. T. Famhsm, 12 Mont 1 58 

Bowers t. Oherokae Bob, 46 Oal. 502 878 

BosemaiiNatB«nkT.8peith,8Moikt495 82 

Brown T..Wsrren, 16Srey.287 828 

Bartw.Hoettinger,28Ind.214 85 

Oabto t. C6ttni6<itMIfh (St.), 20 8. W. Bep. 220 404 

Gani^oharie Nat Bank ▼. Diefendorf, 128 N. Y. 191 574 

darmthersy. CointtilMondM, 6Mont482 465 

Chester y. Bakersfleld eto. Assn., 64 Oal. 42 854 . 

Gkrk, Eit4te Of , 58 Oal. 865 188,191 

Clarkaon y. De Poster, 1 Hopk. Oh. 426 188-190 

Cobb y. Speith, 8 kcwt 494 82 

Oohn y. Neeyes, 40 Wit. S98 98 

Golbiimy.NorthdMPao.By. Co., 19Mont476 186 

Oomanohe Mining Oo. y. Bamley, 1 Mont 205 206,207 

Commonwealth t. ThofatMOU, 99 Mass. 444 404 

CoriheU y. Mead, 19 Col. 886 524,527 

Creek y. MoMsnos, 18 Mont 152 288 

Cmoey. Onioe,81Mo.676 188,189,191,192 

DK^Iingy.OroweU,6N.H.421 824 

Dayjs y. Tomer, 4 How. Pr. 190 86 

Bewar, Satate of, 10 Mont 426 180,181 

Dewar's EaUte, In re. 10 Mont 442 484 

Docker y. Somes. 2 Mylne A K. 655, 666 187,889 

Doyle y. Qore, 18 Mont 471 77 

Duchenean y. Honae, 4 Utah, 868 526 

Duciey.%d,138U.S.587...,. 179 

Dygeri y. Dygart, 4 Ind. App. 276 56 



IT. Olwkim»0ar.,82ired. B0P.24 88 

Enhrfob,Iare,85 0BL9» 188,191 

" »ofahBfc,5S08l.86» 189,m 



zii Tabl£ of Ca8XS Citxd. 

EiteieofDewBr,10][ont.426 180.181 

E8Uteofmil.62 0al.186 261,960 

EftateofLoahe,62 0aL413 251,869 

B0tepT.Lunh,21Ind.l96 66 

Farmen'ete. Bank T. Noxon, 46 N. 7. 762 678 

Fifleld ▼. ICarinette Oo.. 62 Wif . 532 817.818 

Finkelftein.lQre^T. CiiTtii.13Mont.425 4,897 

FirttNat. Bfiirik f . Grt^en, 13 N. Y. 298 678 

First Nat. n^sk v. IInck^Lt, Gl Wis. 836 825 

First Nat. Ebnk t. m,i^ora, 13 Minn. 407; 97 Am. Deo. 289 80 

FUckv. GuldHiJl etc/ Mining Oo., 8 Mont 298 278 

FoistT. Coppiu, l^lmL 471 624 

Foote T. GibW 10r«j,4l2, 60.61 

Foster ▼. Aldcn. 31 Mich. 507.., 624 

Foster t. TUo RkUfird BttJ^t^^d. 100 Maai. 412; 1 Am. Bep. 125 61 

Foxy, MLadiam, 6 Nelx 63a 624 

Fox ▼. NudtUJiuim. 3 W^h, 634 625,528 

FraserT. Alci*nder, 75 CbI, 152 464 

French B^iikOi^e. 53 C*a. 495 594 

Frey ▼. Clifford* 44 Cftl. 343 828 

FrOBt T. WinstoD, 32 Mo. 439 188 

Oallatin Oanal Co. ▼. Laj. 10 Mont. 528 128 

Gannon ▼. Doogbertj. 41 Cal. 661 , 860 

Garfield etc. Mining Co. ▼. Hammer, 6 Mont 58 272-274 

Garlinghouie T. Jaooba. 29 N. Y. 297 240 

Gere ▼. Dibble, 17 How. Pr. 81 86 

Gillett T. Board, 67 111. 256 472.474 

Goll ▼. HubbeU. 61 Wis. 293-800 824» 825 

Good Betom Min. Co.. 4 Deo. Dep. Int 221; Morriaon's Min. lUj^ti, 7th ed.. 

184 02 

Goodyear ▼. Betta. 7 How. Pr. 187 85 

Gordon y. Trerarthan. 18 Mont 887; 40 Am. 8t Bep. 452 544 

GoaldT. EvansTilleeto.B. B. Co.. 91U. 8.526 68 

Granite Mt Min. Co. t. Weinstein, 7 Mont 846 62 

Gray ▼. Palmer, 28 Cal. 416 27 

Greag[ T. Jamea. Breese, 143; 12 Am. Dec. 152 860 

Griffin ▼. Seymour, 15 Iowa, 30; 86 Am. Deo. 396 58,58 

Grocers' Bank ▼. Penfleld, 69 N. Y. 502; 25 Am. Bep. 221 574 

Gunny.Barry, 15 Wall. 610 88 

Haldom, Inre, 10 Mont 222 a4 

HamillT. Bosworth, 12B. 1. 124.... 524 

Hammond ▼. Hudson Biver etc. Machine Oo., 20 Barb. 878 86 

Hargrave ▼. Penrod, Breese, 401: 12 Am. Dec. 201 152 

Harmon y. James, 7 Smedes AM. Ill; 45 Am. Deo. 296 828 

Hart V. Smith, 44 Wis. 218 817 

Harvey V. Whitlatch, 1 Mont 718 206 

Hathaway ▼. Dayis, 83 Cal. 161 80 

Hayes y. DiBtrict Ocurt 11 Mont 225 525 

HayesT. Hayes. 2Del. Ch.l91; 78 Am. Deo. 709 860 

Helena, City of, Y. Albertose, 8 Mont 499 74 

Hihn V. CourHs, 81 Cal. 402. 287 

Hill. Estate of. 62 Cal. 186 251,260 

Hilly.Burke, 62N.Y. Ill 29 

HiU y. Krott. 29 Pa. St 188 860 

Bines y. City of Lockport, 50 N. Y. 286 288,240 

Hoskins y. White, 13 Mont 70 185 

Hoyer y. Barkhoff, 44 N. Y. 118 288 

Howard y. Qalnn. 2 Mont 840 814 

Hughes T. United States, 4 Wall. 282. 54,56 

In re Banm.'lO Mont 228 19 

In re Dewar's Estate. 10 Mont 442 484 

In re Eschrich. 85 Cal. 98 188,191 

In re Finkelstein y. Curtis. 18 Mont 425 4,897 

In re Haldora. 10 M6ht 222...... 14 

InreMoCutoheon, 10'Montll5 886 

In re MoFwland'f Estate, 10 Mont 445 ^ 257 



Tablb of Gasbs Citbd. xiii 

jMdDMm T. D« Lano^, 4 Oow. 197 .«^ 829 

Jackson t. !)• I^uioey, 11 Johns. 888. i 888 

Jelfreijs T. Hsnoook, 57 Osl. 646 860 

Johnson Y. Powors, 189 U. B. 166 920, 298 

JoDflST.Bsok of LoidTille, 10 061. 464 694 

Josephi T. Ibdy Clothing Co., 18 Mont. 186 928 

Keene T. Welsh, 8 Mont 806 907 

Keller T. Stolaenhaoh, 20 Fed. E^. 47 66 

Kelloggr. BlAirson, 16 Barb. 68 828 

King T.Thomas. 6 Mont. 400 286,987,291 

Kramer T. Goodlander, 98 Pa. Bt 868 94 

Kmeger T. Bpeitb, 8 Mont 482 82 

L4k« Bbore etc. It. R. Go. r. Miller, 26 Hiofa. 274 128 

Ljiii« t. Cadwell. 13 Mont. ^58 616 

Lebcher v- Commbaioners, 9 Hont. 816 • • 861 

L«T* Lee. 31 tii. 26; 76 Am, Dec. 681 860 

Ug:gat T. 8t^w»rt. 5 Mont. 1(J7 116 

htwfr, Superior Court, 66 CaL 292 627 

UwlAY. Stout MWiB.aM 466 

Lick r. O'Doonell, 3 Cal. 50; 58 Am. I>fO. 888 828 

Litertnore y. Cimpl)ellt 63 CmL 76 626 

Lore T. TmmAti. iJ Oliio BL 58 66 

LoBhe, Eatatfl of, 63 Gil. 413 961,988 

LowF. Bartlett, e Allen. 253 220,222 

Lyon T. Petty, €5 0*1.313 860 

ICagrmw t. McGlynn, 26 OaL 481 261,280 

HaJoj T.BerUn, 11 Mont 138 420,421 

Marbury T. Brooks, 11 Wheat 79 272 

Marsh t. Kinna. 2 Mont 647 814 

MarsfaaU T. fiaaroad Ck>., 16 How. 814 474 

Mazey T. Bpeith, 8 Mont 494 82,86,87 

MoOormiok Y.Brown, 86 Oal. 185; 96 Am. Deo. 170 225 

McOntoheon, In re, 10 Mont 116 885 

MoFarbmd's Estate, In re, 10 Mont 445 , 257 

McQehee Y. State, 68 Ala. 860 404 

McKay Y. Montana Union By. Co., 18 Mont 16 288,888 

McKiiistryY.OUrk,4Mont870 272-274 

McLangUin Y. Dougherty, 64 OaL 619 28 

McLean Y. Meek, 18 flow. 16 220 

Merrilleld Y. Longmire, 66 Oal. 180 188,191 

Metcalf Y. Presoott. 10 Mont 298.... 287 

Moore Yi Olty of Albany, 98 N.T.410 987 

MnUer Y. Bnyck, 12 Mont 864 179 

Munro Y. OoliiDB, 95 Mo. 88 179 

Mordock Y. Brooks, 88 OaLBOO.. 80 

Hational Bank Y.KimbaU, 108X7.8.789 818 

Nickerson Y. Roger. 76 N. Y. 279 674 

Northern Pac. B. B. Ck>. Y. Patterson, 10 Mont 90. 818 

Howell Y. Wright 8 Allen, 166; 80 Am. Deo. 62 288,240 

Ocean Nat Bank Y. Oarll, 66 N. T. 440 , 674 

Otis Y. Town of JanesYiUe, 47 Wis. 422 129 

Packet Oo.Y. Sickles, 6 WaU. 680-92.. 66,68 

Paige Y. Carter, 64 Oal. 489 860 

PameU Y. Hancock, 48 Oal. 452 80 

Parrott y. Hnngelbnrger, 9 Mont 526 26-28, 8a 206 

Parrott Y. Kane. 14 Mont 28 206 

Parsons Y. Meybnrg, 1 DuYall. 206 85 

Patterson Y. Donner, 48 Oal. 869 474 

Patterson T. Tatnm, 8 Saw. 164; F^ Oas. No. 10880 466 

Paol Y. Armstrong.l NeY. 96 698 

People Y. Bart 48 Oal. 561,. 668... 464 

Peonle T. Delaware Common Pleas, 18 Wend. 668. 624 

People T. Moore, 46 OaL 19.. •• • 404 



fr^: Tablb of Casks Cnoa 

People T. Hei^lai, 96 OJ. 677 981 

Peopl^T. Fyper/eUcah, 160.... 181 

r«opl« T. S^pli^n, 51 Bdw. Fr. 385 68,67 

People T, a^TiS^rt, 107 ilJ. 49i. , «» 

Pettigrew r. I)i>bbc?lfrar, m Cat 896 8SS 

Phelpf y. Piatt, 50 B^rb, 434) 86 

Piercer. Whitinsp 63 Cal. 53S 80 

PioobeT. Paiil22Cil.l06..., 881 

Pond T. Btir^h « tO Paige, 140^ 888 

Pretfcym*D t. Wiiaton, 3* 111.176 888 

Prideftax T, Mkzaorfti Point, 43 Wii. 618; 88 Am. Bep. 658 188 

S^nffor J VfKidpB. 43 Mich/sii;' 88 'Aitt! 'Bep.'i88!'.V.V.'/.V/.V.! !!'.!!'/.!... 888 

BeedT.Ownb7,44Mo.206 887 

Bichardson y.' Marqnese, 69 Miss. 80; 48 Am. Bep. 858 888 

BobinsonT. OhMnberlaio, S4 N. T. 889 888 

BobinsonT. Howard, 6 Gal. 489 68 

Bocbe ▼. Mayor. 40 N. J. L. 857 464 

Bus8eUT.Ptaoe.94U.8.608 66 

Byan t. Kinney, 8 Mont. 454 868, a54» 868 

Byan ▼. Maxey, 14 Mont. 81 80 

SftcrMnento, Citj Of, v. Bird, 15 C«L 894. » 464 

Saunders T. Seed Co., eUt^h, 431 886 

Scbicffclin v, 3U3 w&rt. 1 Johm. Ch. 690; 7 Am. Dm. 607 187, 189, 190 

Seyraoar t. McKmstry, 106 N. Y. 340 674 

Bljarau v. Shnron. ^4 Cal. A3i 80 

ShflMan V. Etlw^ida. 35N, Y. 286 64 

Bluauhtrd T. Tamer. 3 McCurd. 24^; 15 Am. Beo. 631 860 

Bioax Fans Nat. Bmk r. McEee (S.D., JaU.86. 1898), 60 N. W. Bep. 1067. .636, 687 

Smith T. Auld. ai Kan. 263, ;...; 61 

Bmlth ▼. OatrinRton, 4 Oranebt 70. . . . ;. 878 

atuitbT. £we^23PA. BL IIG; 60 Am. Deo. 78 860 

SmUh V.Li vJngBton, 111 Mafls. 343':...::.... 674 

dmith T. McDoaald, 4i CaL 4M 887 

Smith T. Mit^hfeU. 12 Mich. ISO....... 884 

Bmuh T. Sac Gouniy, 11 Wall. 133 676 

Bmitb T. Waj^hin^tim Gulfght Co.. 81 ]|a. 1$; 100 ^m. Pee. 4|9 860 

Speera?. Bterrett, 29 Pa. St. 194.;..T..... 860 

9p«rltiigT. Calfefl, 7 Moot 529 88 

eiacy T. Thraeber, fl How, 44 : 880-S^ 

atankyT. Jfine»»7 Biag. 369 _ .471, 4n 

Stata T. Ab Jim. 9 Mont.l67„.. 470 

SLatoT. Conklm^^ 19 Co.]. £01........ 464 

State ¥. Coop^-r, 89 Win. 066. ." 818 

State T. DuudoM. 45 La. Ann, 741 404 

State V. Evmn, 13 Mont. 239 , 686,588 

Siate f. Kellogg, 14 Moot. 42a 468 

State v.Kenney. 9 Mont ajl8 4^ 

Ototov. l|arian,14 Mont. 458 468 

BtateT.O'NaUl,!k6N.J.L.68 464 

BUteT.PoUwd.6.B.L880 466 

State i:.&mifb,18MQni. 378 78, 78 

State ▼. SalUTan, 9 Mont. 494 886 

State Bailroad Tax Oases, 93 U.S. 576 819 

StTLoois smelting Oo. t. Kemp; 104 U. B. 686 M 

SCeamOangeftLlktitemCo.T. Mevrose, a7Fed. Bep. 818 61 

Steel T. Smelting Co., 106 U. S. 447 880 

fitepben8T.Santee.40N.T.86. 684 

Stewart T. Lansing, 104 n.S.505 674.576 

Stool^ ^. S^lsbee, 41 Mioh. 616 967,808,816 

Strong Y. Lynn, 88 Minn. 815 888 

SalliYan T. Langley, 180 Mass. 437 574 

Sweeney T. Great Falls etc. By. Co., 11 Mont. 84 77 

Sweeney y. Great Falls etc. 1^,99., ^Mpi^t, 631 836 

pM t. King» 6Moiit 76 ^ 889-891 

;T.BoesmaQ.iaMont404. 84 

HacoiOi.18Od.140. Oli 



Tablb oy Ca8B8 CiraD» xr 

, ▼. Bnrstii, 8 Mont 07 7. 8I8-M8 

IteitoryT. OUjton, 8 M out. 1 • 80T 

tmiiorjr.miiaj,! Uoni.K» 814 

TvriUnry ▼. Potti, 8 Mont 884 •••• 088 

TiKTitory ▼. Bkooker, 9 Mont 6 408 

Tbnitoi7 T. Willard. 8 Mont 838 • 408 

" I T. Andenon, 66 Oal. 48 M 



ToQOhaid T. Kerem 21 OaL aoa 878 

TralRndT. Hafl 7 B. L 104: 83 Am. Deo. 689 880 

Tniito6iT.Bboplierd.189lil.U4. 680 

United StetaiT.OliflIn, 97 U. 8.061 484 

United StatoiT.Geir. 8 How. 180 480 

TantOboT^ T. Bliok, 9Mont871 87 

▼aafl^T.8olimili]6.10Mdntl86 180 

▼oUt. Bailer. 49 GiL 74 878 

ToibvshT. Diefendorf; 11911. T. 807; 18 Am. 8t Bep. 886 919, 078 

irilheeT.nnoh,a4Mi6h.906 84 

Willi T.WaUker, 99 Am. Deo. 398» note 188 

WililiT.Hatohingi,60Oi].328 88 

Wirdr. Gommii^ieri, 13 Mont 88 819 

Wuhington oto. Btoun Pioket Oo. T. Bioklei, 84 How. 888. 08 

WeilieT.8tethim.07 Oil. 84 901,800 

W«immorT.8iitherlind,74Cil. 848 034 

Wellington T.KdlT. 84 N.T. 648. 471 

Wibinz T. GrinneO LiTwtoek Go., 9 Mont 164 180 

Wi]ionT.Bojoi,93n.8. 836 881 

WiliOttT.Book».68N.T.648 674 

IHnterT.Vitspitriok, 86 011.969 034 

HHiooniin Oent B. B. Go. T. linooln Go., 07Wlf.478. 817 

WoodlindT.Nowhill,81FM.Bep.484 08 

WoodminT.Oilkini,18Mont 80 ••••• • 180 

T.ChdIb00D»8Wi]L880... •• • • 898 



GASES DETESMINED 



SUPREME COURT 



DECEMBER TERM, 1893. 



PBE8ENT: 

Hon. William Y. Pembertok, Chief Justice. 

Hon. Edqar N. Harwood, ) . 

TT Tir TT T% Tir J-Associatc Justices. 

Hon, William H. De Witt, ) 



FINKEL6TEIN, Respondent, v. FINKELSTEIN, 
Appellant. 

[Sabmitted Deoember 20, 1898. Decided January 2, 18M.] 

Xabbuox Aia> 'Difoaum^Alimony pendente Kte.— A snlBoleiit prima facie ihow- 
ing of marriage to inpport an order for alimoDj pendente lite is made where 
the plaintiff alleged a marriage wiih the defendant in Bntaia, and the birth of 
flTe ohUdren, and the defendant, while admitting the birth of fonr children aa 
their lawful isaae and long cohabitation, claimed that the marriage waa Inyalid 
under the laws of that country; that plaintiff had been gnU^TiOf adultery, and 
that he had obtained a Moeaio diroroe. 

Bax»— Amount of oZirmmy.— Although defendant claimed that a large tailoring 
bnaineM, which he waa alleged to own, belonged to another, the undiaputed 
liMt that he waa conducting such a buaineaa ia a aulBcient showing of hia abil- 
ity to pay thirty dollars a month alimony and a counsel fee of fifty dollars. 

Appeal from Fird Judicial District^ Lewis and (Xarke ChwrUy. 

AcnoN for divorce. Plaintiff's application for alimony 
pmdmle Ute was granted by Buck, J, Affirmed. 
You ZIY.^l 



2 FiNKBLSTBIN V. FiNKBLSTEIN. [DeC. T., 1893 

McConnell, Ctayberg & Ounn, for Appellant. 

The affidavit of appellant is both evidence and a pleading 
in the nature of an answer, so far as the motion for alimony 
is concerned. The statement that the law of Russia prohibited 
the marriage of a minor is in the nature of a confession and 
avoidance. The statements that appellant was a minor, and 
that the person pretending to solemnize the rites of matrimony 
between respondent and himself was neither a magistrate, 
rabbi, priest, or minister, are allegations of fact, and should 
have been met by counter-affidavits if not true, and, in the 
absence of any such denial, must be taken as true. {OoUvm 
v. CoUins, 71 N. Y. 274.) The relation of husband and wife 
must exist in order to warrant the granting of alimony. This 
needs no citation of authority. The right to support and main- 
tenance arises only from the marital contract, hence if there is 
no marriage there can be no obligation to support. While it is 
true that where a marriage has been duly entered into, and sol- 
emnized, between parties who are incompetent at the time to 
make a contract of marriage, but who, after the removal of 
the disability, continue to cohabit together, such cohabitation 
will be regarded as a ratification of the previous marriage, and 
makes it good and valid from the beginning. This principle 
applies only to a case where the marriage is void for tlie want 
of ability of one, or both, of the parties to enter into the mar* 
riage contract In such cases where the disability is removed 
the continued cohabitation shows that the consent has been 
given, or, rather, that the consent already given is ratified, 
and thus the marriage is made good. But where the marriage 
is in violation of positive law, no subsequent cohabitation or 
ratification can make such marriage good. The mere fact that 
the parties lived together as husband and wife, under a belief 
that the marriage was valid, does not help the case. (CbKna 
V. OoUvM, 80 N. Y. 1; Ro9e v. Bose, 67 Mich. 619; Ooldbeok 
y. Oddbeek, 18 N. J. Eq. 42.) 

J^. E. Stranahan, for Bespondent. 

I. A prima facie case of marriage de facto, or a cohabita- 
tion having the semblance of marriage, need only be made out 



14 MontJ FiNKBLSTKIN V. FiNKBLSTBIlf. 3 

by the plaintiff to sustain the order for alimony pendente lite, 
and tills prima facte case must be thoroughly defeated and the 
defense fully established by the husband, or putative husl>and, 
before he will be relieved. {Brinkley v. Brmkley, 50 N. Y. 
184; 10 Am. Rep. 460; North v. Nwih, 1 Barb. Ch. 241; 43 
Am. Dec. 778; Porlmaidh v. Poj-tenuyuth, 3 Addams Eccl. 63; 
Smiih V. Smith, 1 Edw. Ch. 255; Hammond v. Hammond, 
Clarke Ch. 153; Smyth v. Smyth, 2 Addams Eccl. 254; Vin- 
cent V. Vmeent, 17 N. Y. Supp. 497; Lea v. Lea, 104 N. C. 
603; 17 Am. St. Bep. 692; 1 Bishop on Marriage and Divorce, 
386, 404.) 

II. "Supposing it to be admitted that the husband's version 
is correct, as to law and fact of the marriage in Poland, 
yet it will not be contended that the subsequent cohabitar- 
tion was meretricious, or that the contracting parties did 
not do all they could to make the marriage legal, or that the 
disability was not removed in the state of New York, where the 
mutual present consent alone is necessary, and where they lived 
and cohabited as man and wife, and whe|^ children were born 
to them after the removal of the disability contended for. 
(1 Bishop on Marriage and Divorce, sees. 387, 970, 975, 980, 
982, 985; Starr v. Feck, 1 Hill, 270; Qayton v. WardeU, 4 
N. Y. 230; CatyoUe v. Ferric, 23 N. Y. 90; aGara v. Eieen- 
lohr, 38 N. Y. 296; Foster v. Hawley, 8 Hun, 68; Eynes v. 
McDermoU, 91 N. Y. 451; 43 Am. Rep. 677; Peet v. Peet, 52 
Mich. 464.) The only act of disai&rmance was the sending to 
respondent by appellant the Mosaic divorce, thirteen years 
after the marriage, and when he, according to his own testi- 
mony, was twenty-nine years of age. 

III. ^^ There are practical reasons, yet not supported by 
much judicial authority, for holding the proofs of a fact 
of marriage less strict when the celebration was abroad 
than when in the country of the forum. And it has been 
deemed that the proof of a foreign law may be more easily 
dispensed with in proportion as it becomes difficult. Hence as 
marriage is specially favored, the courts may well relax the 
rules of proof when a foreign marriage is in litigation. (1 Bish- 
op oin Marriage and Divorce, sea 1130; Brower v. Bowers, 1 



4 FiNKELSTEIN V. FiNKELBTSIN. [DeC. T., 1893 

Abb. App. Deo. 214; PhUlipa v. Gregg, 10 Watte, 168; 36 
Am. Dec. 168. 

ly. The appellant admitted the marriage by swearing to 
it before the police magistrate; by sending his wife the Mosaic 
divorce; and charging her with adultery by reason of his 
non-access at the time she conceived her last child. ''And 
generally in our states, since confessions to a domestic mar- 
riage are admissible, so they are to a foreign.^' (1 Bishop 
on Marriage and Divorce, sec. 1127.) 

y. A merchant or other person who holds no official 
situation, and who is unconnected with the legal profession, 
cannot be heard to expound the law of a foreign country, 
though the judge may be satisfied that he really possesses 
ample knowledge on the subject. (1 Bishop on Marriage and 
Divorce, sec 1123.) 

De Witt, J. — ^This is an action for a divorce and alimony, 
and to set aside an alleged fraudulent conveyance of property 
by defendant, in on^r that plaintiff may realize alimony from 
such property. Defendant appeals from an order of the dis- 
trict court awarding plaintiff alimony pencfen/« 2ife,and counsel 
fees. We refer to the case of In re Finkehtein v. Curtis, 13 
Mont 425, for a statement of some of the fisusts. 

The appellant contends, on several grounds, that the order 
for alimony and counsel fees should be reversed. The first, 
which we will examine, is that it does not sufficiently appear, 
as counsel urges, that the respondent is the wife of said appel- 
lant. The plaintiff^s motion for alimony and counsel fees was 
made upon the complaint and affidavite. The plaintiff alleges 
in her complaint that she and the defendant were married at 
Pultusk, in Russian Poland, December 27, 1870, and thereby 
became, and ever since have been, and now are, husband and 
wife. She further alleges that, at divers times between the 
last-mentioned date and the commencement of this action, the 
defendant has been guilty of adultery with one Sarah Eisbert, 
aliaa Sarah Jones, alias Sarah Finkelstein, a person with whom 
defendant purporte to have intermarried in the year 1883. 

The plaintiff further alleges that there are living issue of 
her marriage with the defendant, five children, ranging from 



14 Mont.] FiNKKLSTEIN V. FiNKKLSTBIN, 6 

twenty-one years of age to twelve years. She further allies 
that she is in indigent circumstances, dependent upon her labor 
for the support of herself and children, and that she is in ill 
health, and has no property whatever. 

Her daughter, Esther, twenty*one years of age, makes an 
affidavit in which she says that ever since she can remember, 
with the exception of periodical desertions of her mother by 
her father, he, the defendant, has lived and cohabited with her 
mother as his wife, and has acknowledged and introduced her 
to^the world at large as such. This daughter further sets forth 
the indigent circumstances of her mother. 

In opposition to the motion, the defendant filed his own 
afiBdavit. He allies that the relation of husband and wife 
has never existed between him and the plaintiff. He alleges 
that about the time that plaintiff says the marriage took place 
he and plaintiff appeared before a third person, who was not a 
magistrate, rabbi, priest, or minister, or any person authorized 
by the laws of Russia to perform a marriage ceremony, and 
that this third person presumed to pronounce plaintiff and 
defendant husband and wife. He further says that when this 
ceremony took place he was sixteen years of age, and that there 
was a law of Eussia in force that no male person under the 
age of twenty-one years was allowed to marry, and that any 
such attempted marriage was absolutely void and invalid for 
all purposes. 

Of course, one of the essential facts to plaintiff's cause of ac- 
tion, is that she is the wife of defendant. If that fact is not 
present, plaintiff has no case. But on the hearing of a motion 
for alimony pendente lUey it is not for the district court to 
finally determine that faot. The question is whether there is a 
sufficient prima fade showing of the alleged fact of marriage. 
In this case the plaintiff unequivocally alleges the fact of mar- 
riage with defendant in Russia in 1870, and that they ever 
since have been, and now are, husband and wife. She also 
allies that there is issue of that marriage five children. The 
defendant admits that there are four children who are the issue 
of himself and plaintiff. So we have the undisputed fiict of 
four children, and we also have the undisputed fact of a long 
cohabitation of plaintiff and this defendant as husband and 



6 FiNKBLSTBIK V. FiNKBLSTBIN. [DoC. T., 1893 

wife, interrnpted only hj defeudaot's periodical desertions of 
plaintiff. To oppose these allegations of plaintiff and these 
conceded facts, there is the affidavit of defendant, that the per- 
son who performed the alleged marriage ceremony in Russia 
was not authorized so to do by the laws of Russia, and that his 
alleged marriage when sixteen years of age was void and in- 
valid under the laws of that country. The defendant contends 
that his affidavit in this respect mnst be held to be both a 
pleading and evidence. Taking his view, and looking at the 
affidavit as evidence, we have before us a statement of one not 
a lawyer as to what is the law of Russia. The statement of 
such a person is not competent testimony of what the law is in 
a foreign country. But appellant contends that his statement 
as to the law of Russia is not denied by plaintiff. We do not 
regard it as a matter of any consequence whether plaintiff 
denies it or not. She is not shown to be learned in the law 
and competent to testify any more than he is. Her denial 
would be of no more value than his asseveration. Neither of 
them is a witness competent upon the subject 

Turning from defendant's affidavit regarded as evidence, and 
looking at it as a pleading, as he requests, we observe this 
situation. The plaintiff alleges marriage and the present ex- 
istence of the relation of husband and wife. The defendant 
sets up facts which he claims, if true, show that there was no 
marriage and no relation of husband and wife. In our opinion 
this leaves the matter of marriage simply in the condition of a 
contention between the parties. But there are some further 
allegations in defendant's affidavit, which instead of attacking 
plaintiff's claim that there was a marriage, rather lend strength 
to her contention. They are as follows: He says that in 1883 
plaintiff and himself agreed to separate, and get a divorce in 
accordance with the Jewish religion and practice; that accord- 
ingly, he, the defendant, went to a rabbi in Cliicago and ob- 
tained from him a divorce from the plaintiff according to the 
law of Moses, and that he sent the same to the plaintiff, and 
that she accepted and agreed to abide by it, and has abided by 
it for a period of ten years. So it appears that the defendant 
himself at that time fully recognized the relation of husband 
and wife between himself and the plaintiff. Again the defend* 



14 Mont.] FlNKBLSTSIN V. FiNKBLBTBIN. 7 

aiity in his affidavit, in effect aocusea the plaintiff of aclQlteiy, 
in .that he says, that for more than eighteen mouths prior to 
the birth of plaintiff's last son, Emanuel, the defendant was 
continnonslj away from her iu another city, and he says that 
he has never condoned this offeuse by the plaintiff. As a 
matter of course, she could not be guilty of adultery, as he 
oharges m effect^ unless the relation of husband and wife ex- 
isted between the parties. So as above remarked, these matters 
set op by defendant, instead of lending aid to his contention 
against the marriage, have rather a tendency in the other direo* 
tion. 

It may be true that, if on a motion for alimony pendente liie^ 
the defendant shows facts and conditions which absolutely 
establish that there is no marriage, and that plaiutiff is not the 
wile of defendant, it would not be proper to grant such alimony. 
Bnt there is no such showing in this case. To recapitulate 
the district court had before it this situation: A direct allega- 
tion of marriage by the plaintiff, which the defendant denied, 
by alleging what he claimed was a'law of Bussia, which would 
render the alleged marria^ void. There is the further fact 
of long cohabitation by plaintiff and defendant, as husband 
and wife, and the birth of four children as the result thereof 
Again there is the action of defendant in obtaining the Mosaic 
divorce. Again there is the implied admission of the marriage 
by defendant in his charge against the plaintiff of adultery. 

It is our opinion, that there was an ample pima facie show- 
ing upon which the district court was justified in granting the 
alimony and counsel fee. 

Another point presented by the appellant is, that it does 
not appear that the defendant has the faculty and ability to 
pay alimony; It does appear that he is conducting a large 
tailoring business, and plaintiff claims that the business is, in 
fact, his own, and is being fraudulently conducted in the name 
of Sarah Finkelstein, the person defendant claims to be his 
wife; Defendant, on the other hand, says, that this business 
belongs to Sarah. But, in any event, it does appear, without 
contradiction, that the defendant is engaged in conducting this 
business, and, if he were able to do so, it is a fair showing that 
he has the fiionlty and ability to earn money to pay the mod- 



8 Morrison v. Morrison. [Dec. T., 1893 

erate sum allowed hj the oourt in this case as alimony and 
counsel fees. The alimony was thirty dollars a month, apd 
the counsel fee was fifty dollars. 

There are some questions upon the statute of limitation as 
to plaintiff's cause of action, raised by defendant's affidavit; 
but with the substantial priina fdde showing of a marriage, 
and the charges of adultery made by the defendant against this 
plaintiff, we are of opinion, that these questions as to the stat- 
ute of limitations, which are simply alleged in defendant's affi- 
davit, should properly be determined upon the trial of the case 
upon the merits, and should not be settled in advance upon 
the hearing of the application for alimony pendente Hie. 

The ruling of the district court is affirmed. 

Affirmed. 

Prmberton, C. J., and Harwood, J., concur. 



MORRISON, Respondent, v. MORRISON, Appellant. 

[Babmitted October 8, 1898. I>eoidad Juiiiary 2, 18M.] 

KABaikom AMD DiTOBOB— 5p0o(aZ/lfid£n^«.— ^peoftal flndingi maybe properly sub- 
mitted to and passed apon by the Jury in a diroroe suit, under section 275 of 
the Code of Oivil Procedure. 

BAXESabitual drunketineM anderueUi;—OondonerMnL-^BAhifnMX drunkenness, 
acts of Tiolenoe» abuse, and frequent abandonment of a wife by her husband, 
during a period of several years preceding a final separation in January, 1889, 
are not condoned by a cohabitation together until October, 1888, when the 
defendant, shortly before the commencement of an action for dlToroe in April, 
1889, while intoxicated had broke into plain tiffs house, armed with a pistol, and 
threatening to kill her droTe her to seek refuge with a neighbor. 

BiMM—SMenoe— Neglect to support.— While neglect of a husband to support his 
wife is not a ground for divorce in this state, such neglect may be proved in 
an action for divorce sought upon the grounds of habitual drunkenness and 
extreme cruelty, when confined to showing the tenor of defendant's oonduet 
towards his wife. 

Appeal from Second Judicial Dieiricty Silver Bow Qmnty. 

Action for divorce. Decree was rendered for the plaintiff 
below by Pembebton, J. AflBrmed. 

Thompson Oampbell, for Appellant. 

/. 8. Bhropahiref for BespondenU 



14 Mout.] Morrison v. Morrison. 9 

Habwood, J. — ^Plaintiff sought and obiaioed a divoroe 
from the bonds of matrimony existing between herself and 
defendant; and also the custody of four infant children of 
said marriage, ranging in age from two to eight years, to- 
gether with alimony and oosts of suit. 

The grounds alleged for such divorce are, habitual drunk- 
enness on the part of defendant for a period of more than one 
year immediately prior to the commencement of the action; 
and extreme cruelty in the treatment of plaintiff by defendant 
through his threats of yiolence toward her; and false accusa- 
tions charging her with infidelity to her marriage vows, all of 
which is particularly alleged. And by reason thereof plaintiff 
allies that she has suffered great mental and physical dis- 
tress; that her health has been greatly injured, her happiness 
and peace of mind destroyed, and that her personal safety in 
longer living with defendant in the bonds of matrimony is 
endangered. Wherefore her pniyer for divorce therefrom and 
alimony and costs of suit. 

Plaintiff's allegations wer6 put in issue by defendant's 
answer, and the court proceeded to try the cause with a jury, 
the result of which was a finding in favor of plaintiff by both 
general and special verdict. Whereupon judgment was en- 
tered dissolving the bonds of matrimony existing between 
plaintiff and dtf ndant, and awarding plaintiff the sole care 
and custody of said infant children, and alimony for counsel 
fees in the sum of two hundred and fifty dollars; and it hav- 
ing been made to appear that defendant was the owner of one 
hundred thousand shares of capital stock of the '^ Golden Gate 
Mining Company,'' a corporation organissed and existing under 
the laws of the state of Montana, it was decreed that defend- 
ant should transfer and deliver to plaintiff fifty thousand 
shares of said capital stock, as permanent alimony, to be used 
by plaintiff toward the support and education of said children. 

Defendant prosecuted this appeal from the judgment, and 
from an order overruling his motion for a new trial, but pre- 
sents no brief of points and authorities relied upon to obtain a 
reversal of the conclusion reached by the court below. The 
statement of the case on motion for new trial, however, contains 
certain specifications of alleged errors and irregularitiea. 



10 Mo&BisoN V. Morrison. [Dec. T., 1893 

1. It 18 speoified thai ''the court erred in permitting the 
jarj to pass on special findings presented to them in this case, 
the verdict of the jarj should have been general.'' It appears 
from the record that the jury returned a general verdict in 
favor of plaintiff, but also returned 8i)ecial findings on several 
propositions submitted. There is no statute forbidding special 
findings in such a case, nor has appellant cited any authority 
to support his contention. Moreover, the statute of this state 
provides for submission of special findings to be returned by 
the jury (Code Civ. Proa, § 275), and there is no exception 
made as to divorce suits. Indeed, the divorce statute pro« 
vides that the same rules of proceeding shall prevail ^'as in 
other cases in chancery''; and special verdicts are common in 
chancery practice. We find no merit in the first specification. 

Nor is there any logical coherency in specifying that the 
court erred in allowing the jury to return any Uiing more than 
a general verdict, and, secondly, specifying that the general 
verdict in favor of plaintiff 9ught to be vacated because the 
jury did not answer all the special questions propounded. In 
the second specification it is argumentatively urged that the 
general verdict should be set aside, because the jury did not 
find whether or not plaintiff and defendant cohabited together 
up to the 1st of October, 1888; that if the parties cohabited 
together up to that time it would manifest condonation. The 
jury did not so find, and there is no ground for claiming for- 
giveness or condonation of any of defendant's offenses against 
his marriage vows alleged in this case. The history of his 
conduct toward plaintiff, as shown by the evidence, is that 
of continued drunkenness, acts of violence, false accusations, 
threats, and abuse of plaintiff for several years past during 
their residence about mining camps in this state; with frequent 
abandonment of plaintiff and said children for considerable 
periods of time, and final separation in January, 1889, fol- 
lowed by this suit for divorce instituted by the wife in April, 
1889. And, as appears from the evidence in the record, de* 
fendant continued his habits of drunkenness, as well as his acta 
of cruelty towards plaintiff, up to near the time of commencing 
this suit; and the same seems, from the evidence, to have in- 
creased in intensity and aggra vation^ rather than to have abated 



14 Mont.] Morrison v. Morrison. 11 

in any degree, as time went on. Shortly before oommencenient 
of this sait plaintiff was driven from her house by defendant's 
last visit, when he broke in the door, armed with a pistol, 
threatening to kill plaintiff. He was then in an intoxicated 
condition. Plaintiff sought refuge and a hiding-place in a 
neighbor's house, to escape from the abuse and threatened 
assaolt, and injury by defendant, which plaintiff testified she 
fimred. There is no ground to daim coudonemeat under the 
fiusts shown in this case* 

The third s|)ecificatiott is to the effect that the court erred in 
allowing proof of defendant's neglect to provide necessaries for 
the support of plaintiff, but left her and said children destitute 
thereof, and thereby cast upon her the whole burden of the 
care and support of said children. It appears that plaintiff 
was without means of support, and that she maintained herself 
and said children by employment at teaching school and other- 
wise. Objection was made to the introduction of this evidence 
on the ground that such neglect is not made by statute cause 
for divorce in this state. The evidence of defendant's delin- 
quency in tliis respect appears to have been iidmitted to throw 
light upon his conduct toward plaintiff, alleged in the plead- 
ings and supported by proof, and not as ground of divorce; for 
the oourt instructed the jury that '^neglect or refusal of de- 
fendant to support plaintiff is not ground of divorce under the 
laws of this state." And, by the observations of the court 
when that testimony was admitted, it was to be confined to 
showing the general tenor of defendant's conduct toward plain- 
tiff. And thus confined by the observations of the court, when 
that testimony was admitted and also curtailed in its effect by 
the instruction mentioned, we think there was no error in 
admitting the proof of such delinquency on defendant's part. 
The duty to support the wife and child as comfortably, and 
according to their station in life, or as comfortably as the hus- 
bond is able to provide, is not the least among the duties as- 
sumed by him in the marriage bond. Possibly, however, in 
this case, it was the least among defendant's offenses against 
his marital duties. Neglect to suppoit the wife, although 
not ground for divorce here, is made so by statute in several 
states, thus showing that it is considered an o&nse of no light 



12 Statb v. Baum. [Dec. T., 1893 

character, where the wife is without meaDs for maiDtenaDce; 
and we think proof of sach neglect, confined, as it was in this 
case, to an interpretation of defendant's other conduct and dis- 
position towards plaintiff, was not error, especially where the 
record shows that the case was fully made out on other grounds. 
The other specifications go to the point that the evidence 
is insufficient to support the verdict. The jury in the court 
below found the contrary, and the record shows abundant sup- 
port for that view. The order denying a new trial and the 
judgment is therefore affirmed with costs. 



Db Witt, J., having been counsel for one of the parties in 
the commencement of this case^ did not engage in the foregoing 
consideration. 

Pembebtok, C. J.^ concurs. 



STATE- EX REL. BENTON v. BAUM. 

[Babmitted January 26, 1898. Decided Jumary 2, 189i.] 

Anoiunm—D»5arment.— Where an attorney made an agreement to try a case for 
his client in the Justice court for $25, and another to try it in the district court 
for $25, and a third to appeal it to the supreme court for $25, which scTeral 
amounts he received, performing only the first two seryices and deli!>erately 
neglecting to take the appeal, and during the time within which he might haya 
appealed procured and couTerted $28 which had been paid into court for hia 
client on the Judgment fk-om which he agreed to appeal; and also opened a leU 
tor addressed to another client, which had been sent in his care, containing % 
check for $100, upon which ha indorsed his client's name, and procured 
the money, which he refused to pay over upon demand, although having no 
daim or lien upon it for fees or otherwise— such conduct is ground for disbar- 
ment under sections 106, 107, 6th division of the Compiled Btatutea veating tha 
supreme court with power, in its discretion, to disbar an attorney for mal- 
conduct in his profession, and also for refusing, upon dmnand, to paj atrnt 
money to which his client is entitled. 

Application for the disbarment of an attorney. Granted. 

Db WitT| J. — ^This is an application for the disbarment of 
Peter M. Baum, an attorney of this court. The relator, 
Charles H. Benton^ judge of the eighth judicial district court, 
filed, in this court, written charges against said Baum. An 



14 Mont] Statb v. Baum. IS 

order was issued that respondent show canse why his license 
sfaoald not be revoked, and his name stricken from the roll of 
attorneys. Upon service of that order, Mr. Baum filed an 
answer. The matter was thereupon referred to E. R. Bussel, 
Esq., of Great Falls, who was appointed by this court as 
referee, with the usual powers of such officer, to take the testi- 
mony of witnesses and report the same to us. That report is 
now before us. We will examine it, and ascertain whether 
the charges were proved, and whether they are sufficient upon 
which to pronounce a judgment disbarring respondent from 
the practice of law. 

We will give our attention to only two of the charges. The 
first may be stated as follows: Joseph Horn employed Baum 
to prosecute an action for him, in a justice court, against one 
James Baatz, on a claim amounting to |71.60. The price 
agreed upon for the service was |25, which amount Horn paid 
to Baum. The service was performed, and judgment was ren- 
dered in the justice court for |60 in favor of Horn. Baats 
appealed to the district court. Thereupon Baum and Horn 
made a second agreement that Baum should try the case in the 
district court for another |25. This amount was also paid by 
Horn to Baum. In the district court, Horn obtained a judg- 
ment against Baatz for $30. Thereupon a third contract was 
made between Horn and Baum, by which Baum agreed to ap- 
peal the case, and argue it in the supreme court, for another 
|26. This money was paid by Horn, and accepted by Baum. 
Baum did not appeal the case to the supreme court, but 
allowed the time for so doing to expire. Judgment for costs 
was entered against Horn in the district court by reason of the 
fact that the judgment of the justice of t^e peace was reduced 
on the trial de novo in the district court; The sheriff collected 
this judgment for costs from Horn. The defendant, Baatz, 
against whom was the judgment for |30 in the district court, 
paid that amount of money into court in satisfaction. Baum, 
as Horn's attorney, received this |30 from the clerk of the 
district oourt, less ^7 costs, which belonged to the justice of 
the peace. This |23, so received by Baum, he retained, and 
eonverted to his own use. 
i, The second charge is as follows: One Robert Temple was 



14 Statb v. Baum. [Dec. T., 1893 

arrested, cbai^ed with peijary. He employed Baum to defend 
him. While he was in jail he paid Baam ^20, and, after 
being released on bail, he paid him a fartlier sum of |30 as a 
retainer. Temple wrote to a relative in Washington, D. C, 
asking for money, and directing the relative to send the letter 
in care of the law firm of which Baum was a member. This 
letter was sent, containing a check for |100, payable to Tem- 
ple. This letter was by Baum opened. Baum took the check, 
|100, and indorsed it, **R. Temple, per Peter M. Baum,'' and 
''Peter M. Baum.'' He cashed this check at a Gi^at Falls 
bank, and retained the money. Temple gave Baum no aa- 
thority to open his letter, or to take his check or indorse it^ or 
to receive money on it. Temple, discovering what Baum had 
done, discharged him from his service, and demanded the 
$100, which was refused. We do not deem it necessary to 
notice the other charges made in the complaint. 

At the hearing before the referee, Mr. Baum appeared in 
person, and was present at every session, the referee never pro- 
ceeding with testimony until Baum appeared. Baum was not 
only afforded a full cross-examination of the witnesses for the 
state, but he was permitted to revile the witnesses and counsel, 
to insult the referee, to ridicule the proceedings, to challenge 
persons to fight, and to indulge generally in such disgraceful 
conduct that we much regret that the referee did not stop the 
hearing, and at once certify to us the acts which were taking 
place before him, for the referee was a part of this court, and 
Banm's offenses against the referee were offenses against the 
court. {In re HaMom^ 10 Mont. 222.) 

Perhaps it may not be amiss to note a few examples of 
Baum's conduct. Early in the proceedings Mr. Baum re- 
marks ''that he does not care any thing for the people who 
appear in this proceeding; that he defies them, and defies the 
supreme court to do him any harm in this case; and that 
nothing can be proved. I say tliat Ed L. Bishop never made 
a cent in this country until I took him into business. I took 
him into my office a pauper. That he don't know enough to 
chew gum^ and has cheated me every time he has had a 
chance." 

Again, Baum remarks: " Mr. Baum asks now that yoa 



14 Mont.] State v. Bauk. 15 

bring ia the oonrt olown/' Again, Baam says to one of the 
coanael: ^Yoo stole the balance of my money* If I was the 
l>igg^t coward on earth, I wonld knock out the man tliat said 
that to me.'' At another point we have the following: ''Here 
Mr. Baum noticed W. M. Cockrill, clerk of the district court 
of Oascade county, standing in the door of the referee's office, 
and said to him, 'Come in William and see the circus.''' Mr. 
Baum, in objecting to a question does it as follows: Mr. BauuL 
Mr. Baum says that that question is leading, and outrageous, 
and ridiculous, and nobody but a fool would ask such a ques- 
tion. I say that to the supreme court, and also say that Mr. 
Baum says it is directory." Again, commenting upon a ques- 
tion, he says: ''Who ever heard of a lawyer asking a question 
that way. Just say now, also, that if Mr. Bishop was a gen- 
tleman, and born south of Mason and Dixon's line, he would 
have licked Mr. Baum before this time." Speaking of him- 
self, Baum again says: "We will see. Counsel may be drunk, 
but I would rather have his head drunk than yours sober. 
We will have a circus before we get through." Mr. Baum 
remarks to one of the counsel as follows: "Relating to this 
check: Bishop, if you had my head, drunk, it would be worth 
millions of dollars to you." At another time Mr. Baum says: 

"Old man [naming one of the members of this coui*t] 

will be amused when he sees this." Addressing Mr. Cockrill, 
a bystander, Mr. Baum says: "Sit down before I lick you, 
Cockrill." Mr. Horn, a German, being upon the stand as a 
witness, Mr. Baum remarks: "Oh, a Dutchman will do any 
thing, you know. I wish you would say to the supreme court 
that I would like to have such a thing as that Bishop out in a 
green field. I believe the crows would be scared." Again 
Mr. Baum remarks to one of the counsel: "I would like to 
have you put down that, now. Baum now says he would like 
to take Bishop out, and slap his &ce; that I think he is the 
laciest dam dog that was ever born. I now say that Pop 
Baum took him into his office when he hadn't any reputation 
w business, and let him make money, and that all the money 
be ever got, and all the reputation he ever had, he got through 
Pop Baum. Pop Baum made every thing there is in hinu" 
Speaking of the same German witness above noted, Baum 



16 State v. Baum. [Dec. T., 1893 

remarks: ^'I think he lies about that'' The following is one 
of Mr. Baum's methods of objecting to a question: ^Objected 
to upon the ground that Bishop is a fool. I want to show the 
supreme court what a fool you are, you dirty loafer." To the 
witness he says^ ^'Pull off your shoes, and wash your feet. 
Now, you keep your mouth shut, and don't tell him a damn 
thing.'' To punish Baum for this conduct before the referee 
is now impracticable (further than the judgment disbarring 
him) as he absconded from this state about the time the evi- 
dence for the state in this proceeding was dosed. 

The two charges above recited were clearly and amply 
proved by the witnesses for the state. We will examine the 
Horn matter for a moment. It is proved beyond a cavil that 
there were three express and well-understood contracts between 
Horn and Baum — one contract to try the case in the justice 
court for ^26; another^ to try it in the district court for |26; 
and the third, to appeal and try it in the supreme court for 
|26. These several amounts were all paid to Baum. He 
performed the first two services. He was paid to appeal the 
case to the supreme court. He did not forget lo take the 
appeal. He deliberately did not do it, but, ou the other hand, 
did something else; that is to say, during the time within 
which he might have appealed, he went to the clerk's office 
and collected |23 which had been paid into court for his client 
on the judgment from which he had agreed to appeal. This 
^23 he appropriated and converted. So he not only deliber- 
ately and knowingly omitted to do that which he had agreed 
to do, and had been paid for doing, but he also converted a 
sum of money belonging to. his client. There is no pretense, 
by the mouth of any witness, that Baum had, or ever made or 
pretended to have, any claim upon this $23 for fees owing 
from Horn. In Baum's cross-examination of Horn he tries 
to make it seem unreasonable and ridiculous that an attorney 
would agree to take a case to the supreme court for $26, and 
that therefore it must be untrue that he agreed to do it It 
may be unreasonable to believe that an attorney would attempt 
such a service, paying costs, transcribing, printing, and ex- 
penses, for |26. But Baum did not attempt the service. The 
evidence does not show that he ever intended to take the appeal. 



14 Mont.] Statb v. Baum. 17 

bat it does show tliat be intended to promise to do it^ and that 
he intended to get the |25 for the promise^ and intended to 
give oo further oonsideration for that money than the promise. 
So much for the Horn matter. 

We will look at the Temple charge. Here the evidence is 
just as clear. It is established that Peter M. Baum opened 
Robert Temple's letter; that he took therefrom Temple's check 
for |100; that he indorsed Temple's name, and collected Tem- 
ple^s moneji and put it into his pocket — and all this without 
permission or authority, expressed or implied. There is no 
pretense here that, even if Baum had 'obtained possession of 
this money lawfully, he had any right or claim or lien upon 
it, for fees or otherwise. Upon the last day that evidence was 
taken Mr. Baum was present, as he was at every hearing. An 
adjournment was taken to March 4, 1893, at 10 A. M. Ad- 
journments were taken as follows: To the same day at 2 p. M.; 
to March 13th, 10 A. M.; to March 27th, 10 A. M.; to April 
19th, 10 A. H. At none of these hearings did Baum appear. 
The referee then closed the hearing. Mr. Baum did not offer 
a syllable of proof, by himself or any other witness, in contra- 
diction of the charges and testimony of the state. 

As above noticed, he has lefl this jurisdiction. We have lield 
the report of the referee from the date of its filing, May 23d, 
until this time, January 2, 1894, so that respondent should have 
ample opportunity to make a defense. After the filing of the 
complaint in this matter, and pending the proceeding, Baum's 
conduct towards Judge Benton was such as was utterly unbecom- 
ing an attorney. About the time the hearings before the referee 
were being continued from day to day, awaiting Baum's pres- 
ence, some further afiGdavits were filed in this court setting 
forth Baum's conduct. Although evidence was not taken upon 
these charges, the affidavits were made by respectable persons 
of Great Falls, and Baum has never appeared to controvert the 
charges therein contained. It may therefore be proper to refer 
to them in connection with the other matter above reviewed. 
It is set forth that Baum, in the presence of several persons, 

stated that Judge Benton was a hypocritical ■ 

■■ - , and ought to be impeached; that he (Baum) owned the 
court (referring to Judge Benton); and that '^ Charley Benton 
Vol. xrv.— a 



18 State v. Baum. [Dec. T., 1898 

IB afraid of me [Baum], and will do what I want him to/' 
Another affiant alleges that Baum^ on the streets of Great Falls^ 
in the presence of anuniberof persons, stated that he had been 
running the judge of the district court for a year or so, and 
that the judge did whatever he (Baum) desired him, regarding 
litigation in which he was interested, and that the judge was 
all right while he was under Baum's control. The other 
charges in these affidavits are as to personal abuse by Baum of 
Benton, and some of it in Benton's chambers at the courthouse. 
The conduct described must have sorely taxed the judicial calm 
of Judge Benton, and made him wish, for the time, that he 
were a citizen only, and not a judge of the court. The charges 
in these affidavits can add nothing to the severity of the judg- 
ment of this court. They only further show the abyss of 
degradation into which the respondent has fallen. We have 
shown what the charges against Peter M. Baum are. We have 
shown that they were proved. We have shown what Baum's 
conduct was in the presence of the referee, and his conduct 
pending those proceedings. 

We have the following statute: ''In all cases where an 
attorney of any court of this state, or solicitor in chancery, 
shall have received, or may hereafter receive, in his said office 
of attorney or solicitor, in the course of collection or settle- 
ment, any money or other property belonging to any client, and 
shall, upon demand made, and a tender of his reasonable fees 
and expenses, refuse or neglect to pay over or deliver the same 
to the said client, or to any person duly authorized to receive 
the same, it shall be lawful for any person interested to apply 
to the supreme court of this 'state for a rule upon the said 
attorney or solicitor to show cause, at a time to be fixed by the 
said court, why the name of said attorney or solicitor should 
not be stricken from the roll, a copy of which rule shall be 
duly served on said attorney or solicitor at least ten days pre-> 
vious to the day upon which said rule shall be made returnable; 
and if, upon said rule, it shall be made to appear to the said 
court that such attorney or solicitor has improperly neglected 
or refused to pay over or deliver said money or property so 
demanded as aforesaid, it shall be the duty of said court to 
direct that the name of said attorney or solicitor be stricken from 



14 Mont.] Statb v. Bauic 19 

the roll of attorneys in said court/' (Comp. Stats.^ div. 6, 
p. 621, § 107.) We also have a provision, in section 106, that 
the justices of the supreme court, in open court, shall have 
power, in their discretion, to erase the name of an attorney or 
counselor at law from the roll for malconduct in his profes- 
sion. Section 107 is sufiBcient to sustain a judgment disbarring 
Baum. We are of opinion that section 106 is also ample 
authority. Baum's acts were ^'malconduct in his profession.'' 
It would be undignified for a court to stop to discuss whether 
Baum's acts, as above described, were professional malconduct. 
He shocks professional ethics and all common morals. The 
standard of morals in the profession of law ought to be at a 
high mark. Mr. Baum was once very near expulsion from 
that profession (July term of this court, 1890). At that time 
he was saved by the view that we took of the courtesy which 
seemed to be due from us to the supreme court of the state of 
New York. {In re Baum, 10 Mont. 223.) The offenses 
charged against him at that time were committed in the state 
of New York, and it seemed tliat the New York supreme court 
had jurisdiction, and had taken proceedings against Baum, 
which were then pending and undetermined. On that ground 
we then omitted to take action. 

Furthermore, perhaps it is not amiss to state that this court 
was then addressed in behalf of Mr. Baum by gentlemen of 
the bench and bar in high standing in sister states. Mr. 
Baum was by us given the opportunity to secure an honorable 
place in his profession in a rapidly developing community, and 
among a generous people. It is characteristic of the people of 
the west to forgive the past, and to give the helping hand of 
fellowship to every struggler for a larger day and better life. 
Mr. Baum has flagrantly abused this sentiment of the court 
and the people of this state. It is the judgment of this court 
that the license, as an attorney, of Peter M. Baum, is revoked, 
and that his name be stricken from the roll of attorneys of 
this court, and that he is debarred from practicing in any of 
the courts of this state, or from exercising any of the privileges 
of an attorney or counselor of law. 

Pembebton, C. J., and Harwood, J., concur. 



20 Daly v. Milen. [Dec. T.. 1893 

DALY, Respondent^ v. MILEN ep al., Appellants. 

[Sabmitted Febraary 6, 1898. Decided Juiiuay 16, 18M.] 

JuDOKBHT— S;p0c<aZ jlndtn^j—inooyMUtonoy.— When the Jury, in an action to en- 
Join the collection of a Judgment, fonnd apecially that the note upon which 
•ach Judgment waa rendered had not been aettled pending the anit, and thai 
defendant had not agreed to diamias anch action, which findinga were adopted 
by the court, a Judgment for plaintilT will be rerereed on appeal aa inoonaiatent 
idth and unanthorised by the flndinga. 

Appeal from SeoerUh Judicial District, Coder Obwity. 

AoTiON to enjoin oollection of, and to vacate, a judgment. 
The cause was tried before MilbubN| J.^ who rendered judg- 
ment for plaintiff. Reversed. 

Middldon & LiglU^ for Appellant. 

T. H. Porter, and C H. Lofud, for Respondent. 

Pemberton, C. J. — ^The plaintiff alleges in his complaint 
that on the twentieth day of July, 1888, the defendant Milen 
began a suit in the district court of Custer county against him 
(plaintiff) to recover judgment on a promissory note given by 
plaintiff to said defendant, in the sum of five hundred and 
seventy-four dollars, with interest at twelve per cent from 
October 30, 1887; that summons was issued in said suit and 
served on plaintiff; that on the twenty-first day of May, 1889, 
and while said suit was still pending in said court, the plain- 
tiff and said defendant had a settlement of all demands and 
accounts existing between them, including the amount and the 
note on which this said suit was brought; that thereupon, and 
in consideration of said settlement, said defendant Milen and 
his attorney agreed to dismiss said suit at the costs of said 
Milen, but that, instead of dismissing said suit, said defendant 
Milen's attorney, on the twenty-second day of May, 1889, 
caused and procured judgment to be entered in said court in 
•aid action in the sum of six hundred and seventy-nine dol- 
lars, with interest and costs, against this plaintiff, in violation 
of his rights and of the terms of said settlement; that said 
judgment was entered of record in said court, and still re- 
mains of record therein; that plaintiff had no knowledge of 



14 Mont.] Dalt v. Milin. 21 

said jadgment having been obtained and entered^ as aforesaid, 
nniil execution issued thereon was levied on his property by 
the sheriflP; that defendant E. J. Jones is the sheriff; that said 
sheriff has levied said execution upon two thousand four hun« 
dred sheep belonging to plaintiff, and has taken them into 
his possession thereunder, and threatens to remove them, etc 
Plaintiff therefore brings this suit, and asks judgment that the 
defendants be enjoined from taking and selling said property 
under said execution; that said execution and judgment of tlie 
district court be vacated, and declared null and void; that his 
property be restored; and for costs, etc. All the material 
allegations of the complaint are denied by the answer of the 
defendant. The case was tried by the court with a jury. A 
number of special findings of fact were submitted to the jury. 
These special findings of fact were made and returned in favor 
of the defendants. The jury also returned a general verdict in 
favor of the defendants. The plaintiff' thereupon filed a motion 
to set aside the special findings of fact and tlie general verdict 
of the jury in favor of defendants, and for judgment in favor 
of the plaintiff. On the hearing of this motion the court set 
aside the general verdict of the jury, adopted the special find- 
ings of fact, and rendered judgment in favor of the plaintiff in 
accordance with the prayer of his complaint. From this judg- 
ment defendants appeal. 

The main issue in the trial of this cause was this: Was the 
note on which judgment was rendered in the district court on 
the twenty-second day of May, 1889, in favor of defendant 
Milen, and against the plaintiff in this action, included in and 
settled in the settlement had between the said parties on the 
twenty-first day of May, 1889, as alleged in the complaint, 
and was it agreed at the time of said settlement that said suit 
should be dismissed by said defendant Milen? This issue 
wafi submitted to the jury in special findings Nos. 7 and 8. 
They found in favor of the defendants, as will be seen by the 
interrogatories Nos. 7 and 8, and the answers thereto, which 
are as follows: 

'^7. Was there ever any stipulation made or signed by the 
parties to this action, or their attorneys, to dismiss the action 
whioh was pending in this district court on the twenty-first 



22 Daly v. Milbn. [Dec. T., 189» 

day of May^ 1889^ in which Milen was plain tiff, and Dalj was 
defendant? Answer. No. Jesse Haston^ Foreman. 

^'8. Was there any oral agreement May 21, 1889, to dismiss 
the case in the district court? Answer. No. Jesse Hasten, 
Foreman.'^ 

The court approved and adopted these findings, as well as 
others^ and included them in the judgment rendered in this 
case. To authorize the court to render a judgment vacating 
and restraining the enforcement of the judgment in contro- 
versy as null and void it was necessary that it should be 
shown and found as a fact that the note on which said judg- 
ment was rendered had been paid and settled in the settlement 
of May 21, 1889, between the parties to this suit. But the 
finding was the other way, both by the jury and the court. 
Before the court could hold the attacked judgment null and 
void, order it vacated, and enjoin its enforcement, it must have 
been shown, as a sine qua non, that it had been paid, or tliat 
the claim on which it was recovered had been paid before its 
rendition, as is the contention in this case. 

The respondent moves this court to strike the evidence which 
accompanies the record therefrom, for the reason that it was 
not properly made a part of the record — ^that it was not made 
a part of the record within the time, or in the manner^ pro- 
vided by law. This same motion was made in the lower court, 
and was overruled pro forma. This motion was not proper in 
the lower court. If the evidence was not properly made a 
part of the record on appeal for any cause, the respondent had 
the right to have the record show this, with his objections, and 
the lower court to properly certify thereto. Then, when the 
case was filed in this court, his motion to strike out would have 
been proper, for the reasons shown in the record, and certified 
to by the trial court. But this is an appeal from the judg- 
ment. It is only necessary for the determination of this case 
to examine the judgment-roll, which is brought here by an 
appeal from the judgment. The findings of fact by the jury 
are a part of the judgment-roll (Code Civ. Proc., § 306), and 
the court adopts these findings^ and incorporates them into 
judgment appealed from. We think the findings of fact so 
incorporated in the judgment are inconsistent with, and an- 



14 Mont.] Parrott v. Kanb. 28 

tagonistical to, the judgment. In trutb^ the findings of fact do 
not authorise or support the judgment. 

The judgment is therefore reversed, and the cause remanded 
for a new trial. 

Beversed. 

Habwood and De Witt^ J J.^ ooncur. 



14 23, 

14 206 
35« 248 
3«» 194' 



PAREOTT, Respondent, v. KANE bt al., Appellants. ^4 ^3j 

LSobmitted Ootober 26, 1898. Decided Jannaij 16, 18M. ~ 

iVDaatm-'JBniry— Appeal bond— Defense of 9wreUe$.^An objection by the tiire- 
tiee on an appeal bond, that the judgment from which the appeal wae taken 
had^never been entered, and that the bond wae therefore void, comes too late 
when nrged for the first time in defense to an action upon the bond, where the 
bond recited an entry of the Judgment, which was affirmed on appeal after 
eonnsel for both sides had appeared, no motion haying been made to dismiss 
the appeal as premature, and the execution of the Judgment had been stayed 
for over two years by Tirtue of such appeal bond. 

Bnaamsa— Undertaking on appeaI^Defenses,—BxaetieB on a stay bond cannot 
maintain in bar to an action instituted by the plaintiff in ejectment to reooyer 
damages caused by a stay of execution of a judgment in his faror by yirtue of 
such bond, that the damages occurred by reason of an order of the district 
court recalling a writ of restitution which it had issued upon a remittitur from 
this court affirming such Judgment, and staying all proceedings thereunder, 
and which order was stiU in force, where the writ was stayed pending the 
action on the bond and not upon any grounds affecting the Talidityof the 
Judgment. 

Appeal from Third Judicial Dittrid, Deer Lodge OownJty. 

AcnoN on appeal bond. Judgment was rendered for the 
plaintiff below by Woody, J. Affirmed. 

Cb& A Whitehill, for Appellants. 

L As a general rule a surety may set up in an action against 
him any legal or equitable defense which would have been 
available to his principal, and may introduce any evidence 
tending to maintain such defense. He is not entitled to every 
exception which his principal may urge, but any thing which 
goes to the contract itself, such as fraud, violence, or whatever 
entirely avoids the obligation, he may plead. (Brandt on 
Suretyship, sec. 145; Baylies on Guarantees, p. 402, sec. 6; 



24 . Parrott v. Eakb. [Dec. T., 1898 

1 Wait on Actions and Defenses, p. 700; Jarraii v. Martin^ 70 
N. a 459; Shreffler y. NodeOufer, 133 lU. 536; 23 Am. St 
Bep. 626.) 

II. If no judgment were entered in the case of Parrott 
Y. Hungdburger, there was no appeal^ and this court was 
without jurisdiction to affirm or modify such judgment. 
An appeal taken in such case is abortive, and leaves the case in 
the court below as undisturbed as though no attempt at appeal 
had been made. The judgment of this court, made in said 
action on the fourteenth day of May, 1890, was absolutely void. 
There being then no affirmance of the judgment on appeal, the 
sureties were not liable, and they should have been allowed to 
make such defense. (Comp. Stats., div. 1, § 421, p. 174; 
Rader v. Nottingham^ 2 Mont. 158; Murphy v. King^ 6 Mont. 
30; Home of Inebriates v. Kaplan, 84 Cal. 486; McLaughlin v. 
Doherty, 54 Cal. 519; Thomas v. AndersoUy 65 Cal. 43; Haynes* 
New Trial and Appeal, sec. 183; Elliott's Appellate Procedure, 
§ 19; Wells' Jurisdiction, § 10.) In this action the sureties 
are not estopped by the recital of the bond. There being no 
ap])ealy the statutory bond could not be given. The ap])eal 
being void, the bond also is void, unless it be good as a com- 
mon-law bond. It is not a common-law bond, for there is no 
signature of the principal. The recital in the bond in this case, 
that the defendant was about to appeal ''from a judgment made 
and entered against defendant and in favor of plaintiff/' is not 
the recital of any act of these sureties. It is not pretended that 
they made and entered the judgment in the district court, or that 
they knew any thing whatever about such entry. A person is 
only estopi^ed from denying his own acts, not the acts of another. 
(Brandt on Sureties, sec. 46; Ney v. Orr, 2 Mont. 559.) It was 
admitted in the pleadings that there was a stay of proceedings 
by order of the lower court, so that no execution could issue 
on the judgment against the defendant and appellant in the 
case of Parrott v. Hungelburger, 9 Mont. 626. It appean 
from the bond sued on in this action, that the defendant, 
Hungelbnrger, is the principal, and the defendants, Eane and 
McDevitt, are sureties. It also appears therefrom that the' 
condition of the bond is that the appellant, Hungelbnrger, will 
pay the penalty thereof. The only liability of these defend- 



14 Mont.] Pabbott v. Eanb. 26 

ants, then^ is upon the default of the principal, and, until an 
execution can be enforced in the original action, there can be 
no liability on the bond, and we contend that whatever defense 
the principal in the bond might have should also be available 
to the surety, and that the lower court erred in disallowing 
these appellants from making such defense. {Pamell v. Hatir 
cock, 48 Cal. 462; Sharon v. Sharon, 84 Cal. 434; First NaL 
Bank v. Rogers, 13 Minn. 407; 97 Am. Dec. 239.) 

Edward Sdiai-nikow^ and Robinson & Slapleton, for Re- 
spondents. 

The instrument sued on in this case is a statutory undertak- 
ing, not a bond. It has no principal. The contract of the 
defendants is a separate one on their part. Its execution is 
admitted, and the new matter set up by the defendants con- 
stitutes no defense. The undertaking recites that the judgment 
was entered, which is a special recital, and the defendants are 
thereby estopped from asserting to the contrary. (Bigelow on 
Estoppel, 308-09; HiU v. Burke, 62 N. Y. 111-17; Brandt 
on Suretyship, §§ 42-44, 642; McMillan v. Dana, 18 Cal. 
346; Murdoch v. Brooks, 38 Cal. 600; Hathaway v. Davis, 
33 Cal. 161; De Castro v. Oarke, 29 Cal. 14; San Francisco 
V. RandaU, 54 Cal. 408; Smith v. Fargo, 57 Cal. 158; Piefce 
V. Wluting, 63 Cal. 538.) The foregoing authorities we think 
pretty well establish what we contend for, that appellants are 
estopped by the recital in the undertaking that the judgment 
of Parrott v. Hungelburger, 9 Mont. 526, was entered, from 
asserting the contrary. None of the authorities of appellants 
touch this question. That the judgment was not entered is 
the sole ground of complaint. This alone, and nothing more. 
If it is so, that whatever defense the principal could interpose 
the surety could. Had this been a bond, as it is not, and had 
Hungelburger signed it, which she did not, and with the recital 
it contains (that the judgment was entered), she would have 
been also estopped by such recital, and could not have been 
allowed to make the defense stricken out. The entry of the 
judgment would have been no part of this record on appeal. 
It was the judgment which was appealed from, and that judg- 
ment constituted part of the record, not its entry, and the 



26 Parrott v. Kanb. [Dec. T., 1893 

undertaking reciting the entry of the judgment gave the 
appellate court jurisdiction. Even did it not contain such 
recital, their defense would not be good. Their contract was 
to pay in a certain event, and that event occurred. {Builard 
V. GUUtU, 1 Mont. 510; BahbiU v. Finn^ 101 U. S. 13; Oram 
V. Weymovth, 54 Cal. 476.) 

De Witt, J. — ^The plaintiff herein is the same person 
who was the plaintiff in the case of Parrott v. HungMurger^ 
reported in 9 Mont 626. He brought this action against 
John Eane and another, who were sureties on the stay bond 
on the appeal of Parrott v. HungeJburger. See the report of 
that ease for the facts therein. That action was in the nature 
of ejectment, judgment being for the plaintiff. The bond given 
by defendant thereon, on appeal, was that she would pay the 
value of the use and occupation of the premises, not exceeding 
five hundred dollars, pending the appeal. In this present 
action on that bond, plaintiff recovered judgment for five 
hundred dollars. The defendants appeal. 

The complaint in this case sets up the fact of the judgment 
in the district court in Parrott v. Hungelburger, for the resti- 
tution and possession of the premises; also, the ap|)eal by the 
defendant Hungelburger from the judgment, and the giving of 
the undertaking on appeal by the persons who are the defend* 
ants in the case at bar (which undertaking is set out in full as 
an exhibit to the complaint). The complaint further sets up 
the fact of the stay of proceedings by virtue of the undertaking, 
and the keeping of plaintiff out of possession of the premises; 
also, the fact of the affirmance of the judgment in Parrott v. 
Sungelburger^ 9 Mont. 526, and the remUiUur to the district 
court The undertaking on appeal in Parrott v. Hungelburger 
recites as follows: "Whereas, the defendant in the above- 
entitled action is about to appeal to the supreme court of the 
territory of Montana from a judgment made and entered 
against defendant, and in favor of plaintiff, in said action, in 
said district court, on the thirtieth day of October, 1888, for 
the restitution of the premises described in the complaint, for 
damages, and for costs; and whereas, the appellant is desirous 
of staying the execution of said judgment so appealed from^ 



14 Mont.] Parbott v. Kanb. 27 

in 80 far as it relates to the possession of the land and prem* 
1868 described in the complaint/^ The undertaking then goes 
on to bind the sureties for the value of the rents and profits. 

The defendants denied that in ParroU v. JSungelburger, 9 
Mont. 626, any judgment was ever given^ rendered, or entered 
in the district court in favor of plaintiff in that case. This 
denial was by the district court stricken from the answer, the 
court holding that defendants could not be heard to make it. 
Defendants contend that this was error. We will examine 
this contention. 

Hnngelburger died pending the appeal of ParroU v. Hun^ 
gdburgeTf 9 Mont. 526, in this court, and Peter McDevitt, 
administrator, who is also a defendant in the present case, was 
substituted. It is not contended in argument by the appeU 
lants but that the judgment in ParroU v. Hungelburger was 
rendered, nor, as it appears, could it be so contended. In 
the record of that case, in this court, a copy of the judgment 
appears, formal in all respects, signed by the judge, and 
indorsed, "filed and entered October 30, 1888." But appel- 
lants say that, in fact, the judgment was not entered, and, if 
not entered, the appeal was premature and a void proceeding, 
and the undertaking given thereon was also void. Appellants 
urge that, therefore, on the trial below, they had the right to 
allege and prove that the judgment in ParroU v. Hungelburger 
had not been entered. 

A distinction has been made between "rendering" and "en- 
tering" a judgment. That distinction is pointed out by Mr. 
Justice Sawyer in Oray v. Paimer, 28 Cal. 416. Rendering 
judgment is the judicial act of the court. Entering it is the 
ministerial act of the clerk. A judgment is a judgment when 
it is rendered. It is the rendering which makes it a judgment. 
The entering makes a record of the judgment which the court 
has rendered. (See, also, 1 Black on Judgments, § 106, and 
cases cited.) 

As to the time for taking an appeal from a final judgment 
in an action commenced in the court in which the judgment is 
rendered, it is provided by our statute that it shall be taken 
"within one year after the entering of the judgment." (Code 
Civ. Proa, § 421.) Construing the same language as is used 



28 Pasbott v. Eanb. [Dec. T., 1898 

in this seotioD^ the California supreme court has held that an 
appeal would, on motion, be dismissed, if taken before the 
entering of the judgment. {Thomaa v. Anderson, 55 Cal. 43; 
McLaughlin v. Dougherty, 54 Cal. 519; Hayne's New Trial 
and Appeal, p. 549.) The appeals in these cases were held to 
be premature. There was no question but their subject matter 
was within the jurisdiction of the court, but it was held that 
thej had been brought into court before the time provided by 
law. For this reason thej were dismissed upon a motion made 
when the case came to the supreme court. But there is a very 
different state of facts in the case at bar. No motion to dis- 
miss the appeal was ever made in ParroU v. Hungdburger, 9 
Mont. 526. In fact, the persons now complaining of the 
entertaining of the appeal in that case are the persons who 
gave the stay bond on that appeal, which was so entertained. 
The appellants in this case stand in this position: They exe- 
cuted and filed their undertaking in PajroU v. Hungelburger, 
in which they solemnly recited that judgment had been made 
and entered in that case. That judgment was brought before 
this court for review. The clerk certified that it was the judg- 
ment in that case, and, furthermore, certified that judgment had 
been entered. Counsel for both sides appeared, and argued the 
appeal twice in this court. Not a suggestion was made by any 
one that the judgment had not been entered, and it is conceded 
all through the history of the case that the judgment was in 
fact rendered. After the decision in this court no motion for 
rehearing was made. The remittitur was sent to the district 
court, and filed therein. That remittUur was read in evidence 
on the trial of the case at bar. It was a record of this court, 
and became, by filing in the district court July 22, 1890, a 
record of that court in that case. It appears thereby, and 
therefore was in evidence on the trial of this case, that the 
judgment in Pan^oU v. HungeUmrger was entered October 30, 
1888. The decision of this court, affirming the judgment, was 
upon May 4, 1890. The defendant in Pairott v. Hungelburger, 
9 Mont. 526, enjoyed the stay of proceedings from October 30, 
1888, to November 28, 1890, at which time a writ of restitu- 
tion was issued. The plaintiff in the case of ParroU v. Hvmgd" 
burger, 9 Mont. 626, against whom the appeal was taken, never 



14 Mont.] Pabbott v. Kanb. 29 

asked to have it dismissed, and the defendaDt, Hungelbaiger, 
Dot only did not ask to have it dismissed, but was the active 
agent in bringing the appeal to this court, and having it heard 
The consideration for the undertaking was the stay of proceed 
inga. That consideration was received. The stay was had. 
After all this history of the proceedings, and when the plain- 
tiff, who had been kept out of the possession for over two years 
by virtue of the appeal and the stay bond, asks to be made 
good for his damages, he is met with the objection for the first 
time that the judgment had not been entered. We are of opin- 
ion that the objection at this time comes too late. 

The case of HiU v. Burke, 62 N. Y. Ill, was an action 
upon an undertaking given upon appeal. The following re- 
marks by the New York court of appeals, in deciding the 
case, are in point, both as to the fiicts and the conclusions: 
''The objections relate to the regularity of the appeal, and, I 
think, are not well founded. It appeared upon the trial, by 
the remittiiur of the court of appeals which was introduced in 
evidence, and it is stated as a fact in the case that the remiUi- 
tur showed, among other things, that an appeal was taken from 
the judgment of the general term of the supreme court, referred 
to in said undertaking, to the court of appeals, and that said 
judgment was duly affirmed by the court of appeals, with costs, 
and the proceedings duly remitted to the court below. This 
was, I think, conclusive evidence that an appeal had been 
taken by the filing of the notice with the undertaking, the 
service of the same, and a copy of the undertaking, as the 
code requires; and it was not necessary to establish, by other 
and independent evidence, that these preliminary steps, which 
are required to perfect the appeal, had been taken. It may 
also be remarked that the complaint alleged that the judgment 
appealed from was by the court of appeals duly affirmed, with 
one hundred and thirty-two dollars and twenty-one cents costs; 
and upon the trial it was admitted by the defendant's counsel 
that the judgments referred to in the complaint were duly 
recovered, as therein stated. But even if the provisions of 
the code had not been complied with in the particulars named, 
it was, at most, an irregularity; and the submission of the 
caofie to the court of appeals by the respondent, without any 



80 Parrott v. Kanb. [Dec. T., 1893 

objection to the jurisdictioD, must be regarded as a waiver of 
the filing and service, and obviate the allied defect/' (See, 
also, Murdoch v. Brooks^ 38 Cal. 600; HaUiaway v. Davis, 33 
Cal. 161; Fierce v. WhUing, 63 Cal. 538.) 

Another point of appellants must be noticed. They con- 
tend that plaintiff has not suffered any damages, caused by 
a stay by virtue of the undertaking, but that the damages 
occurred by reason of an order of the district court staying 
execution, which order is still in force. In regard to that 
order and the time when it was made, we observe the follow- 
ing facts, as they appear in the record : The remittitur from 
this court in Parrott v. Hungdburger^ 9 Mont. 626, was filed 
in the district court July 22, 1890. The following November 
28th a writ of restitution was issued. A year later, Decem- 
ber 3, 1891, the writ of restitution was, on motion of defend- 
ant, recalled and quashed, and all proceedings were stayed. 
This action now before us on appeal was commenced March 
27, 1891 — prior, it is observed, to the quashing of the writ 
of restitution — but, when the case was tried, the stay of 
December 3, 1891, was still in force. As to this, the appel- 
lants urge and state in their brief, ''so long as there is an 
order of the court in force staying execution on judgment 
against the party who had appealed from a lower court, the 
sureties on his appeal bond cannot be sued." Appellants, in 
this connection, cite Pamdl v. Hancock, 48 Cal. 452; Sharon 
V. Sharon, 84 Cal. 434; Fird Nat. Bank v. Rogers, 13 Minn. 
407; 97 Am. Dec. 239. It is said in Pamdl v. Hancock: 
''Before the defendants, as sureties of Porter, can be sued, 
Paruell, their principal, must have himself become absolutely 
liable to pay the judgment of the county court.'' 

But in the case at bar, the defendant, when this action was 
commenced, was, and still is, absolutely liable on the judg- 
ment in Parrott v. Hungdburger, 9 Mont. 526. Her liability 
to restore possession of the premises was adjudged by the dis- 
trict court, and was affirmed by the supreme court, and the 
remittitur was sent down. The judgment is final and conclu- 
sive. It is not suggested that it can ever again be questioned. 
The liability of defendant in that case is settled, and nothing 
remains but to enforce the judgment. Such were the facts 



14 Mont.] Kleinschmidt v. Binzbl. 



81 



and conditions when this action was commenced. The keep- 
ing of plaintiff out of possession, and absorbing his rents and 
profits, and this wrongfully, were all complete facts at the 
commencement of this action. But pending this action, and 
before its trial in the district court, that court stayed the writ 
of restitution, but not on any grounds that affected the valid- 
ity or integrity of the judgment, or the rights of plaintiff, or 
the liabilities of defendant thereunder. The liabilities of 
defendant in this case had all accrued and were completed 
before the action of the district court in recalling the writ 
of restitution. We are therefore of opinion that the dam- 
ages to plaintiff were caused by the stay of execution worked 
by the undertaking. 

The judgment is affirmed, with remittitur forthwith. 

AJirmed. 

PfMBEBTOK^ C. J.| and Habwood, J.^ concur. 



KLEINSCHMIDT, Respondent, v. BINZEL, 

LANT. 
[Sabmitted Ootober 19, 1892. Bedded Jannsry 22| 1894.] 



APPEIi- 



tncmwti—Ses Judhaia— Judgment on demurrer,— Where a dexnnrrer hM been 
Interposed to a complaint upon seTeral groundB, enibr&ciiig objections to form 
M weU as to tlie merits, and is sostaiDed generally, and the pleader abides by 
his pleading, and snifers jadgment, sach Judgment does not estop the same 
party in another action, between the same parties or their privies, where it 
neither appears by the record, or by extraneous eyidenoe, that the demurrer in 
the former action was sustained on consideration of the merits; and, in the 
absence of such showing, it will be presumed to have been sustained for 
defects of form rather than upon each of the several grounds alleged. 

Appeal from Fird Judicial District, Lewis and Clarke Oovmty, 

Ejectment. Judgment on the pleadings was rendered for 
the plaintiff below by Hunt, J; Eeversed. 

Statement of the case by Mr. Justice Habwood: 
There is but one question involved in this appeal^ namely, 
what effect ought to be given to plaintiff's plea of former 
adjudication, set up in bar of defendant's oross-oomplaint 
interposed in this action? 




J 



82 ExBiNSCHMiDT V. BiNZSL. [Deo. T.| 1898 

Eespondent oontends that by order of the court sustaining a 
demurrer to a complaint in an action formerly instituted by 
this defendant^ and no further proceedings having been taken 
to avoid or reverse such rulings the rights and equities claimed 
by defendant in and to the property in controversy set forth 
in his cross-complaint in this action have been adjudicated and 
determined against him, and that he is thereby estopped from 
now asserting the same in defense of the present action. And, 
respondent's position having been sustained by the trial court, 
appellant, through this appeal^ seeks to controvert the correct- 
ness of that ruling. 

We will narrate, as briefly as consistent with deamesis, the 
facts and proceedings which gave rise to this question, as 
shown by the record. 

This is an action in the nature of ejectment, whereby plain- 
tiff seeks to recover possession of a certain described lot of 
land, situate in Helena, Lewis and Clarke county, allying in 
his complaint ownership thereof since April 9, 1889, and that 
since that date he has been entitled to possession thereof; that 
defendant, Binzel, on that date, wrongfully entered and took 
possession, and has ever since withheld possession from plain- 
tiff, and refused to deliver the same, although demanded. 
The value of the rents and profits during the time of the 
wrongful detention is also alleged. Upon which allegations, 
plaintiff demands judgment for restitution of possession, and 
for recovery of the value of the rents and profits. Defendant 
made answer to this complaint, specifically denying all its alle- 
gations, and in addition to such denial, by way of further 
defense and cross-complaint, alleges that on June 5, 1880, and 
for a long time prior thereto, defendant was in the quiet and 
lawful possession of a certain tract of land, which is partic- 
ularly described, and ^' which said lot embraced, and now 
embraces, and includes within its exterior boundaries, all the 
land referred to in plaintiff's complaint," and which said lot 
defendant held in quiet, peaceable, and lawful possession on 
June 5, 1880, by virtue of a contract whereby Deborah M. 
Hoyt and her husband, E. M. Hoyt, agreed to convey said 
land to this defendant| a copy of which contract is annexed 



14 Mont.] Elbinschmidt v. Binzbl. 83 

to and made a part of the answer and oross-oomplaint, aa 
Exhibit A. 

This contract mentioned as '^ Exhibit A/' purports to have 
been executed and acknowledged by said Deborah M, and 
E. M. Hojty as the parties of the first part, and said Binzeli 
as party of the second part^ and sets forth that the parties of 
the first part^ for a certain consideration mentioned, to be paid 
at any time within two years from the first day of May, 1878, 
with interest, eta^ covenant and agree with Binzel to convey 
to him, or his heirs or assigns, by good and sufficient deed, the 
tract of land mentioned, and defendant Binzel, on his part, 
covenants to well and truly pay for said land as stipulated in 
the contract, and it was further agreed between said parties 
that the party of the second part was to have possession of said 
premises until default of such payment for 60 days, when he 
was subject to ouster. 

Having introduced said contract, the answer and cross-com- 
plaint proceeds to allege, that, by mutual agreement between 
Deborah M. and E. M. Hoyt, the owners, and this defendant, 
the said contract to purchase and convey '^was in full force 
and virtue on June 5, 1880, and for a long time thereafter''; 
that prior to said date defendant had caused to be placed on said 
land, '' including the land described in plaintiff's complaint,'' 
divers permanent buildings and improvements, of the value of 
$6,000, which were thereon June 5, 1880; that, by reason of 
such improvements, defendant became, and was on that date, 
financially embarrassed, and unable to pay the unpaid purchase 
price then due on said lot to said Hoyts, together with a bal- 
ance due and unpaid on the cost of erecting the buildings and 
improvements on said lot, all aggregating $4,000; that, to pro- 
care a loan of $4,000 to make such payments, defendant entered 
into an agreement with William H. Weimer and Carl Klein- 
Bchmidt, ^'of which said agreement plaintiff had full notice on 
and after June 6, 1880," by the terms of which agreement 
Weimer and Carl Eleinschmidt were to pay off and discharge 
half of said $4,000 indebtedness, for an undivided half-interest 
in the ownership of said lot, ^'and they further agreed to pay, as 
a loan to defendant, the remainder of said $4,000 indebtedness^ 
to wit, $2,000, and thus procure, without delay, the title to 

Vol. XIY.— 3 



84 Klkinschmidt v. Binzsl. [Deo. T., 1893 

Baid lot^ under defendant's aforesaid eontract to purchase the 
same from Deborah M. and E. M. Hoyt'^; that on June 6, 
1880, pursuant to that agreement^ ^'defendant conveyed to said 
Weimer and Carl Kieinsclimidt the whole of said lot K, one 
undivided one-half thereof absolutely, in consideration of their 
agreement to pay one-half of said $4,000 indebted ness, and to 
advance as a loan to defendant $2,000, to pay the other half of 
said indebtedness, and the remaining undivided half of said 
property was conveyed to said Weimer and Carl Kleinschmidty 
to be by them held as security for said sum of $2,000 to be 
advanced by them as a loan to defendant, wherewith to ^my 
and discharge the remaining half of said $4,000 indebte<lness; 
that said Weimer and Carl Eleiuschmidt did, on receipt of 
said deed from defendant, execute and deliver to him their 
agreement in writing to reconvey to defendant an undivided 
half-interest and ownership in and to said lot E, and to all 
buildings and improvements thereon, at any time within three 
years from said June 5, 1880, on payment by defendant of 
said $2,000 to be by them advanced as a loan as aforesaid,'' a 
copy of which last-mentioned agreement is annexed to his 
answer and cross-complaint, as a part thereof, marked ^'Ex- 
hibit B." 

Turning to Exhibit B, it is found to disclose an instrument, 
in form a bond for deed, purporting to have been executed and 
acknowledged by William H, Weimer and Carl Kieinsclimidt, 
whereby they firmly bind themselves in the sum of $2,000, 
lawful money of the United States, unto Belthaser Binzel, 
conditioned as follows: 

''The conditions of the above obligations are such that at any 
time within three years from the date of this obligation; that is to 
say, on or before the fifth day of June, a. d. 1883, that the said 
B. Binzel shall pay, or cause to be paid, the sum equal to one- 
half the indebtedness against that certain property known as 
the 'Penobscot Brewery,' viz., one-half of four thousand dol- 
lars, said sum to be paid, out of the profits of said brewery, 
from the date of this instrument, or at any time previous to 
that date heretofore mentioned that the profits shall exceed the 
indebtedness. We bind ourselves to make and deliver to said 
B, Binzel a good and sufficient deed« for the consideration ol 



14 Mont.] £leiksghmidt v. Binzbl. 85 

one dollar, in and to the undivided one-half interest in and to 
that certain property known as the * Penobscot Brewery/ and 
also one frame dwelling-house, one frame ice-house, one log 
oooper-shop, one malt-kiln, also one-half interest in a certain 
bill of sale of personal property, dated this date, from B. Bin- 
sel to said first parties; all of the above-described property 
being situated on lot £ in section 30, township 10 north, range 
3 west, according to the plat of lot No. 2, as it is recorded in 
Book U. S., pages 88 and 89, Lewis and Clarke county, Mon- 
tana Territory, Records. In case said B. Binzel fails to make 
such payment in the time above specified, tliis obligation to be 
null and void; otherwise, to remain in full force and virtue.'' 
Returning to the answer and cross-complaint, it proceeds, 
after introducing Exhibit B, to allege that plaintiff had " due 
notice and knowledge" of said contract, shown in Exhibit B, 
''at and long prior to the time of his purchase of said lot K, 
or any interest therein, from William Weimer and Carl Klein- 
schmidf ; that Weimer and Carl Kleinschmidt wholly failed 
and refused to advance to, or on behalf of, defendant, or cause 
the same to be done, said |2,000, or any part thereof, agreed 
by them to be advanced to defendant, and to secure payment 
whereof defendant conveyed to them an undivided one-half 
interest in said lot K as security, as aforesaid; that pursuant 
to their agreement with this defendant, which was duly trans- 
ferred to said Weimer and Carl Kleinschmidt, the said Debo- 
rah M. and E. M. Hoyt conveyed unto said Weimer and Carl 
Kleinschmidt the whole of said lot K, by sufficient deed, dated 
June 12, 1880, which deed was received by them under and 
subject to their contract with this defendant, of whicli phn'ntiff 
well knew, and of which he had due notice long prior to his 
purchase of any interest in said lot, or any part thereof; that 
whatever right, title, interest, or claim plaintiff has acquired 
in lot K is subsequent and subject to, and with due notice of, 
all the right, interest, claims, and equities of this defendant in 
and to said lot, including all the land and premises described 
in plaintiff's complaint; that plaintiff acquired all such inter- 
est as he may own in said premises from said Weimer and 
Carl Kleinschmidt, with due notice of their contract relating 
thereto with defendant, and with full knowledge that they had 



86 Klbinsohmidt v. Binzbl. [Dec. T., 1893 

wholly failed and refused to pay, advanoe, or account for the 
|2,000 which they agreed to advance as a loan to defendant, 
and to secure which they acquired and held an undivided one- 
half interest in said lot K^ including the land described in 
plaintiff's complaint; that before June 5, 1883, to wit, June 4, 
1883, ''defendant, desiring to purchase his peace and avoid 
litigation, did duly tender unto plaintiff the sum of |2,000, 
lawful money of the United States, under and in conformity 
with the terms and conditions of said contract,^' marked 
'^ Exhibit B,'' and with such tender demanded of plaintiff the 
execution of a deed of conveyance, conveying to him an undi- 
vided one*half of said lot £, including the land described in 
the complaint, but plaintiff refused to accept said tender, or 
execute such conveyance to defendant, and has ever since con- 
tinued such refusal and neglect; that, ever since such tender, 
defendant has been, and now is, ready and willing to pay to 
plaintiff the sum of $2,000, or such sum as the court may 
determine to be due on defendant's contract, and he now 
tenders the same to plaintiff, in court, and continues his 
demand for a conveyance of an undivided half-interest in said 
property according to the terms of said contract marked 
''Exhibit B,'' which plaintiff avers he has fulfilled, except in 
so far as prevented from so doing by the wrongful acts of 
plaintiff and said Weimer and Carl Kleinschmidt. 

Defendant further avers that prior to all the dates and times 
mentioned in plaintiff's complaint, and prior to all the dates 
and times mentioned in his answer and cross-complaint, 
defendant was, and is now, in the quiet and peaceable pos- 
session of the whole of said lot K, ''embracing the lands and 
premises described in plaintiff's complaint, as tenant in com- 
mon and co-owner with said Weimer and Carl Eleinschroidt 
and plaintiff," which possession is jointly and as tenant in 
common with plaintiff. Wherefore, defendant prays judgment 
quieting his joint ownership of a half-interest in said premises; 
that an accounting be had between said defendant and said 
Weimer and Carl Kleinschmidt, or plaintiff, ascertaining the 
amount advanced by them and the amount due plaintiff pur- 
suant to said oontiact| and that, on payment thereof| plaintiff 



14 Mont.] Elbinsohmidt v. Binzbl. 87 

be required to convey to defendant an undivided one-half inter- 
est in and to said premises in controversy. 

Plaintiff replied to this answer and cross-complaint^ alleging 
that on June 22^ 1883, defendant Binzel commenced an action 
hj filing in this court his complaint, which complaint is fully 
set forth in ;the replication. It appears from that complaint 
that Binzel, as plaintiff, on June 22, 1883, commenced an 
action against Carl Eleinschmidt, Reinhold H. Eleinsohmidt, 
James M. Bjan, Michael Jacobi, William H. Weimer, and 
Albert Eleinschmidt, as defendants, alleging in his complaint 
substantially all the facts set forth in the cross-complaint in 
the case at bar, with the same exhibits attached to said com- 
plaint of June 22, 1883, as are attached as Exhibits A and B 
to the cross-complaint in this case, and thereon demanded sub- 
stantially the same relief on behalf of Binzel as he now seeks 
through his cross-complaint in the present case. The only 
substantial difference between the complaint of Binzel in his 
action of June 22, 1883, and his cross-complaint as a defense 
in die case at bar, is that in the former action the complaint 
went further, and in addition to the contracts evidenced by 
Exhibits A and B, and the facts alleged in relation thereto, 
the complaint of June 22, 1883, set forth a copartnership com- 
pact alleged to have been entered into between Binzel and said 
Weimer and Carl Eleinschmidt, whereby they agreed, on cer- 
tain terms and conditions, to engage in and carry on the busi- 
ness of brewing in the Penobscot brewery, situate on the 
property in question, evidenced by a contract which was 
attached to said complaint of June 22, 1883, as Exhibit C, 
and that complaint alleged certain violations of the terms of 
said copartnership agreement, and injuries to certain partner- 
ship property, and also the destruction of said brewing business, 
resulting from alleged wrongful acts of said Weimer and Carl 
Eleinschmidt, alleged and set forth in said complaint, whereby 
plaintiff Binzel claimed to have been damaged in a large sum, 
for which he demanded judgment, along with the relief which 
he demanded upon the agreements evidenced by Exhibits A 
and B, and the facts alleged in reference thereto. There was 
also a further exhibit annexed to the complaint of June 22, 



38, Klbinschmidt v. Binzbl. [Dec. T., 1893 

1883) which purports to be an assignment by Binzel to defend- 
ants Weimer and Carl Kleinschmidt of the contract between 
Binzel and said Hoyts for the sale and purchase of said land; 
and in reference to that exhibit it was alleged that^ through 
such assignment^ Weimer and Carl Kleinschmidt were enabled 
to obtain][the conveyance of the title of said tract of land to tiiem 
from said Hoyts. As to the other defendants named in said 
complaint of June 22, 1883, namely, !Reinhold H. Kleinschmidt, 
James M. Ryan, Michael Jacobi, and Albert Kleinschmidt, it 
wa«| alleged that they claimed some interest in said premises 
by way of pretended conveyances from, or as tenants of,- said 
defendants Weimer and Carl Kleinschmidt, but that such con- 
veyances or tenancy were acquired with full notice and knowl- 
edge of the rights of Binzel in said premises. 

Having set forth that complaint which Binzel filed in his 
action of June 22, 1883, respecting the subject of this contro- 
versy, the plaintiff further alleges, in his reply to the cross- 
complaint in this action, that said complaint was demurred to by 
defendants therein, by filing their demurrer February 6, 1884; 
that such demurrer was sustained by the court, and plaintifiT 
Binzel's bill dismissed, and judgment entered in favor of 
defendants in said action. That plaintiff in the case at bar 
''is successor to the aforesaid parties in and to the said property 
therein described, and is now the lawful owner thereof, and is 
entitled to the possession of the same, as set forth and alleged 
in his complaint.'' And upon that showing, as a reply to 
defendant's cross-complaint, plaintiff asserts "that by reason 
of the premises the said right, title, and equity of said Binzel 
has been adjudicated and determined, and by reason whereof 
he is estopped from asserting his pretended claim to said 
property," wherefore, plaintiff demands judgment as in his 
complaint. And thereupon plaintiff moved the court for judg- 
ment on the pleadings, which motion, after hearing, and 
examination of the record of 1883, and the alleged damage for 
wrongful withholding of possession having been waived, was 
sustained by the court, and judgment rendered for plaintiff's 
recovery according to the prayer of his complaint. 

It appears from the record in the action of 1883 that two 



14 Mont.] Elbinsohmidt y. Binzbl. ^ 89 

demurrers to said complaint were filed. The first was over- 
ruled, as the record shows. Thereafter, auother demurrer, of 
February 25, 1884, was interposed by defendant Carl Klein- 
schmidt, on the following alleged grounds: 

^'1. Said complaint does not state facts suflScient to consti- 
tute a cause of action. 2. Said complaint shows that the cause 
of action against this defendant for damages, if any existed, is, 
and was at the time of the commencement thereof, barred by 
section — ^ c. — , entitled, ' Limitations of the Kevised Statutes 
of the Territory of Montana.' 3. The three causes of action 
set out in said complaint are not separately stated, as required 
by the statute. 4. There is a misjoiner of parties — Rein- 
hold Kleinschmidt, James M. Ryan, and Michael Jacobi — as 
defendants herein. 6. There is a misjoiner of causes of action, 
in this: An action for specific performance and damages. 6. 
The complaint shows that the parties interested in the real 
property are not interested in the damage suit. 7. Said com- 
plaint shows that the parties against whom damages are claimed 
have no legal or equitable title to the real property in contro- 
versy. 8. No cause of action for specific performance is shown 
in said complaint.^' 

This demurrer was sustained, as shown by the following 
record entry of March 10, 1884: "This cause having been 
heard upon defendant's motion to strike out, and demurrers, 
it is by the court ordered that the said motion to strike out, 
and demurrers, be sustained, to which plaintiff duly excepted.* 
Plaintifi* has leave to amend the complaint herein.'' 

Following that record entry is another of November 12, 
1884, that: '' In this action, plaintiff abiding his complaint, 
judgment is rendered in favor of defendants." And after- 
wards, of December 4, 1886, another entry, that: ''In this 
action, it is ordered that the judgment be entered nunapro 
iwao the entry thereof made in tlie journals of said court 
November 15, 1884." 

No formal judgment was found in the records of the court; 
but in the register of actions it is noted, of date December 4, 
1886, that judgment was entered ''for defendant for costs; 
amount, $17.20." 



40 Klbinschmidt v. Binzel. [Dec. T., 1893 

McCdnneU, Gayherg & Ounn^ for Appellant. 

There is but one question presented by the record for oon« 
sideration: Is the plaintiff's plea of former judgment as a bar 
supported by the evidence? It is an elementary principle of 
law that a former judgment will not operate as a bar to a sub- 
sequent suit upon the same cause of action unless such judg- 
ment was rendered upon the merits. (Freeman on Judgments^ 
§ 260. Cases hereinafter cited.) Does the evidence in this 
case establish the fact that the judgment^ which is pleaded as 
a bar^ was a judgment iipou the merits? The record discloses 
that the judgment which is relied u|)on as a bar was rendered 
npon a demurrer both general and special in character. This 
demurrer was upon eight grounds. No evidence was intro- 
duced to show, and the record does not disclose, whether the 
demurrer was sustained upon one, two, or all of the grounds 
therein stated. Under these circumstances it will be pre- 
sumed by the court that the demurrer was sustained upon 
the objections which did not go to the merits. {Griffin v. 
Seymour, 16 Iowa, 30; 83 Am. Dec. 396; Bisaell v. Sping 
Valley Tovmship, 124 U. S. 232.) The principle established 
by these decisions is also in harmony with and based upon 
the principle of law that where a judgment may have pro- 
ceeded upon both of any two or more distinct facts, the party 
desiring to avail himself of the judgment as conclusive evi- 
dence upon some particular fact must show affirmatively that 
it went upon that fact, or else the question is open to a new 
contention. (Dygert v. Dygert, 4 Ind. App. 276; Lewis v. 
Ocean etc. Pier, 125 N. Y. 341; Bdl v. Meiiifield, 109 N. Y. 
202; 4 Am. St. Eep. 436; Russell v. Place, 94 U. S. 606; 
Packet (Jo. V. SicUes, 5 Wall, 580; Woodland v. Newhall, 31 
Fed. Rep. 436; Sawyer v. Woodbury, 7 Gray, 499; 66 Am. 
Dec. 618; McDowell v. Langdon, 3 Gray, 513.) The plea 
of a former adjudication as a bar cannot be established by 
inference and presumption, but must be supported by posi- 
tive evidence [cases last cited]. The plaintiff having failed to 
show that the judgment relied upon as a bar was rendered 
because the complaint did not state a cause of action it will be 
presumed that the judgment was not a judgment upon the 



14 Mont.] Elbinschmidt v. Binzel. 41 

merita. No proof having been offered by plaintiff to show 
the fact decided by the judgment which is pleaded as a bar, 
the whole matter is open for further litigation. Where a 
demurrer is sustained and the parties are left in court a judg- 
ment rendered upon such demurrer is not a judgment on the 
merits. (Herman on Estoppel, § 274.) Considering the whole 
reoord| then, the demurrer must have been sustained because of 
formal defects, and the judgment rendered cannot be pleaded 
as a bar. (Herman on Estoppel, § 274.) We therefore sub- 
mit, that, under the principles of law stated and in the light of 
the facts^ the judgment should not be regarded as a judgment 
on the merits, and the plea in bar is not well taken. But if 
the judgment was rendered upon the ground that the com- 
plaint did not state a cause of action it would not be a bar to 
the cause of action set forth in the cross-complaint^ if it appears 
that there are different and additional allegations in the cross- 
complaint, and the cause of action stated in the cross-complaint 
is good in substance. (Freeman on Judgments, § 267; City 
of Loa Angdea v. MeUus^ 59 Cal. 452; Oilman v. Rivesy 
10 Pet. 301; Qensh v. PraU^ 6 Minn. 61; Lampen v. Kedge- 
win, 1 Mod. 207; Moore v. Dunn, 41 Ohio St. 62; Wdls 
V. Moortj 49 Mo. 229; Oovld v. JEvansville etc. R. R. Co., 91 
U. S. 526; Herman on Estoi)pel, § 274; City of Aurora v. 
Wed, 7 Wall. 82.) The cross-complaint differs from the com- 
plaint in the former action in that there are different allega- 
tions and a different cause of action is stated as hereinafter 
shown. By an examination of the opinion in the case of 
Gould V. Evansmlle R R. Co., 91 U. 8. 526, relied upon 
by respondent in the court below, it will be noticed that the 
record showed that the judgment was rendered on a general 
demurrer and that the allegations of the second declaration did 
not differ from those of the first. The case is not analogous 
to the case at bar in any particular. Is the cause of action 
stated in the cross-complaint the same cause of action stated in 
the complaint in the former case? {Terry v. Hammonds, 47 
Cal. 32.) The first cause of action was for specific perform- 
ance, and for a trespass, while the second cause of action, or 
the cause of action under the cross-complaint, is a cause of action 
to quiet title, or, in other words, to have the deed of the one- 



42 Elbiksohmidt v. Binzbl. [Dec. T., 1893 

half interest which was made and given as security for the pay- 
ment of a debt declared a mortgage and canceled. (Ga&sert v. 
Bogk, 7 Mont. 686; Kleinsclimidi v. Kleinsdimidt, 9 Mont 477.) 
In the one cause of action the defendant sets up an equitable 
title^ and asks to have a specific performance of a contract to 
convey to him the legal title^ while in the present action the 
defendant asserts the legal title to said property^ and asks to 
have his legal title quieted. 

The distinction between the two causes of action is this: In 
the one there was an absolute conveyance with a contract to 
reconvey^ while in the other there was a conveyance which 
was in reality a mortgage. The fact that makes the convey- 
ance in the one case a mortgage is the existing indebtedness 
between the parties^ and it is the nonexistence of the indebted- 
ness that makes the conveyance and the contract in the other case 
a contract to recouvey. (3 Pomeroy's Equity~Juri8prudence, 
sec. 1196.) It thus appears that the two causes of action are 
different, and that they require different evidence to sustain 
them. Under these circumstances the causes of action in the 
cross-complaint is not res judicata^ (Herman on Estoppel, 
§§ 102 and 106; Freeman on Judgments, § 262; 2 Black on 
Judgments, § 610; Washingixm do. Packet Oo. v. Sickles, 24 
How. 333; Linne v. StoiU, 44 Minn. 110; Washington etc Packet 
Co, V. SiokUsy 5 Wall. 580.) If two causes of action require 
different evidence to sustain them they cannot be the same. 
(Norton v. Huxley, 13 Gray, 286; Freeman on Judgments, 
§ 269; Herman on Estoppel, § 96; Stotoell v. C/iamberlain, 60 
N. Y. 272; Gark v. Blair, 14 Fed. Rep. 812; Marsli v. Mas- 
terton, 101 N. Y. 401.) It is claimed that this is not one of 
that class of cases where extrinsic evidence is admissible to 
show the judgment conclusive, which must be shown by the 
party seeking to-avail himself of a judgment as a bar. The dis- 
tinction is drawn between judgments rendered upon issues of 
law and judgments rendere<1 upon issues of facts. No cases 
are cited in which this distinction is recognized, and we believe 
none can be found. On the other hand, the case of Griffin v. 
Seymore, and other cases cited in onr former brief, clearly show 
that no such distinction exists. (See, also, Foder v. ** The 
Siehard Busked;' 100 Mass. 409; 1 Am. Bep. 126; Edep y. 



14 Mont] Eleinschmidt v. Binzbl. 43 

Larsh, 21 Ind. 190.) It is also claimed that the judgment in 
the former case dismisseil the complaint^ and that as the case 
was an equity case^ and the dismissal absolute^ the judgment or 
decree is a bar to the present action. In answer to this, it is 
sufficient to call the attention of the court to the record, which 
merely shows that judgment was ordered. No judgment or 
decree is made a part of the record, and therefore it does not 
appear whether the judgment or decree, whicli was entered, 
dismissed the case absolutely or without prejudice, or at all* 
To support the contention of respondent, it is necessary for the 
court to indulge in the presumption that the judgment, which 
was entered, was a judgment dismissing the case absolutely. 
Such presumption is unwarranted. (Black on Judgments, 
§ 115.) If, however, the former case was dismissed absolutely, 
under the facts as they appear of record, such dismissal would 
not be a bar to the present action. {Cluise^s easey 1 Bland's 
Ch. 206; 17 Am. Dee. 277; 8mUh v. AiUd, 31 Kan. 262; Foa- 
terv. ''The Richard Busieed/' 100 Mass. 409; 1 Am. Rep. 
125; Keeler v. Stolzenbaoh, 20 Fed. Rep. 47; Lore v. Truman, 
10 Ohio St. 45.) It is also claimed that a judgment sustain- 
ing a demurrer upon grounds which go to the form rather than 
the substance is a bar to a future action. This is not the law 
to-day. (2 Black on Judgments, § 693; Hughes v. United 
8iaie8j 4 Wall. 232; Terry v. Hammonds, 47 Cal. 32; Oray v. 
Dougherty, 25 Cal. 266; Lea v. Lea, 99 Mass. 403; 96 Am. 
Dec. 772, and note.) It is claimed that section 243 of the 
first division of the Compiled Statutes of Montana conclu- 
sively determines the question that the judgment relied upon 
as a bar was a judgment upon the merits. Section 243 is the 
same as section 582 of the Code of Civil Procedure of Cali- 
fornia. Notwithstanding this provision the courts of Califor- 
nia have universally held that a judgment which does not go 
t<o the merits of an action, even though such judgment does not 
come within the provisions of the section preceding, is not such 
a judgment as will operate as a bar to a future action. {Qray 
V. Dougherty, 25 Cal. 266; Terry v. Hammonds, 47 Cal. 32; 
Ferrea v. Ouibot, 63 Cal. 654; (My of Los Angeles v. Melius, 
69 Gal. 444.) 



44 Klbinschmidt v. Binzel. [Dec. T., 1893 

Ibole & WaUaoe^ for Respondent 

The complaint in the original case and cross-complaint, and 
answer thereto, in tliis case present exactly the same facts and 
comprise emphatically the same transactions and cause of action* 
The only difference being in the legal deduction made by the 
pleader, and particular relief demanded. The prayer for gen- 
eral relief being the same in both. When the same facts are 
thus pleaded, the rules of evidence being the same, the same 
evidence is of course admissible in both cases. Hence the 
same questions could have been litigated. {Dunham v. Botoer, 
77 N. Y. 76-79; 33 Am. Rep. 570; Malloney v. Horan, 49 
N. Y. Ill; 10 Am. Rep. 335; Cdltina v. BenneU, 46 N. Y. 
490.) The formal relief demanded in the complaint or cross- 
complaint is not controlling in determining the nature of 
the action. Any relief may be had consistent with the facts 
pleaded. It necessarily follows that when the same facts are 
pleaded the same relief would be afforded. {Hale v. Omaha 
Nat, Bank, 49 N. Y. 626; Pomeroy's Remedies and Remedial 
Rights, § 580; Bell v. Merrijield, 109 N. Y. 210, 211; 4 Am. 
St. Rep. 436.) It being axiomatic that if the same facts are 
pleaded in both cases the same evidence was admissible and 
the same relief could have been had in either, there is but one 
question presented in this case worthy of consideration: Is a 
judgment upon a general and special demurrer, in an equity 
cause, conclusive as a bar as to all matters that might have been 
litigated upon the complaint in the action, or an amended com- 
plaint that might be properly filed therein. It is claimed that 
the court cannot determine from the record whether the de- 
murrer was sustained upon the special grounds, the ones going 
to the merits of the action. This is not that class of cases 
where extrinsic evidence is admissible to show certain fiicta, 
making the judgment conclusive, which must be shown by the 
party seeking to avail himself of a judgment as a bar. If sus- 
tained upon either, it was the duty of the defendant to amend 
or correct the error, if any, upon appeal. If he fails to do 
this, the law fixes the effect of the judgment to be co-extensive 
with what might have been accomplished had that course been 
pursued. The former class of cases depend upon questions of 
&ct which it became necessary to determine in the progress of 



14 Mont.] Klbinschmibt v. Binzel. 45 

the trial, and which did not appear /rora the pleadings. The 
latter depends upon legal propositions raised by the demurrer 
and wbioh might be obviated hj amendment^ or corrected on 
appeal^ and upon which extrinsic evidence is inadmissible* 
No remedy is afforded by oral proof, for the reason that it 
became the duty of the defendants, if the demurrer was sus- 
tained for cause which was amendable, to amend ; if on account 
of the error of [the court in sustaining it, to appeal and correct 
the error, and if on formal matter, to have the judgment so 
state. If he does neither the presumptions are that no sych 
reasons exist as will admit of amendment Hence the rule 
must necessarily be different, the burden being upon the defend- 
ant in the first instance, his failure to act does not shift it to the 
plaintiff, but makes it conclusive against him. The judgment 
is based upon the defendant's failure to proceed further, and the 
grounds of demurrer cease to longer be important. If he de- 
sired to have the judgment such as would operate without pre- 
judice to another action he should have acted accordingly, and 
had the ground upon which the demurrer was sustained stated. 
Tested by the rule invoked by appellant, if the grounds upon 
which the demurrer was sustained must be collected from the 
record, how does the case stand? Does the record show a 
prima facie case of estoppel or bar? If it does, it devolves 
upon defendant to rebut the presumption by showing that the 
judgment was rendered upon formal and not substantial causes. 
The demurrer was based upon three distinct grounds — Mis- 
joinder of parties, misjoinder of causes of action, and insuffi- 
ciency of the facts stated. We need not call the attention of 
the court to the practice so universal and so familiar to both 
bench and bar, that leave is given upon request to amend in 
either of the instances mentioned. The leave therefore given 
to amend, of itself, does not, in our judgment, in any manner 
suggest the ground upon which the demurrer was sustained, 
or the judgment rendered. To illustrate: If it was sustained 
as to a misjoinder of parties, none but those improperly joined 
could have taken advantage of it, and the demurrer would 
have been sustained as to them, and the case permitted to pro- 
ceed as to the others. Hence the judgment would have been 
aooordingly. We might, thereforei well contend| all intend* 



46 Klbinschmidt v. Binzbl. [Dec. T., 1893 

ments being in favor of the regularity of the judgment^ that 
it was not rendered upon that ground^ bat, on the contrary, 
that it was based upon grounds that warranted a recovery by 
all the defendants, which necessarily included those who were 
proper parties to the action; if it was, as in this case, rendered 
in favor of those properly joined, the presumption logically 
follows that it must have procee<]ed upon the assumption that 
no cause of action was stated against them. Besides, if law is 
a science, the presumptions would be that the judgment was 
not erroneous. If, to avoid a bar, it is necessary to conclude 
that there was error, this concession must certainly be based 
upon the fact that the error committed affirmatively appears. 
Assuming that defendant in the former action, standing as he 
did upon the judgment on the demurrer, had appealed, would 
not the court above pass upon all the grounds presented by it? 
It would assume that as the demurrer was sustained generally, 
that the lower court had passed upon it generally and not 
overruled it as to some of the causes stated. The same reason 
and inference are as applicable to the second ground of the 
demurrer. Being sustained generally it will be assumed that 
the objections were properly taken, so as to properly uphold 
the judgment. Had the court not sustained the demurrer gen- 
erally, the presumptions are that it would have so stated. It 
stands like a general verdict when many issues are involved. 
It prima fade includes them all. It is claimed by appellant 
that the judgment could not iiave been rendered upon the third 
ground of the demurrer, because leave* was given to amend. 
We do not think this is tenable. The practice in this state 
does not admit of such confusion. That leave is given to 
amend under such circumstances is a rule with which the 
court and the practitioner are familiar. To illustrate: Sup- 
pose A should sue B upon a contract which, among others, 
provided that after the performance of all the conditions upon 
A's part, and the delivery of a statement in writing with his 
signature thereto, B would at once execute to A a deed for cer- 
tain premises. A brings a suit to comi)el the conveyance from 
B to him, but fails to allege the delivery of the instrument 
mentioned. B demurs to the complaint as not stating facts 
sufficient to constitute a cause of action, and the court sustains 



14 Mont.] Kleinschmidt v. Binzkl. 47 

thedemarrer. A asks leare to amend, and leave is given. Is 
not this the usual practice in this state? Cannot A amend 
and set op the additional fact ivhich shows a breach of the 
condition of the contract, places B in default, and gives rise 
to a cause of action? Is the fact that leave was given to 
amend presumptive of the grounds upon which the demurrer 
was sustained, in the one case any more than in the other? 
We respectfully submit that upon logical principles the pre- 
sumptions are that the demurrer was sustained on the three 
grounds presented by it. In so far then as the leave to 
amend is concerned, it raises no presumption either the one 
way or the other under our practice and the rules of the 
courts. In the case at bar leave was given to amend, and 
this was his remedy. If^ as claimed, the complaint may have 
been amendable, he refused to go further and amend, or else he 
was unable to so amend as to bring himself within the ruling 
of the court. At all events the judgment was based upon the 
ground that he would not or could not go further. In this 
the case at bar differs from all those cited by counsel for appel- 
lant. He cannot ignore the leave given to amend if he could, 
or consequences that result if he could not. Plaintiff could 
not amend without leave, he would not, or could not, amend 
with leave, and will not, after judgment, be permitted to main- 
tain a second action without the judgment shows that it is 
without prejudice to another action, i. e., a leave to sue again. 
The judgment, therefore, in this case is based upon more than 
the ruling upon the question raised in the demurrer. It com- 
prises a judgment upon the merits, and is to the effect that the 
defendant under the leave given could not, or would not, amend, 
the former importing that he had no cause of action, and the 
latter that he abandoned it, if he had. It is conclusive in 
either case, and is a bar to a second action based upon the 
same facts. In addition, therefore, to the elements involved 
in a judgment u[K)n a demurrer, whether general or special, 
the judgment here comprises whatever follows by a failure to 
amend upon leave given therefor. The failure, under such cir- 
cumstances, to amend must n^ative the presumption that he 
oould amend, and if the law is as claimed, devolve uiK>n him 
at least to -prove dehar$ the record that he oonld. We emphati- 



48 Elbinschmidt v. Binzel. [Deo. T., 18Uo 

oallj insist that in either event, whether he conid amend, and 
would not or did not because he could not, the judgment is 
conclusive of the cause of action included in the former suit, 
and is a bar to the preseut. The judgmeut under such cir- 
oumslances must conclude the contention. It cannot be rea- 
sonably presumed that the parties were still left in court, 
under the judgment rendered in the former suit, or that by it 
leave was given to again litigate the same facts tendered by it. 
Had the demurrer been overruled generally it would follow 
that none of the grounds presented by it was meritorious; 
having been sustained generally it will be assumed, at least 
until the contrary appears, that all the objections were well 
taken. Besides, according to the numerous decisions under the 
code, while the practice act controls, the principles applicable 
to causes in equity nevertheless prevail. Hence by analogy, 
the sustaining of the demurrer and the refusal of the com- 
plainant to go further in the former suit necessarily involves 
an abandonment by him, and is tantamount to a dismissal of 
the cause. We take it, therefore, that the principles of equity 
still adhere to the character of judgmeut thus rendered. That 
unless it would amount to a dismissal without prejudice it is 
a bar to a retrial of all the facts which were presented by the 
complaint. It is in effect a dismissal of the bill for want of 
merit acquiesced in by the complainant and without any reser- 
vation of his rights to further litigate the same questions which 
were presented. (Freeman on Judgments, § 270; Fooie v. 
Oibbs, 1 Gray, 412; 2 Black on Judgments, p. 868, § 720; 
Tankeraly v. Pettis, 71 Ala. 179.) If the party against whom 
a ruling is made on a demurrer wishes to avoid the effect of 
the demurrer as an admission of the facts in the pleadings 
demurred to, he should seek to amend his pleadings, or answer, 
as the case may be. Leave for that purpose will seldom be 
refused by the court upon a statement that he can controvert 
the facts by evidence which he can produce. If he does not 
ask for such i)ermission the inference may justly be drawn 
that he is unable to produce the evidence, and that the fact is 
as alleged in the pleading. Courts are not established to 
determine what the law might be upon possible &cts, but to 
adjust the rights of parties upon existing facts; and when their 



14 Mont.] Kleinschmidt v. Binzel. 49 

jurisdiction is invoked parties will be presumed to represent in 
their pleading the actual^ and not supposable^ facts touchiug 
the matters in controversy. The law on this subject is well 
stated in Gould's Treatise of Pleading, chapter 9, part 1, section 
2. (See, also, Bouc/iard v. Dias, 3 Deuio, 238; (hfin v. Knotty 
2 Greene, 582; 62 Am. Dec. 537; Birckhead v. Brawriy 5 Sand. 
134; WhUe V. Simonds, 33 Vt 178; 78 Am. Dec. 620.) It 
therefore follows that leave being giveu to amend if defendant 
could do so, his failure to amend, and judgment accordingly 
must be conclusive as to the facts stated, and also that he could 
not amend under the. evidence at his command. This is also 
in accord with the doctrine announced in 2 Black on Judg- 
ments, page 849, section 710. (See, also, 0<mld v. Evansville etc. 
R. H. Oo,, 91 U. S. 526.) In this case the court could not 
have supported the demurrer as to the misjoinder of the par- 
ties so as to render the judgment in favor of all the defend- 
ants, and not as to those which were not properly joined. (17 
Am. & Eng. Ency. of Law, 608; Hwion v. Sledge, 29 Ala. 
478; Bragg v. FaUerson, 85 Ala. 233; Bloomingdale v. Durell, 
1 Idaho, 33; RidUmyer v. Ricktmyer, 50 Barb. 65; Brovmaon 
V. Gifford, 8 How. Pr. 389; Johneon v. Davis, 7 Tex. 173; 
Emmons v. Oldham, 12 Tex. 18.) It necessarily follows, there- 
fore, that in order to render a general judgment in favor of all 
the defendants the demurrer must be sustained upon such 
ground as will justify such a judgment. All the parties can 
join in that branch of the demurrer which makes an insuffi- 
cient complaint grounds for a judgment on demurrer. The 
judgment will, therefore, be construed accordingly. (Hayne 
on New Trial and Appeal, §§ 284, 285.) The very object 
of the action being to get at the merits of the contention, and 
the organization of the courts, and the enactment of the laws, 
being in furtherance of that purpose, the presumptions are 
that the ruling was upon a point involving the merits unless 
by the terms of the judgment it is shown to be based upon 
formal matters. {Bisaell v. Spring Valley Township, 124 U. S. 
232.) So here under the demurrer the defendants admit all 
the facts set np in the former complaint. Leave was given to 
amend, and plaintiff in the case would not, or could not, do so. 
Judgment was rendered accordingly, which must be construed 
Vol, XIY.~i 



50 Klbinschmidt v. Binzbl. [Dec. T., 1893 

to be coextensive with the admission and become a bar in so 
far as the sufficiency of those particular facts are concerned. 
These identical facts constitute the cause of defense here, 
involve the same transaction, and the sufficiency of them will 
not be reheard except on appeal. {Oregonian By. Cb. v. 0?'e- 
g<m By. and Nav. Co., 27 Fed. Rep. 283.) The case of People 
V. Stephens, 51 How. Pr. 235 et^seq., among others, presents 
the precise question, and emphatically determines the same in 
favor of the position contended for by the respondent. In 
that case, like this, the demurrer was based upon three grounds: 
The misjoinder of parties defendant, misjoinder of causes of 
action, and an insufficiency of the facts pleaded; the court sus- 
tained it generally, and rendered a general judgment upon such 
ruling; a second action was instituted, and the judgment pleaded 
as a bar; it was contended, as it is here contended, that the 
presumptions were that the judgment was based upon the 
grounds of misjoinder and not upon the sufficiency of the facts 
alleged, and the court emphatically decides that the pi^ump- 
tions are that the judgment was based upon the latter. In 
deciding the question the court says: ''The judgment of a 
court of competent jurisdiction upon a question directly at 
issue between parties, unless reversed, forever concludes and 
estops all parties to the action and those in privity with 
them from questioning its accuracy or justice in another action. 
In support of the principles announced in the foregoing 
opinion, we cite: House v. Mullen, 22 Wall. 42; Bouchaud v. 
Bias, 3 Denio, 238; While v. Simonds, 33 Vt. 178; 78 Am. 
Dec. 620; Foote v. Oibbs, 1 Gray, 412; Jenniaon v. Inhain 
itants, etc., 13 Gray, 544; Day v. ValUlte, 25 Ind. 42; 87 Am. 
Dec. 353; Champion ▼. Plymouth Qm. Society, 42 Barb. 441; 
Bwivell V. Knight, 51 Barb. 267; Yonkera etc Ins. Cb. v. 
Bishop, 1 Daly, 449; Sheldon v. Edwards, 36 N. Y. 279. 
It is claimed that the plea of a former adjudication as a bar 
cannot be established by inferences and presumption, but must 
be supported by positive evidence. While this may be true 
with reference' to questions of fact, which may easily arise 
where the issue is to be determined upon extrinsic testimony, 
it cannot have any application where the presumptions are to 
be gained from the record, where the judgment is pleaded as a 



14 Mont.] Klbinschmidt v. Binzbl. 51 

tecliuical bar. In the latter case, as shown by the anthorities 
cited by the appellant {Griffin v. Seymour, 15 Iowa, 30, 83 
Am. Dec. 396, and BisaeU v. Spring VaUey etc., 134 U. S. 225), 
the court determines the question upon the presumptions that 
arise from the record before it. While, in the former, evidence 
outside the record is introduced to show what was actually 
tried, it is claimed by appellant that the cause of action 
stated in the former suit is not identical with the cause of 
action set up in the answer and cross-complaint in this suit. 
Here, precisely the same instruments comprised the cause of 
action, and the only difference is the interpretation put upon 
them by the pleader. He now claims under the deed and con- 
veyance, and construes it a mortgage instead of an agreement 
to reconvey. These are bare legal deductions, while the court 
could afford any relief consistent with the facts pleaded. 
(Pomeroy's Eemedies and Bemedial Kights, § 580.) If the 
instruments which are construed a mortgage are based upon 
an actual conveyance by deed of the legal title to the mortgagee, 
and a separate defeasance from the mortgagee to the n^ortgagor, 
it necessarily follows, that, upon a tender of the amount due 
upon the mortgage, it would become the duty of the mort- 
gagee to reconvey the legal title thus conferred by the deed to 
him. And this was precisely what was asked in the former 
case, and would lead to precisely the same results in the case 
at bar. We may further add, in conclusion, that if the answer 
and cross-complaint are based upon the same facts which 
existed and were stated in the former complaint, that the same 
evidence is admissible in the latter, and the same relief may be 
had. {Walker v. Tiffin Q<M etc. Min. Co., 2 Col. 89; Gra- 
ham V. Stevens, 34 Vt. 166; 80 Am. Dec. 675; Jones on Mort- 
gages, § 244.) Again tlie provisions of our statute, section 
243, that every judgment, whether upon demurrer or other- 
wise, is made a judgment upon the merits, except those men- 
tioned in section 242, ought to be conclusive of this question. 

Habwood, J. — ^Defendant having alleged in his crofiB-eom- 
plaint those contracts and transactions concerning the land in 
controversy, shown in the above statement of the case, demand- 
ing afiBrmative relief, plaintiff set up in bar thereof the oum- 



52 Klbinschmidt v. Binzbl. [Dec. T., 1893 

plaint of defendant in an action which he commenced in 1883; 
wherein he alleged substantiallj the same facts^ and demanded 
substantially the same relief^ as in his cross-complaint in the 
present action. To which complaint in the defendant's action 
in 1883 demurrer was interposed and sustained, and no further 
action was taken therein. And the plaintiff here, who was one 
of the defendants in the action of 1883, avers that he has suc- 
ceeded to the rights of all the other defendants in that action. 
Wherefore, he insists, that, bj said proceedings in the former 
action, the right, title, and equity claimed by Binzel, defendant 
here, in and to tlie property in controversy, has ^^been adjudi- 
cated and determined, by reason whereof he is estopped from 
asserting his pretended claim to said property.'' In this posi- 
tion plaintiff was sustained by the ruling of the trial court. 

Appellant has made some attempt to point out differences 
or distinctions between the complaint of Binzel in the action of 
1883 and his cross-complaint in the present action. But a 
careful comparison of these pleadings we think discloses a sub- 
stantial similarity in the facts alleged and relief sought; with 
this exception, that the complaint of 1883 went further than 
the cross-complaint in this action, and contained allegations in 
reference to an alleged copartnership compact engaged in 
between Binzel and certain of those defendants, and a viola- 
tion thereof, and other grievances, for which he demanded a 
large amount of damages. As to those matters the cross-com- 
plaint in the present action is silent. But in so far as it goes in 
alleging the contracts and facts, on which Binzel claims rights 
of ownership and possession in and to the tract of laud in con- 
troversy, the cross-complaint to this action is substantially the 
same as his complaint of 1883 on that branch of the case. 

The authorities support the proposition urged by respondent 
that if the alleged cause of action is submitted on the merits 
by demurrer, admitting the facts alleged, but placing over 
against them in the judicial scale, the proposition of law that 
the facts pleaded and thus admitted are insufficient to warrant 
judgment in favor of the pleader; and upon due weighing of 
the law and the facts, those facts are adjudged insufficient by 
sustaining the demurrer, and this ruling is allowed to stand; 
those facts thereby pass under the rule of ihinga adjudicated; 



14 Mont.] Klbinschmidt v. Binzel. 63 

and the party against whom each adjudication proceeds^ as well 
as his privies and representatives, are thereby barred from 
again asserting the same facts in another action pertaining to 
the subject as effectually as though such facts were found from 
the proof or admitted ore ienvs in the course of the trial. Such 
appears to be the rule deducible from the authorities, without 
much conflict {Gould v. EvanamUe etc. R. JB. Q>., 91 U. S. 
526; BmeU v. Spnng Valley y 124 U. 8. 225; QHffin v. %- 
moavy 15 Iowa, 30; 85 Am. Dec. 396; JBoWrwon v. Howard^ 5 
Cal. 429; Bouchaud v. Dicw, 3 Denio, 238; People v. Stephen, 
61 How. Pr. 235.) 

But this rule should always be stated and applied with due 
regaixl to some modifying conditions, which it is not permitted 
to violate. Thus, when the pleader has submitted to the rul- 
ing of the court on demurrer, against the sufficiency of the , 
cause of action or defense, as stated, that ruling would not bar 
him or those in privity with him from again asserting the same 
facts, accompanied by additional allegations which complete 
the statement of a good cause of action or defense. {Gould v. 
Evansville etc. R. JR. Ck>., 91 U. S. 526.) Nor where an action 
is commenced to efiectuate a certain purpose — such as specific 
performance or to obtain injunction — and demurrer is inter- 
posed and sustained on the ground that the complaint does not 
show facts sufficient for such action — ^that is, to invoke such 
relief — such ruling would be no bar to an action for the proper 
remedy. It being pointed out in the consideration of such 
demurrer that, although the plaintiff, for instance, alleges an 
agreement for the sale and purchase of a piece of real prop- 
erty, and payment of part, or even all, of the purchase price, 
and the breach of such agreement by the vendor; still, if no 
other equities were shown, the court would hold that the com- 
plaint, while good for damages, is indeed insufficient to sup- 
port a decree for specific performance {Boulder Valley etc. Ck>. 
V. Famhamf 12 Mont 1), and would therefore sustain the 
demurrer. It may be said that this would be on the ground 
of want of jurisdiction. But that arises because of insuffi- 
cient showing of facta to support the relief asked. The pleader 
would have mistaken his remedy, and, under a system where 
courts of law and equity were separate, the demurrer in such 



54 Klbinsghmidt v. Binzei.. [Dec. T., 1893 

oaaea would prevail, and the party be remitted to the proper 
court and action for redress. And under our united jurispru- 
deuce, where equitable and legal remedies are administered in 
the same court, and frequently in the same action, the demurrer 
in such a case, as instanced, would undoubtedly prevail, because 
the relief asked could not be granted on the facts stated; and 
although the court might have jurisdiction under our united sys- 
tem to grant other relief, it would probably not be forced upon 
the plaintiff until he had shaped his action to that end. But 
when he came into court with his suit for damages, it would 
be found that he pleaded the same transaction and breach 
whereby he would allege he was damaged in a certain sum, 
for which he would ask judgment. Likewise, if the action 
was commenced prematurely, as appeared on the face of the 
complaint, it would be held insufficient on demurrer for that 
cause. {Shddea v. Edwards, 35 N. Y. 286.) If it were held, 
in such cases, that the order sustaining the demurrer devital- 
ized the facts first pleaded, it would prevent setting up those 
facts in another action, at the proper time, or in the proi)er 
form, and for available relief. So it is said by eminent author- 
ity in considering these conditions: ''If the first suit was dis- 
missed for defect of the pleadings, or parties, or a misconception 
of the form of proceedings, or the want of jurisdiction, or was 
dis|x>sed of on any ground which did not go to the merits of 
the action, the judgment will prove no bar to another suit.'^ 
{Hughes v. United States, 4 Wall. 232.) 

It is clear, however, that defendant's cross-complaint falls 
within tlie rule, and not the exception. He has in the case at 
bar reasserted substantially the same facts as in complaint of 
1883, with no additional matter; and he asks substantially the 
same character of relief. Demurrer was sustained to his com- 
plaint, and that ruling stands in force. Therefore, if we had 
no further point for consideration, we should, without hesi- 
tation, affirm the ruling of the trial court, that the matter 
pleaded in the cross*comp1aint is res adjudiocUa, and therefore 
barred. But before proceeding to that conclusion, it must be 
inquired whether it is shown that the demurrer to Binzel's 
complaint of 1883 was sustaine<1 on consideration of the 
merits; for the authorities harmoniously concur in the propo- 



}.4 Mont.] Klsinschmidt v. Binzbl. &6 

Bilion tliat it must clearly appear from tliQ reoord in the 
former ease, or be proved by compeieut extraneoua evideuoe, 
Uiat the matter as to which the rule of re« adjudiocUa ia 
invoked as a bar was in fact adjudicated in the former action. 

Upon this point it is said by Mr. Justice Nelson, in Packet 
Co. V. Sickles, 6 Wall. 592. 

''As we nuderstaud the rule in respect to the conclusiveness 
of the verdict and judgment iq a former trial between the same 
parties, when the judgment is used in pleading as a technical 
estoppel, or is relied on by way of evidence as conclusive, pet 
M, it must appear, by the record of the prior suit, that the 
particular controversy sought to be concluded was necessarily 
tried and determined — ^that is, if the record of the former trial 
shows that the verdict could not have been rendered without 
deciding the particular matter, it will be considered as having 
aettled that matter as to all future actions between the parties; 
and further, in cases where the record itself does not show that 
the matter was necessarily and directly found by the jury, evi- 
dence aliunde consistent with the record may be received to 
prove the fact; but, even where it appears from the extrinsic 
evidence that the matter was properly within the issue con! re- 
verted in the former suit, if it be not shown that the verdict 
and judgment necessarily involved its consideration and deter- 
mination, it will not be concluded." 

And again, in the case of RumU v. Pktce, 94 U. S. 608, 
Mr. Justice Field, in expressing the opinion of the court, 
observes: 

''It is undoubtedly settled law that a judgment of a court 
of competent jurisdiction, upon a question directly involved in 
one suit, is conclusive as to that question in another suit 
between the same parties. But to this operation of the judg- 
ment it must appear, either upon the face of the reoord or be 
shown by extrinsic evidence, that the precise question was 
raised and determined in the former suit. If there be any 
uncertainty on this head in the record — as, for example, if it 
api)ear that several distinct matters may have been litigated, 
u)>on one or more of which the judgment may have passed, 
without indicating which of them was thus litigated, and upon 
which the judgment was rendered, the whole subject matter of 



56 Kleinschmidt v. Binzel. [Dec. T», 1893 

the action will be at large, and open to a new contention, unless 
this uncertainty be removed by extrinsic evidence showing the 
precise point involved and determined. To apply the judg- 
ment, and give effect to the adjudication actually made, when 
the record leaves the matter in doubt, such evidence is admis- 
sible. 

" Thus, in the case of the WcLshington etc. Steam Padkd Co. v. 
Sicklesj 24 How. 333, a verdict and judgment for the plaintiff* 
in a prior action against the same defendant on a declaration, 
coiitaiuing a special count on a contract, and the common 
counts, was held by this court not to be conclusive of the exist- 
ence and validity of the contract set forth in the special 
count, because [.the verdict might have been rendered without 
reference to that count, and only upon the common counts. 
Extrinsic evidence showing the fact to have been otherwise 
was necessary to render the judgment an estoppel upon those 
points. 

''When the same case was before this court the second time 
{Packet Co. V. Sickles, 5 Wall. 580), the general rule with respect 
to the conclusiveness of a verdict and judgment in a former suit 
between the same parties, when the judgment is used in plead- 
ing as an estoppel, or is relied upon as evidence, was stated to 
be substantially this : That, to render the judgment conclusive, 
it must appear by the record of the prior suit that the particu- 
lar matter sought to be concluded was necessarily tried w 
determined — that is, that the verdict in the suit could not have 
been rendered without deciding that matter, or it must be 
shown by extrinsic evidence, consistent with the. record, that 
the verdict and judgment necessarily involved the consider- 
ation and determination of the matter.'' 

Announcements to the same effect could be drawn from 
many other cases of undoubted authority. (See Hughes v. 
United Stales, 4 Wall. 232; Lote v. Tiniman, 10 Ohio St. 53 
Estep V. Larsh, 21 Ind. 196; KeUer v. StolzerAach, 20 Fed. 
Rep. 47; Woodland v. NewhaU, 31 Fed. Rep. 434; Difgeri v, 
Dygeii, 4 Ind. App. 276.) 

Now it appears that the demurrer in the former actipn speci- 
fieil eight objections to the complaint, but the same may be 
properly consolidated into three statutory grounds of demurrer. 



14 Mout.] Kleinschmidt v. Binzel. 67 

namely: !• Wantof sufficient facts alleged to oonstitate a canse 
of actioD; 2. Misioinder of causes of action; 3. Misjoinder of 
parties defendant. The other nominal objections are merely 
specifications of particulars in which the complaint is wanting 
or defective on some of those grounds. The record does not 
disclose the particular ground upon which the court sustained 
the demurrer. As to that ruling it is recorded that the demur- 
rer was sustained by the court But respondent's counsel 
insists that from the general order sustaining the demurrer, 
the presumption follows, that it was sustained on all the 
grounds alleged against the complaint in the demurrer. This 
view, although urged by an admirable argument contained in 
respondent's brief, and sought to be supported by citations of 
authority, we think cannot be maintained, because it is contrary 
to reason, and the rule of law upon this subject, sustained by 
the great weight of authority. The case of People v. Stevens^ 
61 How. Pr. 235, among others cited by respondent in su^h 
port of the presumption which he contends for, appears to 
be the nearest in point. It is a New York decision, not 
of the last resort, but of the supreme court, general term. 
The demurrer under consideration in that case went to three 
grounds: Defect of parties; improper joinder of causes; and 
want of sufficient facts alleged to constitute a cause of action. 
The demurrer was sustained by a general order, not showing 
whether upon one or more of the alleged grounds of objection 
to the oomplaint. When this judgment was pleaded in bar of 
setting up the same facts in another action, it was insisted that 
the demurrer in the former action was sustained upon all the 
grounds of the objection stated therein. In considering that 
proposition the court said: 

''It was according to the order and judgment, ' the demur- 
rer,' which came on for argument at the special term, and it 
was 'upon the demurrer' that the judgment in favor of 
defendant was given. It was sustained, not in part, but as a 
whole, and that could only be done by reaching a conclusion 
unfavorable to the plaintifis upon every issue which it pre- 
sented." 

With due deference, we are unable to adopt or follow that 
holding. It seems to us, a moment's reflection suffices to 



68 Kleinbohmidt v. Bikzsl. [Dec. T., 1893 

show that the conclusion there stated contradicts the real state 
of the law, as well as the constant practice of the courts. It 
is well known that if either ground of the demurrer is sus- 
tained, that is sufficieut to support the order sustaining the 
demurrer. How, then, could it be affirmed that the demurrer 
could only be sustained '^ bj reaching a conclusion unfavorable 
to the plaintiffs upon every issue which it presented.'^ That 
untenable conclusion is reached by arbitrarily declaring that 
the demurrer was sustained as a whole, when the same order 
could have been made on finding only one objection well 
founded. It would seem as proper to presume from the fact 
that several shots were fired by one person at another, either 
of which taking effect in a vital spot would produce death, 
and death ensueil, that every shot hit the mark with fatal 
effect, and so hold without any further showing. 

There is a presumption following a judgment that those 
things were adjudicated, without which the judgment could 
not have been rendered. This proposition is frequently as- 
serted in the authorities, and is well founded, because it is an 
inherent implication that those things were considered and 
determined, without which the ultimate conclusion would not 
have been announced. This implication shows that the court, 
in sustaining the demurrer, held some one of the grounds fatal 
to the complaint, stated in the demurrer, well founded; for 
without such finding the ultimate conclusion that the demurrer 
be sustained would not have been announced by the court 
But this is not sufficient to maintain respondent's position. 
To support that position the presumption must go farther, 
and cover the broad proposition that by a ruling sustaining a 
demurrer which attacks the complaint by several fatal objeo* 
tions it must be presumed that the court adjudicated and 
held good all the grounds which the demurrer set forth. This 
proves too much, and tliereby weakens the proposition so that 
it falls of its own untenable weight Because from that pre- 
sumption it follows that where the complaint is demurred to 
ou several grounds, such as misjoinder of causes, and also mis- 
joinder of parties, and want of sufficient facts to constitute a 
cause of action, as in the case of the demurrer to Binzel's com- 
plaint of 1883, if the court adjudicated and determined every 



14 Mont.] Kleinsohmidt v. Binzbl. 59 

groiiDd unfavorable to the plaintiff, it proves that the oourt, 
while holding that the ease was not in oourt in proper form of 
action, but contained a misjoinder of causes which could not 
be lawfully adjudicated together, and also a misjoinder of par- 
ties defendant contrary to the provisions of law, nevertheless, 
being aware that the case was not properly before it, the oourt 
determined to hold the case fast in its grasp, and pass upon 
the merits. Such is the inevitable effect of presuming, from the 
order merely sustaining such a demurrer, that the court passed 
upon and sustained all the grounds the demurrer alleged. The 
impropriety of such action seems plain, and we therefore think 
the current of presumption is the other way, as directly held 
by the supreme court of Iowa, in Oriffin v. Seymour, 16 Iowa, 
30, '83 Am. Dea 396, where it was held that in such a case it 
would be presumed that the oourt, having found some formal 
defect, by reason of which the case was not properly in court, 
would not then proceed to consider and pass upon the merits. 
This is also in accord with the reasoning and conclusion of a 
great number of cases (some of which have been cited supra), 
that it must be clearly shown that the very matter as to which 
the bar of res adjudicata is invoked was adjudicated and deter- 
mined on Uie merits in the former action. That it is not 
enough that such matter was attempted to be drawn in ques- 
tion if the same decision could have been rendered without 
its adjudication; that is, if its adjudication is not inherently 
implied in the judgment, it will not be held barred unless the 
record is supplemented by extraneous proof to the effect that 
such matter was adjudicated. The very rule that such evi- 
dence may be introduced in its tendency contradicts the idea 
that the uncertainty will be covered by presumption. 

The application of the presumption contended for by re- 
spondent would, we think, frequently contradict or suppress the 
real fact with unjust consequences. Suppose a complaint is 
filed which is subject to the objection of misjoinder, or defect 
of parties, or improper joinder of causes of action. And, a 
demurrer having stated these grounds, also alleges the unten- 
able ground of insuflScient facts to constitute a cause of action. 
Now, the court, in considering the demurrer, would find one of 
the first mentioned objections well founded. But as to the 



60 Elbinschmidt v. Binzel. [Dec. T., 1893 

latter objection the court would either not consider it at all, 
because the case was not properly in court, or if the court did 
consider that objection, it would be found untenable. But for 
the other defects the demurrer would be sustained. Thereupon 
an order would be eutered to the effect that the demurrer is 
sustained. The defect fully supports that order, and we ven- 
ture that in a great majority of cases in our practice, where the 
demurrer is used with great frequency, no more specific order 
would be entered. In such a case, if the plaintiff and his 
counsel who attended the argument concluded the court was 
right in its ruling on the demurrer, because there was a mis- 
joinder, or defect, of parties, or an improper union of causes, 
they would not api>eal, for the appeal would be unavailing. 
Now, if the presumption for which respondent contends be 
established, the plaintiff in such a case would be barred from 
setting up those facts in another action against the same par- 
ties, or some of them, or their privies, free from the former 
defects, while as a matter of fact the former ruling did not 
touch the merits. It is said that in such a case it is the plain- 
tiff's duty to see that the entry in the record specifies the ground 
on which the former ruling was made, or that it was made 
without prejudice to another action, and a case is cited in sup- 
l>ort of that view. {Foote v. Gfibbs, 1 Gray, 412.) It may 
well be answered that, the time has come when it is not con- 
sidered altogether amiss to claim some duties as due from the 
court toward litigants; and one should be to so shape the entry 
of court rulings in its record as not to raise unjust and untrue 
implications against the suitor, of which he is not the author, 
to burden or defeat his effort to obtain justice. Of course no 
such thing would be done knowingly, but it would arise in 
many cases where demurrers are sustained by general order, if 
the presumption contended for prevailed. And in the multi- 
tude of ruliogs which the trial judge is called upon to make 
he does not always expound the grounds thereof, nor, if 
expounded, would they be noted in the record. In the case 
last above cited it was held that where a cause was dismissed, 
and the entry of the order showed no qualification, as that it 
was dismissed '^ without prejudice," it would be presumed to 
have been dismissed on the merits. This ruling, however, 



14 Mont.] Klbinschmidt v. Binzbl. 61 

would hardly apply uuder our oode. (Comp. Stats., § 242.) 
Moi'eover, in a later case (Foster v. " Tlie Richard Busteed/' 
100 Mass. 412, 1 Am. Kep. 125), the supreme court of Mass- 
achusetts cites, but does not follow, Foote v. Gibba, 1 Gray, 
412, as correctly aunouncing the rule of procedure appli- 
cable to the couditions meutioned; and likewise did Judge 
Brewer in Smith v. Auld, 31 Kan. 262. (See, also, to the 
8Jime effect, the case of Steam Gauge & Lantern Co. v. Meyroae, 
27 Fed. Bcp. 213.) It is further iusisted that section 243 of 
Code of Civil Procedure makes it obligatory to render judg- 
ment on the merits in all other cases than those stated in the 
five subdivisions of the preceding section. The context, the 
whole chapter of which that section is a part, shows that sec- 
tion 243 relates to the case at a stage beyond the formation of 
the pleadings, where it stands for consideration and judgment 
on the merits, unless it is dismissed or nonsuited. The inter- 
pretation and application of that section, according to respond- 
ent's contention, would make a judgment or order on demurrer 
conclude the merits, even if the demurrer stated no ground 
which went to the merits, because such a case would be *' other 
than those mentioned in section 242.'' We think it clear that 
the provisions of section 243 do not apply to this consideration. 

It follows that the order sustaining the demurrer to Binzel's 
complaint of 1838 might have been based upon defects not 
touching the merits, and it not having been shown that such 
judgment proceeded upon a consideration of the merits, the 
i-uling of the trial court holding that the facts set up in the 
cross-complaint were adjudicated in the proceedings of 1883 
cannot be sustained. The judgment in this action is therefore 
reversed, and the cause remanded to be proceeded with in con- 
formity to the views herein expressed. 

Bevereed. 

Pembebton, C. J. and De Witt, J., concur. 



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62 BooKWALTEB V. CoKRAD. [Dec. T., 1893 

BOOKWALTER, Respondent, v. CONRAD bt al., 
Appei^lants. 

[Submitted December 28, 1898. Decided Jaanary 22, 18M.] 

ArPEAia— Motion for change of venue— How reviewed,— An order denying a 
motion for a change of yenae is reyiewable on appeal without a bill of excep- 
tions or a statement If the papers on which the motion was made are prop- 
erly certified to this conrt, as provided by section 488 of the Code of Civil 
Prooedure, that is sUflScient. {Granite Mountain Mining Co. ▼. Weinstein, 7 
Mont. 846; Barber v. Briscoe, 8 Mont. 214; Anu)ld t. Sindair, 12 Mont. 260, 
cited.) 

AppecUfrom Fourth JudidcU District^ Missoula OowUy. 

On motion to dismiss appeal. Denied. 

Toole & Wallace^ for the motion. 

Sanford & OrM, Bickford, ^iff & Hershey^ and A. J. 
Shores, contra. 

Per Curiam. — ^The respondent moves to dismiss the appeal. 
The appeal is from an order denying defendants' motion for a 
change of venue. The ground of the motion to dismiss the 
appeal is, that it does not appear that any bill of exceptions or 
statement was ever signed by the judge to authorize the appeal. 

But this is an appeal from an order, and may be brought up 
without a bill of exceptions or a statement. Section 438, Code 
of Civil Procedure, provides that *^on appeal .... from an 
order the appellant shall furnish the court with a copy of the 
notice of appeal, undertaking, or undertakings on appeal, the 
judgment or order appealed from, and a copy of the papers 
used on the hearing in the court below, such copies to be cer- 
tified in like manner to be correct.'' 

The motion in the case at bar was made ''on the demand 
and affidavit of merits, and on the pleadings and papers on 
file in said action." Therefore, if the papers on which the 
motion was made are certified to us by tlie clerk, that is suffi- 
cient {Granite ML Min. Co. v. Weinsteiny 7 Mont. 346; J5ar- 
ber v. Briscoe, 8 Mont. 214; Arnold v. Sinclair, 12 Mont. 260.) 

The clerk certifies that the transcript, consisting of (enu- 
merating all the papers), is a full, true, and correct copy of all 



14 Mont.] BooKWALTER V. Conrad. 63 

the papers tliat were asked for in the proBcipe for a transcript. 
The clerk does not say in bis certificate that these were the 
papers used on the Itearing below, but he certifies that they 
are correct copies of the files in his court, and that they were 
ordered put into the transcript by the person requesting the 
record for the appeal. Arnold v. Sinclair, 12 Mont. 248, was 
a motion for a new trial. Some of the grounds for motion 
were upon affidavits. As to the affidavits portion of the 
motion, we said: ''There might in some cases be difficulty in 
ascertaining what 'papers were used on the hearing in the 
court below/ if contention should arise concerning that point, 
but that matter could be made certain by a certificate of the 
judge who heard the motion and made the order, setting forth 
the paj)ers used ( Walsh v. HutchingSy 60 Cal. 228); but no such 
contention is involved here. It is stated in the notice of inten- 
tion to move for a new trial, among other things, that said 
motion will be made on a statement of the case and affidavits 
setting forth newly discovered evidence; and, pursuant to that 
notice, two distinct classes of matter were presented in support 
of the motion. The notice of intention accompanies the affida- 
vit and statement on motion for new trial, and the same are 
certified to be correct copies of the 'files and proceedings had 
and done in the cause of,' etc., giving the title of the action; and, 
such notice being requisite to the proceeding, and, among the 
files, we must presume that the same was one of the papers 
used on the hearing in the court below, in the absence of show- 
ing to the contrary •'' So, in the case at bar, there is no show- 
ing or claim to the contrary. Indeed, the respondent, moving 
to dismiss, says in his brief: "We do not wish to be under- 
stood as claiming that the papers in the record were not used 
on the trial." 

The motion to dismiss the appeal must therefore be denied, 
and it is so ordered. 



61 Lay v. Nixon. [Dec. T., 1893 

LAY, Respondent, v. NIXON, Appeixant. 

[Submitted Maroh 22, 1893. Decided Januaiy 22, 1894.] 

BmoBTiEa—Appecd bond— Defenses.— A. sarety npon an appeal bond cannot main- 
tain in bur to an action upon the bond that his coeurety was in reality the 
principal, and that'he had signed the bond npon the agreement of such cosurety 
to saye him harmless, and that the plaintiff, knowing said facts, had compro- 
mised with his said cosurety for one-half of the obligation, and released him 
from further liability. 

Appeal from NinUi Judicial District, OallaJ&n County* 

Action on an appeal bond. Judgment on the pleading was 
rendered for ike plaintiflf below by Aiimstbonq, J. Affirmed. 

E, P. CadweU, for Appellant. 

/. i. Siaata, and Charles 8. HarimaUy for Respondent 

Pemberton, C. J. — This is an action on an appeal bond, 
executed by appellant, and one Kleinschmidt in an appeal to 
the supreme court in a case in which the respondent recovered 
judgment against the Gallatin Canal Company, the said appel- 
lant and Kleinschmidt being sureties on said bond. The 
coniplaiut is such as is ordinarily used in such cases. The 
defendant Nixon filed his separate answer, in which he alleges 
substantially, among other things, that his codefeudant, Klein- 
schmidt, although signing and executing the bond sued on as 
surety with appellant, Nixon, was in reality the principal; that 
he (Nixon) sigued said bond at the request of said Klein- 
schmidt, and with the assurance, and under an agreement with, 
said Kleinschmidt, that the said Kleinschmidt would hold 
and save him (Nixon) free and harmless from all damages by 
reason of his signing and executing said bond as cosurety with 
said Kleinschmidt; that plaintiff well knew all these facts, 
and, knowing said facts, plaintiff compromised with said 
Kleinschmidt by receiving payment of one-half of said bond 
from him, and thereby released said Kleinschmidt from all 
further liability oh said bond. The appellant pleads these 
facts in bar of the plaintiff's right of action, and asks that the 
case be dismissed as to him, and that Kleinschmidt be adjudged 
the principal in said bond, and that judgment be had against 



14 Mont.] Lay v, Nixon. 65 

liiin for the amount remaining due on said bond, to wit, the 
one-half thereof claimed to be owing from Nixon. Upon the 
filing of this answer in the court below the plaintiff filed his 
motion for judgment on the pleadings, on the ground that the 
answer .did not state facts sufficient to constitute a defense. 
The court sustained this motion, and the appellant, Nixon, 
refusing and declining to amend his answer^ judgment was 
rendered against him for the amount claimed. The appellant 
appeals from the judgment, and the order sustaining the 
motion for judgment on the pl^dings. 

The principal cause of complaint of the action of the trial 
court urged by appellant in his brief is, that the court refused 
to permit him to litigate the equities alleged in his answer to 
exist between him and Kleinschmidt, and to have Klein- 
Schmidt adjudged to be the principal in the bond sued on, 
have the judgment in this case so state, and execution to issue 
first against him, as provided in section 1293, page 1005, of 
the Compiled Statutes. 

But the answer to this contention is that the answer of 
appellant does not seek such adjudication and relief. The 
appellant's answer is a plea in bar to any right of recovery 
against him in this action, and he asks that he be dismissed 
with his costs, which would, in effect, leave respondent with- 
out remedy against him. In his answer he does not invoke 
the aid of said section 1293. In his answer appellant denies 
that plaintiff is entitled to any judgment whatever against 
him. In his brief his counsel admits that plaintiff is entitled 
to judgment against appellant* We have here one case made 
in the answer, and an entirely different one made in the brief 
and argument in this court. Upon the pleadings in this case 
we do not see how the court could have consistently done 
otherwise than it did. The answer set up no sufficient defense, 
and sought no relief that the court was authorized to give. 

The appellant, upon the court's sustaining the motion for 
judgment on the pleadings, declined to amend his answer so 
as to have any equities that might exist between himself and 
Kleinschmidt adjudicated in this case, as provided for by said 
section 1293. 

Yoii. XIY.— 5 



66 Lay v, Nixon- [Dec. T., 1893 

The judgment and order of the court are affirmed. 
Harwood^ J., concurs. 

De Witt, J, — ^The district court, upon motion of plaintiff, 
rendered judgment on tbe pleadings in his favor. The defend- 
ant appeals. 

In an action in which the (Gallatin Canal Company was 
plaintiff, and Lewis E. Lay, the plaintiff herein, was defend- 
ant, said Lay obtained a judgment against the canal company 
for eleven hundred and eighty-Uiree dollars and eighty cents. 
The canal company appealed to this court. Upon that appeal 
the judgment was affirmed. Appellant duly filed an appeal 
bond in the sum of two thousand two hundred and seventy 
dollars and sixty cents, staying execution on the judgment, 
and providing for the payment of the same if it were affirmed. 
The sureties on that bond were Albert Kleinschmidt and J. 
H. Nixon, the defendants in this action. 

The said Lay (now plaintiff herein) brings this action, setting 
forth the above facts, and alleging that his judgment against 
the canal company has not been paid. He demands judgment 
against the defendants for the amount of the judgment in the 
other case, and interest and costs. The defendant Nixon filed 
a se])arate answer^ He alleges that his codefendant, Klein- 
schmidt, was the principal owner in, and manager of, the Gral- 
latin Canal Company, and that the appeal bond mentioned 
was really for said Kleinschmidt; that in the matter of the 
indebtedness arising upon the bond, by reason of the affirm- 
ance of the judgment, Kleinschmidt was in fact principal, and 
Nixon surety for Kleinschmidt; that Nixon signed said bond 
with Kleinschmidt upon Kleinschmidt's agreement that he 
would protect and hold him (Nixon) free and harmless from 
any loss by reason of said bond, and, if said judgment were 
affirmed, he (Kleinschmidt) would pay the same from the funds 
of said canal company; that, after the affirmance of the judg^ 
ment, Kleinschmidt paid one-half thereof out of the moneys 
of said canal company, and received from Ihe plaintiff herein. 
Lay, a full release of all claims against him (Kleinschmidt) 
on account of the bond; furthermore, that the plaintiff there* 
upon agreed to dismiss this action against Kleinschmidt^ and 



14 Mont.] Lay v. Nixon, 67 

to release all claim against him. The answer states that this 
matter is alleged " by way of affirmative relief, and by way of 
a plea in bar.'' The defendant asks judgment that this action 
may be dismissed as against him^ and that Kleinschmidt may 
be adjudged to be the principal on said bond and indebted ness^ 
and this defendant only the surety^ and an execution issue 
against defendant Kleinschmidt before it issues against this 
defendant, Nixon. 

UiH>n the filing of this answer, the plaintiff moved for a 
judgment on the pleadings, as against Nixon, for one*half 
the amount demanded in the complaint. This motion was 
made upon the ground that the answer does not state any 
defense to the cause of action. This motion was by the court 
granted, and judgment was entered against defendant Nixon 
for one-half the amount demanded in the complaint. Defend- 
ant Nixon appeals. 

Defendant's answer is to some extent inconsistent. He 
pleads certain matter as to the affairs and conduct of Klein* 
Schmidt and plaintiff, which he asserts in his answer is a plea 
in bar, and he asks to be dismissed. At the same time he 
asserts in his answer that said same matter is pleaded for the 
purpose of affirmative relief, and he asks that it be adjudged 
that Kleinschmidt is the principal, and that he (Nixon) is the 
surety; and he further asks that execution be issued against 
Kleinschmidt before it is issued against him (Nixon). He 
thus seems to concede that he is liable, and wishes the priority 
of liability settled between himself and Kleinschmidt, under 
the provisions of section 1293 of the Compiled Statutes. 
liThile that section, in my opinion, is not applicable to the 
facts in the case at bar, yet it seems that the answer, if we read 
one part of the language, undertook to present the alleged 
facts for treatment by that section. For these reasons it has 
seemed to me appropriate to express the following views: By 
virtue of the statute of this state (Comp. Stats., div. 5, c. 76), 
one joint debtor, or more, may make a compromise or com- 
position with the creditor of the joint debtors, and such com- 
promise or composition shall be a full and effectual discharge 
to the debtor, or debtors, making the same, and to them only, 
of all liability to the creditor. Such compromise or com- 



68 Lay v. Nixon. [Dec. T., 1893 

position with one joint debtor, or more, shall not discharge the 
other debtor or debtors, but shall be deemed to be a payment 
to the creditor, eqaal to the proportionate interest of the joint 
debtor or debtors so discharged; but the provisions of that 
chapter do not apply to any ^'debtor or debtors who, by the 
express terms of the contract upon which the indebtedness 
exists or arose, was the principal debtor while the other joint 
debtor or debtors were sureties.'* (Comp. Stats., div. 5, c. 76, 
§ 1292.) The following section then provides ''that upon the 
rendition of any judgment in any court in this state, if it 
shall be shown that one or more of the defendants against 
whom the judgment is to be rendered are principal debtors, 
and others of the said defendant are sureties of such principal 
debtor or debtors, the court may order the judgment so to 
state, and upon the issuance of an execution upon such judg- 
ment it shall direct the sheriff to make the amount due 
thereon out of the goods and chattels, lands and tenements of 
the principal debtor or debtors, or if sufficient thereof cannot 
be found within his county to satisfy the same, then that he 
levy and make the same out of the property, personal or real, 
of the judgment debtor who was surety.'* (Comp. Stats., 
§ 1293.) 

In the indebtedness to Lay on the appeal bond in question, 
the principal debtor was the Grallatin Canal Company, and 
the sureties were Kleinschraidt and Nixon. All three were 
debtors. Lay originally sued Kleinschmidt and Nixon, sure- 
ties. It does not appear, " by the express terms of the con- 
tract upon which the indebtedness arose" (§ 1292) — ^that is, 
it does not appear by the terms of the appeal bond — that Klein- 
schmMt was a principal debtor to Lay, and Nixon a surety. 
On the contrary, it appears by the terms of that contract that 
Kleinschmidt and Nixon stood in the same relation to Lay, 
and were joint debtors to him. Therefore, the provisions of 
chapter 76 apply to Kleinschmidt and Nixon, and one of them 
could make a separate compromise and composition, and take 
from Lay a discharge and release. This Kleinschmidt did. 
He paid one-half the debt, and was discharged in full. This 
released Kleinschmidt, and was a payment of the debt to the 
extent of one*half* This occurred afler the commencement of 



14 Mont.] Lay v. Nixon. 69 

the action. Plaintiff herein^ tlierefore, cannot take any judg- 
ment against Kleiuschmidt. He has released and discharged 
binij and has agreed to dismiss the suit against him; and this 
for a valuable consideration. I am therefore of opinion that 
section 1293 does not apply to these facts. That section refers 
to ^' one or more of the defendants against whom the judgment 
is to be renderedJ^ Judgment is not to be rendered against 
Kleinschmidt in this action, as shown above. Therefore, he is 
not "a defendant against whom judgment is to be rendered.^' 
That being true, the method of rendering judgment provided 
in section 1293 cannot be here applied. Kleinschmidt is no 
longer in the case, under the facts set np in the answer, which 
now, on demurrer, are taken to be true.' The action is now 
(since the discharge and release of Kleinschmidt) simply against 
Nixon alone, and in such action that defendant sets up the 
facts of an alleged claim of his against Kleinschmidt. Such 
&ct8 must be litigated, and their legal efiect determined, in an 
action in which Kleinschmidt is a party. He is not now a 
party in this action. 

Appellant cites to us cases wherein it appeared that one 
defendant was principal and one was surety, and judgment was 
entered as provided in section 1293; and he. contends that such 
relation of principal and surety between the defendant debtors 
may be shown on the trial, without a pleading of the facts, and 
notwithstanding the statute of frauds as to the requirement of 
a contract to answer for the default of another being in writ- 
ing. We need not review those cases, or treat those proposi- 
tions, because in none of those cases do the facts appear as 
herein, namely, that one debtor had been discharged released, 
and the action against him dismissed, and that the action before 
the court was proceeding against the undischarged debtor 
alone. I am of opinion that the judgment should be affirmed, 
with costs. 



70 State v. Donyes, [Dec. T., 1893 

STATE, Respondent, v. DONYES, Appellant. 

[Submitted January 9, 1894. Decided January 22, 1894.] 

CiUMiNAL JjAW—AssauU withirdent to kiil—£}o%denoe.—A, oonviotion for anaaaanlt 
is amply sustained by eridence from which it appeared that one W. was attempt- 
ing to do hauling over a road crossing defendant's mining claim; that the 
road was not public, but that defendant had giyen one M. a license to make or 
use it; that defendant had excavated a shaft some three or four feet deep 
across the road, rendering it impassable for teams; that W. and his men, upon 
arriving at the shaft with loaded t* ams, commenced to fill it up; that, as defend- 
ant testified, he was struck with rocks thrown into the hole by W.'s men; that 
W. and another man beat him, and, ui>on being pursued and seized, he fired 
his revolver, endeavoring to shoot under W/s arm; that, as W.'s party testi- 
fied, defendant tried to fire some giant powder when they began shoveling into 
the shaft; that W. knocked the light from defendant's hand; that defendant 
then palled a revolver and threatened to kill W., and shot him when but a few 
feet away. 

8A]CK—JEbtd«nc0.— Evidence in the case at bar that the teams of the proaecnting 
witnesses could not turn out and go past the shaft which defendant was dig. 
ging was admissible as part of the res gestCB to show the immediate surround- 
ings at the time of the assault, and was not objectionable as an attempt on the 
part of the state to Justify a trespass. 

BA]i£~^tid<7ice.~Cros8-examination of one of W.'s men as to his intention to 
cross the mining claim against defendant's will was properly excluded, as such 
intention on the part of the witness would not be evidence of a similar inten- 
tion on the part of W. 

HAXE^Same. — A notice of location of defendant's mining claim was admissible on 
behalf of the defendant in showing his intention in going upon the ground 
and making the excavation, but was properly excluded as testimony offered in 
justification of an assault by defendant with intent to murder a person coming 
upon the claim. (State y. Smith, 12 Mont. S78, cited.) 

Bamb — ii>t/ienc«.— Objections to testimony and alleged error in permitting certain 
questions upon cross-examination, when no reasons for such objections are 
pointed out, or any showing that such questions were prejudicial to defendant, 
will not be reviewed on appeal. (6^^^ of Helena v. Alberione, 8 Mont. 499, cited. ) 

8AifB—£^ot<ience.— Defendant's ofi'er in evidence of the record of an action in which 
the court refused to restrain him from felling trees across the road where the 
assault occurred was properly refused, since an undisputed ownership by 
defendant of the premises in question would not justify him in repelling a 
trespass by an attempt to murder. 

SAVX—^vuitfncs.— Evidence that on a former occasion defendant repelled a bare 
trespass by another only a short distance from the place of the present assault 
by the use of a deadly weapon, and also threatened to kill future trespassers, 
together with the record of his prosecution and conviction for that ofiense, was 
admissible on behalf of the stat« for the purpose of showing the intent and 
object of defendant in being upon the premises armed as he was at the time of 
the assault. 

AppecUfrom Tldrd Judicial Diaindy Deer Lodge County. 

Conviction for an assault. Defendant was tried before 
Brantley, J. AflSrmed. 



14 Mont.] Statb v. Dokyss. 71 

J» <X Bobinsan, for Appellant 
Henri J. Haakdl, attorney general^ for the state^ Bespondent 

Db Witt, J.— On January 20, 1891, the defendant shot 
one James Weller. The grand jury indicted defendant for an 
assault with intent to commit murder. The trial jury found a 
verdict for a simple assault 

A motion for new trial was made, and denied by the district 
court The errors now complained of were presented to that 
court on that motion. Defendant appeals from the judgment 

The appellant contends that the evidence was insufficient to 
sustain the venlict The facts may be epitomized as follows: 
Defendant was one of the locators and owners of the Broad* 
head Mining Claim. The claim was in a mountainous coun- 
try. Weller, the deceased, had a lot of cord wood which .he 
was moving, or endeavoring to move. This mining claim lay 
between Weller's depository of the wood and his proposed 
destination of the same. He wished to haul it over a road 
which passed over the mining claim of Donyes, It seems 
that tiiis was not a county road or a public highway. About 
tlie most that a[>pears is, that Donyes had sold or given to one 
Morgan a license to make and use this road, and that Morgan 
or Donyes had given Weller no leave or license to use the 
same. On January 20th, the day of the difficulty, the road 
was broken; that is, it was a path over which sleighs could be 
drawn. James Weller, with seven sleighs loaded with wood, 
with their teams and drivers, came along this road. At a nar- 
row place they found Donyes and a hired man named O'Rourke 
at work in a shaft or hole in the road. The shaft was three 
or four feet deep, and extended across the road, so as to make 
it impassable for teams or sleighs. After some conversation, 
Weller and some of his assistants began to fill up the hole. 
Up to this point there is no conflict in the evidence, but here the 
accounts of the state and tlie defendant to some extent diverge. 

Defendant's story is, that Weller's people began throwing 
rocks and clods into the hole, which struck him, the defend- 
ant; that Weller and another jumped into the shaft and com- 
menced beating him; that he leaped out of the shaft and ran 



72 State v. Donybs. [Dec. T., 1893 

towards his ooat^ in which was his pistol^ and which was^at a 
considerable distance; that the Waller party closely pursued 
him; that while running he picked np his coat and got it on; 
that he was seized by his enemies and pinioned, and while in 
this condition he managed to get hold of his revolver, and 
fired the same, endeavoring to shoot under Weller's arm. 

The account of Weller^s party, however, is a stronger show- 
ing against defendant. Tbey say that their people began 
shoveling into the shaft; that Donyes tried to fire a fuse attached 
to a stick of giant powder; that Weller knocked the light out 
of Donyes' hand; that then Donyes jumped out of the shaft, 
reached into his hip pocket, and pulled a revolver, exclaiming, 
*'You son of a bitch, FU kill you.'^ Weller walked toward 
Donyes, and, when within eight or ten feet, Donyes fired the 
shot from his pistol. 

On this evidence, somewhat conflicting, as above noted, and 
on the indictment for a felony, the jury found the defendant 
guilty of an assault, a misdemeanor punishable by the lightest 
penally known in the criminal law. The jury passed upon the 
facts, and there was ample evidence to sustain a verdict of a 
simple assault. Even if Weller and his party were guilty of 
a trespass against the property of Donyes, not a dwelling-house, 
this is not a provocation which justified Donyes in assaulting 
the trespasser with a deadly weapon, with the intent to kill 
him. {State v. Smith, 12 Mont. 378.) The objection that the 
verdict was not sustained by the testimony was properly over- 
ruled by the district court. 

The state introduced evidence tending to show that the 
Weller teams could not turn out and go past the shaft which 
Donyes was digging, and defendant objected ^' that it was an 
attempt by the state to enforce a trespass.'^ We do not under- 
stand just what this objection means. If it means that the 
evidence was an attempt by the state to justify a trespass by 
Weller and his party, the answer is, that there is nothing what- 
ever to show that the testimony was offered for such purpose; 
ihdt is, nothing except the defendant's accusation of such a 
design on the part of the state. It is apparent that the nar- 
rowness of the passage, and the obstruction of it by the hole 
dug by Donyes, stopped the teams coming along the road. 



14 Mont.] Statk v. Donyss. 73 

These facts led to the encounter between the two partiesi 
Defendant claims that the Weller party were committing a 
willful and forcible trespass^ and that he, defendant, therefore 
had the right to kill him. We do not hold that it is compe- 
tent to excuse a trespass, by showing that its commission was 
an advantage to the person committing it, but in a contention 
and encounter leading to the terrible results which occurred in 
this case, we believe it is part of the res gestx to show the close 
and immediate surroundings of the actors in the tragedy. That 
was shown by the testimony describing the condition of the 
road, and the shaft, and the surroundings. These remarks 
cover several objections made in the bill of exceptions. 

Elmer Gale, a witness for the state, said: ''We all knew that 
Donyes objected to our going over that road.'' The bill of 
exceptions states that ''we" had reference to Weller and bis 
party. On cross-examination the court refused to allow 
defendant to ask this question: "Then you went there for the 
purpose of going over, whether Donyes wanted you to or not?'' 
This is assigned as error. If the witness went to the mining 
claim for the purpose of going across it, against the will of 
Donyes, that was not testimony of the intention of Weller in 
going to that place, even if such intention were a material 
inquiry. There was, therefore, no error in excluding this ques- 
tion. 

The defendant offered in evidence the notice of location of 
the Broadhead Mining Claim, on which mining claim this 
difficulty occurred. The state objected to the document, on 
the ground that it was not a justification of the act of defend- 
ant. The objection was sustained, and error is assigned. That 
the ground where this difficulty happened was located as a min- 
bg claim by defendant, and, indeed, that it was owned as a 
mining claim by defendant, is not a justification by defendant 
in attempting to kill and murder a person coming upon that 
claim {State v. Smithy 12 Mont 378), and, if the notice of loca- 
tion were offered for that purpose, it was properly excluded. 
The court, however, did receive it in evidence for the purpose 
of showing the intention of defendant in going upon the ground 
referred to, and in making the excavation, and his acts in con- 
nection therewith. This ruling of the court in so limiting the 



74 ' State v. Donybs, [Dec, T., 1893 

testimony as to the notioe of location is assigned as enon iWe 
think the court was wholly right Defendant's ownership of 
the claim was proper testimony as the court admitted it, but it 
was not testimony of a justification of an attempt to commit 
murder. 

There are a number of objections scattered throughout the 
bill of exceptions, to the effect that certain questions were not 
proper cross-examination. Perhaps some of them were not, 
but the court must exercise some discretion as to the order of 
admitting testimony, and there is no sort of showing that the 
defendant was in any way injured by the action of the court in 
this respect. 

There are some objections to testimony found in the bill of 
exceptions, but defendant, in objecting, does not point out 
wherein the testimony criticised is objectionable. He gave no 
reasons to the district court, and there is therefore nothing to 
show but his objections were properly overruled. {OUy of 
Hdena v. Albetiaae, 8 Mont. 499.) 

The court refused defendant's offer in evidence of the recoi*d 
of the district court, in the case of Durand v. Donyea, in which 
case it appeared that tlie court refused to restrain the defend- 
ant from felling trees across the road where the difficulty 
occurred. The defendant proposed, or offered, to connect 
Weller and his party with Durand and the injunction case, 
aud to show that that injunction was brought for the benefit 
of Weller along with Durand. In this connection defendant 
also offered a letter written by Donyes' attorney to him, and 
received by Donyes, showing that the injunction had been dis- 
solved, and that Donyes knew of that fact. We do not think 
that there was any prejudicial error in excluding this testi- 
mony. The defendant was claiming ownership of the ground 
over which the road ran, and the record of the court offered in 
evidence tended to prove nothing more than that the district 
court on some showing — we know not what — had declined to 
restrain Donyes from committing certain acts upon his own 
premises. Even if all this were true, and even, furthermore, 
as noted above, if Donyes were the undisputed owner of the 
premises and in possession, he was not justified in repelling 



14 Mont.] State v. Donyes. 75 

a trespass upon property other than a dwelling by an attempt 
to murder. 

The point worthy of attention in this case, we think, is the 
following: Over the objection of defendant the state proved, 
by one Dazelle, that, two or three weeks prior to the Weller- 
Donyes difficulty, he, Dazelle, had trouble with Donyes about 
passing over this same road. This occurred about two hun- 
dred yards from the place of the Weller trouble. The witness 
testified: "He, Donyes, came out there with a rifle. He pulled 
out the rifle and pointed it at me that way [illustrating how he 
did it]. He said to stop tliere. Don't go any further, because 
ni hurt you. Then, after I went to his cabin, he put the rifle 
across a staple, and said: ^You see that rifle. Somebody will 
leave his gut there before he gets through with it' *' The state, 
in this connection, also oflered the records of the district court, 
showing tiiat for this ofiense Donyes had been prosecuted and 
convicted, on the charge of drawing and exhibiting a deadly 
weapon in a rude, angry, and threatening manner, and not in 
necessary self-defense. This testimony being objected to by 
defendant, the court admitted it for the purpose of showing 
the intent of defendant, and the character with which he went 
to tlie ground, and the object with which he went there. 

It is held in the decisions that upon the trial of criminal 
charges caution should be exercised in admitting testimony of 
other oflenses; but if the testimony offered is material to the 
case on trial, that testimony is not rendered inadmissible be- 
cause it proves some other offense. The question is simply 
the materiality of the evidence to the charge being tried. The 
question of the admissibility of this testimony in this case can 
be clearly viewed by keeping before the mind the issue or con- 
tention which was the subject of the investigation before the 
district court The situation was this: The state was contend- 
ing that there was an assault with intent to murder. The 
defendant was urging in his defense that Weller and his 
party were trespassers, and that he, defendant, acted only in 
self-defense, and used only such force as he was justified in 
using, and was necessary to prevent the trespass. But, as fre- 
quently observed in this opinion, a bare trespass against prop- 
erty,.uot a dwelling-house, does not justify an assault with 



14 n 

I 15 550 

36*226 

I 39*860 



76 Walsh v. Mueller. [Dec. T., 1893 

iDtent to kill. Now, io this case, if defendant made an assault 
with intent to murder, he was guilty as diarged. Evidence 
of his intent to commit such an offense was competent; that is, 
it was competent to show that he intended to repel a bare tres- 
passy not against the dwelling, by a homicidal assault. Now, 
the facts as to the Dazelle matter showed Donyes' intent to 
prevent a trespass upon the property in question by assaulting 
the trespasser with a deadly weapon* The testimony as to 
this former trouble, in our opinion, was evidence tending to 
show the iutent and object of defendant in being npon the 
premises, in the road, and armed, as he was at the time of the 
difficulty. On the former occasion he had repelled a bare tres- 
pass by the use of a deadly weapon, and at that time he had 
made declarations which tended to show jiis intent to kill any 
trespasser in the future. The former difficulty was two or 
three weeks prior to the latter one; it occurred over the same 
property, and was as to the same claims of right by the 
defendant. (See 3 Bice on Evidence, c. 26, and cases cited 
and reviewed.) 

Counsel for appellant, in his brief, contends that there were 
errors in the instructions. But the instructions are not here 
in a bill of exceptions, nor are they proj^erly authenticated for 
review. The judgment is affirmed, and it is ordered that it be 
carried into efiFect as adjudged by the district courL 

Pemberton, C. J., and Harwood, J., concur. 



WALSH ET AL., Appellants, v. MUELLER et al., 
Respondents. 

42l| [Bubmittod December U, 189a. Decided Janiury 22, 1894.] 

New TuikLB^SetaefMtU of atatemenl—Waiter of lapse of (tme.->Pa!lixra to 
object to extensiODB of time beyoud the statatory period for the ■ettlement of 
A statement on motion for a new trial, o£foring amendments, and joining in 
the settlement thereof wlthont objection, operates as a waiyer of the lapse of 
time for the serrioe of the statement. 

Bamb— Service of notice and ekitemenl^AUomeys.—A, notice and statement on 
motion for new trial need not be served on all the attorneys of certain of the 
respondents, when attorneys representing aU the respondents were properly 
served. 



14 Mont.] Walsh v. Mueller. 77 

Appeal from SioBih Judicial District^ Meagher County. 
On HonoN to dismiss appeal. Denied. 
Took A Wallace^ for the motion. 
SL ff. Melfitire^ and MoOonneU, Ctayberg & Ov/nn, contra. 

Per Curiam. — ^The respondents move to dismiss the appeal 
from the order of the district conrt denying a new trial. The 
first ground of the motion is that the statement on motion 
for new trial was not served within the time provided by 
statute, or within the thirty days from the period to which it 
might be extended. (Comp. Stats., § 536, p. 201.) 

We observe, by the record, that the time was extended very 
much more than thirty days, and without the consent of the 
opposite party; and if this were all that ap])eared, the state- 
ment on motion for new trial could not be considered. {Doyle 
V. Oore, 13 Mont. 471.) But it appeared by the judge^s cer- 
tificate, in settling the statement, that not only no objections 
were made to these extensions, and the lapse of time, but that 
the opposing party came in with amendments, aud joined in 
the settlement, without objections. The lapse of time was 
therefore waived. {Sweeney v. ChreaJt Falls etc. By. Co., 11 
Mont. 34; Arnold v. Sinclair, 12 Mont. 261.) 

Other grounds for dismissing the appeal are lirged, in that 
the notice of motion and statement on motion for new trial 
was not served on all the attorneys for certain defendants. 
Messrs. Waterman and Callaway were attorneys for certain 
defendants. Mr. T. C. Bach was attorney for certain other 
defendants. The objection is made of want of service upon 
Messrs. Waterman and Callaway, and Mr. T. C. Bach. But 
the papers were served on Messrs. Toole and Wallace, who, 
we think it sufficiently appears from the records and appear- 
ances, were attorneys for all the defendants. 

The motion is denied. 



78 Nelson v. Donovan. [Dec. T., 1893 

NELSON, Respondent, v. DONOVAN et ai^, Appel- 

liANTS. 
[Submitted December 38, 1898. Decided JumMrj 22, 1894.] 

Nzw Tbialb— ZIffiM/or taking appeal,'— An appeal fix)m an order grantiDg motion 
for a new trial, not taken within sixty days from the fiUng of the order, as 
required by section 421 of the Code of Civil Procedure, will be dismiwed on 
motion. 

ApPKALjkBUB O&DSB.— An Older granting a motion for judgment on the pleadings 
is not appealable. 

Appeal from Eigklh Judicial Didrid, Oasoade QmrUy* 
On MOTION to dismiss appeal. Granted. 
Ed L. BUhop^ for the motion, 
Donowin & Lyter, conirai 

Per CcTRiAM. — The respondent moves to dismiss the appeal 
from the order granting a new trial, for the reason that the 
appeal was not taken within sixty days afler the order was filed 
with the clerk of the district court. 

It ap])ears by the record that the new trial was granted in 
April, 1893, and that the appeal was taken August 12, 1893. 
The appeal must be taken " within sixty days after the order 
. • • • i^ made and entered in the minutes of the court, or 
filed with the clerk.'' (Code Civ. Proc, § 421.) The 
appeal from the order granting a new trial was not taken 
within the time prescribed, and must be dismissed, and it is so 
ordered. After the district court had granted plaintifi* a new 
trial, it granted plaintiff's motion for judgment on the plead- 
ings. From this order defendants also appeal. Respondent 
also moves to dismiss the appeal from this order. This motion 
is also granted, as an order granting a motion for judgment on 
the pleadings is not appealable. But the judgment itself is 
appealable, and the notice also states that defendants appeal 
from the judgment. 

The case is therefore left in court standing upon the appeal 
from the judgment. 



14 Mont.] Haogin v. Sailb. 79 

HAGOIN, Respondent, v. SAILE et au, AppEiXAinB. 

[Sabmitted April 3, 1893. Decided January 29, 1894.] 

AnsAXr— iV«to (rioi.— An order granting a new trial will not be reyened on appeal 
when, upon consideration of the evidence and aaalgnmenti, no i^buie of di»- 
oretion appean. 

Appeal from Third Judidal District, Deer Lodge County. 

AcnoN for injuDction. Defendants had judgment below. 
Plaintiff's motion for a new trial was granted hj DubfeEi J. 
Affirmed. 

Farbia & ForbiSy for Appellants. 

M. Kirhpaitick, for Respondent. 

Pemberton, C. J. — This case involves a dispute as to pri- 
ority of right to the use of the water flowing through Glover 
cafion, situate in Deer Lodge county. Plaintiff sought to 
enjoin defendant from interfering with his alleged prior right 
to the use of said water. 

The case was tried to the court and a jury. The jury 
returned special findings in favor of defendants, which find- 
ings the court adopted, and rendered judgment accordingly, to 
the effect that defendants are entitled to all of the water in 
question, prior to the claim of plaintiff. Plaintiff then moved 
the court, upon a statement of the case, for a new trial, which 
motion was by the court granted. From that order defend- 
ants prosecute this appeal. 

Plaintiff claims title to said water by virtue of the appro- 
priation thereof by one Alexander Glover, in 1872, and use 
thereof continuously, until 1883, when he sold and conveyed 
the same, together with a parcel of land, to plaintiff; and 
further use of said water by plaintiff. Defendants concede 
that said Alexander Glover had a valid appropriation of said 
water, and conveyed the same to plaintiff as aforesaid. But 
defendants contend that plaintiff had abandoned, and neglected 
to use, said water, and that defendants had appropriated said 
water, and used the same continuously for the period of more 
than five years, adversely to the claim of plaintiff. A review 



14 
17 


368 


14 
823 


879 


14 
36 


A 


JJ 


■ ' 
79 
486 


14 
41 


79 
439 



80 Haggin v. Sailb. [Dec. T., 1898 

of the record discloses the fact that defendants' claim to the 
prior right to the use of said water depends upon the alleged 
&ct of abandonment thereof bj plaintiff, and the adverse use 
and enjoyment thereof by defendants during the period of five 
years limitation ; and further discloses that if the use made of 
such water afler purchase by plaintiff, upon his lands, in the 
operation of making brick| carried on by one Campbell, under 
contract, was a use by or on behalf of plaintiff, then the claim 
of adverse possession set up by defendants fails. Appellants 
admit that the case as here presented, on the question whether 
the court was justified, or abused its discretion, in granting a 
new trial, depends upon a review and construction of the testi- 
mony of said Campbell, who was engaged in manufacturing 
brick upon the land of plaintiff, and by the use of said water 
thereon, under contract. 

The very situation under which we must review this case, if 
it is to be returned for another trial, precludes a discussion as 
to the force of the evidence upon the vital points in the case. 
We therefore refrain from such discussion. We have care- 
fully considered the evidence and assignments set forth in the 
record, and cannot find therefrom that the evidence upon the 
important points in the case is so clear as to warrant us in 
reversing the order of the trial court granting a new trial. 
In order to justify us in reversing the order of the trial court 
granting a new trial it must appear that there was an abuse of 
judicial discretion on the part of the trial court in granting 
such motion. This we do not find* The order appealed from 
will therefore be affirmed. 

Habwood, J., concurs. 



14 Mont.] IIyan v. Maxby. 81 

EYAN BT AL., Appelt.ants, v. MAXEY bt al., Re- 
spondents. 

[Sabmltted March 24, 1898. Decided Janaary 29, 1894.] 

ArrkCBjasT— Waiver of lien— Appeal,— ka attaching creditor does not waive hia 
attachment lien by taking judgment and selling the attached property under 
execution, while an appeal from an order dissolving the attachment is pend- 
ing and undetermined. 

^vsLSameSwrviving partner— Statutory eonstruction,— The amendment of 
section 229 of the Probate Pnustioe Act (Seas. Laws 1889, p. 146), requiring a 
sunriving partner to settle the affiurs of the partnership without delay, *' treat- 
ing all creditors alike, and giving no preference to any, except such as are 
made so by mortgage, pledge, or lien," enacted prior to a sale of partnership 
property under execution, cannot be construed to abrogate an attachment lien 
acquired thereon prior^to its passage, as such construction would render it 
retroactiye. 

Gbxdrob'8 BiLLSupplementary proceedings— Judgment Zten.— A creditor's biU 
to enforce a Judgment lien against property claimed by defendants under a 
judicial sale need not be preceded by proceedings supplementary to execution, 
as such summary process is applicable to the discovery of property subject to 
execution, concealed or withheld by the debtor or others in collusion with him 
without pretense of substantial right, and not to cases where the attitude of 
the parties to the property in controversy is fully understood. 

Appeal from Ninth Judioial District, OaUaiin Comdy. 

Cbeditor's Bill. Judgment was rendered for defendants 
below by Abmstbong, J. Affirmed. 

E. P. CadtoeU, for Appellants. 

Luce & Luee, for Respondents. 

Habwood^ J. — ^Through this action, in the nature of cred- 
itor's bill, plaintiffs seek to establish and enforce judgment 
liens claimed by them upon certain property held and claimed 
to be owned by defendants. These conflicting claims arose in 
this wise: Plaintiffs are the owners of certain judgments ren* 
dered against Jacob F. Speith, as the surviving partner of the 
firm of Speith & Krug, aggregating in amount about twenty 
thousand dollars, which judgments were rendered in 1888, and 
are unsatisfied. Defendants are also judgment creditors of the 
same character; that is, they own judgments recovered against 
said Jacob F. Speith as surviving partner of Speith & Krug. 
It ap])ears, however, that these defendants, in the commeuce- 
YoL. XIV 6 




82 Ryan v. Maxby. [Dec. T., 1893 

ment of tlieir actions against said surviving partner, levied 
attachments upon all of the proi)erly of said firm available for 
payment of its debts, and thereafter said property was sold on 
'executions issued to enforce the judgments and attachment 
liens acquired by defendants through said actions; and by 
virtue of sach judicial sales, these defendants claim title to the 
property in controversy in this action. 

Plaintiffs in this action, who obtained or succeeded to judg^ 
ments against said surviving partner, but who failed to get 
any of the proceeds of the proi)erty of said firm in satisfaction 
of their judgments, now, through this action, undertake to 
establish what they claim to be liens on said property arising 
from their judgments.^ They maintain that said attachments, 
torerunning those judgments of defendants in this action, were, 
for certain reasons to be hereafter considered, void processes. 

The process of attachment levied upon said property in said 
actions of defendants against Speith, surviving partner, etc., 
were contested by motion to dissolve the same, which motion 
prevailed in the trial court; but that ruling was reversed on 
appeal to the supreme court, wherein it was held that such 
attachments would lie. (See Krueger v. SpeUhj 8 Mont 482; 
Cobb V. Bpeiih^ 8 Mont. 494; Maxey v. Speith^ 8 Mont. 494; 
Bozeman Nat. Bank v. Speith, 8 Mont. 495.) So it appears 
that those attachments were upheld, and in due course the 
title now held by these defendants tvas acquired by sale of the 
attached property on execution issued upon the judgments 
obtained in those attachment suits. 

One of the minor points urged by appellants is, that those 
attachment liens were waived, or became void, because the 
plaintiffs in those attachment suits proceeded, after obtaining 
judgment, to sell the attached property under execution, while 
the appeals from the respective orders dissolving said attach- 
ments were pending, undetermined. No authorities are cited 
to support this proposition, and we fail to perceive any 
force in it, either from analogy to other rules of waiver, or 
upon principle or reason. The proposition assumes that those 
attaching creditors, by appealing, and superseding or holding 
in abeyance the order of the trial court dissolving their attach- 
ments^ and then prosecuting their appeals to the effect of 



14 Mont.] Eyan v. Maxby. 83 

reversiog those orders, waived the rights and liens acquired 
through those attachments, because they proceeded to take 
judgment and execution in the same actions, as the law pro« 
vides. It is not surprising that appellants have failed to cite 
any cases, or text of commentator, in support of this position. 

After the decision upholding the attachment liens, cited 
9upra, the legislature of Montana enacted an amendment to 
section 229 of the Probate Practice Act. (Sess. Laws 1889, 
p. 146.) Appellants contended that the provisions of said 
statute, as amended, require that all of said partnership estate 
be applied to the payment of the partnership creditors ''alike, 
and giving no preference to any, except such as are made so by 
mortgage pledge or lien,'' and that, this provision having been 
enacted prior to the sale of the partnership property under 
execution in the cases above referred to, had the effect of so 
changing the law relating to those cases, while in progress, as 
to annul the attachment liens acquired and existing prior to 
the passage of that amendment, and that the sale of said prop- 
erty nnder execution was void as in contravention of that 
statute. We do not think appellants' view can be maintained. 
It would give the statute under consideration the retroactive 
effect of abrogating the liens lawfully acquired by attachment, 
and existing when the present statute was enacted. In our 
opinion, the ruling of the trial court in refusing to so construe 
the statute was correct {Ounn v. Bary^y, 15 Wall. 610, 
Eastman v. Clackamas G>., 32 Fed. Hep. 24.) In order to 
sustain plain tifis' action it was necessary to give the statute 
such retroactive effect. We think the demurrer was properly 
sustained. 

Respondents raise a question of practice, insisting that this 
action, in the nature of a creditor's bill, is improper procedure, 
that such action has been superseded by the statute providing 
for proceedings supplementary to execution, which proceedings, 
respondents contend, should have been invoked for the relief 
sought by appellants. In support of this view, several cases 
are cited, among which is Sperling v. Oalfee, 7 Mont. 529, 
wherein it is remarked that those provisions of our code (Code 
of CSvil Procedure, chapter 2, title 9), for proceedings supple- 
mentary to execution have^ to a great extent, if not wholly. 



84 Eyan v. Maxby. [Dec. T., 1893 

superseded the equitable action known as the ''creditor's bill.'' 
Similar observations have been made in many other cases, and 
Hire in no manner question their correctness; for in many 
respects the relief formerly achieved through the creditor's bill 
is now afibrded with less expense, formality, and delay, and 
with equal potency, through the summary proceedings supple- 
mentary to execution authorized by statute. But it is hardly 
to be concluded, either from those observations or the provi- 
sions of the statute authorizing supplementary proceedings, 
that the same were intended to utterly abolish equitable pro- 
ceedings to set aside fraudulent conveyances, assignments; 
encumbrances, and the like, to enable the judgment creditor to 
reach equitable assets put beyond t}>e reach of ordinary legal 
process by some fraudulent device of the judgment debtor — 
remedies which supplemental proceedings are inadequate to 
accomplish — preserving to disputants the ordinary method of 
trial touching property rights. Indeed, the statute contem- 
plates the development of conditions, in the course of supple- 
mental proceedings, which cannot be adjudicated therein, and 
therefore the statute directs that proper suit be ordered by the 
court to adjudicate and determine the same. (Code Civ. Proc., 
§ 356; Teiiig y.Boesniany 12 Mont. 404.) It seems to have been 
the intention of tlie framers of that statute, to provide a sum- 
mary process for the discovery and application to the judgment 
of property subject to execution, concealed and withheld by the 
debtor, or others in collusion with him, without pretending, 
when it came to a test under oath, to assert any substantial 
ground therefor. But '.where the property alleged to belong 
to the judgment debtor is claimed by others, either by way of 
absolute title or pledge or mortgage, or debts claimed to be 
owing to the judgment debtor are disputed by his alleged 
debtor, such claims of ownership, lien, or denial of indebted- 
ness cannot be adjudicated and determined summarily, and 
the property ordered applied to the judgment, without the 
usual formalities of forming issues and trial, guaranteed as 
applicable to the determination of property rights. While it 
might be proper enough to turn the searchlight of supple- 
mental proceedings onto the subject, to discover the attitude of 
parties towards the property or fund in question, and through 



14 Mont.] Martin v. Maxey. 85 

that proceeding obtain an order forbidding the disposition 
thereof, still many cases will arise where that proceeding alone 
cannot accomplish all that may be necessary to cut off adverse 
claims, and avail the judgment creditor of the assets in con- 
troversy. On the other hand, it may be that the attitude of 
the parties to the subject of controversy is, fully known, as in 
the case at bar, where it seems proceedings supplemental to 
execution could neither accomplish nor aid the relief sought. 
And, in our opinion, in such cases, the appropriate action to 
test the claims or defenses which parties may assert in opposi- 
tion to taking the property or fund for application on the 
judgment should not fail because supplemental proceedings 
did not precede it. This appears to be the view taken by the 
courts where these distinctions have been considered — espe- 
cially in the New York courts, where the statute for proceedings 
supplemental to execution originated — as shown by Mr. Free- 
man in his work on Executions, section 394. (Oere v. Dibble, 
17 How. Pr. 31; Goodyear v. Betta, 7 How. Pr. 187; Davis v. 
Turner J 4 How. Pr. 190; BariUUv. Drew, 4 Lans.444; Phelps 
V. Platty 50 Barb. 430; Hammond v. Hudson River etc. Machine 
Co., 20 Barb. 378; BuH v. Hoetdnger, 28 Ind. 214; Parsons 
V. Meybwg, 1 Duvall, 206.) 

For the foregoing reasons the judgment of the trial court 
will be affirmed. 



Pembebton^ C. J.^ concurs. 



Affirmed. 



MARTIN, Appellant, v. MAXET, Bespondent. 

[Submitted Noyember 8, 1898. Decided Febmazy 6, 18M.] 

knkCBMSsrs-^Waiver of Ken,— An ftttacbing creditor does not abandon bis attach- 
ment by taking Judgment and selling under execution the attached premisea 
while an appeal from an order diaaolying the attachment is pendmg and unde- 
termined. 

ArrELL— Matters not reviewable,— A question of practice relating to the regularity 
of an appeal from an order dissoMng an attachment, and which appeal was 
entertained and determined, will not be reyiewed by this court seyeral years 
later on an appeal by one attacking in a subsequent action the title of the 
attaching creditor. 



86 Martin v. Maxky. [Dec. T., 1893 

Appeal from Ninth Judicial District, OaUaJUn County. 

Creditor's Bill. Judgment was rendered for defendant 
below by ArmstronOi J. Affirmed. 

E. P. Oadwdl, for Appellant. 

Luee A Luoe, for Respondent. 

Harwood, J. — This action is of kindred nature, and mainly 
determined by Byan v. Maxey, just decided by this court. (See 
ante, p. 81.) But a few sliglit distinctions should be noticed. 

Appellant insists: 1. That tlie attachment lien acquired by 
attachment of the property in controversy was lost by taking 
out execution and selling the attached property thereon, while 
the appeal from the order of Judge Liddell dissolving the 
attachment was pending in the supreme court. {Mazey r, 
Speith, 8 Mont. 494.) The attaching creditor perfected his 
appeal from that order, and, while the same was pending and 
undetermined, he prosecuted the action in which the attach- 
ment was issued to judgment, and took execution on the judg* 
ment, and sold the attached premises. Appellant insists that 
thereby the attachment was abandoned, but acknowledges that 
he could find no cases to cite in support of this proposition; 
and we consider it illogical and untenable to contend that 
while a litigant appeals from an order dissolving his attach- 
ment, and prosecutes such a])])eal to the effect of reversing 
the order appealed from, because he also pursues the attached 
property by execution, after prosecuting his action to judg- 
ment, he thereby abandons the attachment which he is at the 
same time seeking to uphold and keep in force by all the means 
provided by law on his behalf. 

2. Appellant contends that the attachment in question 
failed, because the appeal from the order dissolving it was 
not taken within five days after tliat order was made, as pro- 
vided in section 428, Code of Civil Procedure. We know, 
from the treatment of that appeal, that it was taken from the 
order dissolving the attachment in question, and that the 
appellate court considered that appeal, and reversed the order 
dissolving said attachment. We presume therefrom that the 



14 Mont.] Martin v. Maxby. 87 

appeal was taken^ as required by law, to keep in force the 
attachment The contrary view would assume that the court 
on that appeal considered and determined a case not properly 
appealed^ so as to give the appellate court jurisdiction, and its 
determination eiFect upon the proceedings in question. We 
cannot now review the question of practice raised by appel- 
lant, relating to the r^ularity of the appeal taken, enter- 
tained, and determined several y(ears since, as reported in 
8 Montana Reports, 494. 

3« Appellant insists that although respondents support their 
daim to the property in question by several sheriff's deeds, 
executed in pursuance of a sale of the property in question on 
independent judgments in several and distinct actions, the pur- 
chase of those outstanding titles by respondents merged them 
in that obtained by him through the sale of the same prop- 
erty on execution on his judgment; and insists that by reason 
of such merger, if the title founded on appellant's judgment 
can be found wanting in any respect, such defect taints all the 
other independent outstanding titles acquired to said property 
by purchase. Appellant asserts that he has cited authorities 
to support this position, but we think it doubtful, as there 
seems to be no reason in it The case of Vantilburgh v. Blacky 
2 Mont. 371, is against that proposition, although in that case 
equitable titles were in question, while here legal titles are in 
question. It is unnecessary to determine this point, however, 
as appellant has been unable to show grounds to avoid the 
attachment lien of respondents, which he acquired through his 
own attachment and judgment We therefore leave the point 
with these observations. 

An order will be entered affirming the judgment of the trial 

court. 

Affirmed. 
Pembebtok^ C. J., concurs. 



88 McDonald v. Montana Wood 'Co. [Dec. T., 1893 

MoDONALD et al., Respondents,^ MONTANA WOOD 
COMPANY, Appellant. 

[Snbmitted Juiaazy 9, 1893. Dedded February 6, 1894.] 

Hnnu AND MxMnro— PZootfr claim.— It ii not necessary that a separate disooyeryp 
separate marking of the boundaries, separate recording, and separate work 
shonld be made and performed npon each twenty acres contained in a one 
hundred and sixty ftcre placer claim, which, under section 2880 of the Bevised 
Statutes of the United States, may be located by one person or an association 
of persons. 

SiKX—jPVw/tfiturtf—P^eadinj^.— Forfeiture of a placer mining claim for failure to 
do annual representation will not be sustained when such forfeiture is not 
pleaded, and no evidence is disclosed by the record of a relocation by any one 
on account of such fiulure, or that defendant had acquired an adverse out. 
standing title. 

Tbispabs— 2VeMe damages— IfaZtce.— Treble damages for the cutting of timber on 
plaintiff's land, and its conversion by defendant, are not recoverable under se<^ 
tion 868 of the Code of Civil Procedure in an action for willful and malicious 
trespass, in the absence of proof of malice, wantonness, or evil design. 

AppecUfrom Fifth Judicial District^ Jefferson County. 

Action for trespass. The cause was tried before Gal- 
BBAITH, J. Plaintiff had judgment below. Modified. 

Qnoan & Parker ^ for Appellant. 

L In the case at bar eight individuals, not united in inter- 
est, attempted to locate eight placer claims, while they had 
made discovery of gold upon but one of such claims, or, in 
other words, gold was found in but one place on the entire 
tract Seven of these claims are attempted to be held without 
any discovery having been made upon them, or either of them, 
and defendant is charged with having committed a trespass 
upon claims so situated. No authority can be found in any 
of the law books which would sustain the location of eight 
placer claims by the discovery of placer deposits upon but one 
of them. A placer claim consists of not more than twenty 
acres (U. S. Rev. Stats., § 2331; 15 Am. & Eng. Ency. of 
Law, p. 624), and is subject to same rules and conditions, 
relative to location and holding, which pertain to lode claims. 
(U. S. Rev. Stats., § 2329; 15 Am. & Eng. Ency. of Law, 
551, and note 5; Sweet v. Webber y 7 Col. 443; Carney v. 
Arizona Mfg. Co., 65 Cal. 40.) Discovery and appropriation 



14 Mont.] McDonald v. Montana Wood Co. 89 

are the souroes of right. (16 Am. & Eng. Ency. of Law, 
628, § 8.) Plaintiffs acquired no title or right of possession 
under such a discovery, hence their action must fail. And 
again, the appellant contends that no discovery was made 
within the general boundaries of the tract of land claimed, as 
the same was described in their notice of location, and as the 
same was marked upon the ground. Plaintiffs marked their 
eight claims upon the ground by the blazing of four trees, one 
at each of the four corners of said tract. Boundaries beyond 
the maximum extent of a legal location would not import 
notice, and would be equivalent to no boundaries at all. (15 
Am. & Eng. Ency. of Law, 536, note; Hauswirth v. BtUdier, 4 
Mont. 299.) Placer claims, held in common, are each subject 
to annual representation. {Chambers v. Harrinffton, 111 U. S. 
350.) 

11. The evidence in this case discloses the facts: 1. That 
no member of the defendant corporation felled any of the 
trees or timber mentioned ; 2. That such trees and timber were 
felled by divers men at work for themselves, and not in the 
employ of, nor under the direction of, defendant. The evi- 
dence will not, therefore, support the allegation of trespass; 
and in particular will not support the theory of a malicious 
trespass and treble damages. Exemplary damages cannot be 
recovered for a trespass not malicious in its character. {Phelps 
v. Owerw, 11 Cal. 23; Dorsey v. Manlove^ 14 Cal. 553; Night" 
ingcde v. Scannell, 18 Cal. 315 ; 8elden v. Oashman, 20 Cal. 57; 
81 Am. Dea 93.) 

Thomiis Joyes, for Kespondents. 

I. Defendant denies the validity of plaintiffs' location, but 
does not attempt to show any right in itself to the land, or any 
right to cut timber thereon. This naked trespasser cannot be 
heard to dispute the right of possession of the plaintiffs. 
{Werner v. Loweryy 11 Cal. 104.) The plaintiffs' location 
notice being properly made out, sworn to, and recorded as 
required by law, is frima fade evidence of what the law 
requires it to contain, where it is sufficiently set forth in the 
notice. {Jardzen v. Arizona Copper Co. (Ariz., Jan. 19, 1889), 
20 Pac. Eep. 93; 15 Am. & Eng. Ency. of Law, 532.) 



90 McDonald v. Montana Wood Co. [Dec. T., 1893 

II. It is only necessary that the claim should be identified 
with reasonable certainty, and whether or not the boundaries 
can be readily traced is a question of fact for the jury. (15 Am. 
& Eng. Ency. of Law, 534, notes.) In this case the jury found 
that there was a proper marking on the ground, discovery, 
and recording, and there is no evidence to the contrary. 

III. There can be no forfeiture until some other person 
lias entered upon and relocated the claim; until that has been 
done, plaintiffs may at any time resume work and hold under 
their original location. The question as to performance of 
annual labor cannot therefore be raised in tiiis case. {Lakin v. 
Sierra Buttea Gold Min. Co., 25 Fed. Rep. 343; Belk v. Meagher, 
104 U. S. 279.) 

ly. A placer claim may contain . more than 20 acres. 
One person can only locate 20 acres in one claim, but a 
location may contain 160 acres for an association of eight 
persons. (U. S. Bev. Stats., §§ 2330, 2331.) Such tracta 
have been uniformly treated as one claim. The law has been 
so construed by the interior department in granting patents to 
placer claims. 

V. The cases cited by appellant as to the necessity of 
showing malice relate entirely to damages claimed for the 
seizure of personal property and have no bearing* upon this 
statutory proceeding. We proceed under section 363, jwige 
159, Compiled Laws of Montana, which contains no allusion 
to malice, but authorizes the recovery of treble damages where 
the trespass is committed "without lawful authority.'' How- 
ever, in this case, malice was alleged and proved. 

Pemberton, C. J. — On the twenty-third day of September, 
1890, plaintiffs (being seven in number) and Thomas Joyes 
located the Landlock placer mining claim, a tract of ground in 
Jefferson county, which they estimated at the time contained 
160 acres, but which afterwards, by a survey, was found to 
contain about 76 acres. Plaintiffs made but one discovery on 
the entire tract. They marked the boundaries by blazing a 
tree at each corner of the entire tract of ground, and desig- 
nated each of said corners of the claim by writing with a i>encil, 
on the re2:ipective blazed trees, the name of tlie claim, and the 



14 Mont.] McDonald v. Montana Wood Co. 91 

corner each tree represented. Thej also marked a tree at the 
discovery shaft, and posted a notice on the claim. The notice 
contained the names of all the locators, and a description of the 
ground claimed. The tract of land so located was not in any 
way snbdivided into 20 acre claims, and no other discoveries 
were made, or marking done on the ground, than as stated above. 
During the year 1891 plaintiffs did work and made improve- 
ments on the entire tract of land to the amount of about |150. 
Theoomplatnt, which was filed November 21, 1891, charged that 
in the month of December, 1890, and at divers times between 
that date and the commencement of this suit, the defendant 
knowingly, willfully, and maliciously entered upon said land 
without the consent of plaintiffs, and cut down and carried away 
a large amount of trees and timber growing thereon, etc., claim- 
ing actual damages in the sum of $3,000, and asking judgment 
for treble damages under section 363 of the Code of Civil Pro- 
cedure. The answer denies the title of plaintiffs, and all the 
material allegations of the complaint. The case was tried by 
the court with a jury. The jury returned a verdict for plaintiff 
in the sum of $649.63, as actual damages, which they trebled, 
making the sum of $1,648.49, for which sum judgment was 
tendered. Defendant moved for new trial. This motion was 
overruled. The defendant appealed from the judgment, and 
the order refusing a new trial. 

The appellant ooutends that the location of the mining claim 
in the manner as above described is a nullity, and conferred 
apon plaintiffs no right or title to the Landlock placer mining 
claim, or to the right of possession thereof. The appellant 
claims that, under the law, the plaintiffs should have made a 
discovery on each 20 acre tract contained in the land sought 
to be located; that each 20 acre tract therein contained should 
have been marked upon the surface thereof, so that the boun- 
daries thereof could have been readily traced; that a separate 
location of each 20 acre tract was necessary under the law; 
and that work or improvements of the value of $100 should 
have been done on each 20 acre tract contained therein, for 
the year 1891. Section 2330 of the Revised Statutes of the 
United States, among other things, provides: ''But no loca- 
tion of a plaoer olaim made after the ninth day of July, 1870, 



92 McDonald v. Montana Wood Co. [Dec. T., 1893 

shall exceed 160 acres for any ooe person or association of 
persons/' This statute^ it seems to us, confers the right upon 
an association of not less than eight persqns to locate not to 
exceed 160 acres in one claim. This has been the holding 
and ruling of the United States land department uniformly^ 
as far as we have been able to discover; and patents have uni- 
formly issued in such cases^ when there was a showing of an 
expenditure of $500 in work or improvements upon any part 
of the 160 acre claim. (See Oood Betum Min. Co., 4 Dec 
Dep. Int.^ 221; also^ Morrison's Mining Bights, 7tfa ed., 
134.) In SL Louis Smelting Co. v. Kemp, 104 U. S. 636, 
Mr. Justice Field, delivering the opinion of the court, says: 
'^ Tlie last position of the court below — that the owner of con- 
tiguous locations, who seeks a patent, must present a separate 
application for each, and obtain a separate survey, and prove 
that upon each the required work has been performed — is as 
untenable as the rulings already considered "; and in the same 
case it is said: "It would be absurd to require a shaft to be 
sunk on each location in a consolidated claim, when one shafl 
would suffice for all the locations." In this case just cited, 
Mr. Justice Field is speaking of the things necessary to be 
done by an applicant to obtain a patent to placer mining 
ground. In no case, nor in any ruling or decision of the 
United States land department, that we have been able to find, 
is it held to be necessary that a separate discovery, separate 
marking of the boundaries, separate recording, and separate 
work should be made and performed upon each 20 acres con- 
tained in a 160 acre placer claim authorized to be located under 
one location by an association of persons. If the plainti£& in 
this suit had made such a discovery on the ground in contro- 
versy, and had made such a location thereof, and were per- 
forming such work, and making such improvements thereon, 
as would entitle them to a patent therefor under the mining 
laws of the United States, then they had such title and right 
to possession as would entitle them to prosecute this action for 
damages for the trespass complained of. 

The appellant further contends that th^ evidence shows that 
the plaintiffs had forfeited any right or title they may have 
had to the ground in controversy, by failing to do the required 



14 Mont.] McDonald v. Montana Wood Co. 93 

amount of work thereon for the year 1891. The evidence in 
this case shows, that work of the value of about |150 was 
done for that year upon the entire claim. If, under the deci- 
sions of the land department, and the tendency of the adjudi- 
cations of the courts, $500 in work and improvements on any 
part of a 160 acre claim, or any one of a number pf contiguous 
claims, is sufficient to entitle applicants to a patent for the 
whole of such ground or claims, then, by parity of reason, it 
would seem that $100 in work or improvements expended or 
made upon such 160 acre claim in any one year would save it 
from forfeiture. Such seems to be the view taken by the laud 
offices, and is in accordance with the customs, rules, and regu-. 
lations of miners in this jurisdiction. But in this case a for- 
feiture was not pleaded by appellant in its answer, although 
the court below permitted evidence of the amount of work 
done on said claim for the year 1891. There is no evidence 
of a re-entry or relocation by any one on account of failure to 
to do the required work by plaintiffs on said ground; nor does 
the defendant connect itself with any outstanding title adverse 
to plaintiff, or plead any license or warrant to enter upon the 
ground in controversy. We do not find any thing in the rec- 
ord to support the plea of forfeiture. 

The appellant contends that in this case, if it were liable for 
actual damages, the court below erred in rendering judgment 
for treble damages. This suit was instituted for damages for 
willful and malicious trespass; but respondents contend that, 
notwithstanding the complaint charges willful and malicious 
trespass, they are nevertheless entitled to treble damages, under 
section 363, Code of Civil Procedure. The respondents con- 
tend that it was not necessary, under said section, to allege or 
prove malice, wantonness, or evil design, etc. 

In Endlich on the Interpretation of Statutes, section 129, 
the author, commenting on similar statutes, says: ^'Similarly, 
statutes giving punitive, double, or treble damages against one 
cutting and converting to his own use timber growing on the 
land of another, without the latter's consent, are held confined 
to cases where some element of willfulness, wantonness, care* 
lessness, or evil design enters into the act.'' 

In Cohn v. Neeves, 40 Wis. 393, the court, in a case iuvolv- 



94 McDonald v. Montana Wood Co. [Dec. T., 1893 

ing the oonstraction of a statute similar to the one under oou- 
sideration here, says: "The importaut question arising upon 
the various exceptions taken by defendants is: Does the statute 
give the treble damages when the conversion is merely a 
technical conversion in law, as in the case before us, or was it 
only intended to apply to cases where some ingredient of will- 
fulnessi wantonness, or evil design enters into the act? Accord- 
ing to the view of the circuit judge, the statute applies to every 
case of the conversion of logs, timber, or lumber floating in 
any of the waters of this state, or lying on the banks or shores 
of such waters, or on any island where the same may have 
drifted, and gives treble damages as the measure of recovery. 
It seems to us that this is an unreasonable and unsound con- 
struction of the provision. True, the language used is general, 
and, if literally interpreted, would include any conversion. 
But, says an acknowledged authority on this subject, in inter- 
preting a statute it is not always a safe rule, or a true line of 
construction, to decide according to the strict letter of the act, 
but courts will rather consider what is its fair meaning, and 
will expound it differently from the letter, in order to preserve 
the intent Qui hoard in Uiera^ hasrd in oortioe. (Broom's 
Legal Maxims, page 636.) Observing this rule of interpreta- 
tion, looking at the object and purpose of the statute, we can- 
not think it was intended to apply to every conversion of this 
kind of property, situated or found as . described, without 
regard to the question whether the conversion was wanton 
and willful or not. It is needless to observe that the law is 
highly penal in its character. By way of punishment it sub- 
jects the wrongdoer, in certain cases, to an extraordinary liabil- 
ity for the property of another appropriated to his use. In some 
cases the conversion may be merely a technical one in law, 
arising from accident, mistake, or even carelessness, without 
any evil design, and where the damages recoverable at common 
law afford an adequate compensation to the party injured.'^ 
The same conclusion is arrived at, and the same oonstruotion 
placed upon a similar statute, in WcUlaoe v. Itnoh, 24 Mich. 
256. 

In Kramer v. Ooodlander^ 98 Pa. St 363, construing a 
statute almost identical with ours, the court say: ^'Its [the 



14 Mont] McDonald v. Montana Wood Co. 95 

statute's] object is the preveutioii of willful or careless catting 
of another's timber, by at once punishing the wrongdoer^ and 
amply compensating the owner." 

In the case at bar the evidence shows that the land in con* 
troversy was located out in tlie wilderness, far away from 
human habitation. The plaintiffs had to cut a trail through 
the timber to get to it. The defendant, coming to the land from 
another direction, had to cut a trail also. The defendant found 
but little evidence that any of the land in the vicinity had ever 
been claimed by any person for any purpose, except the blaz- 
ing of four or five trees, and a small discovery shaft on the 
ground in controversy, as the work of plaintiffs. There was 
nothing to indicate that anybody actually asserted ownership 
or dominion over any part of the country thereabout The 
circumstances attending the trespass complained of here are 
vastly different from a case where a person cuts down a shade 
tree in front of another's house or lot, or enters another's close 
and damages trees or timber therein, when all the evidences of 
ownership in another are present These are the acts and tres- 
passes we think are intended to be denounced and punished by 
oar statute. The evidence in the case does not. snpport the 
contention that there was any willfulness, wantonness, or 
maliciousness in the acts or conduct of the defendant. We 
therefore think that the evidence did not justify the render- 
ing of judgment for treble damages against defendant in this 
case. 

It is ordered tliat the judgment of the court below be modi- 
fied, by rendering judgment in favor of plaintiffs against the 
defendant, for the amount of actual damages found by the jury, 
and in other respects the judgment is affirmed as modified. 

Modified and affisrrMd. 
HabwooDi J,| ooncora. 



96 Ellison v. Barker. [Dec. T., 1893 



ELLISON ET AL., Appellants, v. BABKEB et ai-., 
Respondents. 

[Submitted February 21, 1898. Decided February 12, 1S9L] 

8iLX8 OF "pKaBovkLTi—Fraudulent repreBenUUioru.^A. finding that goods were 
not obtained upon a fraudulent statement as to the vendee's financial con- 
dition, is supported by evidenoe that shortly prior to the sale the vendor had, 
after examining the vendee's financial condition, agreed to compromise aa 
existing indebtedness at fifty cents on the dollar, and to extend future credit, 
which compromise was finally effected at the time of making the statement, 
and purchasing the goods in controversy. 

Appeal from First Judicial Distiidy Lewis and Qarke County. 

Action for claim and delivery. The cause was tried before 
BucKy J. Defendant had judgment below* Affirmed. 

jT. J. TFa&A, for Appellants. 

Two important allegations of the complaint are left wholly 
undenied, namely^ that at the time the representations were 
made Barker was insolvent, and that he knew it. The inves- 
tigation is, therefore, narrowed to two inquiries, Did Barker 
make the representations, and did plaintifib rely on them? 
The evidence admits the making of the representations, so that 
the only real question is as to whether plaintifis relied on them. 
In the consideration of this proposition it should be remem- 
bered that though this is a fact to be proven by the plaintiffs, 
yet on proof that material representations were made, and that 
they were false, a presumption arises that they were relied 
upon, and the burden falls on the defendant to show that they 
were not. (Benjamin on Sales, 556; Ihhback v. Miller, 15 
Nev. 428-43; Kerr on Fraud and Mistake, 75; Holbrook v. 
Burly 22 Pick. 546-52; Benjamin on Sales, 677; Redgrave v. 
Hurdy L. R., 20 Ch. Div. 1-24.) In addition to the presump- 
tion afforded by the law, the testimony of Bodman B. Ellison 
is direct and positive that it was on his faith in the representa- 
tions that he agreed to let Barker have the goods, that he relied 
on the truth of the same, and that the goods would not have 
been delivered if the statement containing the representations 
had not been executed. The question of whether plaintiffs 
relied upon the representations made to them is a question of 



14 Mont.1 Ellison v. Barkbb. 97 

the state of their minds^ and manifestly their positive assertion 
as to such a matter can only be affected by the most oonvino- 
ing circumstances. Conceding that the statement was not 
made until the day following the compromise, and that on the 
latter day they were willing to let the goods go without a 
statement, plaintiffs still had a perfect right to change their 
minds at any time before the delivery of the goods, and to 
refuse to let them go unless they had further assurance of 
defendant's ability to pay — ^being responsible, of course, for 
any damages he might suffer, if plaintiffs had contracted with 
him to deliver the goods. (Nebi'oska Giy v. Nebi^atUca Hydravr 
He etc. Q).y 9 Neb. 339; Qark v. MarHglia, 1 Denio, 317; 43 
Am. Dec 670.) If the representations were made at any time 
before the delivery of the goods, and the plaintiffs relied on 
them, or they were one of the inducements to the sale, then it 
was voidable. It was error to admit testimony by defendant 
as to his purpose in making the statement at the time of com- 
promise, whether it was to obtain credit or to deceive and 
defraud plaintiffs. This testimony was irrelevant and preju- 
dicial. The introduction of it violates the fundamental rule 
that every one is presumed, conclusively, to intend the natural 
and necessary consequences of his own acts, at least when they 
are acted upon to the damage of anotlier. But the intent with 
which the false representations are made is wholly immaterial 
as established by the following authorities. {Reed v. Pinney, 
86 III. App. 610; Case v. Ayera, 65 111. 142; Fasier v. Oiarlea, 
6 Bing. 396; KdOi v. OoldfsUm, 22 111. App. 457; Qough v. 
BL John, 16 Wend. 646; Johnson v. Peck, 1 Wood & M., 334.) 

Aehbum K. Barbour, for Respondents. 

The answer does not deny that Barker was insolvent at the 
time of making the representations; it denies the making of 
the representations set forth in plaintiff's complaint, and denies 
that they were false and fraudulent. The denial that the rep- 
resentations were false and fraudulent embraces the denial 
that Barker knew that they were false at the time of making 
them. In order to constitute fraud in the matter of the state- 
meoty the element of knowledge on Barker's part was essential. 
{Satt V. lAUle, 63 N. Y. 427-31; BraekeU v. Oriswold, 112 
Vol. XIV.— 7 



^6 Ellison v. Bakkbk. [Dec. T., 1893 

N. Y. 467; Plant v. OondU, 22 Ark. 459; PetUgrew v. OieUia, 
41 N. H. 96; 3fot*8e y. Dearborn^ 109 Mass. 594; Taylor v. 
li^oat, 39 Miss. 328; Bond v. Oark, 36 Vt. 577; Shippen y. 
Bowen, 48 Fed. Rep. 659.) The gist of this action is the &lse 
and fraudulent re])resetitatious made by Barker. Iq order to 
recover^ the plaintiffs must sliow that the statement: 1. Was 
made to them^ or with the direct intention that it should be 
communicated to them, and that thej should act upon it; 
2. It must be false in fact; 3. It must be false to the knowl- 
edge of the defendant, or be made by him recklessly, etc.; 
4. It must be a material representation; and 5. Tlie plaintiffs 
must have acted upon the faith of it, and suffered damages. 
(Benjamin on Sales, rev. ed., § 694; Arthur v. GrmDold, 
56 N. Y. 405; Morris v. TalcoU, 96 N. Y. 100; Maeullar 
V. McKinley, 99 N. Y. 356; Taylor y. Frost, 39 Miss. 328; 
Bond V. Qarkj 35 Vt 577; Morse v. Dearborn^ 109 Mass. 
593; Shippen v. Bofven, 48 Fed. Rep. 659; 8tUt y. lAUle, 63 
N. Y. 427-31.) A representation false in fact gives no right 
of action if innocently made by a party who believes the truth 
of what he asserts. (Benjamin on Sales, §§ 679-89, inclu- 
sive.) This is a settled rule in England, and is concurred in 
both by the queen's bench and tlie exchequer. (Evans v. 
Cbllins, 6 Q. B. 820; Ormrod v. Huth, 14 Mees. ft W. 650; 
Dickson v. Reuiertf TeL Co., 3 Com. PI. Div. 1.) False 
representations to avoid a contract must be made for the 
purpose of inducing the party complaining to enter into the 
contract, and must have been relied upon by him. (Bernnger 
v. Cbift, 68 Mich. 667; Humphrey v. Merriam, 32 Minn. 197.) 
In an action to recover possession of goods sold and delivered 
to defendants, on the ground that the sale was induced by false 
and fraudulent representations made by them, the burden is 
upon the plaintiffs to establish that such representations were 
made with the intent to deceive and defraud. (Coffin v. Hoi" 
lister, 124 N. Y. 644; BothschUd v. Portery 19 N. Y. Supp. 
177; Morse v. Dearborn, 109 Mass. 693.) In actions for false 
representations and deceit, it must be shown that the defend- 
ant knew the representations to be false at the time of making 
thenu In other words, the soienier, as it is termed^ must be 



14 Mont Ellison v. Babkbb. 99 

proved. (Plata v. QmdU, 22 Art. 459; PeUigreio v. CftdSi, 
41 N. H. 96.) 

Pembebton, C. J. — ^This is an action for the recovery of 
the possession of personal property, and for damages for the 
alleged wrongful detention thereof. 

The complaint alleges "that on the third day of January, 
1891, at the city of Philadelphia, state of Pennsylvania, the 
defendant James W. Barker, for the purpose of inducing 
plaintiffs to sell him certain goods, represented to the plain- 
tiffs that he was worth the sum of $7,800 over and above all 
debts and liabilities, and that he was indebted for borrowed 
money in the sum of $1,300 only, and that his total liabilities 
amounted to but $3,400, including $2,100 due for merchan- 
dise; that the plaintiffs were thereby induced and did sell and 
deliver to the defendant James W. Barker goods, wares, and 
merchandise of the value of $1,000; that said representations 
were false, and the said defendant James W. Barker was not 
worth at said time $7,800 over and above all his debts and lia- 
bilities, or any other sum whatever, but at said time was insol- 
vent, and had not sufficient property with which to pay his 
debts, and these facts were then known by the said defendant 
to be so; that at the times said representations were made the 
said James W. Barker was indebted to the First National Bank 
of Helena, as plaintiffs are informed by the officers of said 
bank, in the sum of $3,134.43 and accrued interest, borrowed 
money; that he was then indebted to one E. H. Reynolds, 
as platutifis are informed by said Reynolds, in the sum of 
$500, or more, for borrrowed money, and that he was then 
indebted to the Thomas Cruse Savings Bank in the sum of 
$180, for borrowed money, all of which indebtedness the said 
James Barker then well knew''; that defendant Barker after- 
wards transferred a certain part of said goods, of the alleged 
value of $566 (which are described in the complaint) to 
defendant Davidson; that plaintiffs have demanded of said 
Davidson the possession of said goods; that he refused to 
deliver the same, and now unlawfully and wrongfully with- 
holds and detains the same. Plaintiffs ask judgment for the 
possession of the goods, or their value, and $500 damages for 



100 Ellison v. Babkbr. [Dec. T.^ 1893 

the detention thereof. Defendant Barker does not answer, the 
cause having been dismissed as to him. Defendant Davidson's 
answer denies all the material allegations of the oomplaint^ 
and alleges affirmatively as follows: 

'U. U{)on information and belief, defendant alleges that the 
goods, wares, and merchandise sold and delivered by plaintiffs 
to defendant James W. Barker, as set forth in plaintiffs' com- 
plaint herein, were sold to said Barker in pursuance and in 
accordance with a certain agreement of settlement made and 
entered into by and between said plaintifis and said James W. 
Barker on the second day of January, 1891. 

^'2. Tliat, upon the second day of January, 1891, the said 
James W. Barker was indebted to plaintiffs in the sum of 
$4,675.99; that according to the terms of said agreement the 
said defendant James W. Barker was to pay the said plaintiffs, 
in cash, the sum of $2,728, and the remaining sum of $1,847.99 
in five promissory notes, four of which said promissory notes 
were to be made for the sum of $350 each, and the fourth of said 
promissory notes was to be for the sum of $447.99; and that 
the plaintiffs thereupon agreed to sell, and did sell, to said 
Barker, upon said agreement, goods, wares, and merchandise 
of the value of $1,016.81, the said goods including the goods, 
wares, and merchandise mentioned in plaintiffs' complaint 
herein. 

^'3. That the said Barker, in pursuance of the terms of said 
agreement, did, on or about the — day of February, A. D. 
1891, pay to the said plaintiffs the sum of $2,728 in.cash, and 
on the second day of January, 1891, did make, execute, and 
deliver to the said plaintiffs the four promissory notes as here- 
inabove mentioned and described; and that in pursuance of 
said agreement the said plaintiffs did ship and deliver said 
goods, wares, and merchandise to the said James W. Barker. 

^'4. And defendant alleges, upon information and belief, that 
fliiid goods and merchandise were sold and delivered in pursu- 
ance of said agreement, and in consideration thereof^ and not 
upon any representations or statements made by the said 
James W. Barker upon the third day of Jannary, 1891« or at 
any other time or place, or upon any other statement." 

The affirmative matter of this answer is denied hj repli« 



14 Mont. Ellison v. Babksb. 101 

cation. The case was tried bj the ooart with a jary, and 
resulted in a verdict and judgment for the defendant. Plain- 
tiffs moved for a new trial, which was denied. From the judg- 
ment and order denying a new trial this appeal is prosecuted. 

It will be observed that the pleadings raise two issues: 
1. Did Barker, by making said allied false statement, induce 
the plaintiffs to sell him the goods involved in this contro- 
versy? 2. Were said goods sold by plaintifib to said Barker 
under and in accordance with the agreement of compromise 
set up in the answer? 

The ap{)ellant's principal contention in this court is, that 
the verdict of the jury in the court below is not supported by 
the evidence. The statement made by Barker as to his finan- 
cial condition, and allied to be false, is in writing, dated 
January 3, 1891, and signed by himself, and is in evidence in 
the case, and is substantially as alleged in the complaint. 
R. B. Ellison, one of the plaintiffs, testifies that he sold the 
goods to Barker on the faith of said statement, believing it to 
be a correct statement of his financial condition, and that he 
would not have so sold the goods to him without said state- 
ment having been given. His evidence supports the material 
allegations of the complaint. Samuel W. Lambeth, who 
swears that he has been for thirty years an assistant in the 
collection and credit department of the plaintiffs' firm, testi- 
fies that he was present when Barker made and signed the 
said statement, and his evidence is substantially to the same 
effect as R. B. Ellison's. These are the only witnesses on the 
part of plaintiffs to the facts attending the sale of the goods. 
Barker testifies that the goods in controversy were ordered by 
him in October or November, 1890, of John W. Moore, a 
salesman of the plaintiffs' firm; that at that time he ordered 
of said Moore $2,000 worth of goods; that he did not purchase 
them in fact in January, 1891, the date of said financial state- 
ment; that at the last date he changed the order he had given 
Moore in October or November, 1890, by cutting it down to 
the amount of $1,000, the amount mentioned in the complaint; 
that he did not purchase the goods in controversy under and 
by virtue of the financial statement made by him; that when 
he made said statement he was in Philadelphiai without hm 



102 Ellison v. Barker. [Deo. T., 1898 

books, or any data from which he could make a correct state- 
ment; that he told the plaintiffs he could not make a correct 
statement; that they insisted that he make it as best he could; 
that no trouble would ever come of it; that it was the custom 
of the firm; that prior to his making the statement he had 
made a contract or agreement with plaintiffs^ by which he had 
compromised his ^indebtedness then existing to them at fifty 
cents on the dollar, and for future credit; that the purchase 
of tlie goods in controversy was completed as a result of said 
compromise; that this compromise agreement was made on 
the second day of January, 1891; that in pursuance and in 
accordance with the terms thereof he paid plaintiffs $2,728 
cash, executed and delivered to them his four promissory 
notes, and delivered to them $25,000 in shares of mining 
stock as security for said notes, and for future credit for 
goods; that said goods were sold and delivered under and 
in pursuance of said compromise, and not on account of said 
financial statement; that said plaintiffs well knew his financial 
condition on the second day of January, 1891, the date of said 
statement, and prior thereto; that in December, 1890, Lam- 
beth, witness for plaintiffs, the credit man of the plaintiff 
firm, came to Helena to examine, and did examine, his finan- 
cial condition; that Lambeth took an inventory or account of 
his stock in Helena; that the compromise above mentioned 
was entered into verbally with said Lambeth for said plaintiffs 
at tliat time; that, in accordance therewith, he went to Canada 
to raise the necessary money to carry out said compromise on 
his part; that Lambeth was with him in Canada; that from 
Canada they went to Philadelphia, where said compromise 
agreement was reduced to writing, and signed by plaintiffii 
and Barker; that said contract is in evidence in this case; that 
the sale and delivery of the goods in controversy was the result 
of said compromise, and was not induced, and did not in any 
way result from, said financial statement mentioned in the 
complaint; that plaintiffs have never returned, or offered to 
return, the money paid, and the notes and mining stock, or 
any part thereof, delivered by Barker in pursuance of said 
compromise. The evidence in relation to this compromise is 
not dbpnted. That Lambeth was in Helena in December^ 



14Mont.l Ellison v. Babkbb. 108 

1890y and examined the financial condition of Barker for 

plaintifisy is not questioned. 

It being undisputed that plaintiffs^ after a full examination 
of Barker's condition^ and with full knowledge thereof, in 
writing, compromised their claim against Barker at fifty 
cents on the dollar, and agreed to extend future credit on 
the second day of January, 1891, how can they now consist- 
ently say that they relied on his statement of his financial 
condition made at the same time, as they say, and were induced 
thereby to part with the goods in controversy? Lambeth, the 
credit man of tlie firm, knew Barker was insolvent The very 
contract of compromise signed by the plaintiffs is a showing 
that Barker was insolvent at the date thereof. Do these cir- 
cumstances and proofs not tend to show that plaintiffs did not 
rely upon the financial statement made by Barker as a con- 
trolling inducement to part with their goods? Do these facts 
and circumstances, taken in connection with Barker's evidence, 
not tend to show that the plaintiffs delivered and parted with 
their goods under and in accordance with the terms of the 
written agreement of compromise, and for future credit in 
evidence in this case? From these facts and circumstances, 
were not the jury authorized to believe and find that the goods 
were not obtained by fraud, as alleged in the complaint, but 
that they were delivered under the terms of the compromise 
between plaintiffs and Barker? We think so; We are there- 
fore of the opinion that the contention of appellants that 
the verdict of the jury is not supported by the evidence is 
untenable. 

The appellants assign other errors as to the instructions of 
the oourt and the admission of certain evidence. We have 
examined the instructions, and think they clearly and fairly 
declared the law governing the case. We think there was no 
error in admitting the evidence complained of. We are of 
opinion that the holding in regard to the sufficiency of the 
evidence to support the verdict is decisive of this appeal. 

The order and judgment appealed from are affirmed. 

Affirmed. 

Habwood, J., concnrs* 



104 Leggat v. Lkggat. [Dec. T., 1893 

LEGGAT, Respondent, t>. LEGGAT et al., Appellants. 

[Submitted Febroazy 7, 189S. Decided Febraaiy 12, 1894.] 

hlUDiTLSirr CovYKiAxicsa—AUonMy in fact—CoUusi(m,-^k conyejanoe will ba 
■at Mide m frtodalent, where it appeared that the plaintiff had, at the instance 
of one brother-in-law, appointed another brother-in-law her attorney in fact, 
and that the latter had then con?eyed her interest to the former for a groesly 
inadequate ooutideration, which was accepted by plaintiff in ignorance of the 
facts, the having reposed entire confidence in them, and haying no other source 
of information, and they, acting in collusion, had concealed from her the yalue 
of the property, and falsely represented the title to be in litigation, and the 
property to become a source of expense, while in fact it was yielding consider- 
able reyenue, and its title virtually unassailable. 

Bams— Df/ense~ZDtdanc0.— A claim of equitable ownership of such property by 
the defendant, he alleging to have originally conveyed it to plaintiff's husband 
•s security for a loan, is contradicted by evidence that the property was pur- 
chased by him from defendant for several thousand dollars; that thereafter he 
had for several years paid hid proportion of the eipense of annual representa- 
tion, which expense also included items for personal services by defendant, 
and that defendant, in his letters to plaintiff, referred to plaintiff's interest ae 
" your interest" in the property, and at the time it was conveyed to plaintiff 
by her husband through defendant he asserted no claim to it. 

8lMB—i2a<i^ation—jB^mifnoe.— Evidence that defendant immediately after pur- 
chasing the property had written to plaintiff, informing her of the sale, and 
referring to lawsuits affecting the property, saying, " The third interest I 
bought from.you I deeded to Alex for a loan of two hundred dollars, which I 
sorely needed," and thereafter had sent her a portion of the money, which she 
received and retained for several months without repudiating the sale, although 
in possession of letters from defendant, tending to show that he was not the 
equitable owner of her property, is insufficient to show a ratification of snoh 
■ale by plaintiff with full knowledge of the facts. 

Appeal from Seoorid Judioial District^ Silver Bow ODunty, 

Action to annul fraudulent oonveyanoe. Judgment was 
rendered for plaintiff below by McHatton^ J. Affirmed. 

Forbia & Forbis, for Appellants. 

I. It is a well-settled rule of law, that one who alleges 
actual fraud against another must prove the fraud as alleged, 
and that relief will not be granted upon the proof of construct- 
ive fraud, or upon proof of any other fraud than that alleged 
in the complaint. (Kerr on Fraud and Mistake, 382, 383, 
and note; 1 DanielFs Chancery Practice, 327, 328, 383, and 
note; Eyre v. Potter, 16 How. 42; Bigelow on Fraud, 466; 
Herder v* Leuna, 39 Cal. 632; Leighton v. OrarU, 20 Minn. 



14 Mont.] Leooat v. Leggat. 105 

345; CblKna v. Jackson, M Mich, 186, 190; Barnes y. Quigley, 
59 N. Y, 265; Bumham v, Noyes, 125 Mass. 85.) John A. 
Leggat made no false representations to the plaintiff. He did 
not induce her to appoint R. D. L^gat as her attorney, but 
in fact recommended other parties. There is no proof of any 
collusive conduct between John A. Leggat and R. D. Leggat. 
The complaint does not allege sufficient to show a fiduciary 
relation existing between plaiutiiBf and defendant John D. Leg- 
gat, nor does the proof show it. In matters of this kind the 
brother-in-law, we think, does not stand in a fiduciary relation 
to the sister-in-law, and that merely doing friendly offices, as 
was the case on the part of John A. Leggat toward the plaiu- 
tifif, does not constitute a fiduciary relation, and if there was no 
fiduciary relation then there is nothing in the fact that title to 
property has been misrepresented, even if a misrepresentation 
as to the title could be shown. {Robins v. Hope, 67 Cal. 493.) 
II. It is also a well-settled rule of law, that where a party 
has been defrauded as the plaintiff claims she was in this case 
she must use diligence in disclaiming the transaction when it 
is discovered, and that she must do nothing to ratify or con- 
firm it afler the facts are brought to her notice. Plaintiff did 
not contradict the statements of John A. Leggat as to the con- 
dition of affairs between himself and plaintiff's husband, nor 
did she disclaim the action of her attorney in making the sale, 
but over two months afterwards received, without protest, the 
sum sent to her as the purchase price, and used it; and not 
until fourteen months after she had received the money did 
she disclaim the sale which had been made, although all of 
tlie evidence upon which she seeks to avoid a sale was, during 
the whole of this time, in her possession. The authorities 
upon this question are too numerous for citation, because we 
believe it is a universal rule of law, decided by almost every 
court, that the transaction must be repudiated with diligence if 
it was procured by fraud, and that any waiver or ratification of 
the fraud would preclude the party defrauded from seeking 
the remedy thereafter. {Upton v. TrebUcodk, 91 U. 8. 45; 
Bigelow on Fraud, 443; Kerr on Fraud and Mistake, 298 
et seq.; Bweetman v. Prinee^ 26 N. T. 224; Saratoga do. R. R. 
Cb. V. Row, 24 Wend. 74; 35 Am. Dec. 598: Sanger v. Wood^ 



106 Legoat v. Leogat. [Dec. T., 1898 

3 Johns. Cli. 416; Veimol v. Veimoly 63 N. Y. 46; StaughUry. 
Oerson, 13 Wall. 379; Sample v. Bamea, 14 How. 70.) 

William SoaUonj for Bespondent. 

I. John A. Leggat stood in confidential relations to tbe 
plaintiff; his letters to the plaintiff^ as well as his evidence, 
show that he acted about her property as her agent and man- 
ager, both before and after this transaction. He alludes to the 
application for patent and entry of the claim. He collected 
rents for her, sold some personal property, gave leases on 
claims, etc. His management does not merit any commenda- 
tion, but he did assume to manage plaintiff's properties in 
Montana; he assumed to act as her adviser and her confiden- 
tial friend. He promised repeatedly that he would assist and 
advise any attorney whom she might appoint, and suggested 
the name of B. D. Leggat. Besides, B. D. Leggat's action 
in deeding this projjerty to John A. Leggat was a clear viola- 
tion of his duty — a fraud on the plaintiff. John A. Leggat 
knew it, and took and reaped the benefit of it. This makes 
him equally guilty with B. D. Leggat, even if there were no 
other act of fraud on his part. 

II. There was absolute fraud as shown by the concealment; 
the relations of the defendants; their relations to plaintiff; the 
alleged conversation between the defendants, and the manner 
in wliich the deed was given; the inadequacy of consideration; 
falsity of defenses; failure to consult plaintiff, or fairly state 
the case to her; and other circumstances, even irrespective of 
collusion — but there is collusion. Where suspicious circum- 
stances exist, inadequacy of consideration is almost conclusive 
evidence of fraud. {Gofer v. Moore, 87 Ala. 705; WeUzdl v. 
Fryy 4 Dall. 218; 2 Pomeroy's Equity Jurisprudence^! 927) 
note 2; Kerr on Fraud, 189; AUore v. Jewell, 94 U. S. 606; 
HaUdi V. CoUins, 10 How. 182; Qrvber v. Baker, 20 Nev. 
453.) 

III. ^* Collusion between two persons to the prejudice of a 
third is, to the eye of the court, the same as a fraud.'' (Kerr 
on Fraud, 195, 270; Ead India Ob. v. Henchman, 1 Ves. 
Jr. 288; note to PoUer^s Appeal, 7 Am. St Eep. 279 et seq.) 
Nor does it make any difference that the agent or person in 



14 Mont.] Leggat t?. Legoat. 107 

oonfidential relations is a voluntary agent, or that no benefit is 
derived by him directly from the transaction. (Kerr on Fraud^ 
270; Hunsaher v. Sturffia, 29 Cal. 142.) 

rV. When any third person, even though a stranger, col- 
ludes with one in fiduciary or confidential relations to the 
plaintiff the case becomes one of constructive fraud; and the 
same burden is cast upon the third person as would be on an 
agent, and the case is governed by the rules applicable to con- 
structive fraud. (Bigelow on Fraud, 2d ed., 1888, p. 676 et 
0eq.; Mecham on Agency, § 797.) An agent who fraudu- 
lently and wrongfully transfers his principal's property to a 
third person who has knowledge or notice of the fraud, or to 
one who is not a bona fide purchaser for value, does not deprive 
the principal of his title to the property, nor bar his right of 
action to recover the property or its value from the person so 
receiving it. (1 Wait's Actions and Defenses, 285; 1 Perry on 
Trusts, 4th ed., § 211.) 

V. The burden is upon the defendant to show that he 
dealt fairly with the plaintiff; that the latter was made fully 
acquainted with the value, and all of the circumstances and 
conditions of the property; that the price was fair, and tliat 
the defendant was guilty of no inequitable practices, or of con- 
cealment or misrepresentation; and that full disclosure was 
made to the plaintiff. (1 Story's Equity Jurisprudence, 318; 
Bigelow on Fraud, 261-63, 296-99.) That John A. Leggat 
sustained confidential relations to the plaintiff is shown by 
the following authorities, applied to the facts of this case: 
Bigelow on Fraud, 262; Kerr on Fraud, 183, 193; 2 Warvelle 
on Vendors, 866, note 5; Bishop on Contracts, § 740, note 6; 
wherein he quotes Seevers, C. J., in Leighton v. Or, 44 Iowa, 
679, to the effect that ^'it matters not what the relation is, if 
confidence is reposed and influence obtained." (2 Pomeroy'a 
Equity Jurisprudence, §§ 951, 963; Pastor v. Baloh, 69 Mo. 
123; Baylis8 v. Williams, 6 Cold. 440; 1 Perry on Trusts, 
§§ 201, 204; Huguenin v. Basdey, 2 White & Tudor'a Leading 
Cases in Equity, part 2, pp. 1233, 1234; Hunsaker v. SturgiSf 
29 Cal. 142; note to Patterns Appeal, 7 Am. St. Rep. 279 et seq.) 

VI. Upon the facts of this case no laches or acquiescence 
can be imputed to the plaintiff. Before laches can be imputed 



108 Legoat v. Leggat, [Dec. T., 1898 

the injured party mnst have acquired knowledge of the fraud, 
and have delayed an unreasonable time after the discovery; 
and he must have been fully apprised of all the facts relating 
to the fraud before he can be guilty of laches; and the discov- 
ery of only a part of the fraud is not sufficient (12 Am. A 
Eng. Ency. of Law, 557, 658, 578, 604, 605; HalleU v. CWKiw, 
10 How. 186; Allo9'e v. Jewell, 94 U. S. 506-12.) In this case 
six years held not a bar. This action was brought within two 
years, and before the statute of limitations could possibly 
have run. So laches cannot be imputed. (Bigelow on Fraud, 
23, 38-40; Kerr on Fraud, 300; 12 Am. & Eng. Ency. of 
Law, 545; 2 Pomeroy's Equity Jurisprudence, § 965, and note 
2, toward end of note; Lux v. Haggin^ 69 Cal. 267.) The 
defense of laches is an affirmative one, and the burden is upon 
the defendant to establish it. (Bigelow on Fraud, 136.) The 
sale was one in which plaintiff might have acquiesced, but she 
did not do so. 

VIL The rule stated in Robins v. Hope, 57 Cal. 493— that 
a party is conclusively presumed to know the condition of his 
title to real estate — is not correct. If correct, it would follow 
that there could be no relief granted for mistakes as to title, 
but such relief has many times been granted. (Kerr on Fraud, 
398-401, 406, 413, 415; 1 Story's Equity Jurisprudence, 
§ 122 and following, and 130; 2 Pomeroy's Equity Juris- 
prudence, 847, 848, and notes, 849, especially on p. 314; Trigg 
V. Bead, 5 Humph. 529; 42 Am. Dec. 447; HalleU v. Cbffiw, 
10 How. 186; BUlinga v. Aspen Min.ete. O)., 51 Fed. £ep. 338.) 

Harwood, J. — Through this action plaintiff sought and 
obtained a decree annulling the sale, and canceling the con* 
veyance, whereby defendant John A. Leggat acquired and held 
title to one-third interest in the Old Glory mining claim, situ* 
ate near Butte City, in Silver Bow county, Montana, with pro- 
vision for the restoration of said property to plaintiff, together 
with the rents and profits obtained therefrom by said defend- 
ant while he held the title thereto. The annulled sale and 
conveyance were made by defendant Boderick D. Leggat, act* 
ing as attorney in fact for plaintiff. The grounds for soch 
relief, as alleged in the complaint, and affirmed by the decree. 



14 Mont.] Legoat v. Leggat. 109 

were false and fraudulent representations and oonoealments by 
defendants^ acting in collusion, concerning the value, and con- 
ditions affecting the value, of said property, whereby they 
betrayed the trust and confidence which plaintiff had been led 
to repose ;q them, and induced plaintiff to accept a grossly 
inadequate price for said property. From the decree, and the 
onler of the court overruling defendants' motion for new triaU 
this appeal is prosecuted. 

Appellants assign in their brief, and urge in argument, two 
propositions, on which they insist the judgment is not supported 
by the evidence, and for which reasons it should be reversed: 
1. Because the alleged fraud is not proved as charged in the 
complaint; 2. Because the proof shows that plaintiff acquiesced 
in^ approved, and ratified said sale and purchase, and received 
the price paid with full knowledge of all the facts in relation 
to said property on which she now predicates fraud, and seeks 
to avoid the transaction. The pleadings and proof must there- 
fore be reviewed from the standpoint of these assignments. 

During the times mentioned in these proceedings, plaintiff 
resided in the state of Missouri, while defendants, her brothers- 
in-law, resided at Butte City, state of Montana, very near the 
location of the property in question. Plaintiff sets forth in 
her complaint that on the 6th of May, 1888, and for two 
years prior thereto, she was seised in fee and possessed of an 
undivided one-third interest in and to a certain quartz lode 
mining claim, known as ^^Old Glory mining location,'^ situate 
in said county, etc., giving particular description thereof. 
That on December 15, 1887, by power of attorney executed 
and delivered, she appointed and empowered defendant Boder- 
ick D. Leggat as her attorney in fact, to manage and sell cer- 
tain of her real estate situate in Silver Bow county, Montana, 
and particularly her interest in said Old Glory mining claim, 
which power was accepted by Boderick D., and continued in 
force until revoked, in 1888. That such appointment was 
made because so advised by defendant John A., who, through 
liis correspondence with plaintiff, had pretended to act as her 
friendly and confidential adviser in respect to her property and 
afiairs in Montana, and particularly her interest in said lode 
daim^ both before and after such appointment, whose state- 



110 Legqat t;. Leggat. [Dec. T., 1898 

ments she believed, and whose counsel she trusted and relied 
Upon, and because of her trust and confidence in both defendants 
as brothers of her late husband, Alexander J. Leggat That 
on or about May 6, 1888, Roderick D., acting as plaintiff's said 
attorney, sold and conveyed plaintiff's one-third interest io 
said Old Glory mining clainai to defendant John A., for $1,000, 
a greatly inadequate consideration, for said property was worth 
at least five times said amount, and was constantly increasing 
in value. That about the 23d of April, 1888, a short time 
prior to said sale to John A., a small portion of the surface, 
only, of said claim, without conveying any rights to the min- 
eral therein, was sold and conveyed to Adam Farrady for 
$3,000, of which plaintiff's share was $1,600; and both defend- 
ants were parties to that conveyance, Roderick D. signing it 
as plaintiff's attorney in fact. That such fact was concealed 
from plaintiff by both defendants, and plaintiff discovered the 
snme only within about two weeks before instituting this action. 
That none of her share of the proceeds of said sale to Farrady 
was accounted for or paid to her. That a large portion of the 
town of Centerville, in Silver Bow county, Montana, is built 
on said mining claim, and all, or nearly all, of the occupants 
thereof were paying, or had agreed to pay, ground rent to the 
owners of eaid claim, which ground rent was worth several 
thousand dollars per annum; and many valuable buildings are 
erected on said claim, which, as plaintiff is advised, become 
part of said property belonging to the owners thereof. That, 
in addition to the value of the surface ground, the vein of said 
mining claim is of considerable value. That, until a few weeks 
])rior to the commencement of this action, plaintiff was in com- 
plete ignorance of the value of said property, its condition and 
title. That defendants were plaintiff's only source of informa- 
tion. That they, as plaintiff is informed and believes, and 
therefore alleges, confederated together for the purpose of con- 
cealing from plaintiff the value of said property, and mislead- 
ing her concerning the same, and thereby to fraudulently induce 
plaintiff to accept for her interest a grossly inadequate snm; 
and that, pursuant to such collusion and conspiracy, defendant 
John A. several times wrote to plaintiff that said claim was 
the source of much annoyance and ezpensOi was involved io 



14 Mont.] Legoat v. Leogat. Ill 

litigation, and the title thereto was doubtfal, and. that he was 
compelled to devote much time, labor, and money to protect 
the plaintiff's interest therein; and that defendant Koderick 
D. concealed the true facts in regard to said property from 
plaintiff, and gave her no correct information thereof. That 
such statements made by John A., and each and all of them, 
were false, and known by him to be false, except the statement 
that he pretended to manage said claim; for, in fact, when 
plaintiff's interest in said property was conveyed to John A., 
tlie title to said claim was good and uncontested, and the 
ground rents for the occupied portions thereof were of great 
value, as aforesaid, besides the value of the claim itself, and 
the value of said property was constantly increasing, as defend- 
ants well knew. That such sale of plaintiff's interest was 
made by Roderick D. to John A., without the knowledge or 
consultation of plaintiff; but afterwards plaintiff was informed 
of such sale by letters received from each of the defendants, 
wherein they stated that $1,000 was all that plaintiff's inter- 
est was worth, and that the title thereto was doubtful and in 
litigation, or threatened with litigation, which statements were 
false, as both defendants well knew; but plaintiff then relied 
upon and believed said statements, and, being deceived thereby, 
was induced to accept $1,000 for said property, whereby 
defendants defrauded plaintiff, and deprived her of many thou- 
sands of dollars of value in said property. That plaintiff only 
discovered such fraud a few weeks prior to the commencement 
of this action. That she then tendered back to John A. the 
sum paid for her interest in said property, with interest since 
payment, and demanded a reconveyance thereof to her, all of 
which was refused. That while defendant John A. has held 
title to said property he has received rents and profits thereof 
to a large amount, for which plaintiff asks an accounting and 
judgment, together with a decree compelling the restoration of 
said property to her. 

Defendants made separate answers to the complaint^ but very 
similar in substance. There is no denial of the transfer of 
said property by Roderick D., acting as plaintiff's attorney in 
fact, to John A., for $1,000 consideration; nor denial that 
plaintiS's interest in said property was worth upwards of five 



112 Leqgat 17. Leggat. [Dec. T., 1898 

times that sum; Dor that defendants were nnaoqnainted with 
its value^ or the oircumstanoes whioh enhanced its value. As 
to the alleged sale of a small portion of the surface of said 
elaim to Farradj, it is denied that the proportion of the pro- 
ceeds of that sale due to plaintiff's interest amounted to $1,500, 
or any sura greater than $1,000. But defendants specifically 
deny all the material allegations of the complaint charging 
them with false representations and fraudulent concealments in 
reference to said property; and by way of new matter of defense, 
in support of the good faith of the transaction, defendants allege 
that John A. Leggat was in fact the equitable owner of said 
interest during all the time the legal title thereof was held by 
plaintiff and her late husband, Alexander J. Leggat; that, in the 
year 1882, John A. conveyed the legal title to said interest to 
Alexander J. to secure a loan of $200, which the former had 
borrowed from the latter; that such conveyance was in fact a 
mortgage, and so considered and intended by the parties thereto, 
to secure repayment of said sum of $200; that the title to said 
property was afterwards conveyed to plaintiff, Ruth F., in 
consideration of her husband's love and affection for her, and 
for no other consideration; and defendants allege, on informa- 
tion and belief, that plaintiff was ''fully aware of the character 
of said transaction between John A. and her husband, Alex- 
ander J., and knew, or ought to have known, that the title 
which she had to said property was intended as security for 
the amount due from defendant John A. to Alexander J. Leg^ 
gat^'; that defendant John A. paid the sum of $1,000 to 
Ruth F., through her attorney, Roderick. D., to redeem said 
property from such pledge as security, and to procure its recon- 
veyance to him; that said sum was greatly in excess of the 
amount due for such redemption, but on account of his rela- 
tionship to plaintiff, and his desire to relieve her necessities, 
John A. paid such liberal sum for the redemption of said inters 
est. All this new matter of defense is specifically denied by 
plaintiff's replication. 

The trial ensued, whereat the respective parties introduced 
their evidence, argued and submitted the case to the court 
without asking special findings^ and 'with the~ understanding 
that the court, after due deliberatioui would determine the case 



14 Mont.] Leogat v. Leoqat. 118 

bj a general finding; and thereafter the court returned its gen- 
eral finding in favor of plaintifi^, to the effect that all the alle- 
gations of her complaint had been established by the proof, 
and were true; whereupon judgment was rendered accordingly, 
as aforesaid. 

Passing to an examination of the evidence, bearing in mind 
the assignments of appellants, it must be ascertained: 1. 
Whether the fraud was proved as alleged; and 2. Whether 
plaintiff acquiesced in and ratified the sale in question with 
full knowledge of the facts. '^ 

There appears to be no dispute that the conduct of Boderick 
D.y as the attorney in fact for plaintiff, in reference to her 
interest in question, was a fraudulent betrayal of the trust 
reposed in him by plaintiff. But as to John A. it is contended 
there is no showing that he was in collusion with Bo<lerick D., 
or guilty of any false representations or deceptions in reference 
to the subject of this action. We find ourselves, however, 
unable to place that interpretation upon his conduct or his 
representations in this matter. We find in the evidence, giving 
it as favorable interpretation towards John A. as it will bear, 
abundant support for the conclusion reached by the trial court 
The attitude assumed by John A. towards plaintiff, as shown 
in his letters to her ^fter the decease of her husband, Alexander 
J., seemed to have been calculated to lead plaintiff to place 
confidence in him, and to rely upon and adopt his counsel in 
relation to her property in Montana. There is in these letters 
the appearance and expression of good faith, kindness, and 
earnest solicitude for the welfare of plaintiff, yet perfect inde- 
pendence and disinterestedness; even more, they exhibit a 
spirit of chivalrous generosity and magnanimity of one, strong, 
well informed, and experienced, towards the weak and depend- 
ent, mingled with occasional expressions of affection towards 
the widow and children of a deceased brother. In several 
volnminous letters written in that spirit to plaintiff, subsequent 
to her husband's death, and during the year prior to his get- 
ting title to said interest in the Old Glory claim, John A. 
dwells at great length upon the condition of plaintiff's prop- 
erty in Montana; advised the appointment of an attorney, with 
You XIV.— 8 



114 Leggat v. Leggat. [Dec. T., 1898 

full power in reference thereto, and suggested Roderick D« as 
a proper person for that commission; and, witlial^ assured 
plaintiff* repeatedly of his desire and intention to aid her and 
her attorney, to the best of his ability, by his counsel and 
information in respect to said property. In this respect he 
wrote, in a letter of February, 1887: 

' "I have some knowledge of every thing connected with all 
your property here, and will do, aid, help, and advise, to the 
uttermost of my power, to assist whoever you appoint, when 
requested or consulted in regard thereto, for your interests/' 
And again, speaking, evidently, of his own appointment as 
such attorney, in a letter of July, 1887, he said: ** I inclose you 
power of attorney to sign and acknowledge before a notary pub- 
lic; or, if yon think of or desire any one else to act as such, do 
so at once, and I will help and advise them all I can.'' And 
again, in a letter of October, 1887, he observed: "Mining 
property, especially, needs watchful care and promptness of 
action. I have suggested, time and time again, that you 
appoint some one with authority to act for you in matters out 
here. I have assumed it as far and as long as I could. Your 
property is being trespassed upon continuously, and no one to 
say stop." Again, in the same letter, he said: " Now, for the 
last time, I would suggest that, if you care about the property in 
this territory, give Rod., or some one, full power to act for you 
in these matters, or come yourself and look the situation over. 
Some thing should be done at once. You can rest fully assured 
that I will render all the help and do all I can to protect and as- 
sist your interests, no matter who you have to represent you." 
Plaintiff appears to have adopted, relied upon, and carried out all 
these suggestions of defendant John A., to her ultimate disadvan- 
tage and loss, and, as it happened, with all his protestations of 
good faith, kind intentions, and his great solicitude for plain- 
tifl's welfare, her loss was his gain. But his suggestions in ref- 
erence to the appointment of an attorney, and the good offices 
he promised to volunteer .for the aid and benefit of plaintiff, 
but never fulfilled, was not all of his conduct which tended 
to the disadvantage of plaintiff. He accompanied these sug- 
gestions with a narration of facts and circumstances tending 
to depreciate in plaintiff's estimation, the value of her property 



14 Mont] Legoat v. Leqoat. 115 

ID Montana, and especially the Old Glory mining claim, 
lliat claim seems to Lave been the central point of calamity^ 
vexation, menace, and expense in the gloomy picture drawn by 
defendant John A. in his letters to plaintiff. In this regard 
he writes, in a letter of June, 1887: '^I had a talk with Mr. 
Foster in regard to the purchase of your interest here in Silver 
Bow county in the properties. He did not want to buy, but 
has concluded, on my urging the matter, to do as I wish should 
be done. He owns interests in some of it, and as I have all 
the work, trouble, time, and expense to stand to maintain the 
title and possession, I feel that I am about weary of it; and I 
will sell what interest I have in the whole matter at what I 
can get, and let those that remain in take the responsibilities 
and worry that I have so long borne without recompense, or 
harilly thought of thanks from my partners, whose interests 
I have maintained and protected so long.'' 

" Mr. Foster declines to buy any of my interests, as he deems 
me a safeguard to his title. All the properties which are 
embraced in the deed which I inclose are more or less in liti- 
gation. The Old Glory especially had a heavy dose of trouble 
— an unpaid cost of suit in the supreme court, of over two 
years' standing, and a pending suit against over one hundred 
people who have squatted on, and now occupy, the ground. 
None of the properties embraced in deed are producing any 
revenue, and will not, unless after the expenditure of consider- 
able money to develop them.^^ Again, in his letter of July 
24, 1887, having drawn a very discouraging picture in refer- 
ence to the property in which plaintiff was interested in Mon- 
tana, and having said, ''None of this property is really of any 
value,'* he continued: "The Old Glory claim, the title of 
which is not received from the government, is squatted on by 
over a hundred houses, on certain claimed titles thereto, which 
may involve possible bloodshed, or, at least, a long and trouble- 
aome lawsuit, to remove." Again, he says, in a letter of Octo- 
ber 25, 1887: "Some of the property is valuable, but no one 

that I know of can do a d with it, and it will cost time, 

money, work, to settle difficulties which have already arisen in 
regard to mnch of it Bod. will possibly tell you how easy it 
is to guard mining interests here from the encroachments of 



116 Lbgqat v. Leggat. [Dec. T,, 1893 

designing and dishonest sharpers. Two instances m oases I 
will mention, which Rod. is cognisant of. The Old Glory 
has had two expensive lawsuits to maintain to defend its right. 
The last one^ which went to the supreme court, I fought, I 
defended, and won, without the shadow of authority to do so 
from either you or Alex. Had this fact been discovered by 
the opposite parties' attorneys, the case would have been beaten. 
And now there is another lawsuit looming up, dark and ugly, 
as the whole claim has been squatted on and built over, there 
being upward of one hundred houses with families thereon. 
Suits of ejectment will have to be entered. Trouble, money, 
and maybe worse, will have to be expended, ere the end is 
reached.'' His letters constantly reiterate such depressing and 
discouraging statements in reference to plaintiff's interests in 
Montana in general, and as to the Old Glory claim in particu- 
lar; and these statements are either wholly false, or gross 
exaggerations. It is true, there was some litigation in respect 
to said claim, but it does not appear to have been of a very 
formidable character. The main case, which he speaks of as 
having gone to the supreme court, was determined in 1885. 
(Leggat v. Stewart, 5 Mont. 107.) This case grew out of an 
adverse claim to the same property, under a location known as 
the ^^ Raven lode location." Such litigation in respect to 
mining claims of known or promised value is not uncommon. 
But the claimants of the Old Glory prevailed in said case in 
both the trial and appellate courts; and their title seems to 
have been regarded thereafter as so firmly established that of 
the one hundred occupants who had built residences thereon, 
it being in a populous mining district, more than two-thirds 
of them made terms for ground rent without litigation. Some, 
however, were recalcitrant, and in 1888 one ejectment suit was 
instituted against some twenty-eight of them as defendants; 
but they made no appearance to dispute the right of the own- 
ers of the Old Glory claim to assert dominion over the ground 
they occupied for residences. It is admitted that no other liti- 
gation occurred in reference thereto. 

The fact that the claim was so situated as to make its sar- 
fiioe desirable for residence purposes greatly enhanced its worth 
to the owners; and the presence of these occupants, about 



14 Mout.l Leggat V, Legqat. 117 

which 80 much <1oIefa] maleiliction went forth from John A. 
to plaiDtiffy was in fact a source of value and income^ for the 
ground rent they paid is shown to have been six to eight hun- 
dred dollars per quarter. But this false and discouraging pre- 
sentment in respect to said interest, coming from one assuming 
to act as friend and confidential adviser, and relied upon as 
such by plaintiff, residing at a great distance therefrom, with 
no other source of information, was calculated to prepare her 
mind to gratefully accept a small price for her interest in such 
unpromising and expensive property. The view he presented 
is shown by the testimony to have been false. The truth was 
that said property was valuable, was salal>le, was yielding a 
good income^ and the tilte of the owners was practically uncon- 
tested. 

Was there collusion between Jo6n A. and Roderick D. in 
this affair? The facts admit of no other conclusion. The 
appointment of the latter as plaintiff's attorney to manage and 
sell her property was suggested by John A. It is true, he was 
not the only person mentioned for such appointment. Other 
names were mentioned, but accompanied with some sugges- 
tions of doubt as to their availability or willingness to act in 
that behalf. But the suggestion of the appointment of Roderick 
D. goes for very little in determining the question of collusion 
between defendants to mislead or defraud plaintiff^ in the 
respect alleged. That determination proceeds upon the show- 
ing of alliance between them, and the co-operation of Roderick 
D. with John A., to the end that he acquired title to said inter- 
est of plaintiff for a grossly inadequate consideration. Acting 
against the interest of plaintiff, and contrary to his trust and 
duty as her agent, Roderick D. appears to have espoused the 
claim of John A., that he was the equitable owner of the inter- 
est held by plaintiff in said Old Olory mining claim, on his 
assertion that he had conveyed it to plaintiff's husband to 
secare a loan of $200, according to John's 'information and 
bdief/' as he alleges in his answer, and therefore the legal title 
ought to be conveyed back to him, on payment of a mere 
fraction of its value, by way of redemption. Having thus 
subserviently allied himself with John A., and subscribed to 
his demands against plaintiff's interest without even consull- 



118 Leggat v. Leggat. [Dec, T., 1898 

ing plaintiff, Roderick D., through bis power of attorney from 
her, proceeds to invest John A. with the legal title to plaintiff's 
interest in the Old Glory claim for the payment of $1,000« 
This was a most convenient and effectual service of Boderick 
D. to John A. in aid of the consummation of his purpose. 
But, apparently not satisfied with that service to John A;, 
Roderick D. undertakes to smooth the way for the effectual 
operation of the scheme by writing false statements to plaintiff 
in ;|respect to the value of said property, tending to lull her 
into the belief that she had received all her interest in said 
property was worth, thus seeking, by falsehood, to aid John 
A. in quietly holding said interest without remonstrance from 
plaintiff. To this end, in his letter reporting the transaction 
to plaintiff, Roderick D. tells her that her title in said claim 
''was extremely shaky and doubtful; besides, John A. had 
charge of it, and was doing all tlie fighting at his own 
expense''; that he ''could not have realized the same amount 
from any one else,*' nor from John A. "the day after, for he 
would not have had the money''; and, continuing, Roderick 
D. says: "So, I think it was a wise and prudent act, for it 
saved both you and myself considerable trouble and expense, 
for, even with a clear title, few men would take it at half the 
figure." 

When Roderick D. wrote these false statements he knew 
that the title of the owners of the Old Glory claim was good 
and practically uncontested; that it was valuable, and salable 
in the market for a sum greatly exceeding $1,000; was yield- 
ing rents, so that plaintiff's portion for one year would amount 
to about as much as the price for which the whole interest was 
sold to John A.; moreover, that practically, through the per- 
fidy and collusion between himself and John A., the latter 
was paying the pretended purchase price with plaintiff's own 
money, derived; from her interest in said property; and John 
A. knew the same while he was availing himself of the fraudu- 
lent conduct of Roderick D. to work out the evident design of 
John A. to get said property for an inadequate price. The 
conduct of each defendant operated harmoniously and directly 
with that of the other to accomplish the end ultimately 
achieved* The acts of each supplemented and combined witJi 



14 Mont.] Legqat v. Leggat. 119 

the acts of the other to effect the result attained. We think 
there is ample showing of oollasion; or possibly the more 
proper designation is^that Roderick D. was the pliant instru- 
ment and agent used bj John A. along with his own efforts, 
to work out his will and purpose of obtaining said property 
for an inadequate consideration. The averment that John A. 
Leggat was the equitable owner of the interest held by plaintiff 
in said mining claim, he having conveyed it to Alexander J. 
Leggat as security for a loan of $200, is contradicted by an 
array of facts and circumstances which fully supports the 
implied finding of the trial court that such claim is fictitious. 
This proof comes principally from the letters of John A. to 
plaintiff, and her husband, Alexander J., during his lifetime. 
It is shown that Alexander J. acquired an interest in the min- 
ing claim in question, together with interests in other mining 
property in Montana, through John A. Leggat, by payment 
of several thousand dollars; and thereafter, during several 
years, Alexander J., and plaintiff, after his death, paid one- 
tliird of the expense of annually representing and otherwise 
protecting the Old Glory claim, which expense amounts to 
more than $200, and includes items for personal services by 
John A. These facts are shown in letters of, and in bills ren- 
dered by, John A. It is not likely that if John A. was the real 
owner, and Alexander J. held that interest for security of the 
small sum of |200, John A. would have demanded, or Alexander 
J. have paid for, personal services of John A. in respect thereto. 
Besides these facts, John A. repeatedly referred to that interest 
as ''your interest in the Old Glory,'' in his letters to Alexander 
and to plaintiff, wherein he speaks of the representation, the 
sale, development, or protection of that claim or interest; and 
just prior to the death of Alexander, and when that event was 
imminent, Alexander conveyed said interest in the Old Glory 
claim to John A., and he immediately conveyed it to plaintiff, 
with no assertion, reservation, or arrangement showing that 
John A. was the real owner thereof, and the legal tftle was 
held by the others as security for repayment of a small loan; 
and John A. afterwards, in letters to plaintiff, refers to said 
interest as her interest, and in no wise intimates that he 
claimed to own it, until his letter informing plaintiff that he 



120 Leggat v. Legqat. [Deo. T., 1898 

had bouglU lier inlei^ed. The proposition that plaintiflF acqui- 
esced in, ratified^ or approved said sale with full knowledge of 
the facts is not supported by the record. This is argued from 
the fact^that, immediately after said sale, John A. wrote plain- 
tiflF, and having mentioned that there were twenty-eight eject- 
ment suits against squatters and 'trespassers on the Old Glory 
alone, said: 

"I bought from Rod., your attorney in feet, your title to 
this Old Glory claim, paying $1,000 cash for your title of one- 
third interest therein. For the past four years this claim has 
been in lawsuits, and I am the only one of all interested that 
fought the fight. The other parties are useless and indiflPereut, 
and I had got my blood up to beat the attempted swindle, and 
carry the war on"; and, after saying more about lawsuits 
involving said claim, he observes: "The third interest I 
bought from you I deeded to Alex for a loan of $200, which 
I sorely needed." Thereafter, Boderlck.D. sent plaintiflP $800, 
of said price paid, reserving $200 to pay expense in relation to 
someother interests of plaiutiflFin Montana. PlaintiflP received 
said money, and did not then repudiate said sale, although she 
was in possession of the letters of John A. to Alexander J. 
and herself, which tended to show that John A. was not the 
equitable owner of said interest. From these facts it is argued 
that plaintiflP was cognizant of all the facts which showed the 
fraud and imposition, if any was practiced on her, when she 
received, and retained for several months, the consideration for 
conveyance of said interest to John A. This conclusion is 
much broader than the facts disclosed by the record justify. 
With all the information and sources of information which 
plaintiflP had in the letters of John A. and Roderick D., there 
was no showing that she had been imposed upon or defrauded. 
They had informed her to the contrary. And what diflPerence 
did it make to her that John A., without just ground therefor, 
asserted that he was the equitable owner of said interest, if he 
had bought her interest, and paid plaintiflP all it was worth, 
and more than any other one would pay? It was through 
subsequent investigation, outside of the information which 
plaintiflP had when she received said purchase price, that she 
discovered the fraud and imposition which she had suflPered. 



14 Mont.] Pbnn Placbb M. Go. v. Schbbinbb. 121 

Her main enlightenment was in the discovery of the fact that 
her interest in said claim was worth several thousand dollars 
more than that represented bj Roderick, and paid by John A. 
therefor; that it was yielding a large revenue; that a small 
part of her interest had been sold, before the conveyance to 
John, for all that he paid therefor; that the statements that a 
large number of lawsuits were pending, and others were threat- 
ened, and looming up " dark and ugly,'' of " war," danger of 
"bloodshed,'' of large expense to defend, rof "shaky title," 
etc, in respect to said claim, were false statements or gross 
exaggerations. But when said purchase price was sent her, 
accompanied and preceded by such false statements, she did 
not know they were false, but it appears she believed them, 
and was mbled and deceived by them. It cannot be main- 
tained that plaintifi' received and retained such purchase price, 
for some time, with full knowledge of the fitcts. 

The exceptions saved in the record as to the admission of 
certain evidence were not insisted on in the argument by appel- 
lants' counsel. Our investigation of the record finds abundant 
support of the decree. It will therefore be affirmed. 

Ajffirmed. 
Pbmbbbtok^ C. J.^ concurs. 



PENN PLACER MINING COMPANY, Rebpondbot, 

17. SCHREINER bt al., Appellanto. ,i* 121 

dap ZH) 

[Submitted Decided Februaiy 19, 1894.] 

Nkw Taui^^StatementSxtetuion of time.— Where the time for filing a state- 
ment on motion for a new atrial, or for doing any act of oonrt practice, is 
extended *'to" a certain date, the date named is included within the period 
preaoribed. 

BiME-^Amendment8—Engros8merd,—A statement on motion for a new trial wiU 
not be jdiaregarded because amendments thereto are not engrossed in the 
leoord, bat ooonp7 a separate position at the close of the statement, where 
inch amendments comprise additional matter ^which is complete and intelli- 
gible in itself . 

l^iME— Motion to $trike oi<t.~Hotion to strike ftom the record the statement on 
motion for a new trial because the cTidence was not all reduced to narratlTtt 
form denied in this case. 

Appeal from Fourth JudioialDistrict, J^erson Cov/nJtg* 



122 Pjsnn Plaobb M. Oo. v. Sohbkinsb. [Dec. T., 1893 

On motiok to strike from the reooid the statemeat on 
motion for a new trial* Denied. 

MoQmndl, (Xayberg & Qunn^ for the motion. 

Where the laDgaage of an order is '^ time extended to'' a 
certain date the language is clearly exclusive of that date. 
The word ^^ to'' *^ is opposed to from, and, in most of its uses^ is 
interchangeable with * unto.' " (Webster's Dictionary; People 
V. Robertson, 39 Barb. 9.) The time for serving statement 
on motion for a new trial having expired on the first day 
of December, 1891, the granting of a further extension on 
December 2d was of no validity, and, the statement having 
been served on the eighth day of December, was not within 
the proper time. {Bear River etc Mining Co. v. Boles, 24 
Cal. 354; Jenkins v. Frink, 27 Cal. 337; Campbell v. Jones, 41 
Cal. 518; Hayne on New Trial and Appeal, § 147, p. 413.) 
The amendments proposed to the statement on motion for a 
new trial are tacked on at the end of the statement; and the 
statement has never been properly, or at all, engrossed. Such 
a statement has no place in the transcript on appeal. (Kim- 
ball V. Semple, 31 Cal. 658; Bush v. Taylor, 45 Cal. 112; Fant 
V. Tandy, 7 Mont 443.) 

Toole & Wallace, Contra. 

The word "to," or "till," or "until," when used in an 
order of court, is inclusive. (Bv/noe v. Reed, 16 Barb. 347, 
352; Dawkins v. Wagner, 3 Dbwl. Pr. 535; Houghton v. Bois^ 
aubwn, 18 N. J. Eq. 318; Delorme v. Ferk, 24 Wis. 202.) 

Harwood, J. — This case stands on motion to strike from 
the record the statement on motion for new trial: 1. Because 
the statement on motion for new trial was not served within the 
time prescribed by the statute, or within the | ciiod of time 
provided by order of court. This all^d ground is based 
upon the respondent's construction of the order of court extend- 
ing time. They insist that where the court, by order, extends 
time to a date named, as "to December 2d," the period of 
extension expires at the close of the day preceding the date 
named in the order, in this instance at the close of December 



14 Mont.] Pbnn Placbe M. Co, v. Schreinbb, 123 

Isi^ because December Ist reaches to December 2d. We think 
the ooutemplation of such an order of court, or stipulation pro- 
viding time to a certain date, within which to do an act in 
eourt practice, such as flie filing or service of a paper/iucludes 
the date named, as the close of the period prescribed. 2. It is 
contended that service of statement on motion for new trial 
was not made in time, although made within the period staled 
in the order of court extending time to file statement. The 
order extending time reads: "For fih'ng statement on motion 
for new trial'^; and it is contended that this order did not 
flufiSce to extend the time for service of said statement. The 
record shows that service of statement was waived by telegram 
from respondent's counsel to appellants' counsel, on the first 
day of December — ^the dav the order of the court was made 
extending time to "file statement.'' This telegram was made 
part of the record by amendment, allowed by the trial court, 
accompanying the objections to the settlement and allowance 
of the statement, on the alleged ground that it was not served 
in time. 

It is further urged that the statement on motion for new 
trial should be disregarded by this court, because the evidence 
is not entirely reduced to narrative form; and that the amend- 
ments are not engrossed in the record, but occupy a separate 
l)osition at the close of the statement on motion for new trial. 
These amendments embody several instructions given to the 
jury by the court — ^the special findings of the jury; some esti- 
mates used by counsel in argument of the case, which the jury 
was, by agreement of counsel, allowed to take to the jury* 
room; some record entries in relation to notice of motion for 
new trial, extending the time for preparation of statement, etc., 
together with objections to the settlement and allowance of 
statement inserted in the record, and made part thereof, by 
way of amendment allowed by the court. All these amend- 
ments comprise additional matter, complete and intelligible in 
itself, and not of the character referred to in the case of Gal^ 
latin Caned Oo. v. Xay, 10 Mont. 528. Apparently no greater 
convenience or certainty would result from these amendments 
being in one part of the statement instead of another. 

As to the objection that the testimony is not all in narrative 



J 



124 Whittaksb v. City of Hblbna. [Dec. T,, 1893 

form^ other records have offended more grievously on that score 
than this one, and jet have been tolerated by this court. This 
record may be subject to some criticism on the ground that the 
testimony is not all reduced to narrative, but it is well under- 
stood that there are examples of testimony very difficult to 
reduce to narrative form without losing or gaining some force 
thereby, and where such is the case this court has been in the 
habit of indulging the statement of evidence by question and 
answer, as given on the trial. It is somewhat hard to draw 
the line between the cases which should, and those which 
sliould not, be dismissed on this particular ground. It is a 
ground which the court should, and will, act upon of its own 
motion. And when admonition is unheeded, and the abuse 
exceeds a just indulgence extended to litigants, unaware of the 
improper practice, rather than to counsel, who are the real 
offenders, we shall then apply the pruning-knife of dismissal, 
to sever from this appellate jurisdiction such records as 
unwieldy, cumbrous, and improper engraflments thereon. 
From our examination of this record we do not consider it one 
which should be thus dealt with. The motion to strike out 
the statement, in our opinion, should be overruled. An order 
will be entered accordingly. 

Motion overruled. 
Pembebton, C. J., concurs. 



WHITTAKER, Respondent, v. CITY OF HELENA, 
Appellant. 

[Sabmitted ICuoh 22, 1898. Decided Febraary 19, 1884.] 

SaauamsaEr-Drvoer of vehMet.—The negligenoe of the owner and driTor of % 
priYftte yehicle is imputable to one yolantarily riding with him by inyitation, 
and defeats the right of the latter to reoover damages against a city for injorieg 
o»naed by its negligence when such driver was goUty of oontribatoiy negl^ 



Appeal from First Judicial Didriot, Lewie and (XarJce OofwnX/y. 

The cause was tried before Buck, J., who denied defend- 
ant's motion for new trial. Reversed 



14 Moni] Whittakeb v. City of Helbna. 126 

Sydney H. Mclntire, (Xiy AUomey^ for Appellant. 

L The theory of the defense all the way through this ( 



was that, if the obstructions to Grand street were permitted to 
remain there, the city having enacted ordinances prohibiting 
obstructions to the public streets, and making' it the duty of 
the public police oflScers to remove such obstructiouSy the fail- 
are or neglect of such officers to do their duty in the premises 
would not make the city liable for any accidents occasioned 
thereby. The law is well settled that a municipal corporation 
is not liable for the willful and unlawful conduct or neglect 
of a clear duty of the police officers; that such police officers 
are the conservators of the public peace and agents of the 
public at large and citizens of the entire state, and not in 
any sense agents of the municipal oorporatiou, even though 
the municipal corporation employs and pays them; they 
cannot bind the corporatiou by any act of theirs, or cast 
upon it 'any liability for their misconduct or failure to }>er- 
form their duty; and in no sense has the doctrine of respon- 
deat eupanor been held to apply in classes of cases similar 
to the one at bar. {Peters v. City of lAndsborgj 40 Kan. 
664; Wheeler v. OUy of Plymouth, 116 Ind. 158; 9 Am. 
St. Rep. 837; Weller v. City of Burlington, 60 Vt. 28; Bines 
v. (My of Charlotte, 72 Mich. 278; GalweU v. CUy of Boone, 51 
Iowa, 687; 33 Am. Rep. 154; LitUe v. Madison, 49 Wis. 606; 
35 Am. Rep. 793; Schtdiz v. Milwaukee, 49 Wis. 264; 36 Am. 
Rep. 779; CoU v. Newburyport, 129 Mass. 694; 37 Am. Rep. 
394; Board of Trustees v. Sohrader, 68 111. 353; WorUy v. 
Inluibiiants etc., 88 Mo. 106; PHnce v. Lynn, 149 Mass. 193; 
2 Dillon on Municipal Corporations, § 976; Lafayette v. lini' 
berlake, 88 Ind. 330; Norristovm v. Fiizpatrick, 94 Pa. St. 121; 
39 Am. Rep. 771.) There was no proof of negligence on the 
part of the defendant, or any of its agents, in this case, and 
the motion for nonsuit should have been granted. 

II. The obstruction in the street must be the proximate 
cause of the injury to render the city liable. It was not in 
this case. The city cannot be held liable for injuries occa- 
sioned by wild, skittish, or runaway horses. The witness 
Dunn tried to make out that his horse was not easily fright- 



126 Whittakbe v. City of Helbna. [Dec. T,, 1893 

enedy but the fact remains that he was. This case seems to be 
similar to Agnew v. Corunna^ 56 Mich. 428; 64 Am. Bep, 383; 
BluffUm V. Matliewa, 92 Ind. 213; Pullman Palace Oar Co. v. 
Barker, 4 Col. 344; 34 Am. Hep. 89; 2 Thompson on Negli- 
gence, 1098; 2 Dillon on Municipal Corporations, § 1015; 
TUiAB V. itorthbridge, 97 Mass. 258; 93 Am. Dec. 91; Stone v. 
Huibarddon, 100 Mass. 64. The proximate cause of this 
injury was unquestionably the conduct of the horse, and Dunn's 
inability to manage him while frightened and shying. 

III. For injuries sustained from licensed exhibitions ren- 
dering streets unsafe through the failure of police officers to 
remove them, the city would not be liable. (2 Dillon on 
Municipal Corporations, § 1011 a; LitUe v. Madiaon, 49 Wis. 
605; 36 Am. Eep. 793; Oole v. Neuoburyport, 129 Mass. 594; 
37 Am. Rep. 394; OUy of Warsaw v. Dunlap, 112 Ind. 576.) 

ly. The evidence seems to show that Dunn was heated at 
his discussion in the council, and purposely put himself into a 
position of danger, with full knowledge of what he was doing. 
Should the city be held responsible for his reckless acts in 
courting this accident? Certainly, in his own case, he could not 
recover damages for his injuries, if any, because he contributed 
directly to the result. And there are authorities holding that 
the plaintifiP was in the same position and is governed by the 
same rules. (Otis v. Janeatnlle, 47 Wis. 422; Prideaux v. Min- 
eral Point, 43 Wis. 513; 28 Am. Rep. 558; Lake Shore etc 
R. R. Co. V. Miller, 25 Mich. 274; Hovfe v. FvUcm, 29 Wis. 
296; 9 Am. Rep. 568.) 

F. Adkinson, and John S. Miller, for Respondent. 

That the city is liable for damages upon the facts shown by 
the testimony, see American and English Encyclopedia of 
Law, volume 9, page 386, and authorities therein cited. The 
negligence of Dunn, if any, could not be imputed to the plain- 
tiff, and the proof is uncontradicted that the plaintiff did not 
know of the existence of the tent until they came uiK>n it^ 
while there are some authorities which sustain the instruction 
of the court upon this point, the great weight of them is to the 
contrary. But however this may be, the instruction was not 
prejudicial to the appellant, and is not one of which the oitj 



14 Mont.] Whittakbb v. City 07 Helena. 127 

ean oomplain. {Mdcalf v. Baker, 11 Abb. Pr., N. S., 431; 
BobifiMon v. New York Ceni. & H. R. R. R. Co., 66 N, Y. 11; 
23 Am. Rep. 1; Dyer v. Mie Ry. Co., 71 N. Y. 228.) 

Pemberton, C. J. — ^This is an action to recover damages 
for personal injuries sustained by plaintiff by being tiirown 
from a buggy in tiie streets of said defendanl city. Among 
other things^ the complaint alleges, substantially^ that on the 
thirtieth day of August^ 1890, and for some days prior thereto^ 
the defendant wrongfully and negligently authorized and per- 
mitted a certain show to be maintained and conducted in a tent^ 
or canvas-covered wagon, on Grand street, in said city; that 
said show was such an obstruction as to render travel along 
said street unsafe and dangerous, and was of such character as 
to frighten gentle and well-broken horses driven along said 
street; that on said thirtieth day of August plaintiff was riding 
in a buggy drawn by a safe and gentle horse, which was beiiig 
driven with due care and caution along said street, when said 
horse, without any fault or negligence of plaintiff, became 
frightened at said show tent or wagon, became unmanageable, 
and ran away, upsetting said buggy and throwing plaintiff to 
the ground with great force, whereby he was greatly injured 
and damaged; that plaintiff, in the lawful transaction of his 
business, had necessarily to pass along said street. The alle- 
gations of the complaint are denied by the'answer. The case 
was tried in the court below with a jury, and resulted in a 
verdict for the plaintiff for one thousand dollars, for which 
sum judgment was rendered. Defendant moved for new trial, 
which was denied. This appeal is prosecuted from the judg- 
ment and order denying the motion for new trial. 

The evidence clearly shows that the plaintiff, at the time of 
the accident set forth in his complaint, was riding with one 
James S. Dunn, who owned the buggy and horse, and was 
driving the same. Dunn, it seems, was on his way to lunch, 
and invited plaintiff, who lived in the same part of the city, to 
ride with him, as it seems he did almost every day prior 
thereto. The evidence does not show that plaintiff knew of 
the existence of the alleged obstruction to travel on the street, 
but Dunn swears that he knew of iU Dunn was, at the Ume^ 



128 Whittakeb v. City of Hblbna. [Dec. T., 1898 

an alderman of the city. It appears irotn that evideDce tne 
the accident to plaintiff occurred at about one o'clock^ p. M.^ on 
the thirtieth day of August. |At twelve, M., of said day 
there was a meeling of the city council of said city. Dunn 
swears that he was at that meeting, and in an earnest and 
excited manner called the attention of the council to the fact 
that this show in the tent or wagon was located and doing 
business on Grand street, and also called the attention of the 
council to its dangerous character; that the mayor stated that 
he would see to its removal at once; that thereupon the council 
adjourned, and that he went immediately to Edwards street, 
got his horse and buggy, drove to Main street, took the plain* 
tifi* into his buggy, as he was in the habit of doing every day, 
and started up Grand street, and, in attempting to pass this 
tent or wagon, the accident happened which resulted in plain- 
tiff's b^ing injured and damaged; that the tent or wagon was 
on one side of the street, and a pile of rook the city was using 
in work on the street was on the opposite side of Grand street 
from the tent or wagon; that, in attempting to pass between 
the tent or wagon and said pile of rock, the horse became 
frightened, and ran the buggy over the rock pile, turning the 
huggy over, throwing the occupants out, and inflicting upon 
the plaintiff the injuries for which he sues in this action. This 
evidence of Dunn is in no way questioned. That he knew tiie 
obstructed and dangerous condition of Grand street (if it was 
in a dangerous and obstructed condition) when he drove upon 
it is beyond dispute. Under this state of facts, could Dunn 
recover if he were prosecuting this suit against the city? If 
he could not recover, can this plaintiff, who was voluntarily 
riding with him in his buggy, recover? Was Dunn guilty of 
such contributory negligence as would defeat his right to 
recovery, when he drove upon the street, knowing the condi- 
tion thereof? If so, was his negligence imputable to the 
plaintiff, so as to defeat a recovery on his part? 

In Prideava v. Minercd Point, 48 Wis. 613, 28 Am. Rep. 558, 
a case involving the question under discussion, the court says: 
''One voluntarily in a private conveyance voluntarily trusts 
his personal safety in the conveyance to the person in control 
of it. Voluntary entrance into a private oonveyance adopts 



14 Mont.] Whittakeb v. City of Hblbna. 129 

the oonyeyanoe, for the time being, as one's own, and assumes 
the risk of tlie skill and care of the person guiding it. Pro 
hoe tncCj the master of a private yacht, or the driver of a pri- 
vate carriage, is accepted as agent by every person voluntarily 
committing himself to it. When pcUerfamiliaa drives his wife 
and child in his own vehicle, he is surely their agent in driv- 
ing them, to charge them with his negligence. It is difficult 
to perceive on what principle he is less the agent of one who 
accepts his or their invitation to ride with them. There is a 
personal trust in such cases, which implies an agency. So, 
several persons voluntarily associating themselves to travel 
together in one conveyance not only put a personal trust in the 
skill and care of that one of them whom they trust with the 
direction and control of the conveyance, but appear to put a 
personal trust each in the discretion of each against negligence 
affecting the common safety. One enters a public conveyance 
in some sort of moral necessity. One generally enters a pri- 
vate conveyance of free choice, voluntarily trusting to its 
sufficiency and safety. It appears absurd to hold that one 
voluntarily choosing to ride in a private conveyance trusts tty 
the sufficiency of the highway; to the care and skill exercised 
in all other vehicles upon it; to the care and skill governing 
trains at railroad crossings; to the care and skill of every thing 
except that which is most immediately important to himself — 
and trusts nothing to the sufficiency of the very vehicle in 
which he voluntarily travels; nothing to the care and skill of 
the person in charge of it. His voluntary entrance is an act 
of faith in the driver; by implication of law, he accepts tlie 
driver as his agent to drive him. In the absence of express 
adjudication, the general rules of implied agency appear to sano- 
lion this view. • • • . A woman may, and should, refuse to 
ride vrith a man if she dislike or distrust the man, or his horse, 
or his carriage. But, if she voluntarily accept his invitation to 
ride, the man may, indeed, become liable to her for gross neg- 
ligence; but, as to third persons, the man is her agent to drive 
her — she takes man, and horse, and carriage for the jaunt; for 
better, for worse.*' Otis v. Tovm of JaneavUle, 47 Wis. 422, 
2 N. W. Eep. 783, is to the same effisct. 
In Lake Slujre do. R. B. Co. v. MUkr, 26 Mich. 274, a case 

YoL. XIV.-9 



ISO Whittakbr v. City of Hblbna. [Dec. T., 189S 

involviug the question whether or not the negligence of the 
driver of a private team was imputable to one who was riding 
voluntarily with the driver, Mr. Chief Justice Christiancy, 
speaking for the court, says: ''The materiality of this question 
must dei)end upon anotiier — whetiier the plaintiff's own neg- 
ligence or that of Eldridge, who was driving the team, con- 
tributed to the injury, within the meaning of the generally 
settled rule upon this subject; for, as she was riding with 
Eldridge, the owner and driver of the team, any negligence of 
Eldridge equally affects her rights in this suit, as was prop- 
erly held by the court.'' 

These authorities all hold that if the negligence of the party 
injured, or of his driver, which is imputed to him, materially 
contributed to the injuries, he cannot recover, although the 
party complained of has not been free from negligence. In 
the case at bar it seems clear that Dunn was not only guilty 
of contributory n^Iigence, but that he was reckless in driving 
into a street which he swears he knew to be dangerously 
obstructed. His negligence must be held as imputable to 
plaintiff. If Dunn could not recover under the facts and cir- 
cumstances of the case, neither could the plaintiff, although the 
defendant may have been guilty of negligence on its part, 
which it is not necessary in this case to determine. There are 
other assignments of error in the record, but we do not con* 
sider it necessary to consider them, as we think the treatment 
above decisive of the case. The court below recognized the 
law as stated above as applicable to this case, and so declared 
it to the jury in the instructions given; But the verdict seems 
to us to have been rendered in disregard of the law as given 
by" the court, as well as of the evidence in the case. We think 
the court should have granted, for these reasons, the motion of 
the defendant for a new trial. 

The judgment is therefore reversed, and oanse remanded for 
new triaL 

HabwooDi J.| oonoun. 



14 131 
22 624 



24 64 



14 Mont.] CocKBiLL V. Davis, 181 

COCKBILL, Respondent, v. DAVIE jsr al^ AppeI/- u m 

LANTS. "' *" 

[Sobmitted February 28, 1893. Deoided FebruAry 19, 1894.] 

BuiLDiHO CowrEAcr^Construetion.—An tgreement in a building oontnot to 
" proTlde and faruish all material and to do all labor" is not folfiUed unlets 
the material and labor are paid for by the contractor. 

BxfBxnEa— Liability— Failure of principal to «^.~Snreties npon a bond cannot 
escape liability npon the ground that their principal did not sign it as it was 
understood he should, where the liabUity of such principal is already fixed by 
contract or by operation of law. ( Wiba^JX t. OrinnOl Live Stock Co., 9 Mont. 
IM; BoekinB ▼. White, 18 Mont. 70; Woodman y. Calkin», 18 Mont. 868.) 

6amb — Failure of principal to eiffn—Dtlivery.^ln an action against a surety on a 
bond which the principal failed to sign» the plaintiff is not obliged to show an 
express understanding by the surety that the bond should be delivered and 
hare eiZisct without the principal's signature, where the principal's liability is 
already fixed by another contract. 

BAMK—JudgmefU—Appeal,—ln an action against two sureties on a bond where the 
action was erroneously dismissed as to one, this court will, on sn appeal by the 
surety against whom judgment was rendered, reverse the order of dismissal, 
and modify the judgment, by providing that it shall not determine the right of 
the appellant to enforce contribution of his cosurety, and that the case may 
be opened at the instance of either the plaintiff or appellant to determine snch 
ooBurety's liability on the bond. 

Appeal frcm Eighth Judicial Didrtdy Ocuoade County. 

Action on bond. The cause was tried before Benton^ J. 
Plaintiff had judgment below. Modified and afiSrmed. 

Thomas E. Brady, and A. J. Shores, for Appellants. 

There is a great diversity of judicial opinion as to whether 
an action can be maintained against the sureties upon a bond 
where the principal has failed to sign. In the case of Ney v. 
Orr, 2 Mont. 659, this court held that a bond unsigned bj the 
principal whose name appeared in the body of the instrument as 
such was an incomplete instrument. The following decisions 
are to the same effect: Bunn v. Jetmore, 70 Mo. 228; 35 Am. 
Rep. 425; Sacramenio v. Dunlap, 14 Cal. 421; People y. Hart- 
ley, 21 Cal. 685; 82 Am. Dea 758; Bean v. Parker, 17 Mass. 
604; Wood v. Washbume, 2 Pick. 24; Sharp v. United States, 
4 Watts, 21; 28 Am. Dea 676; Fletcher v. Austin, 11 Vt 
447; 34 Am. Dec 698; Johnson v. Erskine, 9 Tex. 1; Russell y. 
Annable, 109 Mass. 72; 12 Am. Rep. 665; Cavanavgh v. 
Cassebaium, 88 Cal. 649; Hessell y. Johnson, 63 Mich. 623; 



182 CocKBiLL V. Davib. [Dec. T., 1893 

6 Am. St. Rep. 334; Hall v. Parker, 37 Mich. 690; 26 Am. 
Bep. 640; Johnsm v. KiwbaU Taumship^ 39 Mich. 187; 33 
Am. Bep. 372; Board of EduoaUon v. Sweeney, 1 S. Dak. 642; 
96 Am. St. Bep. 767, and cases cited; Ferry v. Burchard, 21 
Cono. 602; Wild Oat Branch v. Ball, 46 Ind. 213. Some 
courts have held that while such an instrument was upon its 
&ce incomplete^ it was, notwithstanding, competent for the 
obligee to show that the instrument was delivered by the sure- 
ties with the intent that it should take effect without the signa- 
ture of the principal. (Cavanaugh v. Oaesdman, 88 Cal. 649.) 
There are still other cases holding that the obligation is a valid 
one, and may be enforced, and that it is immaterial whether 
the sureties intended that the principal should sign or not. 
{Kurtz V. Forquer, 94 Cal. 91; Douglae Coufdy v. Bardon, 79 
Wis. 641.) For fifteen years contracts have been controlled 
by the decision in Nye v. Orr, 2 Mont 669, and when the 
sureties in this case affixed their names to this instrument, they 
had the right to rely upon this long established doctrine of 
the law that there could be no liability resting upon them 
unless and until the instrument was executed by Davie. This 
unquestionably .established the law of the state at the time 
tvhen Benner and Cornelius affixed their signatures to this 
bond. It is the law of the state to-day. It is difficult to dis- 
tinguish between the binding force of a rule of law established 
by judicial decision and long acquiesced in and a rule embodied 
in a legislative enactment. It has frequently been;held that a 
change in the interpretation of a statute will affect only sub- 
sequent contracts. (Louieiana y. PUldmry, 106 U. S. 294; 
Douglass V. Pike OoutUy, 101 U. S. 686.) 

Leslie & Downing, for Bespondent 

The bond sued on in tl^is action is joint and severaL Any 
or all of the sureties might be included in the action at the 
option of the plaintiff where several persons are named in the 
body of an instrument as parties thereto. It is not necessarily 
invalid as against those who have signed it because others 
named have not signed. {Kurtz v. Forquer, 94 Cal. 91; PeopU 
▼. Lwe, 26 Cal. 623; Pe&fie v. Eoans, 29 Cal. 436; People v. 
Slacy^ 74 CaL 87^; MendoiAno Couniy v. Morris, 32 OaL 148; 



14 Mont.] CocERiLL V. Davib. 183 

Wibaim v. OrmneU Livestock Co.^ 9 Mont 154.) The case 
of Nye V. Or, 2 Mont. 659, is not similar to the case at bar. 
In that case, aside from the fact that it was an appeal bond, at 
the trial the sureties offered evidence showing that the bond 
was delivered by them to the probate judge, with directions not 
to file the same until one Kay signed. That the judge prom- 
ised so to do, but filed the bond without Kay's signature, and 
that the sureties did not know it was filed until the appeal had 
been determined. The court very properly held that the evi- 
dence of this should have been admitted, and the sureties not 
liable. When part only of those mentioned in a joint and 
several bond executed, those who did execute it will be bound, 
unless they signed u{X)n condition that they were not to be 
bound unless the other sureties named therein also sign, and 
unless this condition is brought to a knowledge of the obligee. 
{Douglas County v. Bardon, 79 Wis. 641; Kurtz v. Forquer^ 94 
Cal. 91; People v. Staeey, 74 Cal. 374; City of Loa Angeles v. 
3Mu8, 59 Cal. 444; People v. Love, 25 Cal. 521; People v. 
Evans, 29 Cal. 430; WhUaker v. EuJiards, 134 Pa. St. 191; 
19 Am. St. Eep. 684; Bollman v. Pasewctlk, 22 Neb. 761; State 
V. Bowman, 10 Ohio, 445; Gibbs v. Johnson^ 63 Mich. 671; 
Goodyear Dental eto. Co. v. Bacon, 148 Mass. 542; Ti-ustees etc* 
V. I^eik, 119 111. 579; 59 Am. Rep. 830; Paiker v. Bradley, 
2 Hill, 584; Loew v. Stocker, 68 Pa. St. 226; Eeyser v. Keen, 
17 Pa. St. 327; Gnm v. School Directors, 51 Pa. St. 219; 
Hadcins v. Lombard, 16 Me. 142; S3 Am. Dec. 645; Smith v. 
Peoria County, 59 111. 414; Henick v. Johnson, 11 Met. 34; 
StaU v. Peck, 53 Me. 284.) 

Prerion H. Leslie^ also for Respondent. 

Habwoob, J. — ^It appears that piaintiiF entered into a con- 
tract, evidenced by writing, with defendant Davie, whereby 
the latter agreed, for a certain consideration to ''provide and 
famish all material, and do all labor necessary to the erection 
and completion of a two-story frame dwelling-house'^ for plain- 
tiff, aooording to certain plans and specifications, made part of 
the contract. To guaranty the fulfillment of that contract, a 
bond was executed by defendants Benner and Cornelius, and 



134 CocKRiLL V. Davib. [Dec. T., 1893 

delivered to plaintiff, in the sum of two thousand five hundred 
dollars, referring to said contract, and conditioned that "if the 
said Davie shall well and truly furnish said material, and con- 
struct said house, as per said contract, and in all things fully 
do and perform his part of said contract, constructing said 
house within the time specified, according to said plans and 
changes in the designs as said Cockrill may demand of bim^ 
then the above obligation is to be void; otherwise, to remain 
in full force and virtue.'* The building appears to have been 
constructed by Davie, and plaintiff paid him a considerable 
portion of the contract price therefor; but Davie failed to pay 
for certain labor and materials which he procured and used in 
the construction thereof, by reason of which default certain liens 
were applied and enforced against said property, the which 
Cockrill was obliged to pay in order to save his property from 
sale, under judgment of foreclosure to satisfy such liens. 
Whereupon Cockrill undertook, by this action, to recover from 
defendants the amount he was thus compelled to |)ay by rea- 
son of Davie's failure to carry out said contract to furnish the 
material and labor for the construction of said house. Defend- 
ants Benner and Cornelius appeared, and, their demurrer to 
the complaint having been overruled, answered, putting in 
issue material allegations of the complaint, and alleging as a 
defense that they signed the bond upon the express understand- 
ing and arrangement between all the parties concerned that it 
should not be delivered or have effect without the signature of 
the defendant Davie. The trial resulted in judgment against 
Benner alone for ten hundred and eleven dollars and fifty- 
four cents, and he prosecutes this appeal therefrom, as well as 
from an order overruling his motion for new trial. 

Ai)pellant insists that the bond in question is wholly Void 
because Davie, named therein as principal, did not sign it along 
with the sureties. But, after much consideration of this sub- 
ject and the authorities, we cannot sustain that view. The same 
obligation was fixed upon Davie by another contract, and Benner 
and Cornelius undertook and promised, in writing, to answer 
for the default of Davie in respect to his engagements by virtue 
of that contract, which the sureties described in their bond. 
This bond was a collateral engraftment u{K>n the building con- 



14 Mont] CocKRiix v. Davib. 186 

tnet, wherebj these snreties took upon themselves the bnrden 
of answeriDg for any default which Davie might make in 
re6{)ect to his obligation thereunder. As to such obligations, 
where the liability of the principal is fixed bj contract or by 
operation of law^ the sureties who guaranty the fulfillment of 
that obligation cannot avoid their obligation because the prin- 
cipal did not sign the bond with them. There is no reason or 
principal of law, or substantial right involved, which should 
lead to such a ruling; and the same, we think, without doubt, 
would be against the contemplation, understanding, and pur- 
pose of the contracting parties, because the snreties in such a 
case neither gain nor lose any substantial right by reason of 
the principal signing, or omitting to sign, such undertaking, 
which he procured on his behalf. On the other hand, under 
a different species of bond, where the principal was bound only 
by virtue of his executing the bond, a different ruling would 
be applicable on such a defense. We think sufficient has l)een 
said on this point in Wibattxv. GrinneULiveStockCo.yd Mont. 
154; Hoskina v. White, 13 Mont. 70; Woodman v. Qdkins, 13 
Mont. 363. 

Appellant further contends that, because there was no pro- 
vision in the building contract specially requiring Davie to 
pay for the labor and material put into the construction of the 
building, his obligation was fulfilled by furnishing the same, 
and was not broken by his failure to pay therefor, and leaving 
the building, and also the lot on which it was erected, subject 
to sale to satisfy demands for said materials and labor. This 
interpretation of the contract, we think, is untenable. Pnrties 
are deemed to contract in view of the law relating to the sub- 
ject of the contract. Davie fell short of furnishing the mate- 
rial for the structure, as contemplated by his contract, when 
he merely obtained and used such material in the structure, 
leaving upon plaintiff* the burden of paying therefor. That 
was not furnishing the material and labor according to the 
terms of the contract, any more than one would fulfill a con- 
tract to convey a piece of land to another by making a good 
and sufficient deed therefor in form, while the title to the land 
in no manner passed by such deed. {Cblbum v. Northern Poo. 
By. Co.^ 13 Mont. 476.) It is contended that plaintiff should 



136 CocKRiLL V. Davib. [Dec. T., 1898 

have withheld payment of the installments for such building 
until receipted bills for all labor and material used therein 
were delivered to hinL We find no force in this proposition, 
when considered in the light of the facts and the terms of the 
contract. According to the contract, plaintiff was required to 
pay certain installments as the erection of the building pro- 
gressed; and, as to the last installment of upwards of eight 
hundred dollars, it is provided that it shall be paid ^'when 
said house is completed entire, and accepted by the party of 
the first part, and receipted bills for all material and labor in 
the construction of said house shall be furnished to said party 
of the first part by said second party/^ It appears that plain- 
tiff did withhold payment of the last installment, and applied 
the same on the judgment for enforcement of said liens. 

During the trial, at the close of the introduction of evidence 
on behalf of plaintiff, the court overruled a motion for non- 
suit interposed on behalf of both defendants Benuer and 
Cornelius, but granted a motion to dismiss the case as to 
defendant Cornelius, leaving the case to proceed against Ren- 
ner. As we understand. from the record and briefs of counsel, 
this ruling was made because plaintiff was unable to prove 
that Cornelius signed the bond with the understanding that it 
should be delivered and have effect without the signature of 
Davie, the principal named therein. In our opinion it was 
not necessary to show an express understanding to that effect 
outside of the bond. Substantially, all that proposition implies 
is that Cornelius admits he signed the bond, intending to be 
bound according to its terms, if the principal Davie was like- 
wise bound along with him. Sufficient answer to that propo- 
sition is that, under the law and the facts, Davie is bound as 
principal to discharge those very same obligations which the 
sureties, through the bond, guaranteed he would discbarge; 
otherwise, the sureties would not be bound for his default. 
For, if the principal was not bound to do the thing in ques- 
tion, there could be no default on his part, and hence no liabil* 
ity on the part of the surety; because the surety is only bound 
to answer for the default of tlie principal named in the bond 
in respect to those things which the principal was bound hj 
the contract to perform. The contract is described in the bond 



14 Mont] CocKRiLL V. Davib. 187 

safficiently to identify it, and we must go to that contract to 
find what Davie, the principal, was obligated to do, as well as 
to find what the sureties guaranteed he would do. Can any 
one, therefore, doubt that Davie was bound as principal, along 
with the sureties, to discharge the obligation before they could 
be asked to recompense for his default? Davie was sued in 
this action along with the sureties; and, if served, can any one 
doubt judgment would go against him, as well as the sureties, 
for the same damage? His liability and his default must first 
be shown before judgment can go against his surety. 

Both parties to this appeal insist that the court erred in 
dismissing Cornelius, and giving judgment alone against Ren- 
ner. When the case was dismissed as to Cornelius, Benner 
moved again for dismissal as to himself, because it clearly 
appeared that he refused to sign the bond unless accompanied 
in that obligation by Cornelius; and when Cornelius was dis- 
missed, as defendant in the suit, because the court held there 
was not sufficient showing to bind him, that gave peculiar force 
to the showing that Renner refused to engage in said obligation 
unless joined therein by Cornelius. 

But, while respondent's counsel claim that the court erred 
in disinissing Cornelius, they say tliey are satisfied with the 
judgment as it stands against Renner, and insist that appellant 
cannot complain of it, because the obligation sued on — that is, 
the bond — ^is a joint and several obligation. Respondent's 
counsel may be right in their position that, under the law and 
the terms of the obligation sued on, they have a right to pro- 
ceed against one surety alone. But in this case they have pro- 
ceeded against both sureties, and it has been adjudicated and 
determined in this action that the cosurety with appellant is 
not liable. If this determination is erroneous, as both appel- 
lant and respondent insist, and as this investigation leads us 
to conclude, then appellant has serious reason for complaint. 
The liability of his cosurety to share the burden of loss by 
reason of Davie's default has been removed by this adjudica- 
tion; and, while such determination stands, appellant would 
be unable to compel contribution from his cosurety, which 
would not be the case if one surety had been proceeded against 
severally. On this point, alone, we think the court erred. 



138 Case v. School District. [Dec. T., 1893 

Therefore, while the judgment of the trial ooart entered in 
favor of plaintiff against Renner may properly be affirmed, it 
should be so modified as to provide that nothing therein, or in 
any proceeding of the trial oourt in said action, shall be con- 
strued to determine either the rights of plaintiff against defend- 
ant Cornelius or the rights of defendant Benner against said 
Cornelius as his cosurety on the bond sued on; that the order 
of nonsuit or dismissal, entered in favor of Cornelius, be 
reversed and set aside, and that the case may be opened for 
further proceedings, at the instance of either plaintiff or Ren- 
ner, against defendant Cornelius, to ascertain and determine 
his liability therein. The order of this ooart will be entered 
accordingly. 

Judgment modified and affirmed, 

AffirfMdm 

Pembebton, C. J.| concurs. 



CASE, Respondent, v. SCHOOL DISTRICT No. 3, 
MISSOULA COUNTY, Appellant. 

[Sabmifcted . Dedded Febmuj 26, 18M.] 

OoKTRk(yn^C<m8lriiction—8eho6Uea<^ier.-'iLn engagement asa^inpplyteaober** 
at terenty doUan per month for a term of ten months, and plaintiff's accept- 
ance thereof cannot be construed as a contract by which plaintiff was to receive 
a salary of seventy dollars a month for the entire term witboat regard to 
whether she actoally rendered any services or not, bat rather that plaintiff was 
to be paid for the time she taught at the rate of seventy dollars per month, it 
appearing that plaintiff was only called upon to teach several days daring the 
first four months, and that daring that time she made no demand for sndi 
salary, though knowing that the regular teachers were paid at the close of each 
school month, nor any InquiryLas to the understanding of the trustees in 
respect to her compensation; there also being evidence that during the first 
month of the term she applied for appointment as a regular teacher in one of 
the schools of the district for which the salary was seventv dollars per month. 

Appeal from Fourth Judicial District^ JGasoula Ooufiiy. 

Action upcn an account Judgment was rendered for the 
plaintiff below by Bbantlet, J/ Plaintiff'a motion for new 
trial granted. Reversed. 



14 Mont.] Casb v. School Distbiot. 139 

Henry C. 8Uf, tor Appellant, 
Webster & Wood^ for Respondent; 

Harwood, J. — This action is founded on an acconnt 
wherein plaintiff demands of defendant school board two hun- 
dred and eighty dollars for four months' services as school 
teacher in district No. 3 of Missoula county. That demand is 
made under an alleged contract of employment of plaintiff' by 
the board of ti'ustees of said school district at the compensation 
of seventy dollars per month. Payment of the demand being 
refused, this action was brought to enforce the same; and in 
the justice's court, where the action was first prosecuted, plain- 
tiff recovered judgment against said school district in the sum 
of one hundred and eighty dollars. From that judgment 
defendant appealed to the district court of said county, wherein 
the case was tried to the court, a jury having been waived; 
and apon consideration thereof the court found plaintiff entitled 
to recover the sum of twenty-four dollars and fifty cents on 
her demand against said scliool district, for services rendered 
under the contract of employment in question, and entered 
judgment accordingly. Thereafter, motion for new trial was 
granted on a statement of the case containing all the evidence 
offered. From that order the trustees of said school district 
appealed to this court, insisting that there is not sufficient 
ground shown to justify the order granting a new trial. This 
we conclude, upon careful consideration of the case, must be 
sustained, for we are unable to find in the record a sufficient 
showing to warrant an order granting a new trial. 

The record purports to contain a transcript of all the evi- 
dence offered on the trial. It is not claimed that there is any 
newly discovered evidence; nor is it urged that the court erred 
in any ruling; nor is there any conflict in the evidence, except 
some slight difference between the testimony of plaintiff and 
that of her principal witness. The motion for new trial is 
founded upon the proposition that the decision of the court 
upon the trial is not warranted by the evidence, and therefore, 
if a new trial were granted, and the same evidence submitted 
again, the court or jury, on consideration thereof, ought to 



140 Cask v. School District. [Dec. T., 1893 

arrive at a different decision. The question, then^ is narrowed 
to the consideration whether a different decision, under the law 
applicable to tlie facts as presented, should be made, or could 
be sustained if made; and our investigation leads us to a nega- 
tive conclusion on that proposition. It is not a question of the 
weight of evidence, or the belief which ought to be accorded 
to, or withheld from, the testimony of witnesses. All the 
material and important facts are practically conceded, accord- 
ing to this record; and the real question now is, shall these 
facts be interpreted, and given the effect in law, as respondent 
contends, or as appellant urges? 

The record discloses the following facts: In the spring of 
1891 plaintiff applied to the board of trustees of said school 
district for a position as teacher in one of the schools thereof 
at the succeeding term, to commence on the 1st of the follow- 
ing Septemt)er, in her application expressing her preference for 
a position in the primary department. Plaintiff's application, 
with others, being referred to a committee of said board, desig- 
nated as " Committee on Teachers and Salaries,*' that committee 
elected from the applicants a full corps of teachers for the dis- 
trict for the term of ten months, commencing with the month 
of September of that year, without selecting plaintiff as one of 
the regular teachers; but she was chosen as ^^ supply teacher,'' 
and in the report of said committee, afler naming the several 
teachers chosen, and the amount of the salary of each, respect- 
ively, it contained the following: ** Supply teacher, Mary Case, 
salary per month, seventy dollars." This report of the oom- 
mittee was adopted by said board of trustees. Soon after that 
event plaintiff was, by letter from the clerk of said board, 
notified of her selection as supply teacher at the compensation 
mentioned, requesting her in such notice to signify her accept- 
ance of the appointment if the same was agreeable. Plaintiff 
accordingly wrote a note to the clerk of the school board 
accepting the same. Thereafter it transpired that plaintiff was 
called upon and served as supply teacher on two occasions dur- 
ing the four months for which compensation is claimed, being 
the first four months of said term, teaching altogether seven 
days — four days in October and three days in November. 

The report of the committee, its adoption, the notice to 



14 Mont.l Casb v. School District. 141 

plaintilTy and her acceptance of said appoiDtment^ are claimed 
to constitute the contract to be interpreted in this action; and 
counsel concede that the decision of this case depends upon 
an interpretation of the employment^ engagement^ service, and 
compensation to be rendered hj each party, as evidenced by 
these documents. 

On the part of plaintiff and respondent here it is contended 
that the contract contemplated her engagement for the whole 
term at seventy dollars per month, whether she rendered any 
service in teaching or not. " That," she asserts in her testi- 
mony, ''was what the contract called for"; that she was in 
readiness to teach when notified, during said four months, but 
did not claim compensation after the close of December, as she 
was sick in January and a considerable portion of the 
remainder of the year. 

On the contrary, the defendant board of trustees (appellant 
here) contends that the contract contemplated that plaintiff 
was engaged as supply teacher to fill any vacancy which might 
occur by reason of sickness, or absence from other cause, of 
any teaclier in the schools of said district. The district, in 
question, as we understand, includes the city of Missoula. 

That a board of trustees of a school district has power, 
under the provisions of law governing its action, to bind the 
district, by contract, to pay supernumerary teaclier or teachers 
a fixed salary while not rendering service as teacher, but 
merely waiting a contingency, which might or might not hap- 
pen, to require some service, is extremely doubtful. According 
to the interpretation of this contract contended for by plain- 
tiff, said trustees engaged to pay her seven hundred dollars for 
acting as supply teacher during said term, when her services 
might not be required at all, and, as actual experience showed, 
were only required seven days in four months of the term. 
This was the same compensation as was paid some of the 
teachers in said district for constant service, which fact plain- 
tiff admits she knew. It might be proper enough to pay those 
who came at the eleventh hour, or came not at all, equally with 
those who '^ have borne the burden and heat of the day" ; if the 
trustees, like the master of the vineyard, were dispensing of 
their own; bnt, in oar view, the law governing them forbids 



142 Case v. School District. [Dec. T., 1898 

Biich muDificeiice in their stewardship for the people of their 
district. 

Aside from that view of the case, it seems hardly reasonable^ 
in the light of the circumstances^ that plaintiff should conclude, 
from her selection as '^supply teacher'' at the compensation 
stated, that she was elected to a sinecure, the principal duty of 
which, prospectively and practically, was to draw a salary equal 
in amount to that paid teachers for constant service. In 
adopting that conclusion, so far as the record shows, plaintiff 
made no inquiry as to the understanding or contemplation of 
the trustees. Indeed, the implication appears quite strongly, 
from what is shown that plaintiff and her advisers avoided 
raising that question, for, although plaintiff knew the teachers 
of said district were paid at the close of each school month, 
plaintiff made no application for the amount claimed. This 
was not made at all until May or June following the months 
for which the salary is now claimed. 

Plaintiff's father, in testifying on her behalf, assumed to state 
the reason why plaintiff did not apply for her alleged salary 
at t}ie close of the school months as tliey progressed, by saying 
that he had been trustee for thirty-iive years, ^^and it was the 
custom for the clerk to pay the teachers without an application 
from them." If such was understood by plaintiff and her 
advisers to be the custom, it seems to us that the failure to 
receive payment would have aroused inquiry without such 
long delay; and it seems also that that very fact, if plaintiff 
was really counting upon such payment without service, would 
have tended, at least, to lead her to the conclusion that the 
officers of the district did not contemplate paying a r^ular 
salary for plaintiff's occasional service, or no service at all. 
The statute of this state contains a just rule of interpretation 
in this connection, in the provision that ^* when the terms of 
an agreement have been intended in a different sense by the 
different parties to it, that sense is to prevail against either 
party in which he supposed the other understood it." (Code 
Civ. Proc., § 636.) The clerk of said district, in his testi- 
mony on behalf of plaintiff, states that in December (one 
of the months for which she claimed salary) she again applied 
by letter for appointment as regular teacher in one of the 



14 Mont.J Montana Milling Co. v. Jeffries. 143 

schools of said district^ the salary for which was seventy 
dollars per month; that such application, with some others^ 
was delivered by the clerk to the committee on teachers 
and salaries and was not returned to him; therefore^ he was 
unable to produce it at the trial. Plaintiff disputed her wit- 
ness iu this particular, denying that she made that application. 
Nevertheless, the testimony of Mr. Musgrave, the clerk of the 
district, who was called by both |>arties, sounds very frank and 
disinterested. Indeed, if any leauing is discoverable at all, it 
is towards the plaintiff; and that circumstance is told with so 
mucli detail that it seems quite improbable he should be mis- 
taken. However, that incident may only show that plaintiff 
was seeking more work, and not more compensation. 

The court found the plaintiff, under said engagement, was 
entitled to compensation for the time served at the rate of 
seventy dollars per month. In our opinion, this was the 
proper interpretation. The case is therefore remanded, with 
directions to overrule plaintiff's motioq for new trial. Costs 
may follow the judgment. 

Iim>ened. 

P£MB£BTON, C. J., oonours. 



14 148 
sl8 500 



MONTANA MILLING COMPANY, Appellaot. v. 
JEFFRIES, Shebipp, Respondent. 

(Sabmitted July 17, 189S. Decided Febraary 26, 1894.1 

kmcBMBrr-^Sook aotfounU^Duty oftih&riffto sramisA.—- It ia the duty of a sher- 
iff who has ISTied an attaohment upon a stock of goods, and baa in bis posses- 
sion thereonder the books of account of the defendant, to garnish those who 
appear therein as debtors, without first receiving a written notice from the 
plaintiff or his attorney, as provided for in section 188 of the Code of Civil 
Prooedure, sinoe sections 184, 185, and 186 reqnire a sheriff, when a writ of 
attachment is placed in his hands, to attach and safely keep all the property of 
the defendant, indnding debts. 

Appeal from Fird Judicial Didrict, Lewis and Clarke Qmnty. 

Actios for damages against a sheriff for &ilnre to execute 
a writ of attachment. Tried before Hunt, J., on agreed case. 
Defendant bad judgment below. Berersed. 



144 Montana Milling Go. v. Jsffbies. [Dec. T., 1S93 

Hdwof'd C. Ru89dj for Appellant. 

The main points to be decided are: Was a written frcooipe 
to respondent necessary, in strict compliance with section 188 
of the Code of Civil Procedure, to secure the service of gar- 
nishments under appellant^s writ of attachment? If no such 
prcBdpe was necessary, was respondent negligent in not levying 
said garnishment uuder appellant's, or a prior, writ? If such 
a pi'CBcipe were necessary, was respondent justified in levying 
under the so-called prcDcipea uuder which he acted? Appellant 
contends that no such prascipe is necessary, but that the respond- 
ent was commanded to garnish debtors by the writ and statute; 
that section 188 is supplemental and additional to section 186, 
and not contradictory to, or exclusive of, the fifth paragraph 
of said section 186. Section 186 is a clear and express com- 
mand to serve garnishments, with directions how to do it. Sec- 
tion 188 is simply a repetition of the mode of procedure, aud 
a direction to pursue it in case of notice given by the plaintiff. 
It is not inconsistent with, or contradictory to, the command of 
section 186, but supplemental. The writ of attachment (the 
ordinary printed form) leads: "Now, we do therefore com- 
mand you, the said sheriff or constable, that you attach and 
safely keep all the property of the said defendant within your 
county, not exempt from execution, or so much thereof as 
may be sufficient to satisfy plaintiff's demand as above men- 
tioned; unless,'^ etc., and the statute, section 186, became a 
part of said writ, and made it include garnishments. The 
doctrine of "-Eopreswo uniua est exclimo alteriut^^ applies only 
when its assistance is necessary to determine the intention 
of the legislature; or when that expressed is creative or in 
derogation of common law or other provisions of the stat- 
ute. (Sutherland on Statutory Construction, § 326.) The 
maxim does not apply where the statute covers many cases, 
and some are mentioned without intention of excluding others. 
(Sutherland on Statutory Construction, § 329.) All statutes 
which can stand together relating to the same subject should 
be construed together and harmonised, if possible. (Sutherland 
on Statutory Construction, § 283; Sedgwick on Construction of 
Statutory Law, 209 et seq.) The legislature is presumed ta 



14 Mont.] Montana Milling Co. v. Jbffbibs 145 

iatend existing statutes, wliere they have not expressly abro- 
gated them. Where no express repeal is needed none is deemed 
ittl ended. (Sutherland on Statutory Construction, § 829.) 
The statutes of Missouri (§ 1264) provide for a general direo- 
tion for garnir.hment and a special direction giving names 
of debtors, all in the writ of attachment, and this is prao- 
tically the same as our statute (§§ 186-88.) This has beeo 
construed in Fritchard v. Toole, 53 Mo. 356, to intend that 
both directions shall be binding, and the officer shall exer- 
cise diligence in levying garnishments under the general 
direction, cited in 5 American and English Encyclopedia of 
Law, under garnishment, page 1121. Again, as attachment 
and garnishment are creatures of the statute, the service must 
be made in strict accordance with the statute, or the garnishee 
is not held; he pays at his peril; the rights of third parties are 
not barred, and the garnishee is again liable. (Drake on 
Attachment, § 451 6; Hdley v. Hannibal etc R. R. Co,, 80 Mo. 
112; Fletcher v. Wear, 81 Mo. 524; Galea v. Tuslen, 89 Mo. 
13; Connor v. Fope, 18 Mo. App. 86; Fratt v. Sanborn, 63 
N. H. 115.) The sheriff must execute the process diligently, 
and must answer to plaintiff in damages for negligence. 
(Crocker on Sheriffs, §§ 280, 287, 851, 852.) The sheriff is 
bound to make reasonable inquiry and search for property of 
defendant. (Crocker on Sheriffs, §§ 432, 851; Drake on Attach- 
ment, §§ 188, 190, 191, 191 a; Fisher v. Gordon, 8 Mo. 386; 
Taylor v. Wimer, 30 Mo. 126; BeU v. Commonwealth, 1 J. J. 
Marsh. 551.) The plaintiff is under no obligation to give the 
officer information. (Freeman on Executions, §§ 107, 252, and 
cases cited; Crocker on Sheriffs, § 851; Hargrave v. Fenrod, 
Breese, 401; 12 Am. Dec. 203, and note; BaUe v. Oiandler, 
63 Tex. 613.) "^ 

Letlie & Craven, for Eespoudent 

Bespondent insists that sections 186 and 188 of the Compiled 
Statutes are to be construed together, and as one continued 
series of instructions to the sheriff, without regard to section 
187, which gives instructions to the recorder. There is noth- 
ing in either section but prescribed duties and directions to the 
Vol. XIV. -10 



146 Montana Milling Co. v. Jeffries. [Dec. T., 1893 

sheriff as to what he shall do with the writ of attachment^ and 
how and when he shall do it, in the varioas circumstances of 
each case. The construction of section 186, which is claimed 
by counsel for appellant, necessarily includes and embodies 
every particle of power, authority, and duty imposed and con- 
ierred upon the sheri£P by section 188. And if such power 
and duty come to him by virtue of section 186, why and for 
what reason was section 188 enacted and set forth in the 
same chapter, in connection with the same subject matter, 
and in the same act of the legislature? But is the con- 
clusion that the section is only a repetition tenable when 
tested by the principles of statutory construction? Sec- 
tions 186 and 188 of the Compiled Statutes, with the excep- 
tion of changes in the former in respect to the manner of 
attaching real estate, are sections 96 and 97 intact, passed at 
Bannock in 1864. Section 187, prescribing duties to the 
recorder, was afterwards enacted. And to arrive at the 
conclusion of the appellant in this cause we are asked to 
believe that the legislature in its first session adopted section 
188 as a vain and cumbersome repetition, and has since carried 
it along through all the successive revisions, from that time to 
this, as so much worthless luggage. How much more conso- 
nant with every principle of statutory construction to conclude 
that subdivision 5 oT section 186 specifies how debts, credits, 
and other personal property not capable of manual delivery 
may be attached, and that section 188 directs the sheriff when 
and under what information the duty is imposed upon him, to 
prepare and serve garnishments. Every clause and word of a 
statute is presumed to have been intended to have some force 
and effect. A fortiori the language of a statute is to be given 
such a construction as will give the act some force and effect. 
It is a cardinal principle that all statutes are to be so construed 
as to sustain, rather than to ignore, them; to give them oper- 
ation if the language will permit, instead of treating them as 
meaningless. (Endlich on Interpretation of Statutes, §§ 265, 
and cases cited, 399.) A statute must be so construed as to 
give effect, if possible, to every portion of it, and without reject- 
ing any part as surplusage or treating it as a re[)?tition of a 
provbion already made. (Gates v. Salmon, 36 Cal. 676; 95 



14 Mont.] Montana Milling Co. v. Jstfbiss. 147 

Am. Dec. 139.) There are abandant reasons in support of the 
justice of the theory that a sheriff need not garnish without 
special instructions from plaintiff. Real and personal property 
usually afford some idea to the officer of their value. 

The officer knows before he levies whether any thing can be 
realized from the property about to be taken. But in the case 
of debts it is different. How can an officer know from the 
fact that books of accounts show various amounts to be due 
from a hundred or more debtors of a failing firm, that garnish- 
ment of thesn all would result in sufficient money to even pay 
his costs? Is he expected to accept the books as conclusive, 
and act upon the presumption that all debtors are good, and 
that there are no offsets, payments, or counterclaims? Or is 
he to constitute himself a spy to find out all of these uncertain- 
ties, and then garnish if the coast is clear? 

If the sheriff must make search and find out whom to gar« 
nish under the general mandate of the writ alone^ as contended 
by plaintiff, how and why is it that he may act upon oral 
information received from third parties, while the information 
from plaintiff or his attorney must be in writing? A strange 
construction surely that would compel the sheriff at his peril 
to inquire from, and act upon, the oral statement of A, B, and 
C, strangers to the suit, while the information from plaintiff* or 
his attorney, in order to afford a basis for like action on the 
part of the sheriff, must be in writing. The cases cited by 
appellant showing the necessity of due diligence, do not apply 
to statutes like ours. The Missouri statute, as to writs of 
attachment, was not involved in the case of Pritohard v. Toole, 
63 Mo. 356, cited by appellant. The presumption of law is 
that the sheriff did his duty in this case. Neglect of duty free 
from contributory negligence on the part of the plaintiff must 
appear, before the officer can be made liable. 

The books were in the store, and with all the contents were 
taken into possession by the sheriff. It does not appear as to 
whether he actually knew they were a part of the contents of 
the store, not being properly the subject of attachment, except 
for their actual value as so much bound paper, until his atteu« 
tion was called to them by subsequent creditors in their 
frascipea. As to whether they were properly kept and posted. 



148 Montana Milling Co. v. Jxffbixs. [Dec. T., 1893 

80 that he coald have known their contents without extraordi- 
nary research does not appear. Tliere is nothing in the agreed 
statement to show that the sheriff had any reason to know or 
believe there was any debt owing to the defendants, 

MeOmndl, Cfayberg & Ounn, also for Bespondent 

P£MBSBTON, C. J. — This is an action for damages, bronght 
against the defendant for n^lect and failure to execute a writ 
of attachment in his hands as sheriff of Lewis and Clarke 
county. The case was tried in the court below on an agreed 
statement of faciS| which is as follows: 

^' 1. That the Montana Milling Company was, at all the times 
hereiuafler mentioned, and now is, a corporation organised 
under the laws of the state of Montana, doing business at 
Helena, in said county of Lewis and Clarke; that Charles M. 
Jeffries was, at all times hereinafter mentioned, and now is, the 
sheriff of said county of Lewis and Clarke. 

^'2. That on the fifteenth day of September, 1890, the Mon- 
tana Milling Company commenced an action against Kuphal 
& Schumacher, and a writ of attachment was issued in said 
action, and placed in the hands of Charles M. Jeffries, sheriff, 
on the same day, and judgment against said defendants in 
favor of said plaintiff was thereafter rendered. 

'' 3. Six other writs ot attachment, in as many suits against 
the same defendants, were in the hands of said sheriff when he 
received that of the Montana Milling Company, and six or 
more writs, in as many more suits against the same defend- 
ants, were placed in the hands of said sheriff after that of the 
Montana Milling Company. 

^'4. In pursuance of the first and subsequent writs, includ- 
ing that of the Montana Milling Company, the store of defend- 
ants Kuphal & Schumaclier, together with stock of goods and 
fixtures therein, was attached by said sheriff on said fifteenth 
day of September, 1890. 

"5. The books of account of said defendants Kuphal A 
Schumacher were in the said store at the time of said levy, 
were taken possession of by said sheriff, no one having made a 
demand for them, but were never attached by said sheriff 

*' 6. No written prascipe or notice, as contemplated by section 



14 Mont] Montana Milliko Go. v. Jbffbibs. 149 

188 of the Revised Statates of Montana, for garnishing debtoilB 
of said defendants Kuphal & Schumacher^ was given to said 
sheriff by the said Montana Milling Company, nor has any 
ever been given. Though the said Montana Milling Com- 
pany did, at the time of bringing said suit, have reason to 
believe that certain parties were indebted to said Kuphal & 
Schumacher, yet it failed to give said sheriff a written notice 
containing the names of said parties so indebted and the 
amounts of said indebtedness. 

**7. Said sheriff attached no moneys due said Euphal & 
Schumacher by garnishment until the twenty-ninth day of 
Sep'tember, 1890, and then, under writs of attachment issued 
iu the suits, respectively, of Oeo. i2. Newell <£r Oo. v. Kwphal A 
Scfiumacher, placed in his hands September 24, 1890, and 
Franklin MeVeagk & Co. v. Kwphal <£r Schumacher, placed in 
his hands on the seventeenth day of September, 1890, a writ- 
ten prcedpe for such garnishment having been filed with said 
sheriff in the case of Franklin McVeagh & Co., on or about 
the twenty-ninth day of September, 1890, and in the case of 
Geo. B. Newell & Co. on the first day of October, 1890. 
Copies of said prcecipea are hereto attached, marked, respect- 
ively^ 'Exhibit A' and 'Exhibit B,' and made a part hereof. 

^'8. That under the last-mentioned writs the sheriff col- 
lected the sum of nine hundred and fifly-nine dollars and 
twenty-seven cents, which he paid to 9aid plaintiffs Geo. B. 
Newdl & Co. and Franklin McVeagh & Co., under their 
writs of attachment, which were etobsequent to that of the 
Montana Milling Company, which said sum was collected 
from debtors of said Kuphal & Schumacher, who appeared to 
be snob debtors by the said books of account of said Kuphal 
& Scbamacher in the hands of said sheriff as aforesaid. 

** 9. That, if said sum collected under said garnishments, 
and paid over to said subsequent attaching creditors, had been 
paid by said sheriff to the attaching creditors in the order of 
their priority, the said judgment of the Montana Milling Com^ 
pany would have been paid in full. 

'^ ** 10. That the said judgment of the Montana Milling Com- 
pany is Btill unsatisfied, and there is no property in the sheriffs 



160 Mqktana Milling Go. v. Jbffribs. [Deo. T.| 1898 ' 

hands, or andet his oontrol| of said Kuphal & Schamacher, to 
satisfy it." 

The points of contention submitted to the oourt below were 
as follows: '^The Montana Milling Company claims that 
Charles M. Jeffries, as sheriff is liable to it for the amount of 
its said judgment against said Kuphal & Schumacher, by rea- 
son of his negligence in not levying, under its said writ of 
attachment, on the said credits of said Kuphal & Schumacher. 
Charles M. Jeffries, sheriff, claims that he is not so liable, for 
the reason that he was under no obligation to said Montana 
Milling Company to levy upon such credits under said writ, 
not having received any written pnxdpe or information in 
writing from said plaintiff or its attorney, as contemplated io 
section 188 of the Revised Statutes of Montana, page 74; (hat 
if there was any negligence it was on the part of said Mon- 
tana Milling Company, and not said sheriff." 

Upon this statement of facts, and these points of contention, 
the court rendered judgment in favor of the defendant. From 
this judgment this appeal is prosecuted. 

From the contention of the parties, as shown above, it will 
readily be seen that the appellant contends that it was the duty 
of the respondent, as sheriff, to attach the debts owing to 
Kuphal & Schumacher, as shown by the books of account of 
that firm, taken possession of by him under the writs of attach- 
ment against said firm, without any written notice, while the 
respondent contends that he was not required to attach such 
debts, or garnish the debtors of said firm, without a written 
notice so to do. 

The law of this state requires a sheriff, when a writ of 
attachment is placed in his hands, without delay to attach and 
safely keep all the property of the defendant, including debts, 
named in the writ, not exempt from execution, or so much 
thereof as may be sufficient to satisfy the plaintiff's demand. 
(Code Civ. Proc, §§ 184-86.) Subdivision 6 of said section 
186 prescribes the manner of attaching debts and credits in 
the hands of persons owing such debts, or having in their 
possession such credits. Appellant contends that under these 
provisions of the statute it was the duty of the sheriff to attach 
the debts due the said firm of Kuphal & Schumacher in the 



14 Mont] Montana Milling Co. i;. Jbffbibb 151 

bands of the persons owing them^ as shown by the books of 
account of said firm in the possession of the sheriff under Uie 
writ of attachment issued against said firm without written 
notice. The respondent contends that section 188 of the Coda 
of Civil Procedure, which is as follows: "Upon receiving 
information in writing from the plaintiff or his attorney, that 
any person has in his possession, or under his control, any 
credits or other personal property belonging to the defendant, 
or is owing any debt to the defendant, the sheriff shall serve 
upon such person a copy of the writ, and a notice that such 
crtnlits or other property or debts, as the case may be, are 
attached in pursuance of such writ''— controls and is decisive 
in this case. In other words, the respondent contends that a 
written notice under said section 188 was a sine qua non to the 
fixing of the liability of the sheriff for failing to garnish the 
debtors of said firm of Kuphal & Schumacher. Why was it 
necesjsary to give the respondent notice in writing to garnish 
any of the debtors of said firm? He had possession of the 
books of account of said firm under the writs of attachment in 
his hands. He had all the information necessary as to who 
were the debtors of said firm. The books of account of the 
attached firm gave him that information. It was his duty, 
under the law, to attach, without delay, all the property of the 
defendants in his county not exempt from execution, or so 
much thereof as would be sufficient to pay the demand of the 
plaintiff. The debts of the firm were as much property, and 
as much subject to attachment, as any other character of prop- 
erty. Then, why was it not as much his duty to attach the 
debts in the hands of the persons owing them, in the manner 
prescribed by law? If he failed to use due diligence in attach- 
ing property, or did not attach sufficient to satisfy the demand 
of plaintiff, he rendered himself liable to plaintiff for damages. 
(Drake on, Attachment, §§ 188, 190, 191a.) Nor was the 
plaintiff required to notify him in writing, or otherwise, as to 
whom he should garnish, or what property to attach. It was 
the duty of respondent to make reasonable effort to find suffi- 
cient property and effects of the defendant to satisfy the 
demands of the plaintiff. This he did not do. He oould as 
well have garnished the debtors of daid firm, under the writ 



162 Montana Milling Co. v. Jbffribs. [Dec T., 1893 

issued in the suit of plaintiff, without written notioe, as he did 
under subsequent writs with written notice; for the written 
notice, in the subsequent attachments, to garnish debts, reads 
as follows: 

"Geo. R. Newell & Co. v. Kuphal & Schumacher: To the 
sheriff: We understand that you have a list in jour possession 
of the creditors of the above-named defendants. Since the 
plaintiffs in the above-named cause are probably the last on 
tlie list in the general attachment on the goods, will you please 
garnish a sufficient number of those indebted to the defendants 
wIjo have not been garnished, in order to have enough secured 
by the writ to secure our demand.'' This notice did not desig- 
nate any particular debtor or debtors. It simply called the 
sheriff's attention to the list of debtors of said firm contained 
in the books of account, and asked that they be garnished. 
This was merely calling his attention to information he already 
had, and to property which it was his duty to have attached 
under former writs. We do not think the plaintiff was required, 
under said section 188, to give the respondent written notice 
to garnish the debtors of the defendant firm, under the facts 
and circumstances of this case, or that such written notice was 
a prerequisite to the liability of the respondent. (See Har- 
grave v. Penrod. Breese, 401; 12 Am. Dec. 201, and authori- 
ties cited in note; Crocker on Sherifi^, § 851.) It was the 
duty of the sheriff to have attached the debts due said firm, as 
shown by the books of account of said firm in his possession, 
and to have paid out the proceeds or amounts so collected in 
the order of the priority of the writs of attachment in his 
hands; or, having garnished said debtors, and collected the 
amount owing said firm, if he had any doubt as to how he 
should proceed in paying out the same, he should have brought 
the money into court, and asked for an order as to the dispo- 
sition thereof. In this manner he could have protected himself 
as well as this appellant. 

The judgment of the court below is therefore reversed, and 
the cause remanded, with instructions to enter judgment in 
&vor of the plaintiff. 

BtoetHdL 

Habwood, J.« concurs. 



CASES DETESHIKED 



nr TBI 



SUPREME COURT 



IX XBB 



MARCH TERM, 1894. 



PBEBENT: 

Hon. WnxTAM T* Pembbrtok, Chief Justioe. 
Hon. Edgar N. Harwood, ) 
Hon. William H. Be Witt, ) 



In re RICKER« ESTATE. 

[BnlmiKied Xiroh 7, 1898. Decided March 13, 1894.] 

JkaauvovB—BentUing tniif.— The doctrine of eqiiitj that a tnistee shall not be 
permitted to make any profit by the nae of trust funds does not warrant the 
creation of a resulting trust in favor of an heir, in Unds which an executor 
has parehased, using trust funds to the extant of one-half the purchase price, 
where, punctually and as directed by the will, he accounted for the funds so 
used with compound interest 

BiXK— Commissions.— Where the administration of an estate continues orer a 
period of years, an executor may properly charge the estate at the cloae of 
each year, with the commission allowed by law on funds of the estate, actually 
disbursed during the preceding year. (Jnre Dewaf*8 Ettate, 10 Mont 436, 
distinguished.) 

EiMB—Oamproniise of olaimM, — ^Where an executor has compromised a claim due 
the estate after collecting some payments from time to time from the debtors, 
wbo were generally regarded as insolyent, he should not be charged wltii die 
amount rebated fh)m the debt upon the mere showing that for seyeral years 
during the running of the debt title to certain land stood in the name of one 
of the debtors, and which property was coiiT^yed for a consideration, as staisd 
la the deed, mueh kifor Ihaa the amount of his indebtedtteis to the estaH ik 

(l«) 



164 In rb Ricksb'8 Estate. [March T., 1894 

not ftppeiring th&t laoh pr o p erty wm fabJ«oi to cxMmttoii, or fluit the ooo* 
•identton in the deed repreeented the tbIqo. 

MiM^-Uke oftnutJktnd»^InUre$L'-Aik exeoator who hat reteined in his hands 
fdnds of the estate which should have been deposited in bsnk at interest, 
should not be required, in an equitable aeooonting, to paj arbitrary ratesSof 
interest npon saoh funds in exoess of the statatory rate, parlioolarly where bo 
aooounted for a higher rate than the banks, wherein ^tbe money was ordered 
deposited, would hsTo paid, 

Bahb— C7omiiiiistof»— iieeieto on oftpeal.— An ol^oetion thftt an exeeutor was 
allowed a higher rate of oommission in oertain years than the statute allowed* 
eannot be raised for the first time on appea' 

Appeal from Fird Judicial IHstricU Leioii and Clarke Qmnhf. 

Actios for an aooounting against an execntor* The cause 
was tried before Buck, J., who rendered a decree for petition- 
ers. Reversed. 

Maaeena BuOard and D. B. Wade, for the Executor, Appel- 
lant. 

I. We admit at the outset that an executor or trustee must 
make no profit or gain to himself of any kind, upon or out of 
the funds in his hands as such executor or trustee. It is so 
declared in our statute, and the statute but expresses in defi- 
nite words the effect of numerous decisions. Courts have 
sometimes enforced this rule and principle with such rigor, and 
at other times with such laxity, that Chancellor Sanford, in 
the case of Ctarkaon v. De Peysler, 1 Hopk. Cb. 606, in defin- 
ing the duties and liabilities of trustees, applied the rule as 
follows: ^'A jealous severity, which would deter prudent men 
from accepting these trusts, and a lax indulgence which would 
invite men to accept them for gain, are extremes which are 
equally inexpedient.'' 

II. The failure to invest in government securitieB was not 
malversation or breach of trust The court had the inherent 
authority and power to make the order concerning the invest- 
ment of these funds, when it became necessary so to do for the 
protection or preservation of the funds and the interests of the 
l^atees, or if it became impossible or impracticable to carry 
out the provisions of the will concerning investments. (Cross- 
well on Executors and Administrators, § 439; Schouler on 
Bxecntors and Administrators, § 336; Twaddeffe Appeal^ 5 
Prn. 8t» 17; Laneing v. Laming, 46 Barb. 182; Oraj/ v. In/nch, 



14 Mont In bb Kicker's Estate. 155 

8 Gilli 405.) In cases of unauthorized varying of the securi- 
tieSy the trustee takes upon himself the- burden of proving 
entire bona fides, and that there was reasonable ground to 
believe that the fund would be benefited; and if this can be 
shown, the courts will sustain his action. {Wcuhington v. 
Emery, 4 Jones Eq. 32; Comunse v. Bourgum, 2 Ga. Dec. 15.) 
The directions of the will are not to be followed, if the funds 
of the estate would be lost or injured thereby. It would have 
been waste^ and a squandering of the funds of the estate, 
to have invested its funds as directed by the will. For 
all practical purposes government bonds could not have 
been obtained. They were from 17 to 20 per cent premium, 
bearing but 6 per cent interest, which was soon after reduced 
to 4 per cent interest, and to have purchased them would have 
required the payment from the estate funds of from $2,500 to 
$3,000 in premiums, which sum would have been entirely lost 
to the estate, and when the bonds were obtained it would have 
required three and one-half years' interest thereon to have paid 
this premium. This order of the court, as to investing the 
funds, relieved the estate from the payment of a burdensome 
premium^ and has enabled the executor to add to the value of 
the estate about $16^000 in interest received and accounted for 
by him. But suppose there had been a breach of trust in not 
following the will as to investments, what are the conse* 
quences? The executor only becomes personally liable for 
losses if the investment he made did not equal the investments 
directed by the will. (See Schouler on Executors and Admin- 
istrators, § 329, and note.) In such a case the standard or 
measure of loss would be what would have been made or real- 
ized by the estate or legatees if the directions of the will had 
been followed. The court will inquireand ascertain the amount 
due if the will had been followed. (1 Perry on Trusts, §472.) 
If the executor accounts for more than he would have realized 
by following the will, and has made no profit for himself, tiie 
legatees cannot complain. They have no cause of complaint 
if they have not been injured, and the executor has not been 
benefited. The case is analogous to that of a statute requiring 
tmstees to invest in certain securities, but they fail to do so, 
and invest in others not named in ,the statute, in which cases 



166 In bs Biokeb's Estate, [March T.| 1894 

the trasteet are odIj required to make good the losBee in con- 
seqneDce of departing from the statute. (See 1 Perrj on 
Trosts, 663, and note; Schouler on Executors and Admiois- 
trators,' § 336.) And so trustees may elect to invest in securi- 
ties not Darned in a statute, and if they so elect they only 
become responsible for losses. The' rule is fully stated by 
Lord Cottenham aud quoted in Schouler on Executors and 
Administrators, section 336. Even in such cases, if the trustee 
acts in good faith, and exercises good judgment, and there is a 
loss, he will be protected. (See TwaddMs Appeal^ 6 Pa. St. 
18.) Undoubtedly, the same rule would be applied to a will 
directing certain investments, and especially in a case where, 
by departing from the will, the estate and legatees had been 
greatly beneBted. (See SmiUi v. WeUingtm do. Cb., 83 HI. 
498; Biehardaon v. Knight, 69 Me. 285.) 

III. The trial court directs that the executor be charged 
with compound interest upon the funds in his hands at the 
rate of 18 per cent per annum from July 21, 1876, to August 
31, 1880; from August 31, 1880, to January 20, 1886, with 
compound interest at the rate of 15 per cent per annum; 
and from January 20, 1885, to the date of the exhibit filed 
herein, at the rate of 12 per cent compound interest per 
annum. Having found that the executor mingled the trust 
funds with his own, from the fact that all of the trust funds 
were not at all times deposited in the banks, then follows the 
order as to the rates of interest to be charged, which order is 
based upon the testimony of certain bank officers, who testified 
that money might have been loaned, not indeed at compound, 
but at simple interest, at the rates and between the dates above 
mentioned. There is no testimony in the case tending to show 
at what rates money might have been loaned between those 
dates at compound interest for a series of years. But the 
injustice of charging an executor with compound interest at 
these rates for a long series of years will be realized when it is 
remembered that in loaning money for a long number of years, 
with the utmost vigilance and care, there are always losses, and 
always times of depression and stagnation when money oannot 
be loaned at all. {King v. Ihlbot, 40 N. Y. 96.) Even in 
old and well-established communities there are periods of 



14 Mont.] In rb Ricker's Estate. 157 

depression and stagnation which prevent or make unsafe the 
lofining of money. For these reasons courts hold that it 
would be unjust and a hardship to charge an executor or 
trustee with the full legal rate of simple interest on funds in 
his hands for a series of years. To charge compound interest 
against a trustee for a long series of years, upon the supposi- 
tion that he has received, or that it would be possible for him 
lo have received, such interest^ is against the common ezperi- 
ence of the business world. Interest is not charged against a 
trustee under such circumstances to take from him what he 
has not received. G)mpound interest will not be charged or 
allowed as a penalty, or to punish the executor or trustee. It 
18 only resorted to as a means to compel the trustee to refund 
the interest he has actually received, or that he is presumed 
actually to have received. (See Uiica Ins. Co. v. Lynch^ 11 
Paige, 524; Hood's Estate, 1 Tuck. 396; Pt-escotes EstaU, 1 
Tuck. 430; Spear v. Tinhliam, 2 Barb. Ch. 213; Manning v. 
Manning, 1 Johns. Ch. 527; MeKnight v. Wahh, 24 N. J. Eq. 
498; English v. Harvey, 2 Bawle, 305; In re Harland's 
Accounts, 5 Rawle, 329; Lighi's Appeal, 24 Pa. St. 181; ifo- 
OalPs Estate, 1 Aslim. 357; Baimey v. Saunders, 16 How. 
635; Williams v. Fetticrew, 62 Mo. 460; Scott v. Crews, 72 
Mo. 261; Boynton v. Dyer,\i% Pick. 1; De Peyster v. Gark-- 
son, 2 Wend. 77; Ackerman v. Emott, 4 Barb. 626; Gamiss 
V. Gardiner, 1 Edw. Ch. 128; Lansing v. Lansing, 45 Barb. 
182; Fay v. Howe, 1 Pick. 527, and note; Clemens v. Caldwell, 
7 B. Mon. ni; Luken's Appeal, 7 Watts & S."48; Fall v. 
Simmons, 6 6a. 272; Cartledge v. Culiff, 21 Ga. 1; 1 Perry 
on Trusts, § 471; Hughes v. People, 111 111. 467; WUmerding 
▼. McKesson, 103 N. Y. 329; Graver's Appeal, 50 Pa. St. 189.) 
Again, by what theory or principle is the executor required to 
pay interest from the very day of his appointment, when he is 
compelled to hold the funds of the estate in his possession for 
the purpose of paying the debts until a year from that date? 
In 1 Perry on Trusts, fourth edition, section 4j62, it is said: '^ A 
year is a reasonable time within ^which an executor may call in 
a testator's estate and pay off his liabilities, and it is necessary 
during that time that the executor should keep the money on 
hand, Ab a general rule executors and administrators are not 



158 In rb Kicker's Estate. [March T., 1894 

chargeable with interest for one year after they have taken oat 
letters (that time being allowed them to get in the estate and 
settle their aooounts), nnless they have actually received it, or 
have used the money doling that time.'' (Fox v. WUoooka^ 1 
Binn. 194; 2 Am. Deo. 433; Vemer^s Edate, 6 Watts, 250; 
Findlay v. Smith, 7 Serg. & R. 264; BUzer v. Hahn^ 14 Serg. 
& R. 232; Commonwealth v. Mateer, 16 Serg. & R. 416; Wal- 
tliour V. WcJthour, 2 Grant Cas. 102; Levin on Trusts, 279; 
Ogilvie v. Ogilvie, 1 Bradf. 366; Jaoot v. Mnmdt, 11 Paige, 
145.) After the expiration of one year interest begins to run 
on the balance found in their hands on the annual accountings 
{McChlTs IktcOe, 1 Ashm. 367; Boynian v. Dyer, 18 Pick. 2; 
Oilman v. Oilman^ 2 Lans. 1.) "Where sums have been 
received after that time the court will allow six months from 
the time of tlie receipt before the charge of interest is to com- 
mence.*' {Wo^rdPs Appeal, 23 Pa. St. 44; Dunacomb v. Duns^ 
comb, 1 Johns. Ch. 511; 7 Am. Dec. 604; MoKnight v. Walsh, 
24 N. J. Eq. 498; Voorhees v. Stoothoff, 11 N.J. L. 155; 
Cogswell v. Cogswell, 2 Edw. Ch. 231: see 7 Am. & Eng. Ency. 
of Law, 427, and notes.) 

lY. The foregoing considerations are of weight in fixing 
the rate of interest with which this executor should be charged. 
There is no testimony in the case showing, or tending to show, 
tiiat the executor mingled the funds of the estate with his own 
funds, or that he used the funds of the estate in his private 
business, except the fact that his annual reports or accounts^ 
taken in ^nnectiou with the bank statement of money on 
deposit in the name of the executor, show that all the funds 
of the estate were not kept on deposit by the executor in 
the banks. The complaint is not that the executor has not 
accounted for these sums of money assumed by him, together 
with interest thereon, or that he has not accounted for the 
balances in his hands from year to year, or that he has not 
accounted for every dollar that ever came into his hands 
belonging to the estate, together with interest thereon. All 
this is admitted, but the claim is that he has not accounted for 
all the interest with which he is legally chargeable. 

V, The testimony does not support the finding of the. 
court that the executor mingled the funds of the estate with 



14 Mont.] In bb Ricker's Estate. 150 

his own^ and used them in his private business. It is shown 
that the balances not deposited in the banks were the debts of 
insolvent debtors assumed by the executor and the amounts 
required to be kept on hand for the widow. But if the find- 
ing of the court were true^ and supported bj the evidence^ is 
the conclusion of the court thereon that the executor should be 
charged with compound interest at the rate of 18, 15^ and 12 
per cent per annum authorized or justified hy the law? Mr. 
Peny, in his work on Trusts^ which is cited as authority by 
the highest courts of the country^ in volume 1^ fourth edition^ 
section 468, answers the question as follows: ''If a trustee 
retains balances in his hands which he ought to have invested, 
or delays for an nnr^onable time to invest, or if he mingles 
the money with' his own, or uses it in his private business, 
• ... he will be liable to pay simple interest at the rate 
esfabh'shed by law as the legal rate in the absence of special 
agreements/' Tliis is exactly what the court found that this 
executor did. ^/Phat "the said William A. Chessman mixed 
large sums of money belonging to the said estate with his 
]>rivate funds, and used the same on his own account," and 
for doing which the court charges him, not with simple inter- 
est at the statutory rate, in the absence of special agreements, 
but with compound interest at illegal rates, except for special 
agreements. Our statutory rate, in the absence of special 
agreement, is simple interest at the rate of 10 per cent per 
annum, and there is no statute, and never has been in our 
territory or state, authorizing compound interest at any rate 
whatever, either in favor of a dead or live man. (King v. 
Talbot, 40 N. Y. 86; NeIsM v. Hagerdoton Bank, 27 Md. 53; 
Dufy V. Duncan, 35 N. Y. 187; Young v. Brush, 38 Barb. 
294; Owen v. Peebles, 42 Ala. 338; Wistai'^s Appeal, 54 Pa. 
St. 60; NewUmy. Bennett, 1 Brown Ch. 359; Littlehales v. Gas- 
eoyne, 3 Brown Ch. 73; Mousley v. Carr, 4 Beav. 49; Mum" 
ford V. Murray f 6 Johns. Ch. 1; Jacot v. Emmett, 11 Paig^ 
142; KelleU v. Eathbun, 4 Paige, 102; DePeyder v. aarhaon, 
2 Wend. 77; Oamisa v. Gardiner, 1 Edw. Ch. 128; l^ar v. 
Itnkfiam, 2 Barb. Ch. 211; Manning v. Manning, 1 Johns. 
Ch. 527; Broim v. Bicketts, 4 Johns. Ch. 303; WiUiavMrn 
V. Wiliiameon^ 6 Paige, 298; Dumcfmb v. I>WMO0fmb, 1 John& 



160 In bs Biojlbr'8 Estate. TMarch T.. 1884 

Ch. 608; 7 Am. Dec 604; Minu9e v. Oox, 6 JohMi CSi. 448; 
9 Am. Dec. 313; Cogswell v. Cogstcell, 2 Edw. Cb. SSI; Gray 
V. Tliompaon, 1 Johns. Ch. 82; Atfnstrong y. MtUer, 6 Ofaio^ 
118; Aston'a Estate, 6 Whart. 228; WonelTs Appeal, 23 Pi. 
St. 44; Chava^s Appeal, 60 Pa. St. 189; Hess' Estate, 68 Pa. 
St. 464; Peyton v. Smith, 2 Dev. & B. Eq. 326; Jameson y. 
Mcfty, 2 Humph. 198; jDyotf* jEite/e, 2 WatU AS. 666; JTerr 
y. Laird, 27 Miss. 644; Zomoo; y. Pendleton, 3 Call, 638; 
Handly y. Snodgrass, 9 Leigh, 484; Cbrfer y. CuUing, 6 Munf. 
223; TFood v. Gamett, 6 Leigh, 271; Griswold y. Chandler, 6 
N. H. 497; Xurwi y. iwnd, 41 N. H.366; Tumeyy. WiOiams, 
7 Yerg. 172; Wright v. TFf-i^rAi, 2 McCord Eq. 185; Knoudton 
y. Bradley, 17 N. H. 468; 43 Am. Dec 609; McKim y. Mb- 
bard, 142 Mass. 422; In re Myers, 131 N. Y. 409. To the 
same effect are numerous authorities cited in 7 Am. & Eng. 
Eiicy. of Law, 426, note 3.) This rule is subject to the 
qualification that the trustee shall make no profit out of the 
trust fund. But there is no proof that this executor made any 
profit wliatever out of the trust fund, or that he ever used the 
same to his own gain or advantage in any manner. And it 
has been heretofore pointed oat that for this long series of 
years, and in this country, the executor could not have loaned 
this considerable sum of money^ and received any greater 
amount of interest than he has accounted for. The principle 
of computation and the manner of charging a trustee with 
interest, where he has mingled the trust fund with his own, as 
announced in the De Peyster case, runs all through the deci- 
sions, in cases where there is no fraud or willful breach of trust, 
the principle being to avoid charging interest as a penalty, 
and to arrive at the exact amount of interest the trustee has 
received or that he is presumed to have received. In 1 Perry 
on Trusts, section 468, the principle is stated in this way: ''The 
proper mode of taking the account of trustees is to treat all the 
income of the trust received during the current year as anpro- 
ductive; and to charge against the income of the current year 
all the disbursements, including the compensation or commis- 
sions of the trustee for the same year^ and to strike a balance, 
npon which, as a general rule, interest is to be allowed, but in 
such a way as not to compound iV' citing the following 



14 Mont.] In bb Rickek's Estatb. 161 

authorities in 8Ui>i)ort of the proposition: Boynton v. Dyer, 
18 Pick. 1; FeUua v. Oawamy 4 Rich. Eq. 92; Jan^s v. Jfor- 
raU, 2 Sim., N. S., 241; DePeysUr v. aarkam, 2 Wend. 77; 
Vanderheyden v. Vandeiluyden^ 2 Paige, 288; 21 Am. Dec. 86; 
Lv]ce7C9 Appeal, 47 Pa. St. 356; Reynolds v. »Fa/ifc«r, 29 Miss. 
260; Roadi v. Jc/L, 40 Miss. 754; Onimp v. GerocJfe, 40 Miss. 
766; Eowland v. jBefi<, 2 McCord Eq. 317; Jordan v. JJmw/, 
2 Hill Eq. 146; Walker v. %nMm, 4 Desaus. Eq. 655; Poirefl 
V. Powell, 10 Ala. 900; Sheppard v. i8tori«, 3 Munf. 29; Bur^ 
weU V. ^nrf«-«a7i, 3 Leigh, 348; Garrea v. Qzir, 3 Leigh, 407; 
Campbell v. Williams, 3 T. B. Mon. 122; Jbnea v. H^arrf, 10 
Yerg. 160; Elliott v. SparreU, 114 Mass. 404. See, also, 
7 Am. & Eng. Ency. of Law, 429; GaUaghan v. HaU, \ 
Serg. &R. 241. 

VL As to the land found by the court to have been pur- 
chased by the executor in his own name with funds of the 
estate, we contend that there is no testimony whatever to sup- 
port, authorize, or justify the finding. It has not even a pre- 
sumption in its favor. It has nothing more than a vague^ 
shadowy suspicion or conjecture upon which to rest. The 
private property of an executor or trustee cannot be taken 
away from him by vague susiucions or conjectures. Land 
cannot be impressed with a trust upon lame, unwarranted, or 
inconclusive presumptions. (1 Perry on Trusts, § 137.) In 
PhUpot V. Penn, 91 Mo. 43, the court says: "It has been 
repeatedly held by this court that the onus of establishing a 
resulting trust rests upon him who seeks its enforcement, and 
where it is sought to establish such a trust by parol evidence, 
it must, to warrant a decree, be so clear, definite, and certain 
as to leave no reasonable ground for doubt.'' The same cer- 
tainty, your honors will observe, as is required to convict of 
crime. To the same effect are the following authorities: Rails' 
back V. Williamson, 88 111. 497; Sfiepard v. PraU, 32 Iowa 
296; Childs V. GrisuH>ld,J9 Iowa, 362; StaUy. ancinnati, 16 
Ohio St. 169; Parmlee v. Sloan, 37 Ind. 469; Outler v. TuUle 
19 N. J. Eq. 560; Whiie v. Sheldon, 4 Nev. 280; Ndson v. 
WorraU, 20 Iowa, 469; Oaming v. Robins, 39 N. J. Eq. 46- 
Oarke v. qwuikenbos, 27 111. 260; BaJcer v. Vinvng, 30 W 
128; 60 Am. Dec. 617; Carey v. CaUan, 6 B. Mon. 44; Hyden 
Vol. Xnr.— 11 



162 In bb Bickbb's Estate. [March T., 1894 

V. Hyden, 6 Baxt 406; Harvey v, Pennypacker, 4 Del. Ch. 
445; WiUs v. Harney, 69 Md. 684| Parker v. Snyder, 31 N. J. 
Eq. 164; BrickeU v. Earley, 116 Pa. St. 473; Malin v. ifa«h, 
1 Wend. 626; SneBing v. UUerback, 1 Bibb. 609; 4 Am. Deo. 
661; Green v. Dieirioh, 114 III. 636; I^omow v. Standiford, 
49 Md. 181; Johnson v. Richardson, 44 Ark. 365; JS^uw y. 
Hunter, 9 III. 211. Even if it had been proved on the trial 
by sach testimony as the law requires, that this land was partly 
puid for with the trust fund, and partly with the funds of 
Chessman, the legatees, would not then be entitled to the land 
they claim. The most that the law would give to them or 
the estate in such case would be a lien upon the land for the 
moneys of the estate or trust fund used in its purchase or 
interest thereon. (2 Perry on Trusts, § 842; Hedrick v. Tuck- 
wilier, 20 W. Va. 489.) 

y II. The court below held that an executor was not entitled 
to any compensation for his services until there had been a 
final settlement of his accounts. Under our statutes an execu- 
tor or administrator, in ordinary cases, must settle the estate 
and render his final account in one year from the date of his 
appointment. In such cases it may be that no compensation 
is earned until the final acQpunt is rendered. But in a case 
where an executor is also trustee for the legatees, and is 
required to hold and to invest trust funds for a long series of 
years, on interest, and where no final account can be rendered 
until such period has elapsed, a very different rule as to com- 
pensation should be applied. In Baker v. Johnston, 39 N. J. 
Eq. 493, it is held that executors are entitled to commissions 
as executors, and also as trustees, when, their duties as execu- 
tors having ended, they take the estate as trustees, and after- 
wards act solely in that capacity. (See! to the same effect 
Pitney v. Everson, 42 N. J. Eq. 361; Blake v. Blake, 30 Hun, 
469.) Besides his commissions as executor he was entitled to 
a reasonable compensation for bis services as trustee, though he 
has made no charge for such services. It is no trifling matter 
to have the care and responsibility of keeping a large sum of 
money invested on interest for a long period of years, and the 
authorities on the subject are to the effect that a trustee is 
entitled to reasonable compensation for such services. 



14 Mont.] In bb Rickbb's Estate 163 

yill. The testimony shows that^ as to the claims against 
certain parties, the executor compromised and settled with said 
debtors to the estate and received considerably more on each 
of said claims than the appraised value thereof but less than 
the amount due thereon. Our statute provides (Probate Prac- 
tice Act, § 232, p. 332) that an executor or administrator may 
compound or compromise with a debtor who is unable to pay 
his debts, with the approval of the probate court or judge. 
The executor made the compromises above referred to, without 
first having obtained the approbation of the probate court or 
judge, and therefore, as we understand him, the petitioner con- 
tends that the executor should be charged with the full amount 
of principal and interest due on these compromised claims. It 
would shock the universal sense of justice to charge the execu- 
tor with the worthless or uncollectible claims belonging to a 
testator at the time of his death. No court could be found 
that would charge an executor with the principal or interest 
due upon such claims, and it was entirely unnecessary for one 
l^islative assembly to have enacted, as it did in section 260 of 
the Probate Practice Act, that ^'no executor or administrator is 
accountable for any debts due the decedent, if it appears that 
they remain uncollected without his fault.'' (See Smith's 
Probate Practice/ 228.) Independent of any statute, executors 
and administrators have full authority to compromise claims, 
and are not liable for any damage resulting to the estate except 
for an injudicious use of the power. If they act with fidelity 
and prudence their compromises are sustained, and they are 
protected. {Bacon v. Q'andon, 15 Pick. 79; Nebon v. Q>m- 
foeO, 11 Gratt. 724; Potter v. Oammings, 18 Me. 55; Boyd v. 
Ogled>y, 23 Gratt 674; Alexander v. Kelso, 12 Heisk. 311; 
WUks v. Slaughter, 49 Ark. 235; Berry v. Parkea, 3 Smedes 
& M. 625; Oiadboum v. Chadboum, 9 Allen, 173; Chase v. 
Bradley, 26 Me. 531; Wyman'a Appeal, 13 N. H. 18; Pusey 
V. Oemson, 9 Serg. & R. 204; Woolfork v. Stdlivan, 23 Ala. 
648; 58 Am. Dec. 305; Coffin v. CotUe~4 Pick. 454; Bean v. 
Famam, 6 Pick. 269; Patients case, 1 Tuck. 56.) Our stat- 
ute which authorizes executors and administrators to compro- 
mise claims with the approbation of the probate court does not 
take away the common-law right which existed prior to the 



184 In be Rickee*s Estate. [March T., 1894 

passage of the statute. (7 Am. & Eng. Ency. of Law, 286, 
and cases cited.) The execntor had the right to compromise 
without obtaining leave of court, and there is no liability 
upon him for so doing if he shows that the compromises 
were for the best interests of the estate. (See Sehouler on 
Executors and Administrators, § 298, pp. 386, 387; Wood v. 
Tmnid^, 74 N. Y. 38; Qeigers v. Kaigkr, 9 S. C. 401.) 

B. P. Cbrpen^. and Alexander C. Botkiut for the Petitioner, 
Eespondent. 

I. The contention that when land is partly paid for from 
the trust fund, and partly from the individual money of the 
trustee, the beneficiaries cannot impress a trust upon the pro)>- 
erty, but only a lien for the moneys of the estate used in tlie 
purchase, cannot be supported when the amount of the trust 
fund so employed is an aliquot part of the entire purchase 
price. In this case the court finds that the executor used 
$5,000 of the estate's funds in buying the tract of land from 
Child and Young, which was just one-half of the entire sum 
paid. Chancellor Kent says (4 Kent's Commentaries, 306): 
'^If only part of the purchase money be paid by the tliird 
party there will be a resulting trust in his favor j^ro tanto; 
and the doctrine applies to a joint purchase.'' {Sayre v. Tovm- 
sends, 15 Wend. 647; WItite v. CkitT>enter, 2 Paige, 238-41; 
Mdden v. Jordan, 21 Cal. 100; Case v. Chdding, 38 Cal. 193.) 

IL Appellants endeavor to make it appear that the time 
from which interest is charged is premature. This rests upon 
the proposition that a trustee ought to have a reasonable 
time to find investments. It would be absurd to apply it to 
a case like this, where the executor had sought and procured 
an order authorizing him to keep the funds deposited in cer- 
tain banks of the city where he resided. It is for his failure 
to do this, and not for a failure to look up new opportunities 
for investment, that this responsibility is imposed upon him. 

III. It is contended that the executor should not be 
charged with interest on money that he was required to keep 
on hand to meet monthly payments. Without pressing other 
considerations equally pertinent and forcible, it appears from 
his own testimony that he had an arrangement with Mr. Hersh- 



14 Mont.] In bb Bickbb's Estate. 165 

field, whereby lie kept the estate funds on open account for such 
purposes, and drew interest on the balances as thej changed 
from day to day. Under this arrangement there was no reason 
whatever why he should not have kept the entire trust fund 
on deposit and drawing interest during the whole period 
involved. 

ly. We come, now, to consider the question whether inter- 
est should be compounded in computing the amount with 
which the executor is chargeable. As a matter of fact, the 
appellant, in his reports returned to the probate court, has 
charged himself with compound interest with semi«anuual 
rests, whereas the directions of the court below to the referee, 
which were respected in the computation, called for annual 
rests only. The rule of equity which here controls is that 
stated by the chancellor in Broton v. Riekda, 4 Johns. Ch. 
303, 8 Am, Dec. 567: "It may be declared to be a principle 
of universal law that a tutor, curator, or trustee shall not 
make a profit of the trust money, and then retain the profit.^' 
The facts in proof are that the appellant had the use of the 
sums of money which are subjected to charges of interest, and 
that during this time he was himself a borrower from the 
Helena banks. How, then, shall the court see that "the 
trustee shall not make a profit of the trust money, and then 
retain the profit? '^ Clearly, by charging against him what- 
ever he would have had to pay as interest to the banks if 
he had not had the use of the estate's funds. The rates 
are not disputed; indeed, the proof shows that the interest 
charged by the bank was above the rates fixed by the court; 
and it is a matter of common knowledge that bank loans are 
rarely made for longer than six months, which fixes the inter- 
vals of compounding. 

y. On the question of the rate of interest chargeable against 
a trustee we conceive the law to be well settled. When there 
is simply a failure to invest he must account for what is com* 
nionly called statutory interest, meaning the rate provided by 
law in the absence of express contract; when there is any 
circumstance of malversation, or \vhere he has mingled the 
money of the estate with his own, and cannot, or will not, 
account for the profits that belong to the oestim que trud the 



166 In bb Rickbb's Estate. [March T., 1884 

trustee must account for the highest current rate of interest, 
with at least annual rests. (Perry on TrustSi § 471, and note; 
Barney v. Saundera^ 16 How. 537; Hook v. Payne, 14 Wall. 
252-57; Estate of Holbert, 39 Cal. 597; Raphael v. Boehm, 11 
Ves. Jr. 92; Sdiieffelin v. Stewart, 1 Johns. Ch. 620; 7 Am. 
Dec 507; Spavlding v. Wahefieid'e EstaJte, 53 Vt. 661; Farvoea 
V. Steen, 46 Vt. 678; Jenniam v. Hapgood, 10 Pick. 77.) 

YI. Paragraph VII of the appellant's brief is addressed 
to the executor's right to commissions prior to the final settle- 
ment of his accounts. We apprehend that this is no longer an 
open question in Montana. {In re Dewar^s Estate, 10 Mont. 
426 et seq.) But it is argued that the executor at an earlj 
period of the administration suffered a metamorphosis into 
trustee, and that in the latter capacity he is entitled to compen* 
satiou. There is no claim that the appellant was made trustee 
by the terms of the will, or that any dual character was created 
by that instrument; on the contrary, it must be assumed that 
his relations to the estate would terminate with his discharge 
by the court as executor. The principle that controls is suffi- 
ciently stated in the authority here cited. {Hall v. Hall, 78 
N. Y. 535.) 

VII. Where an executor mingles the funds of an estate 
with his own, and thereafter enters into investments or em- 
barks in speculations, it will be presumed that the trust funds 
were used in such investments and speculations. This pre- 
sumption is confirmed where his explanations of what he has 
done with the ^trust moneys are vague, evasive, and unsatis- 
factory; where he is shown to have been a borrower at the 
time such investments were made, and by other circumstances 
such as are here in proof. {Trofwp v. Rice, 56 Miss. 278; 
Crowder y. Shackelford, Z5 Miss. 324; Foxy. WUcocks, 1 Binn. 
194; 2 Am. Dec. 433; Lupton v. WhiU, 15 Ves. 441; Nixon 
V. Nixon, 8 Dana, 5; Weir v. Weir, 3 R Mon. 645; 39 Am. 
Dec. 487.) The burden of proof is on the trustee to show the 
amount of his own funds invested in such speculations, or 
otherwise the cesttdslque trust will take the whole. (1 Story's 
Equity Jurisprudence, § 468; Perry on Trusts, § 128; Austin 
V. Sprague Mfg. Co., 14 R. I. 471; Russell v. Jackson, 10 
Hare, 204-14; Molxurren v. Brewer, 61 Me. 402; Seaman v. 



14 Mont.] In bb Bickbb's Estatb. 167 

Cook, 14 111. 501-^5; Cannon v. Cooper, 39 Misa. 784; 80 
Am. Dec. 101.) The cardinal object of equity is to see that 
the trustee never profits by malversation of the trust funds. 
To insure this, the beneficiaries are permitted to make their 
election as to whether they will take the actual profits or 
interest in lieu thereof. (1 Story's Equity Jurisprudence, § 465; 
Docker v. Somes, 2 Mylne & K. 655; Weir v. Weir, 3 B. Mon. 
645; 39 Am. Dec. 487; Norri^ Appeal, 71 Pa. St. 106-13.) 

VIII. Our statute permits the compromise of claims by 
executors or administrators '^with the approbation of the pro- 
bate court or judge.'' (§ 232.) There is no pretense that such 
approbation was secured in this case, and in its absence it 
devolved upon the executor to show that there had been no 
remissness on his part, and that the compromise was for the 
best interests of the estate. (SchuUz v. PtUver, 11 Wend. 366; 
Loweon v. Copeland, 2 Brown Ch. 156; PoweU v. Evans, 6 
Ves. 839; Caffrey v. Darby, 6 Ves. 488; Woerner's American 
Law of Administration, and authorities cited in note 4.) 

Harwood, J. — ^This proceeding was instituted in the probate 
department of the district court of Lewis and Clarke county, 
by Martha P. Bicker, petitioner, on behalf of Jesse C. Bicker, 
a minor heir and legatee of Joshua C. Bicker, deceased, to 
require an account, under the provisions of the Probate Prac- 
tice Act, sections 254-70, from W. A. Chessman, executor of 
said estate, touching his administration, and disbursement of 
the property thereof. 

It appears from the record that Joshua C. Bicker died on 
the 1st of June, 1875, a resident of Lewis and Clarke county, 
Montana, leaving a widow, Martha P., and four minor children; 
and an estate, consisting of money deposited in certain banks, 
to the amount of about $18,000, which, together with other 
assets, consisting of certain personal effects, and demands owing 
the estate, and an undivided partnership interest with M. A, 
Price in two ranches and certain cattle, etc, altogether 
amounted to the appraised value of $34,467.55, excluding the 
homestead. The management and disposition of this estate 
was directed by the last will and testament of decedent^ whereof 
William A. Chessman was appointed executor. 



168 In KB Rigkbr's Estate. [March T., 1894 

Bj said will the testator devised to his wife, Martha P., 
the homestead and household furniture situate in the city of 
Helena, Montana, valued at $3,236; and directed the executor 
to pay out of the funds of said estate, to said widow, for the 
8ui>|)ort of herself, and the support and education of said minor 
children, the sum of $200 monthly, for the {>eriod of five years, 
and thereafter, the sum of $260, monthly; providing, liowever, 
that as each of said minor children reached the age of majority, 
and received a share of said estate, respectively, as provided- 
in the will, then such monthly allowance should be diminished 
to the extent of such child's proportion thereof. 

The will further directed the executor, at such time, and for 
such prices, as he deemed for the best interest of the estate, to 
sell and convert into money all the effects of said estate; and 
that all such funds not otherwise required to be paid out, as 
provided by the will, be, as soon as practicable, invested in 
United Stales government securities, and that the interest 
accruing on such securities, save such part thereof as might be 
necessary to carry out the provisions of the will, be, from time 
to time, invested in like manner. 

It appears from the first annual report by the executor, 
returned to the probate court, at the close of the first year 
of said administration, that the available funds of said estate, 
then on hand, after paying said monthly allowance for the 
widow and minor children, other current expenses, and cer- 
tain debts of the estate and of Said partnership estate, was 
$15,174.26. And thereafter, from year to year, the funds of 
said estate, with additional receipts from sales of property, 
collections of debts due-the estate, and accumulations by way 
of interest on the funds on hand, ranged from the sum last 
stated upward to $19^818.43, which was the largest sum on 
hand at the close of any fiscal year during the administrationi 
after meeting demands thereon by way of annuities, debts, and 
expenses of the estate, and of tlie partnership estate aforesaid, 
as shown by the annual reports returned and approved by the 
court. When the partnership affairs were closed out in 1883^ 
and the estate received therefrom $4,360, tlie funds of the 
estate reached said sum of $19,818.43, as shown by the eighth 
annual report, returned that year, and approved by the probate 



14 Mont] In bb Rickbr's Estate. 169 

court The next annual report, returned in 1884, shows a 
balance of $18,426 on hand. Out of this sum, in addition to 
other demands, there was paid to the eldest child, March 5, 
1886, the sum of $4,634, on her arriving at the age of major- 
ity. The annual report for the year 1886, after such payment, 
shows a balance of $11,980. Thereafter, the annual reports 
show that the funds of said estate declined in amount, from 
year to year, by disbursement of annuities, current expenses, 
and the payment of two additional legacies to the second and 
third of said minor children, respectively, as they arrived at 
adult age; until 1891, when, as the report for that year shows, 
the funds of said estate were practically exhausted. 

The funds of said estate were not invested in government 
securities, as directed by the testator in the will. The circum- 
stances which are claimed to have justified the court in order- 
ing a departure from the provision of the will in that respect, 
as disclosed by the record, appear to be as follows: That the 
investment of the funds in United States government securities 
at the time in question would have required the payment of 
about $3,000 premium; that said premium would, of course, 
have reduced the funds of the estate by that amount; and that 
with such reduction of the fund, the annual income from invest* 
ment of the remainder in government securities would, accord- 
ing to the testimony, Iiave been at the rate of five per cent 
interest during the first part of the administration, which rate 
was reduced to four per cent during the latter part of that 
period; but considering the sacrifice of premium, the rate of 
interest derived from said investment would have been, on the 
whole, about three and one-half per cent; that the income 
thus obtainable, as was plain, would fall far short of sufficient 
to meet the required annuities and other demands upon the 
funds of said estate; that from these conditions, apparent at the 
bq^ning of the administration, as well as at all times there- 
after, it was manifest that to carry out the provisions of the 
will, requiring such funds to be placed in government securi- 
ties, and only the interest derived therefrom used, as was evi- 
dently contemplated by the testator, and at the same time carry 
out the other provisions of the will as to the maintenance of 
the fiunily, was impossible; because^ the amount required for 



J 



170 In rb Rickbr's Estatb. [March T., 1894 

tbe maintenauce of the family alone was |2,400 per year, in 
monthly installments, for the first five years, and thereafter 
|3,000 per year, in monthly installments, for four and one-half 
years, until tlie eldest child became of age, which would require, 
during the first nine and one-half years of the administration, 
the payment of |25,600 for maintenance of the widow and 
cliildren; and if this had been the only demand on the funds 
of said estate, it was manifestly im{M)6sible to put the estate 
funds, available at any time, into government securities, and 
leave the same in such investment, and make those payments; 
that if the funds of the estate had been invested in govern- 
ment securities it would have been necessary for the executor 
to sell and convert into money, from time to time, sufficient 
thereof to raise funds, in addition to the income, to pay the 
annuities and other demands on said estate. That therefore 
it appeared impossible for the executor, or any person charged 
with the execution of said will, to carry out the provisions 
tliereof, and that to attempt such procedure would have been 
inexpedient, in view of the necessities of the family. 

In view of these conditions, as appears from the record, soon 
after the return of the appraisement and inventory, on July 
21, 1875, an application was presented to the probate court 
having jurisdiction of said estate, setting forth that the funds 
thereof, as shown by the inventory and appraisement, amounting 
to about 118,000, were on deposit in the First National Bank, 
People's National Bank, and L. H. Hershfield & Brothers' 
Bunk, of the city of Helena, respectively, where the decedent 
had deposited the same in his lifetime, drawing interest at the 
rate of twelve per cent per annum; and asking the court to 
make an order ^'directing said money to remain in said banks, 
respectively, on interest, during the term of the administration 
of said estate, or at the option of said executor, during said 
term/' Whereupon, the court, after consideration of said 
application, made an order, 'Hhat the request of said peti- 
tioner be granted; that the deposits on time of such moneys of 
said estate, drawing interest for the estate, in such banks, be^ 
and is, hereby approved.'' 

Thereafter, the administration of the executor proceeded from 
year to year during tlie course of sixteen years, with annual 



14 Mont.1 In bb Rickbb's Estatb. 171 

aooounts returned into court, verified by the affidavit of the 
executor, showing in detail receipts and disbursements in 
respect to said estate. Such accounts appear to have been con- 
sidered and approved by the probate court, as provided in the 
Probate Practice Act, sections 260-70. But in this proceeding 
those accounts were all opened to any question which the peli- 
tiuuer desired to raise against them. (Probate Practice Act, 
§ 269.) Under this privilege a large number of specifications 
were formulated and filed in this proceeding, contesting the cor* 
rectness and good faith of said accounts. The evidence shows, 
however, that there was no attempt to sustain these charges 
by proof, with but one exception, and that was in respect 
to an item of |400, credited in one of the executor's annual 
accounts, for money claimed to have been paid out, on behalf 
of the estate, to a person employed at the partnership ranch of 
testator and said M. A. Price, as housekeeper. In this single 
attack upon the integrity of the executor's accounts the court 
below found against the accusation, and the evidence, as reported 
in the record, appears to be overwhelmingly in favor of the 
executor. So that, as a result of opening to the assaults of })eti- 
tioner the sixteen annual aooounts returned from time to time 
by the executor, and approved by the probate court, such 
accounts appear to stand unimpeached in every item. These 
accounts are in the record before us, and, after approval by the 
court, are by statute made evidence of their showing, subject, 
however, to be impeached on being opened to ooutest. (Pro- 
bate Practice Act, § 269.) But after passing through such 
contest, without any disparagement, such accountings must^ 
with more force, be considered as evidence of the showing 
therein made. Therefore, the result of the management of 
said estate by the executor herein set down is taken from 
said accounts; wherefrom it appears that during said period 
the executor accounted for $66,369.98, derived from said estate, 
including accumulations by way of interest on the funds on 
band from time to time. Out of this, it is claimed by the 
executor, and not disputed, he paid to the widow and minor 
children, and to the three children first arriving at the age of 
majority, annuities and legacies amounting to |46,288.61; and 
tliatthe liabilities of the estate, as shown by the annual reports 



172 In lUB Rickbb'b Estatb. TMarch T., 1894 

and aooountfl approved by the probate court, ooDsamed the 
rest of the funds of said estate. 

The iDcrease of said estate during administration, shown in 
this result, was largely by way of interest on the funds on hand 
from year to year. From this source the increase appears to 
have amounted to between $14,000 and |1 6,000. The interest 
is returned in gross sums in the annual accounts, but the rate, 
according to 'the testimony of a witness called as an expert 
accountant to investigate said annual accounts, amounts to 
7 9-10 per cent per annum compound, upon the funds on 
hand from year to year, on the average, for the whole period 
of administration. These results are not controverted by the 
Iietitiouer, except as to the one item of |400, above mentioned, 
wherein the executor's account was sustained on the proof. 

Notwithstanding these results, the court found and adjudged, 
iu this proceeding, that, in addition to the amount so accounted 
for, the executor ought, equitably, to account to the heirs of 
said estate for the further sum of $51,000, and upwards 
($51,684.73), on the 1st of June, 1891; and also for an 
undivided one-half interest in a certain tract of land in the 
city of Helena, the value of which is not 8|)ecifically shown, 
hut from the testimony in the record appears to be of large 
value. From this judgment, and the order of the court over- 
ruling the executor's motion for new trial, this appeal is prose- 
cuted. 

In the review of the case here it is not proposed to enter 
ujx>n an inquiry as to the legality of said order of the probate 
court of July 25, 1876, authorizing the executor to keep said 
funds in banks, at interest, instead of converting the same into 
government securities; nor as to what additional responsibility 
for the safety of such funds not so invested the executor and 
his bondsmen may have assumed, by reason of such departure 
from the will; because neither party has drawn into oonsider- 
ation any such questions, as affecting the determination of this 
proceeding. Said order of the court, allowing such departure 
from the letter of the will, is only pertinent to this proceeding 
as part of the history of said administration. The executor 
would not be heard to question the legality of that order, or 
allowed now to depart therefrom, to the detriment of said 



14 Mont.] In bb Bickkb's Estatjb. 173 

estate, nor has he sought any such position. And the peti« 
tioner, for obvious reasons, does not desire an accounting to 
proceed on the basis of the result which would have been 
obtained by investing in government securities, instead of 
accepting and retaining, along with the other heirs and lega* 
tees, the larger rate of interest acquired and paid over by the 
course pursued, ^or is it pretended that any loss whatever 
hapi ened to the principal fund by reason of departure from 
the wilJ. We observe, however, the court below took occasion 
to animadvert upon that proceeding, in strong terms of con* 
demnation of the executor, for procuring such order from the 
court, and appears to regard it in some measure as ground for 
finding that the executor ought to be removed. Thus the 
action of the executor in that regard has been brought in 
question as bearing upon his good faith in making application 
for such order. Whatever additional responsibility for the 
safety of said fund may have been assumed by the executor in 
that matter, and whatever questions as to the legality of such 
departure from the direction of the will in that particular 
might be raised, if pertinent, we think the circumstances under 
which that course was adopted — ^the fact that it was decided 
upon to avoid foreseen sacrifice of thousands of dollars out of 
the limited funds of said estate, and according to undisputed 
testimony, after consultation and approval by the widow, the 
only l^atee then of mature age, and upon advice of able coun- 
sel, affirming the legality thereof, and sanctioned by the order 
of the probate court, with the final return of interest to the 
beneficiaries in double the amount which could have been 
obtained from an investment, as directed by the will — repels 
all attempted condemnation of the motive which prompted the 
executor to that course. 

We therefore pass to the questions demanding determination 
in this case, which have been found entirely sufficient for our 
most patient and painstaking consideration. 

In proceeding with the consideration of these questions, and 
the law and authorities applicable, it must be borne in mind 
that in the case at bar the trustee has admittedly, at all times 
since he became executor, in respect to this estate, punctually, 
and as required by the conditions of the will, accounted for all 



174 In bb Rickkr's Estate. [March T., 1804 

of the princrpal fund of the estate which came into his hands, 
together with interest on such funds from year to year, as the 
same remained in his keeping, at rates which, according to the 
testimony, equaled, on the whole, 7 9-10 per cent compound. 

These results are admitted. The trial court, in treating the 
])ropositions inyolved in this case, '^granted, that as a result 
more profit and gain inured to the widow and children than 
the testator contemplated when he made the will." So coun- 
sel for petitioner, in treating this appeal, in their brief, say: 
''As a matter of fact, the appellant, in his reports returned to 
the probate court, has charged himself with compound interest, 
with semi-annual rests, whereas, the directions of the court 
below to the referee, which were respected in the computation, 
called for annual rests only.'' 

It is tlierefore apparent that there is no contention that this 
executor has failed to account for all the property and funds 
committed to his chaise, together with interest on the funds, 
at the rates mentioned. But it is contended that he should be 
required to pay a higher rate of interest than he has returned 
on such part of the estate funds as were, from time to time, in 
his hands, not deposited in bank at interest, as provided by 
said order of court. That demand is the only basis of claim 
made against the executor in this proceeding, and thereon 
rests said judgment for the recovery of money, as well as the 
decree impressing a trust in favor of the heirs in certain lands 
of the executor, as aforesaid. 

1. With this premise, it is first to be inquired whether the 
law warrants the court in declaring a trust interest in lands of 
the executor in favor of the heirs, upon the proposition that 
at a certain time he paid, in the purchase thereof^ moneys in 
his hands belonging to the estate. 

It is found in this case that at a certain time in 1882 the 
executor, in the course of his private transactions, bargained 
to purchase from Child <& Young a tract of land in the city of 
Helena, Montana, for the agreed price of |10,000, paying at 
the time of the bargain the sum of |2,000, and obliging him- 
self in the transaction to pay, at a certain date the following year, 
the balance of |8,000, whereupon a deed was to be delivered 
by the vendors, conveying said land to the purchaser; that in 



14 Mont.] In bb Bicker's Estate. 176 

the final consummation of suck purchase in 1883 the executor 
made use of $5^000 of said estate funds. This is disputed^ and 
the finding is excepted to as not sustained by proof. But we 
pass over this dispute, and consider the fact as found, together 
with the other facts existing in the case. It also appears, 
without dispute, as above shown, that the executor has long 
since, and without any delinquency, accounted, as fast as the 
terras of the will directed, to the legatees for said |5,000, which 
is claimed to have been paid in the purchase of said land, with 
interest thereon at the rate of 7 9-10 per cent compound. 

Thus, the heirs have long since received and used said sum, 
with the interest returned thereon. And so granting that said 
sum of money has been traced into the purchase of said land, 
it has also been traced out of, and beyond, said land into the 
hands of the l^atees in the execution of the trust. Still it is 
insisted that the heirs of said estate are entitled to a half 
interest in said land. 

This involves a peculiar situation. It plainly requires the 
trustee to carry an interest in the land, for the benefit of the 
heirs, for years after they have admittedly been paid, not only 
all the principal of the trust fund, which is claimed to have 
been paid into the purchase of said land, but interest thereon. 
This would seem to be allowing one to reap where he had not 
sown, and lefl the seed to the harvest. At least it would be 
allowing the ceduia que trust to have and use the trust funds, 
with interest thereon at the rate paid, for his maintenance, and 
at the same time require the trustee to carry an estate in the 
land in question, for the benefit of the heir, without any of 
his funds remaining in said land. 

It has already been pointed out that the only ground of 
demand against the executor is, that he ought to pay additional 
interest on such of the funds of the estate as were not kept 
deposited, fat interest, in the banks, as will be more fully 
explained hereafter. By computing compound interest on 
such funds, at a higherrate] than the (executor^returned, a 
claim arises against him for a certain sum over and above the 
amount he has accounted for. 

Now, counsel for petitioner insist, that when this sum 
arising from such compound interest equals the amount paid 



17d In rb Bicker's Estate. [March T., 1894 

in the purchase of a certain tract of land^ by appellant^ dar- 
ing said administration, the heir has a right to take the land, 
at the purchase price, in lieu of an equal amount of the claim 
for interest against the executor. This is the position taken by 
counsel for i)etit]oner, in responding to the appeal by the exec- 
utor; and also in the appeal by petitioner (which is con- 
solidated with this), wherein petitioner's counsel urge their 
exception to the ruling of the court in refusing to decree a 
trust in favor of the heirs, as to the whole tract of land above 
mentioned; and refusing also to declare a like trust interest, in 
favor of the heirs, in certain other tracts of land held by the 
executor. But the court impressed a trust upon lands of the 
executor only in the one case above mentioned, where it was 
found that in 1883 the executor had used, in the purchase of 
said piece of land, estate funds equal to one-half the purchase 
price; but which sum the executor had afterwards accounted 
for, with interest as aforeifaid, without delinquency, in compli- 
ance with the terms of the will. He must, therefore, not only 
have accounted for said $6,000, which is claimed to have been 
paid in the purchase of said tract of land, but for a large 
amount of interest thereon, as it is not disputed that he returned 
7 9-10 per cent annually, until such funds were entirely (mid 
over to the heirs. 

To impress upon lands of the trustee a trust in favor of the 
beneficiary, under these circumstances, would be allowing him, 
not only the advantage of compound interest, at rates deter- 
mined on by the court, but would permit him to collect such 
interest, by selecting lands out of the trustee's estate, purchase<l 
during the continuance of the trust, at the purchase price paid 
therefor years before. It would not only give the heirs the 
advantage of compounding interest against the trustee, for 
having temporarily used trust funds, in order to draw away 
from him the profit of such use, but would also give them the 
further advantage of increasing that exaction, by whatever 
rate the property so selected might vouchsafe, whether it be 
thirty, sixty, an hundred, or a thousand fold. 

Counsel for the petitioner undertake to sustain the decree of 
the court declaring said trust in the lands of the executor, 
and their contention that the court ought to have gone fortheri 



14 Mont.] In rk Eickbb's Estate. 177 

and decreed to the heirs additional trust interests in the lands 
of the executor, by invoking the doctrine of equity, that tlie 
trustee shall not be permitted to make any profit by the use of 
trust funds. While this is a salutary rule of equity, and must 
be upheld, it does not warrant the court in transferring to the 
heirs lands of the executor, or interests therein, under the facts 
existing in the case at bar. We think this is abundantly 
shown from the foregoing examination. But that doctrine 
has been asserted with such confidence as sufficient to support 
the decree of the court declaring the trust, we will briefly 
examine the question from that particular point of view. 

The question then is, if a trustee use trust funds, to the 
extent of half the purchase price of a tract of land, but after- 
wards, in the execution of the trust, accounts for the fund so 
used, with compound interest at the rate of 7 9-10 per cent, 
has the trustee profited by this transaction to the extent of half 
the value of such tract of laud? 

Suppose a man purchases a tract of land at the price of 
$10,000, and, not having funds at hand to pay the whole price 
at the time stipulated, he calls upon another having money on 
hand, who supplies the purchaser with |5,000, and the trans- 
action thus stands for a time, until such |6,000 is called 
for, when the purchaser promptly returns the same, with 
compound interest at the rate of 7 9-10 per cent per an- 
num. Now, suppose some years after such payment, the 
party giving such accommodation, pointing to said tract of 
land, then of the value of $50,000, and, relating the ciroum- 
stauces just narrated, insists that such purchaser is beholden to 
him to tlie extent of half said tract of land, at its present 
value, together with half of the issues and profits from said 
land, since its purchase — in other words, that the purchaser 
had actually profited by such accommodation, to the extent of 
one-half the value of said land, and half the issues and profits 
thereof since purchase — ^although the purchaser had long since 
repaid the loan with interest. This would, we think, strike 
practical men as an extraordinary proposition. But we have 
drawn into this illustration material &cts which harmonize 
with those existing in the case at bar, except that in the illus- 
tration it was a voluntary accommodation and in the present 

Vol. ZIV.— 12 



178 In bb Rickbr's Estatb. TMarch T., 1894 

caae trust fands were used, but we are simply inquiring now 
as to the measure of profit flowing from one to the other bj 
^uch use of funds. 

Then, if the profits of such accommodation were to be taken 
away from the purchaser, and transferred to the other, apply* 
ing the theory proceeded upon in this case, it would require the 
transfer of a half interest in the land, and half the issmes and 
profits since the purchase, le8s|5,000, dropped from the account 
of issues and profits, to offset the $5,000 which the pur- 
chaser had returned to the lender, making no account, however, 
of the interest which the purchaser paid for the use of said 
loan. And, on this theory of accounting for profits, the one 
whose |6,000 was thus temporarily used would find that he 
had first received back his $5,000, on demand, with compound 
interest; and thereafter, although the purchaser had carried 
the investment in the land as his own burden alone, until it is 
of great value, half of the land, worth 126,000, and also half 
of the issues and profits, less |6,000, had been handed over, 
merely to take away the alleged profit of the temporary use of 
said $5,000. 

The only difference between the illustration and the account- 
ing pursued in the case at bar is, that in the illustration it was 
a voluntary accommodation; and also in the account with 
appellant, the |5,000, dropped to ofllset a half interest in the 
land, accrued by way of comi)ound interest, computed at 
higher rates thau the executor had returned prior to the date 
of the purchase of said Child & Young tract of land. This 
does not materially change the application of the illustration. 

But aside from the other untenable conditions already 
observed, the fact just mentioned, that the money upon which 
this trust is proposed to be declared is not, in reality, for part of 
the trust money found in said land from the time of purchase, 
but is a demand for interest accruing on moneys which were 
never even in said land would seem, in view of the authorities, 
to be 8u£Scient to defeat all claim to a resulting or constructive 
trust in favor of the heirs in the present case. In order to sus- 
tain such a trust, on the ground that the land was purchased 
with trust funds, which were otherwise to be accounted for, 
the trust interest in the land must be founded on trust money 



14 Mont.] In bb Bickbb's Estatb. 179 

paid in the purchase thereof, and other demanda cannot be off- 
set for an interest in the land. (Duck v. Fard, 138 TT. S. 687| 
and cases cited; MvUet v. Buyck, 12 Mont. 364.) There is 
some question made in the authorities whether a trust ought 
to be declared in such a case where only a moiety of the pur- 
chase price was paid |by trust funds or whether a lien only 
should be fastened upon the land to secure reimbursement of 
the trust fund. Mr. Story seems to approve the latter course, 
as the more equitable and reasonable procedure. (2 Story's 
Equity Jurisprudence, §§ 1211, 1277^. See also Perry on 
Trusts, § 128; Munro v. OoUins, 96 Mo. 33.) If it appeared 
in this instance that the trnst money had carried the burden of 
half the investment in said land from the time of purchase 
until the trust was declared it might then be necessary to 
decide between the distinctions just mentioned. But such is 
not the case here. The claim or money upon which the trust 
in the land is declared in favor of the heirs in this case arises 
for compound interest at a higher rate tlian the trustee^returneil. 
And when the date of the purchase from Child & Young is 
reached, in casting the interest account, $6,000 of the claim 
Uius accruing for interest prior to that date is dropped to off- 
set the amount constituting half the purchase price. 

On the other hand, if it is proposed to claim an interest in 
said land for interest on the fund which was put into the land 
the difiBculties of the problem are still further augmented* 
By that theory compound interest would be required from the 
trustee /or the use of the money put into the land, and the cestui 
would be allowed on this very demand for compound interest 
(which is supposed to constitute the profit derived from the 
use of the trust money) to go back and take the land also, 
with its issues and profits from the time of purchase in pay- 
ment of the interest. This would be recompensing the cestui 
for the use of his trust money: 1. By way of compound inter- 
est; and 2. By way of transferring to him the land, and the 
rents, issues, and profitsof the land, besides compound interest 

Counsel for respondent urge, to support the judgment, that 
*Hhe beneficiaries are permitted to make their election as to 
whether they will take the actual profits, or interest in lieu 



180 Is{ BB Rickbk's Estate. [March T., 1894 

thereof/' It plainly appears that the court below allowed 
them to electa and take both ways. 

We haye no doubt that with a closer investigation of these 
conditions, and more mature consideration of the authorities, 
the learned judge of the trial court would have denied the 
claims put forth that a resulting trust could arise in favor of 
the heirs, under the conditions shown in this case. For it can- 
not be sustained by the application of appropriate principles 
of equity, or by reason, or precedent 

2. As to the executor's commission: And herein the question 
to be determined is, whether or not an executor or adminis- 
trator, where the conditions require the continuance of the 
administration over a period of years, can lawfully be allowed, 
at the close of each year, on the annual account, the commis- 
sion provided by statute for the executor or administrator, on 
moneys of the estate actually dbbursed during the preceding 
year, by way of compensation for the care and management of 
the estate. 

That the executor in this case, in rendering his annual 
account, at the close of each year, charged the estate with the 
commission allowed by law on funds of the estate actually 
disbursed during the preceding year is not disputed. And 
this was approved, firom time to time, by the probate court 
In the present accounting the court below caused these commis- 
sions to be taken away from the executor; and not only so, but 
required him to pay interest on the amount of commission from 
the date of each allowance. The interest amounts to consider- 
able more than all the commissions, and altogether, through 
that ruling, the executor is adjudged indebted to the estate in 
the Eum of 16,806.86. To support the ruling of the court 
below, the case of Estate of Dewar, 10 Mont. 426, is cited. 
That case is far from supporting the ruling here under con- 
sideration. It seems remarkable that the court below, having 
before it such a clear and painstaking elucidation of the sub- 
ject of commissions, and the construction of the statute provid- 
ing therefor, as found in that case should have so shaped a 
ruling, as we find it in the case at bar, in this particular. In 
this case the executor, at the close of the year, charged com- 
mission for disbursements of the past year. He was thus 



14 Mont.] In bb Bigkbb's Estats. 181 

• 

<)^^u]g for Mrvioes passed and finally oompleted. In the 
Dewar case it is said: ''It is the law, that appellant's claim for 
fees being unsettled, nnallowed, and inchoate, and the creature 
of the statute, it fell with the law creating it/' Here, in the 
case at bar, the commissions taken away from the executor 
were $ettied, allowed^ and approved by the court, for past 
services. Whereas, in the Dewar case, the administrator sought 
to*charge commissions at the commencement, under the law as 
then existing, for all the period of the administration, ignoring 
mil changes in the law, by act of the legislature, during said 
period. In the Dewar case the court further observed: '' Appel- 
ant does not separate his services as to these two. periods, and 
claim compensation upon services rendered in the three and a 
half months' period under the old law, and upon those ren- 
dered in the nineteen months' period under the amendment. 
If he did so, and claimed a higher percentage upon services 
fully performed and passed during the three and a half months' 
period, the argument of vested right would address itself to us 
with some force. {People v. Pyper^ 6 Utah, 160.)" 

It appears that in the course of the executor's administration, 
in the present case, the legislature reduced the rate of com- 
missions, and the executor's commission was conformed to the 
change, as shown by indorsement on the fourth annual report 
of the executor by Judge Hedges. Thereby the learned judge 
applied the construction of the law as approved several years 
later in the case of Dewar^e EdaU, 10 Mont 426. The rul- 
ing of the district court in this particular cannot be sustained. 

3. What rate of interest should be required from the exec- 
utor on funds to the credit of the estate not deposited in bank 
at interest, in view of the facts involved in this case? and 
further, as to the question of compounding interest in account- 
ing with trustees. 

As we proceed in the consideration of these questions we 
shall also digress su£BcientIy to odnsider an exception, on behalf 
of petitioner, to the ruling of the court in refusing to charge 
the executor the full amount of a certain debt, and interest 
owing said estate, where the executor had accepted, by way of 
compromise, and reported to the court, a less amount in settle- 
ment,. 



182 In be Kicker's Estate. [March T., 1894 

It appears that of the funds of said estate on hand at the 
death of the testator^ some $6,000 was on deposit in the Peo- 
ple's National Bank, then a linking institution in the city of 
Helena; that in 1878 said deposit Amounted to 16,600; that 
said bank became insolvent, and went into the hands of a 
receiver about July or August of that year, and, on winding 
up its afiairs, claimants against said bank received only 66 
per cent of their demands; that about February or March 
prior to said failure the executor, having oome into possession 
of information concerning said bank, which led him to doubt 
the safety of the estate funds therein, sought to draw such 
funds out, but the officers in charge of said bank refused to 
cash the certificate of deposit, claiming that it was a time de- 
posit, and the sum was not demandable until maturity of the 
certificate at a later date; that the executor, however, insisted 
on drawing out such funds, and being at the time personally 
indebted to said bank for loans obtained therefrom in the sum 
of about |6,600, for which the bank held his individual note, 
the executor, in order to get the funds of the estate out of said 
bank, for the reason aforesaid, offset said certificate of deposit 
for the credit of the amount thereof on his note of individual 
indebtedness to said bank, and assumed the indebtedness of 
said bank to the estate for the amount of said certificate 
of deposit, namely, $6,600. This transaction substituted the 
executor as debtor to said estate in the sum of |6,600, in place 
of his indebtedness to said bank, for money theretofore bor- 
rowed and used in hb affairs. 

From this time on, during said administration, it appears 
there were moneys to the credit of said estate not deposited at 
interest in bank, as provided by the order of court, but inter- 
est was returned thereon, as above shown. The executor testi- 
fied that he returned interest every year on all moneys to the 
credit of the estate, not deposited in bank at interest, at rates 
as high as the banks paid on deposits, and at no time less than 
8 per cent, even after the banks reduced the rate below 8 
per cent. This testimony is not inconsistent with the other 
facts shown; for, from the testimony of the bankers called 
in the hearing, it appears that the rate of interest paid by the 
banks on time deposits was reduced below 8 per cent about 



14 Mout.] In be Ricksb'b Estate. 183 

the year 1883^ and so continued thenceforwaid. This may 
aoooaut for the fact that on the whole the interest returned 
on the estate fuuds falls a fraction below 8 per cent. The 
rate of interest paid by the banks during said administration 
appears to have varied from 12 per cent on a descending 
scale to 6 })er cent The rate of 12 per cent prevailed for 
only a brief period after said estate came into the hands of 
the executor, when it was reduced to 10 per cent, which rate 
was allowed until about the year 1880, when 8 per cent was 
fixed upon, and prevailed until 1883; in 1883 and 1884 seven 
per cent was allowed, and thereafter 6 per cent. 

In addition to the substitution of the executor as debtor to 
the estate in place of the People's National Bank for said 
16,500, he charged himself with |1,600, in favor of the estate, 
under the following circumstances: It appears a debt was owing 
the estate in the sum of |1,960, by Guthrie & Norris, bearing 
interest at 2 per cent per month, and another debt owing by 
the same Guthrie, in the sum of $3,000, bearing interest at 
1 1-8 per cent per month, through transactions had between 
the decedent and said debtors; that after the estate came 
into the charge of the executor, said debtors were unable 
to make payment, and their property affairs were not in such 
condition that payment could be enforced. The executor says 
in his testimony, that, under the circumstances^ he thought it 
best to '' nurse the matter along,'' and try to get payments 
from time to time, which it appears he did, and succeeded, in 
the course of time, in getting payments of principal and inter- 
est, altogether amounting to $6,225.98 on said $3,000 note; 
and payments of principal and interest on the $1,950 note, 
amounting to $3,137.12. It appears the debtors, for a time, 
conducted a butcher business, and considerable of said collec- 
tions was obtained by the executor taking supplies from them 
for his household, and also for Mrs. Ricker and her familyi 
and crediting the amount due for such supplies on said notes. 
But as the time approached when the eldest child arrived at 
the age of majority, and required her distributive share of the 
estate, as provided in the will, there was more than $1,600 of 
principal and interest together due on said debts; and in the 
time Norris, as the evidence showsy had fiiiled altogether 



184 In be Bicker's Estate. [March T., 1894 

financiallj. This balance the executor agreed to oompromiae 
with Guthrie — the only one of the debtors from whom there 
was anj prospect of obtaining pay ment— at $1^600, if he would 
then raise and pay that amount, so that the executor could 
ascertain what amount of such collection could be counted on 
for such distribution. Guthrie testified in this hearing that 
he endeavored to raise said sum agreed upon as a compromise 
of said debt, but could not; that he then arranged with tiie 
executor to assume said sum as paid, and credit the estate there- 
withy promising to pay said sum shortly thereafter; that the 
executor made such credit accordingly, and thereby put to the 
credit of said estate |1,600 which he had not actually collected, 
and of which, according to the evidence, the executor never 
received more than (700 from said debtors. Yet the executor 
accounted for said |1,600, as collected, with interest thereon, 
along with the other funds, as heretofore shown. 

The petitioner, in his appeal, insists, notwithstanding these 
facts, that the executor should be charged with the amount he 
rebated from said claim by way of compromise. This demand 
is based upon the showing from the public records of Lewis 
and Clarke county, tliat in March, 1880, there was conveyed 
to said Guthrie and John H. Ming, jointly, for a consideration 
of |2,400, stated in the deed, '^ the south half of the south half 
of the northwest quarter of . section 29, township 10 north, 
range 3 west, less four acres'' ; that the title to said property 
so remained until April, 1883, when, it appears from the record, 
Guthrie executed a mortgage of his interest to said Ming, to 
secure the sum of |6,000, and that in December, 1883, as 
shown by such record, Guthrie divested himself of the I^al 
title to one-half interest in said land by absolute conveyance, 
for a stated consideration of |5,500. 

From this showing of the record the petitioner contends 
that it appears said claim could have been enforced in full 
from Guthrie, by seizure of said land, and, therefore, the 
executor should be charged the full amount of said claim and 
interest for failing to make such seizure. 
" The executor testifies that during all the time said indebted- 
ness of Guthrie & Norris was owing to the estate said debtors 
were insolventp according to the information gained by the 



14 Mont] In ks Bicker's Estate. 186 

executor, on diligent inqairy; that he did not bring snit against 
theniy for the reason that he thought it more prudent to pro- 
ceed as aforesaid in trying to collect said debts; that, in his 
view, to attempt to enforce payment by suit might have driven 
the debtors into such a condition that they could pay nothing, 
while by the course the executor pursued he was obtaining some 
payments. The executor also answered in his testimony that 
he could not say positively whether he searched the records to 
find whether the debtors had real estate, or interests therein, 
subject to attachment 

The testimony of Mr. Hershfield, a banker, is also to the 
effect that during all the time in question claims against said 
debtors were not considered good; that their paper was not 
n^otiable, and they were not rq;arded as financially respon- 
sible. 

We think the court, under the circumstances shown, justly 
refused to charge the executor any more than he had returned, 
on account of said demands against Guthrie & Norris. The 
mere fact that the legal title to a piece of land comes into the 
name of an individual is not conclusive evidence that such 
property is subject to execution against such individuaH 
{Vaughn v. SchmalsUy 10 Mont. 186.) Nor is the record of 
such transaction, in relation to a piece of real estate, evidence 
that the amount set down in the conveyances represents the 
value thereoC Such proof alone, without showing the real 
value of the land, scarcely rises to any showing inconsistent 
with the testimony of the other witnesses, to the effect that said 
debts were not enforceable because of the insolvency of the 
debtors. Guthrie says, in his testimony, that he does not 
think a judgment could have been enforced against him, and 
he appears to have been the most responsible, as well as the 
most active, of the two debtors in trying to pay said debts. 

It is our opinion that the court below not only was justified 
in refusing to charge the executor with any more than he had 
returned on account of said claims against Guthrie & Norris, 
but the court should have also refused to require the executor 
to pay further interest on said $1,500, inasmuch as it was 
clearly shown that in giving credit therefor, before the actual 
collection of that amount, the executor involved himself in a 



186 In KB Bicker's Estatb. [March T., 1894 

persoDal loss of $800, besides having returned interest on said 
$1,600, from the time it was so credited to the estate, as above 
shown. 

Regarding the rate of interest which ought to be imposed on 
the executor, the court below so ordered the accounting, that 
he should be required to pay compound interest on all funds to 
the credit of the estate, not deposited at interest in bank, at the 
rates of 18, 16, and 12 per cent per annum oumpound, during 
stated periods of the administration. The sum so accruing by 
those rates was compounded by annual rests to carry the inter- 
est over as principal. The rates required are, according to the 
evidence, near the maximum rates shown to have been obtain- 
able on loans by banks, during the periods stated, there being 
no restriction by law on the rate of interest which might be 
agreed upon between borrower and lender. The lq;al rate 
provided by statute, enforceable on demands, in the absence of 
an agreed rate, during the same period, was, and still is, 10 
per cent per annum. Tlie statute in force since 1872 on tliis 
subject reads as follows: ** Creditors shall be allowed to collect 
and receive interest, when there is no agreement as to the rate 
thereof, at the rate of 10 per cent per annum for all moneys 
after they become due, on any bond, bill, promissoiy note, or 
any other instrument of writing, and on any.judgment ren- 
dered before any court or magistrate authorized to enter up 
the same, within the territory, from the day of entering up such 
judgment until satisfaction of the same be made; likewise ou 
money lent, or mouey due on the settling of accounts, from the 
day of such settlement of accounts between the parties and 
ascertaining the balance due; on money received to the use of 
another, and retained without tlie owner's knowledge^ and on 
money withheld by an unreasonable and vexatious delay.'' 
(Comp. Stats., div. 6, § 1237.) 

We have been unable to find authority to support the propo- 
sition that a court has jurisdiction to impose arbitrary rates of 
interest above the statutory rate, in an equitable aoooanting 
with a trustee, although courts of equity frequently require a 
lower rate in such accountings, as an equitable rate. 

In England there appears to have been a rule of equity 
lequiring what is called an tguUabU rate of interest^ in aoooiuit* 



14 Mont.] In re Kicker's Estate. 187 

ing with trastees; and this rate is UDiformly lower than the 
Ugal rate. The legal rate there being 6 per cent, equity 
usaally required 4 per cent in such accountings, under the 
name of ''equitable interest in mitigation of legal rates.'' 
(Fonblanque's Equity, 443, note.) Mr. Spence, the standard 
English authority on Equity Jurisprudence, says: ''Where it 
appears that the trustee or executor has improperly or unneces- 
sarily kept balances, or any considerable portion of trust moneys 
in his hands, he will be charged with interest on what he has 
so retained, generally at 4 per cent, but under special cir- 
cumstances at 5 per cent.'' (2 Spence's Equitable Juris- 
diction, 920.) From a passage in the opinion delivered by 
Lord Chancellor Brougham in 1834, in Docker v. Somes, 2 
Mylne & K. 666, it appears conclusively that English courts 
of chancery did not feel at liberty to impose arbitrary rates of 
interest upon trustees, in such accountings, exceeding the l^al 
rate. 

As to the rule in the United States, Mr. Perry, in his exam- 
ination of the subject, says: " In the United States there is no 
law by which different rates of interest can be applied to dif- 
ferent degrees of negligence or misconduct; and the only ques- 
tion here is whether simple or compound interest shall be 
imposed.^' Further along, in summing up his examination, 
he says: " The rate established by law as the legal rate, in the 
absence of special arrangements,'' governs courts of equity in 
accounting with trustees in this country. (2 Perry on Trusts, 
§ 468.) 

Mr. Story expresses the same view, saying: "And the 
trustee, by mixing trust money with his own, at his* banker's 
or otherwise, will become responsible for the replacing of the 
money, and lawful interest during the intervening period. 
. • • • So, too, when tlie trustee makes an improper invest- 
ment of trust funds he becomes responsible for the same, with 
interest." (2 Story's Equity Jurisprudence, § 12775^.) 

The same conclusion is reached by Mr. Page in his recent 
research on " Executors and Administrators," found in 7 Am. 
A Eng. Ency. of Law, 426-29, with copious citations. 

In Behi^dm v. Stewart^ 1 Johns. Ch. 620, 7 Am. Dea 
507^ although one of the severest cases in this country in its 



188 In bb Bicker's Estatk. [March T., 1894 

exaction from the trustee, there appears to have been no thought 
of imposing rates higher than the legal rate of 7 per cent. 
(See, also, darkson v. DePeysUr, 1 Hopk. Ch. 426.) In Cal- 
ifornia we find it held that the legal rate of interest should 
not be exceeded in such tuxx>unting8. {EsUUe of Ctark, 53 Cal. 
355; Merrifield v. Longmire, 66 Cal. 180; In re Ik(Arich, 86 
Cal. 98.) 

There is a passage in Ohice v. Cniee, 81 Mo. 676, relied on 
by respondents to sanction the requirement of interest above 
the rates fixed by statute; and while it may be so construed, 
we do not think such was intended to be held, for, in that case, 
only the legal rate of 10 per cent was allowed; and under the 
{lassage relied on is cited Frost v. Wintion, 32 Mo. 489, where 
it ap|)ears the rate charged was that prescribed by law. 

In the examination of a great many cases on this subject, 
and especially all of those cited by respondent, we fail to find 
any authority contradicting the text of Mr. Perry, that the 
legal rate is not exceeded, unless a lawful contract provides for 
a higher rate. 

We now pass to a brief examination of the question of com- 
pounding interest in accounting with trustees. 

Near the close of the last century the remedy of compound- 
iog interest in such cases appears to have come into vogue in 
the courts of equity of England and the United States, as a 
convenient and potent remedy to draw from delinquent trustees 
the actual or presumed profits derived from the use of trust 
fuuds; although prior to that time it appears to be acknowl- 
edged that the law was administered with great laxity in that 
regard. 

In 1805 we find Lord Elden, in his examination of the qnes- 
tion of compounding interest in such accountings (RaphadY. 
Boehm^ 11 Ves. 92), so much in doubt as to the proper prac- 
tice, that he postponed the consideration, to give time to make 
special inquiry on the subject, observing that it was a matter 
of great importauce. And for his information, it appears he 
went not to reports or treatises, but caused inquiry to be made 
of the masters in chancery as to their understanding of the 
correct practice. (See, also, an examination of this subject^ from 
an historical, as well as legal, point of view, by Lord Chan- 



14 MonU] In be Bickbb's Estate. 189 

cellor Brougham, in Docker v. SomeSj 2 Mylne & K. 655; by 
Chancellor Kent, in Schieffdin v. Stewart^ 1 Johns. Ch. 620, 7 
Am. Dec. 507; by Chancellor Sanford, in QxirhBon v. De Pey^ 
der^ 1 Hopk. Ch. 426; by Mr. Justice Grier, in Barney v. 
Saunders^ 16 How. 535; Perry on Trusts, and cases cited, 
under § 468; CrvM v. Oruce^ 81 Mo. 676; the monograph by 
Mr. Page, of the Pennsylvania Bar, on ''Executors and 
Administrators,'' 7 Am. & Eng« Ency. of Law, 425 et seq.; 
and the elaborate note to Walls v. Walker^ 99 Am. Dec. 296.) 

There is no doubt the doctrine has been applied during 
the present century, where circumstances appeared to war- 
ranty as shown by an examination of the cases; but as to 
the special conditions to which it ought to be applied, and as 
to the rate of compoand interest considered equitable, tliere 
seems to be much diversity of opinion. Sometimes the rule 
has been exerted with extreme rigor against a trustee guilty of 
fraud in respect to the trust funds, whereby he sought to enrich 
himself therefrom, as was done by Lord Chancellor Lough- 
borough, in 1798, in Baphad v. Boekm, 11 Yes. 92. Of this 
case^ Lord Chancellor Brougham says (see Docker v. Bomes^ 2 
Mylne & K. 655), it was the strongest instance of compound- 
ing interest against a trustee in England; but it was a case 
where ^'a gross breach of trust had been committed; for the 
large sum of £30,000 was expressly directed to be laid out 
for accumulation, and the executor having thought proper 
to employ it in his own trade, the court ordered him to be 
charged with interest at 5 per cent from the time of the 
executor's death, .with half yearly rests, and interest for the 
intermediate times. All the judges who have mentioned this 
decree have considered it severe.'' And he adds that, in this 
''most remarkable case, which indeed is always cited to be 
doubted, if not disapproved, the compound interest was given 
with a view to the culpability of the trustee's conduct, and not 
upon any estimate of the profits he had made by it." 

As has. been mentioned, the case of Sddeff'dm v. SUw- 
art^ before Chancellor Kent, in 1815, is considered one that 
applied the rule with great severity. Therein it appears the 
executor had retained in his hands constantly for some ten 
years thirty-three thousand dollars of trust funds^ '' without 



190 In bb Rickbb's Estatb. [Maroh T., 1894 

prodiioing auy benefit or advantage to the estate"; and the 
ciiaucellor approved the report of the master, charging the 
executor the legal rate of 7 per cent interest, with annual 
rests for oom pounding the same. One of the cases relied on by 
Ciiaucellor Kent, in support of that judgment, was Baphad v. 
Baelim, 11 Yes. 92, but, of course, without knowledge of the 
estimate in which it was held by the Euglish bench, as appeared 
by later oommeuts. And the case of Sehi^eUn v. Stewart, 1 
Johns. Ch. 620; 7 Am. Deo. 507, notwithstanding the great 
weight of authority it carried by reason of the acknowledged 
learning and judicial ability of tlie chancellor who delivered 
the opinion, in its turn, seems to have been shaken by subse- 
quent adjudications in New York, at least as to the rigor with 
which it applied the rule of compounding interest. {Olarkson 
v. De Peyster, 1 Hopk. Ch. 426.) 

Mr. Perry states, as his deduction from the autliorities, that: 
''It is difficult to lay down any general rule that is equitable 
and applicable to all cases, as to the interest trustees shall pay 
upon trust funds in their hands. In Eugland, if trustees suffer 
money to remain iu their own hands, or in the hands of third 
persons, or in bank for an unreasonable time, in addition to 
their liability for its loss during such delay they will be 
charged with interest at the rate of 4 per cent; but if the 
trustees are grossly negligent or corrupt, or improperly call in 
the money from a proper investment, and suffer it to lie idle, 
or if they use it iu trade or speculation, or invest it in impro{)er 
places, the court will charge them with interest at the rate of 
6 per cent; and, in certain special cases of misconduct, the 
court will onler annual or semi-annual rests, for the purpose 
of charging them with compound interest. In the United 
States there is no law by which different rates of interest can 
be applied to different degrees of negligence or misconduct; and 
the only question here is, whether simple or compound inter- 
est shall be imposed. The general rules, so far as they can be 
drawn from all the cases, areas follows: 1. If a trustee retains 
balances in his hands which he ought to have invested, or 
delays for an unreasonable time to invest, or if he mingles the 
money with his own, or uses it in his private business, or^ 
deposits it in bank in his own name, or in the name of the firo) 



14 Mont.] In bs Rigkbb's Estatb. 191 

of which he was a member^ or neglects to settle his aocoant for 
a long time^ or to distribute or pay over the money when he 
ought to do so, he will be liable to pay simple interest at the 
rate established by law as the legal rate in the absence of 
special agreements. This rule is subject to the qualificabion 
that trustees cannot make any advantage to themselves out of 
the trust fund; and if they make more than l^al interest, they 
shall pay more, as if they make usurious loans they shall be 
charged with all their gains from the use of the money. If 
the trustee cannot show what amount of interest he has received 
he shall be charged with legal interest from the time when 
the regular investment ouglit to have been made. There may 
be an exception to the rule that a deposit of the trust money 
in bank in the name of the trustee, or a mixing of the trust 
fund with his own, will impose a liability of legal interest 
There must be some element of a breach of trust in the trans- 
action, or a breach of duty/' (1 Perry on Trusts, § 468.) 

There are cases of comparatively recent date, however, in 
which compound interest has been held proper by the supreme 
court of one state, and refused by that of another, where the 
cases appear to be surrounded by quite similar circumstances. 
This will be seen by a comparison of CUirVs EdaUj 53 Cal. 
355, Merrifield v. Longmire^ 66 CaL 180, and In re Esc/iriolij 
85 Cal. 98, with tlie case of Oruce v. Oruce^ 81 Mo. 676, 
where, apparently under very similar facts, the California court 
allowed 7 per cent, compounded by annual rests; while the 
supreme court of Missouri allowed only simple interest at the 
legal rate of 10 per cent. But in the treatment of the latter 
case, after referring to the fact that ^* the rule of exacting 
interest from delinquent trustees has nowhere been enforced 
more rigorously'^ than in Missouri, it was said that if the inter- 
est had been compounded by annual rests, ''at the low rate of 
6 per cent,'' it would have been allowed to pass. '' But, as 
every case must be determined according to the facts and cir- 
cumstances peculiar to it, I am satisfied," says the author of 
that opinion, '' that it would be inequitable to order interest 
compounded at the high rate of 10 per cent per annum against 
the respondent. My reasons for this conclusion are as follows: 
1. The account extends through fifteen years. The result of 



192 In bb Ricksb's Estate. [March T., 1894 

the oompatation, like all such arithmetical results^ would be 
sarprising and excessive. It woald, iu 1117 judgment^ exceed 
what could be expected from any prudent and careful adminia- 
tration of the estate under ordinary circumstances* I think it 
would be a marvelous achievement for any trustee of ordinary 
skill and prudence to keep a fund of $5^000 or $6^000 so con- 
stantly and securely invested for a period of fifteen years as to 
produce the net result of compound interest at 10 per cent per 
annum. In the ordinary course of events there would neces- 
sarily be intervals of irregular length between investments, not 
to say any thing of possible loss and depreciation of security. 
The ability of investing the interest annually, as soon as col- 
lected, may well be doubted when we consider its moderate 
volume, and the frequency with which it would have to be put 
out. The exaction of compound interest at such a high rate, 
for so long a period of time, would, in my judgment^ be a 
departure from the leading principle, which requires the chan- 
cellor to approximate, as near as possible, the actual or pre- 
sumed gains and profits of the fund«'' (Ouoe v. Qruoe, 81 
Mo. 676.) 

The theory upon which the court exacted such extraordinary 
rates of compound interest from ,the executor in the case at 
bar wasy that, according to the testimony of the bankers, 
money could have been loaned at the time in question at such 
rates. Nowhere in the record is there shown any proof as to 
the net result of loaning money during a given period, even 
by such experienced financiers as bankers, after deducting 
expenses and losses, in order to ascertain the net profits which 
could be derived from the use of money, by way of interest. 
Without any such inquiry, the rates of 18, 16, and 12 per cent 
were designated by the court, for stated periods of the admin- 
istration, and the referee was directed to compute at those rates, 
during such periods, compounding by annual rests. 

Would it not be somewhat analogous if, in a given case, it 
were found that a bailee of another's carriage-horse had kept 
and used it for the period of say five years; and in order to 
charge the bailee with the profits of such use the court should 
take proof of the price for a livery animal of like quality for 
one day, and without further inquiry as to expense of feeding 



14 Mont.] In bs Bicker's Estate. 1\)S 

or care, or as to the time such animal would ordinarily lie idle, 
the coui*t should order the case to a referee to cast the aggregate 
for the whole period at the price stated for a day, and enter 
judgment accordingly? If liverymen could so reckon profit 
their prosperity would no doubt be far difierent than practical 
ez[)erience demonstrates. 

So^ if loans of money were always promptly returned at 
maturity with the stipulated interest^ and the gross rate was 
never diminished by loss or delay through deterioration of 
securities, death, disaster, or fraud, nor by the expense of con- 
stant attention to such affairs, the employment of professional 
services, of litigation, and so forth, even then it would not be 
IK>6sible in practice to make the gain compound along the line 
of the highest rates attainable; because in practice it would not 
be possible to reloan the money and the accumulated interest 
the instant it was due. If the debtor, through stubborn 
n^lect or misfortune, is delinquent in payment the law must 
be resorted to, and for such delay it will not require from the 
delinquent debtor compound interest; so that in demanding 
return of compound interest at the loaning rate in such 
instances (which are not infrequent in experience) the law 
would demand on the one hand of the trustee what it would 
not allow him to collect on the other. 

The problem of compound interest, when set in motion, 
moves on for its allotted period with the certainty of time and 
mathematics. All other conditions are assumed. It considers 
no delay, no failure, no expense — ^its assumed creditors, for- 
ever, with the r^ularity of perpetual motion, obey an assumed 
demand — and the gain in turn is presumed to be reloaned 
the instant of its payment. The problem contemplates con- 
stant accretion by a composite process, but no diminution; it 
omits no farthing, nor allows any to escape when gathered — 
not even so much as the expense of postage, or the wear of 
shoe-leather, to make a demand. The thriftiest management 
and most fortunate consummation in practice cannot hope to 
reach the quotient gathered by the problem, in the long run, 
unless odds are given in fixing the rate to be compounded, to 
offset the expenses, delays, and failures met with in practical 
ext)erience. But with allowauce for such contingencies in fix- 

VoimIUV.— 13 



iy4 In be Rickkb's Estate. [March T., 1894 

iug such rate^ no doubt common experience will admit that it 
is practical to gain compound interest; and it has been, no 
doubt justly, held equitable in accounting with trustees, where 
they have iu their hands moneys for accumulation, or which 
was made to accumulate, or has been used for the trustee's 
profit, to require compound interest. But the rate must be 
fixed with due consideration, or the result will be found out of 
all proportion to what could have been accomplished iu the 
field of practical affairs. We are suggesting here nothing new, 
for these conditions have undoubtedly been considered, if not 
mentioned in detail, by courts of equity, as shown in the fact 
that they have in general gauged their requirements accord- 
ingly. But, sometimes, as might have been expected in the 
application of an abstract mathematical rule, the exact rela- 
tions of which, to practical results, is not easily detected, some 
hardship may have been worked. 

There is evidence in the record to the effect, that from time 
to time during the period in question, banking institutions 
contracted to pay, for the use of funds left with them for a 
stated time, a certain rate of interest per annum. That is the 
only evidence in the record which approaches a safe criterion 
from which there might have been found the measure of net 
profits— or, in other words, the net earnings which could be 
counted on for the use of money by way of interest While 
this testimony did not take that form of inquiry exactly, it is 
evidence of what money could have earned placed in such 
institutions, they insuring the safety thereof, so far as their 
own responsibility went, and bearing the expense and loss 
incident to its use. The tendency of this evidence, more than 
any other in the record, is to show what such financial institu- 
tions could afford to pay for the use of money, and insure its 
safety, and bear the expense and loss incurred in handling. 
Who are more likely to get greater profit from the use of 
money, under fairly safe and conservative conditions of hand- 
ling, than bankers? If there are other financiers or business 
men who can do better is it not likely bankers would learn 
the way and adopt it? 

But if we measure this executor's returns by that criterion 
a balance is found in his favor; for, when the rate in the banks 



14 Mont.] In kb Kicker's Estate, 195 

went below 8 per cent^ the evidence is that be kept on 
returuiug at tbat rate on moneys to the credit of the estate 
not in bank. 

If we look to the precedents in the books we find^ too^ that 
the returns of this executor, made without delinquency or any 
suspicion of fraud, rise above the exactions from trustees, by 
way of compound interest, in cases where their accounts were 
delinquent and conduct culpable. Shall a judgment of greater 
severity be pronounced in this ease than in such? It appears 
from numerous precedents from all sections of the country, 
that this case would, in those courts, be dismissed; because 
the executor has voluntarily and promptly made returns of 
income double what could have been obtained by the course 
contemplated by the testator's will, and n^ore than the banks 
would have allowed during considerable portion of the time; 
and more than the courts have found equitable to exact in 
accountings with trustees whose conduct was found grossly 
detrimental to the interest of the estate. This must be 
admitted. And even granting the worst that has been asserted 
against the executor, in the case at bar — the temporary use of cer- 
tain of the trust funds in private affairs, which is made the occa- 
sion for exacting compound interest in several cases, as we have 
seen — still it appears, and is not disputed, that this executor 
has seen to it, that the estate in no way suffered detriment 
therefrom, and gained considerably thereby. If a man's foot 
slip, or if be stumbles, and then regathering himself walks 
uprightly, and delivers his burden in advance of all others, 
without one whit missing, shall he be turned upon, and scourged 
with a severity exceeding that laid upon one who refuses to 
proceed with the discharge of his duty altogether? It may be 
answered that if one who waivers is allowed to go without 
punishment, others will walk unsteady. This answer does 
not meet the situation. If he was found delinquent it would 
be time to consider of his pnnishment, but if not finding him 
delinquent in any respect more is exacted than for entire neg- 
lect absolute default would be encouraged by such unjust 
judgment. 

But laying aside all figures of speech, as not much to be 
indulged, in judicial iuvebtigations^ and viewing all phases 



196 In bb Rickbb's Estate. [March T., 1894 

of this case in the plaiuest fashion, it appears that if heavier 
judgment is laid on such a case as this, the court will thereby 
designate the plane of its exactions much higher than any 
court has attempted to maintain, so £ir as we have been able 
to discover. 

With the oarefulest investigation of the law and facts, our 
deliberate judgment is drawn to a negative conclusion on every 
vital point in this case. There is no hardship in this, for the 
ezeciltor must have managed the affairs of the estate with 
solicitude, for the wel&re of the heirs, and that his manage- 
ment has been largely fruitful of benefits to them is frankly 
admitted. Such results do not come from indifference or 
neglect 

In rendering the extraordinary judgment in this case we 
think the learned judge of the court below must, without the 
deliberation usually manifested, have adopted views urged by 
the forceful eloquence of petitioner's counsel. But things only 
assumed, in whatsoever eloquent phrase, or forms only painted, 
however real they seem at first impression, cannot support the 
judgment of a court. 

An order will therefore be entered reversing the judgment 
in this proceeding, and remanding the case, with directions to 
enter judgment in the court below dismissing this proceeding 
at the cost of petitioner. 

Beveraed. 

Pembebton, C. J., and T>e Witt, J., concur. 

ON BEHEABING. 

Per CuBiAH. — Since the determination of this appeali 
motion for rehearing has been presented and given careful 
consideration, besides allowing counsel the unusual privilege 
of argument, to more fully expound the grounds on which 
rehearing is demanded. Nevertheless, there has been no 
exposition of points wherein the court overlooked or erro- 
neously applied any pertinent or controlling authorities or 
material facts in the original determination. On the contrary, 
this retrospection of the case, in the light of motion for rehear- 
ing, tends to confirm the views of the court heretofore expressed, 
as fully in accord with the authorities and facts, and that a 



14 Mont.] Watson v. O'Neill, 197 

just and proi)er determination was reached. The same will 
therefore be allowed to stand as originally announced. 

This motion for rehearing, however, raises a new point in 
the case, which hitherto was neither presented in the brief nor in 
the argument on appeal; nor does it appear that consideration 
tliereof was had in the trial court — namely, that in certain 
years the probate court of Lewis and Clarke county, then hav- 
ing jurisdiction of said estate, allowed the executor a higher 
rate of commission by 1 percent than the statute then provided; 
in other words, it is asserted that, at certain times when 5 per 
cent commission was allowed the executor, the statute pre- 
scribed only 4 per cent. It is obvious, this being a court of 
review, and not of original inquiry in these matters, it should 
not enter upon an investigation, or make any order, touching 
this question, for the reason already mentioned — ^that no 
inquiry or determination on that feature of the case appears to 
have been made by the trial court. Therefore, there is no order 
or determination of the trial court to review on that point The 
trial court denied the executor all commissions, on grounds 
which did not touch the question of his having been allowed 
by the probate court a rate exceeding that provided by statute. 
That particular question seems not to have been adjudicated. 
But whatever inquiry or order concemiog the readjustment of 
said commission, on the ground alleged, may be pertinent, it 
should, in the first instance, be proceeded with in the trial court; 
The motion for rehearing will therefore be denied. 



I 14 IW 

| »19 5 4 

WATSON, Appellant, v. O'NEILL et al., Ebspokd- m J^ 

ENTS. 1 2Li« 

[Sabmitted March 29, 1898. Decided Muroh 12, 1894.] 

Bosi>--'Befonnalion^I}videMe.~A. bond given in connection wiih a bnUding 
contract, and conditioned for the famishing of all labor and material neces- 
■ary to the completion of the bnilding, as specified and shown on the plans 
ftimished by the architect, need not be so reformed, before a recovery thereon, 
as to refer to said contract, since the instmments, being contemporaneous and 
parts of the same transaction, may be construed together to explain each other 
nuder section S32 of the Code of Civil Procedure. 



198 Watson v, O'Neill. [March T., 1894 

Appeal from First Judicial District, Lewis and Oarke Ckmnty. 

AoriON on bond. Judgment was rendered for the plamtiff 
below by Buck, J. Reversed. 

WUliam M. Blackford, for Appellant. 

Henry C. Smith, for Respondents. 

Pemberton, C. J. — It appears that respondents, who were 
defendants in this action, executed and delivered to plaintiff, as 
sureties, an instrument as follows: 

''Know all men by these presents, that Jos. O'Neill and 
Jacob Switzer, of the city of Helena, county of Lewis and 
Clarke, state of Montana, are held and firmly bound unto John 
EL Watson, of the city of Helena, county of Lewis and Clarke, 
state of Montana, in the sum of one thousand dollars, lawful 
money of the United States of America, to be paid to the said 
John E. Watson, his executors, administrators, or assigns, for 
which payment well and truly to be made we bind ourselves, 
heirs, executors, and administrators unto John B. Watson 
firmly by these presents. Sealed with our seals, and dated 
this third day of August, one thousand eight hundred and 
ninety-two. The condition of the above obligation is such 
that, should Frederick Eide b^in and complete the brickwork 
on John B. Watson's business block, as follows: Frederick 
Eide is to furnish all the material, lime, sand, brick, and all 
labor necessary to the erection and completion of John B. 
Watson's business block, on Main St., as specified and shown 
on the plans as furnished by W. E. Norris, architect — ^then 
the above obligation to be void; otherwise to remain in full 
force and virtue. Frederick Eide. [seal] 

**Jos. O'Neill. [seal] 

"J. SwiTZER." [seal] 

This action was brought against said sureties on said bond 
to recover from them the sum of five hundred and forty-eight 
dollars and eighty-four cents damages, alleged to have been 
sustained by plaintiff tlirough tlie failure of defendant Eide to 
furnish certain material and labor necessary to, and which were 



14 Mont.l Watson v. O'Neill, 190 

used 111^ the construcliou of said building in accordance with 
the plans of the architect^ mentioned in said bond. In bring- 
ing this action the appellant proceeded upon the theory that 
the bond above referred to is defective, in that it does not refer 
sufficiently to the contract to cover the damages sued for, and 
asks that said bond be so reformed as to refer to the building 
contract, and cover the damages as all^edy or the breaches 
thereof, and, after being so reformed by the court, that he have 
judgment against these respondents for the amount of such 
damages. So he inserts in his complaint a series of allegations 
to the effect that it was the intention of the parties to said 
bond that it should refer to said building contract, in addition 
to the references in the bond to the ''plans as furnished by 
W. E. Norris, architect.'* 

Answer was made by defendant sureties, Switzer and O'Neill, 
denying all the allegations of the complaint, and trial ensued, 
whereat, upon the close of the introduction of evidence on 
behalf of the plaintiff, respondents moved the trial court for 
judgment of nonsuit as to respondents O'Neill and Switzer, on 
the ground that the evidence does not prove, or tend to prove, 
any liability on the part of said sureties, which motion was 
sustained by the court, and judgment for nonsuit entered 
accordingly, from which judgment plaintiff prosecutes this 
appeal. 

It appears from the case shown by the record that the 
motion for nonsuit was sustained upon the ground that no 
sufficient showing was made to warrant the court in reforming 
the bond in the respect sought by plaintiff, without consider- 
ation as to whether, upon the whole case made out, plaintiff 
was entitled to the recovery of damages sought to be recovered 
upon the bond, as executed, without reference to reformation. 
The bond as executed is pleaded, together with all the factfi^ 
relating to the &ilui*e of the contractor, Eide, in constructing 
said building and furnishing the material and labor therefor, 
as provided by the plans of the architect, referred to in said 
bond, and the payment thereon, which involved the damage 
sued for. And, although the plaintiff sought a reformation of 
said bond to secure the extension of the terms thereof to include 
the building contract, as \\M as the plans and sjiecifications, 



200 Watson v. O'Nbill. [March T., 1894 

we tliiuk the question arises, and shoald be oonsidered by the 
court, first, whether plaintiff is entitled to the relief sought 
against said sureties, under the terms of said bond, and plead- 
ings and proof, without reformation of the bond, as sought by 
plaintiff in this action; and, if that proposition should be 
resolved in the a£Srmative, it would leave out of consideration 
the whole question of reformation of said instrument, and the 
allegations of the complaint setting up the facts upon which 
reformation was sought would stand as surplusage. In other 
words, in the view of this court, the question arises whether 
the trial court was warranted in granting a nonsuit, thereby 
denying plaintiff all relief in the action, upon the ground that 
he had not made out sufficient facts to sustain his demand for 
reformation of said instrument. 

We are of the opinion that the whole question of reformation 
of said bond was unnecessarily brought into said action. That 
the terms of the bond, as executed, and providing that the 
sureties guaranty in the sum of one thousand dollars, to the 
effect that said Frederick Eide, the contractor and builder, 
should ^^ begin and complete the brickwork on John R. Wat- 
son's business block, as follows: Frederick Eide is to furnish 
all the material, lime, sand, brick, and all labor necessary to 
the erection and completion of John IL Watson's business 
block, on Main street, as specified and shown on the plans as 
furnished by W. E. Norris, architect,'' were sufficient to sus- 
tain this action for the recovery of the sum of money which 
the plaintiff may have been compelled to pay out towards the 
furnishing of the material and labor necessary for the erection 
and completion of the structure according to said plans, as 
alleged in the complaint, without any reformation or extension 
of the terms of said bond. 

We think this action involves the construction and appli- 
cation of said instrument to the subject thereof, rather than 
the question of the reformation of the instrument. In con- 
struing and applying the instrument to the subject to which it 
relates, the court was entitled to receive evidence of the "cir- 
cumstances under which it was made, including the situation of 
the subject of the instrument, and of the parties to it, ... . 
so that the judge be placed in the position of those whose 



14 Mont] Stats v. Cook. 201 

language he is to interpret'^ (Code Civ. Proo.^ § 632.) And 
when the order of the nonsuit was entered, as appears from 
the reoordy the court had before it, as disclosed in the evidence, 
sufficient of such circumstances and situation of the parties to 
the subject matter of said bond to enable it to clearly find 
within the intendment of said instrument an obligation on the 
part of the sureties to guarantee the furnishing of the material 
and labor for the construction of the building, portrayed by 
the plans mentioned in the bond. (Code Civ. Proa, §§ 631, 
636, 638.) 

It is evident from the record that the plans and specifications 
of the buildings the contract for the erection and completion 
thereof, and the bond sued on are all contemporaneous, and 
parts of the same transaction — in fact, parts of the res gestce — 
and, as such, should be construed together, in order to explain 
each other, and determine the rights, obligations, and liabilities 
of the parties thereto. 

For the reasons stated above, the judgment appealed from 
should be reversed, and it is so ordered. 

JUvericd, 

Habwood and De Witt, JJ., concur. 



STATE EX REL. HERFORD v. COOK, State Auditob. 

[Submitted Maxoh 6, 1894. I>6eid6d Uaioh 12, 1894.] 

ComraB-^OlaaHJIoation-'Evidence.^WhBTi a portion of one county is attached 
to another county, the last asBesament on the territory bo attached may be 
acoertained by reference to the Msessment books of the former county in deter- 
mining the claBsiflcation of the latter county aa eetabliihed l^ the aaseesed 
valuation of property within its boundaries. 

Original proceeding. Application for writ of mandamus. 
Granted. 

0. F» Goddard, for relator. 

Henri J. Haahell, Attorney 0enera7,for the state, respondent. 

De Witt, J. — ^The relator is, and since January 1, 1893, has 
been, county attorney of Yellowstone county. The respond- 



202 Statb v. Cook. [March T,, 1894 

ent is state auditor. Relator prajs that a writ of mandamua 
issue^ requiring the state auditor to draw a warrant in favor 
of relator for certain sums, which he claims are due him as 
county attorney of a second-class county. (Acts 2d Sess. p. 
235, approved March 6, 1891.) The state moves to quash 
the writ. The contention is whether the petition shows that 
Yellowstone is a second-class county. A second-class county 
must liave an assessed valuation of over $4,000^000 and less 
than $8,000,000. (Act March 6, 1891, 9upra.) In 1892 the 
assessed valuation of Yellowstone county was $3,800,000. On 
October 15, 1892, a portion of the Crow Indian reservation 
duly became a part of Yellowstone county. The property on 
this iK)rtion of the reservation was, in 1892, assessed by Custer 
couuty at $817,037. After this portion of territory became 
part of Yellowstone county, October 15, 1892, the same projv- 
erty so assessed remained thereon. It is therefore the fact that 
when relator was elected, November, 8, 1892, and qualified, 
January 1, 1893, the assessed valuation of Yellowstone county 
was composed of two items: 1. $3,800,000 — the Yellowstone 
. assessment of 1892; and, 2. $817,037, an amount assessed by 
Custer county, and added to Yellowstone county by the accre- 
tion of tlie piece of the reservation. These two sums aggre- 
gate $4,617,037. Therefore, prior to relator's election and 
qualification, his county had the assessed valuation of a second- 
class couuty. (Acts 2d Sess., p. 235.) This fact entitles rela« 
tor, under the provisions of the law passed (March 6, 1891) 
])rior to his election and qualification, to a salary as a second- 
class county officer. This the state auditor refused, hence this 
application for a writ of mavidamus. 

The only question is as to the evidence by which it is shown 
that Yellowstone is a second-class county. The evidence by 
which it is shown is Custer county's assessment in 1892 upon 
the property, which at the time of the assessment was in Cus- 
ter county, but which went, with the land on which it was 
found, into Yellowstone county, October 15, 1892. That 
asse&sed valuation was $817,037. That fact could be ascer- 
tained on January 1, 1893, when relator's term of office com- 
menced, by no m'^thod other than the assessment books of 
Custer county. AVe are satisfied that it sufficiently appears 



14 Mont.] Parrott v. McDbvitt. 203 

-that when relator was elected county attorney, and when he 
qualified, Yellowstone was a second-class county. He is there- 
fore entitled to this writ. But counsel stated in argument that 
relator at this time demands a warrant from the state auditor 
for only the period of time since December 1^ 1893. There- 
fore let the writ issue commanding the state auditor to draw 
warrants in favor of relator in such amounts as shall pay him 
as far as the state is liable for his salary at the rate of $1^500 
per annum^ since December 1« 1893. 

Writ issued. 

P£MB£BTOK, C. J., and Harwood, J., concur. 



PARROTT, Appellant, v. McDEVITT, Respondent. 

[Bnbmittod February 6, ISM. Decided March 13, ISM.] 

Arpwki^'-Orders^Bttt of exceptions.^-On an appeal from an order a bill of exoep- 
tiona which contains all the papers properly certified which are required on 
appeals from orders, wiU not be stricken from the record upon objections to 
its settlement and service, since the matters included in the biU of exceptions 
are properly before the court without a bill. {BookwaUer ▼. Conrad, ante, 
p. ea, cited.) 

JuBOMEKTB— JVtinc pTo tuno entry, — Befusal of the district court to order a Judg- 
ment entered nunopro tuno as of the date of its rendition is error where the 
reoords disclose wliat the Judgment was, and thAt it had actually been rendered. 

' Appeal from Tliird Judicial District, Deer Lodge County. 

Plaintipp's motion for the nunc pro tunc entry of the judg- 
ment rendered in Parrott v. Hungelburger, 9 Mont 526, was 
denied by Durfee, J, Reversed. 

Brazelton & Schamikow, for Appellant. 

L When a judgment has been rendered in a cause it 
becomes the duty of the clerk to make a reconi entry of it in 
an official book kept for that purpose. (1 Black on Judg« 
ments, § 110; Keene v. Welsh, 8 Mont. 309; Code Civ. Proc.,' 
§ 304, Comp. Stats.) 

II. The neglect or failure of the clerk to make a proper 
entry of record of a ju<Igmeut^ or a defective or inaccurate 



1^22 182 



204 Parrott v. McDevitt. [March T., 1894 

entry of it^ will Dot, as between the parties, operate to invali- 
date the judgment {Ounn v. Plant, 94 U. S. 664; Q'cUg v. 
Alcorn, 46 Iowa, 660; Bridges v. ThomoM, 60 Ga. 378.) 

III. The power of courts to make entries of judgments 
nunc pro time, in proper cases, and in furtherance of the inter- 
ests of justice, has been recognized and exercised from ancient 
times. This power does not depend upon statute; it is inherent. 
(12 Am. & Eng. Encj. of Law^ 80; 1 Black on Judgments^ 
§ 126; ChM8(m v. Baibour, 100 Ind. 1; McDotoeU v. MoDoweO, 
92 N. C. 227.) 

ly. It is competent for a court to enter judgment nunc 
pro tune, at any mAseqaent term, both parties appearing and 
being heard. (Freeman on Judgments, § 71; Shepherd v. 
Brenton, 20 Iowa, 41; Murdoch v. Oanald, 47 Mo. 135; Jer- 
reU V. Mahan, 20 Nev. 89; Burnett v. State, 14 Tex. 455; 66 
Am. Dec. 131.) After the lapse of the term the court retains 
jurisdiction of its record for the correction of clerical errors. 
{Evans v. Fisher, 26 Mo. App. 641.) 

Y. Where a court has rendered a formal judgment, but 
the same has not been entered on record, through n^lect or 
misprision of the clerk, the court has power to order that such 
judgment be entered nunc pro tunc at any time. (12 Am. & 
Eng. Ency. of Law, 81; 3 Estee's Pleadings, § 4768; 1 Black 
on Judgments, § 130; Freeman on Judgments, § 61; Harvey 
V. Whiilatch, 1 Mont 713; Comanche Mining Co. v. Rumley, 
1 Mont 205; Territory v. Clayton, 8 Mont 17; Marshall v. 
Ihylor, 97 Cal. 422; Dreyfuss v. TompUns, 67 Cal. 339; 
Franklin v. Merida, 60 Cal. 289; Bousset v. Boyle, 46 Cal. 64; 
Swain v. Naglee, 19 Cal. 127, and note; Oibson v. Oiouieau, 
45 Mo. 171; 100 Am. Dec. 366; HoweU v. Marian, 78 111. 
162; Chichester v. Cande, 3 Cow. 39; 16 Am. Dec. 238.) 

y I. The decisions of the courts uniformly hold that if the 
records of the court show that a judgment has been formally 
rendered, and what such judgment was, that no other evidence 
is required upon which to base an order to have such judgment 
entered nunc pro tune. (1 Black on Judgments, § 135, and 
cases cited; Keene v. Welsh, 8 Mont. 309; Barber v. Briscoe, 
9 Mont. 345; BeOdn v. Bliodes, 76 Mo. 643; Groner v. Smith, 
49 Mo. 318.) 



14 Mont.] Parrott v. McDbvitt. 205 

VII. The court may enter judgment as of the time when 
it ought to have been entered, although a considerable time 
has elai>8edy and tlie death of the defendant occurring in the 
mean time. (6 Am. & Eng. Ency. of Law, 136; 12 Am. & 
Eng. Ency. of Law, 80; Borer v. Chapman, 119 U. 8. 588; 
Mitchell y. Overman, 103 U. S. 62; MUchell v. Sduxmovei-, 16 
Or. 21 1; 8 Am. St. Rep. 282; L(mg v. Stafard, 103 N. Y. 274; 
Mui-ray v. Ooopei*, 6 Serg. <& R. 126; Black v. Shaw, 20 Cal. 
68; WVacm v. Myere, 4 Hawks, 73; 15 Am. Dec. 511; Maye 
V. flawe«, 4 Stew. & P. 222; 24 Am. Dec. 750.) 

F. W. Cole, for Respondent. 

Db Witt, J. — A motion was made in this case to strike out 
a large portion of the record, called a ^' bill of exceptions/' on 
two grounds: 1. That D. M. Durfee, who signed the bill of 
exceptions, was not, at the time he signed it (January 5, 1893), 
a judge of the court; and 2. It does not appear that the bill 
of exceptions was served on respondent's attorneys, or that 
they had notice of the same. 

While we have judicial knowledge of the fact that Judge 
Durfee's term of office expired on the last day of December, 
1892, still, in the record, we find him acting as judge, in sign- 
ing a bill of exceptions, on January 5, 1893; and, for all that 
appears, he could have been holding over until his successor 
qualified. (Const., art. 8, § 12.) But this matter is not 
im})ortant, nor is the objection that the bill of exceptions was 
not served on counsel. The matters included in the bill of 
exceptions are before us without a bill. The appeal is from 
an order. Section 438 of the Code of Civil Procedure pro- 
vides: ''On appeal .... from an order, the appellant shall 
furnish the court with copy of the notice of appeal, undertak- 
ing or undertakings on appeal, the judgment or order appealed 
irom, and a copy of the papers used on the hearing in the 
court below, such copies to be certified in like manner to be 
correct." 

These papers are in the record, and certified by the clerk to 
be correct. That is sufficient to present them to us for review. 
The motion is denied. {BookwaUer v. Oonrad, ante, p. 62.) 



206 Parrott v. McDbvitt. [March T., 1894 

This is the same case as that reported nnder the title of Par* 
roil V. HungelbwyeTf 9 Mont. 526. The present defendant, 
McDevitt, is the administrator of Hungelburger — appointed^ 
as is noted in the opinion of ParroU v. Hungelburger. 

By reference to ParroU v. Kane, ante, p. 23, it will be seen 
that it was claimed that judgment in this case was not entered, 
although it was duly rendered. Writ of restitution herein was 
issued, and was then recalled and quashed by the court Then 
plaintiff moved the court to order the clerk to enter judgment 
nunc pro tuno as of October 30, 1888. For a fuller statement 
of the facts, see Parrott v. Kane, supra. The motion was 
made upon all of the records and proceedings in the case. The 
district court, on the motion, was most amply informed by the 
records that judgment had been rendered in Parrott v. Hungel- 
burger, 9 Mont. 626. It had before it the written and duly 
filed opinion of the district judge, giving his reasons for 
rendering judgment, and concluding with the following lan- 
guage: ^^ The judgment of the court, therefore, is that plaintiff 
have possession of said premises, and recover from defendant 
the sum of thirty dollars per month, for issues and profits 

thereof, since the day of , 188 — , with judgment for 

oo9t8. S. Db Wolfe, Judge. Filed October 29, 1888." 

The district court had also before it, u{)on the motion, the 
minutes of the court in the case of ParroU v. Hungelburger^ 9 
Mont. 526, of October 29, 1888, as follows: "This cause 
coming on again this day, the court gives judgment for plain- 
tiff, and against defendant, according to the prayer of plaintiff's 
complaint, and judgment is ordered entered." The district 
court also had before it a judgment, duly and formally written 
out, giving judgment for the plaintiff, and signed by the dis- 
trict judge, and marked by the clerk "Filed and entered Octo- 
ber 30, 1888." Such was the showing by the records that 
the judgment had actually been rendered, and what the judg- 
ment was. On this showing the district court refused to order 
the clerk to enter judgment nunc pro tuno. The court may, 
at a su1)sequent term, order a judgment entered which has 
theretofore been rendered, and where the records of the court 
show what the judgment was, and that it had actually been 
rendered. {Harvey v. Whillatch, 1 Mont. 713; Qmanche 



14 Mont.] Parrott v. McDbvitt. 207 

Mining Co. v. Rumleyy 1 Mont, 205; Territory v. Clayton, 8 
ModU 1; ICeme v, Welsh, 8 Mout. 305; Barber v. Briscoe, 9 
Mout. 341; 1 Black on Judgmeuts^ § 135, and cases cited. 
See, also, apj^ellant's brief uiK>n this point.) 

Why the district court refused to order the judgment 
entered nunc pro tune does not appear by the record, nor can 
the widest excursion into the field of surmise discover a reason 
fur this decision, ' The order should have been made, as decided 
in the cases above cited. 

The plaintiff is lefl in a most unusual position for a success- 
ful litigant. He obtained a judgment. On defendant's appeal 
he obtained an affirmance. It has never been questioned that 
he has b judgment. But the court quashed his writ of resti- 
tution — whether rightfully or wrongfully is not now before us 
for a review. The court stayed any further issuance of a writ 
of restitution. These proceedings by the court were upon the 
ground that judgment had not been entered. Then the court 
refused to order the judgment entered. A wholly valueless 
judgment is this. The plaintiff achieved a Pyrrhic victory — 
such a one as would lead him to exclaim with the king of 
Epirus, " Another such a victory, and I am lost." The law 
cannot contem{>late such results. 

The order of the district court is reversed, and the case is 
remanded, with directions to that court to order judgment to 
be entered as the same was rendered. BemiUUvr forthwith. 

BeversecL 
Fembebtok, C. J., and Habwood, J., concur. 



208 Braithwaitb v. Harvey. [March T., 1894 

BRAITHWAITE, Appellant, ©. HARVEY, Respond- 
ent. 

[Submitted Febraary 19, 1891. Bedded Xareh 19, 1894.] 

ArmnriBnuLTOBS— jPorH^ judgment^ Pleading.-~A. Judgment reeoTered agidDtt 
an administrator in another slate is of no binding effiect as against an admin- 
istrator of the same intestate in this state, nor is it eyidenoe of a debt, and 
therefore cannot be pleaded as a part of plaintifTs cause of action in a subse- 
quent suit on the same demand against the administrator appointed in this 
state. Nor is it necessary to plead such Judgment in order to show that the 
demand sued on in this state had been given credit for a sum realized under 
the foreign Judgment. 

BjJa—BxtraUrritorial authority^£Btopp^-^Aii administrator has no authority 
to act or bind the estate outside the Jurisdiction of his own state, and, there- 
fore, where he has defended a suit in another state in the name of the admin- 
istrator appointed in that state, he is not estopped from disputing the claim 
upon which the action was brought when sued thereon in his own state. 

Statutk of LmriATioNB—JVetrjmmiis^.— Letters ftom the defendant to a third 
person in which he referred to plaintiffs claim, saying: ** If I do not hear from 
you soon I will tender amount due .... whatever is due is ready • • • • when- 
ever I can safely pay you or plaintiff. I am not satisfied about the settlement. 
.... Please write me your understanding of it"; also, " if I settle with your 
folks, if they will see me clear of plaintiff," contain no definite, unqualified 
acknowledgment of plaintiflTs demand or promise to pay the same, and axe, 
therefore, insufficient to remoye the bar of the statute of limitations. 

Appeal from Seventh Judioial IHdriatf Ouster County. 

Action against an administrator. Judgment was rendered 
for the defendant below by Milburn, J. Affirmed. 

George W. NenfUmj and Middldon & Light, for Appellant 

Tlie facts alleged in paragraph 2 of plaintiff's complaint, in 
connection with all the facts set forth in the other allegations of 
the complaint, work an estoppel against the defendant in this 
action, and against the estate of Leighton, to the extent that this 
defendant as administrator is not now at liberty to question the 
balance presented to him for allowance by the plaintiff against 
the estate of the said Leighton, as a true balance due and 
unpaid upon the contract in question. The facts set forth in 
paragraph 21, in connection with other facts alleged in the 
complaint, estopped the defendant from interposing the tech- 
nical defense of the statute of limitations. The defendant has 
had his day in court upon the claim in question. "Neither 
the benefit of judgment on one side, nor the obligation on the 



14 Mont] Braithwaitb v. Harvby. 209 

other, are limited exclusively to the parties and their privies." 
(Freeman on Judgments, 3d ed., §§ 174, 175.) "A party who 
actually appears and defends in the name of another is bound 
by the judgment," {Montgomery v. Vickeryy 110 Ind. 211; 
Valentine v. Mahoney, 37 Cal. 389; Freeman on Judgments, 
§ 163 a.) ''One who, though not a party, defends or prose- 
cutes an action by employing counsel, paying costs, and by 
doing those things which are usually done by a party, is bound 
by the judgment rendered therein." {Stoddard v. TAoirtp^on, 
31 Iowa, 81; Elliott v. Hayden, 104 Mass. 180; Train v. GoM, 
5 Pick; 380; Jackson v. Oriswold, 4 Hill, 522; Falvier v. 
Hayes, 112 Ind. 289; Bums v. Oavin, 118 Ind. 320; Roby 
V. lagers, 130 Ind. 415; De Metton v. De Mdlo, 12 East, 234; 
Oromwdl v. County of Sac, 94 U. S. 351.) An administrator, 
wherever appointed, is in privity with the intestate, but there 
is, ordinarily, no privity in law or estate between administrators 
appointed in different sovereignties, and a judgment against one 
is not a bar against the other. {Hill v. Tucker, 13 How. 466, 
467.) They are deemed to stand like other persons not privies 
in blood, privies in law or privies by estate. The facts alleged 
against the administrator of Leigh ton's domicile, i. «.,the defend- 
ant, bring him into such relation to the judgment rendered in 
North Dakota against the ancillary administrator appointed 
there, as to estop the defendant from saying that it was not cor- 
rect or that the amount therein adjudged to be due is barred by 
the statute of limitations L e,, the facts alleged in the complaint 
in this action as a whole constitute a canse of action based upon 
the contract of November 3, 1880, and an equitable estop{)el 
against the defendant as to all defenses existing prior to its 
rendition, either under the laws of North Dakota or Montana. 
The ancillary administration is subsidiary and supplemental to 
the domiciliary administration. If assets of the estate abroad 
come to the knowledge of the principal administrator, and an 
ancillary administration becomes needful or prudent, the princi- 
pal administrator should procure his own or another's appoint- 
ment, and will be held responsible for due diligence and fidelity. 
(Schouler on Executors and Administrators, § 175.) In the 
very nature of things, to the extent of the powers and duties 
of the ancillary administrator they almost interlace, though 
Vol. XIV.— 14 



210 Braithwaitb v. Harvby. [March T., 1894 

the domiciliarj administrator has the greater powers and duties. 
Thus, the principal administrator may receive payment from a 
debtor outside of the sovereignty from which he receives his 
appointment, and it will be upheld even against an administra- 
tor appointed where the debtor resides. {WUkins v. Ellett, 9 
"Wall. 740.) "Where there are creditors, however, within the 
jurisdiction of the ancillary administrator, they have a legal 
right to insist that all assets therein be there administered and 
distributed. The rule is founded u{)on the policy of the state 
to protect the interests of its home creditors. {Wilkins v. 
EUett, 9 Wall. 740.) After the payment of the home creditors, 
the residuum is to be transmitted to and distributed at the 
place of domicile {WUkins v. ElteU, 9 Wall. 740), unless for 
some special reason, as to charge the security for faithful 
administration in the ancillary administration, equity would 
require its retention there. {Porter v. Heydock, 6 Vt. 374; 
Jennison v. Hapgood, 10 Pick. 77; Parsons v. LymaUy 20 
N. Y. 103; Stokdy's Estate, 19 Pa. St. 476.) An ancillary 
administrator cannot recover in an action against a debtor of 
the intestate not resident in the jurisdiction in which he acts, 
even though no other administrator has been appointed {Abbott 
V. Oobum, 28 Vt. 663, 67 Am. Dec. 735), but an administra- 
tor appointed in the jurisdiction of the decedent's domicile 
may maintain an action against any debtor of his intestate 
wherever resident, when found within the jurisdiction of his 
aoDointment. An administrator of the intestate's domicile 
may appoint an attorney or agent to receive and discharge a 
debt due to his intestate in any jurisdiction, certainly, where 
there are no local creditors requiring ancillary administration. 
( United Staies v. Coxe, 18 How. 100.) Except as the ancillary 
administration conserves the interest of *^ home creditors" it is 
subsidiary to the principal administration. They are, in law 
even, very close to each other; the domiciliary administrator, in 
a way, being the superior of the ancillary administrator by 
virtue of his interest in tlie residuum of the estate. However, 
the law does not hold them in privity any more than it does 
other 2)ersous who are not privies in blood, privies in law, or 
privies by estate. But we have shown other persons may, by 
their acts, so connect themselves that both are bound by a 



14 Mont.] Braithwaitb v. Harvby. 211 

judgment against one. To the person thus bound and not a 
party to the action the judgment stands as an equitable estoppel. 
Though a volunteer he has submitted the matter involved to an 
adjudication in the name of another. . Such is the case at bar. 
The court erred in striking out paragraph twenty-two of plain- 
tiff's complaint, in this, that defendant alleges acknowledgments 
showing a continuing contract and new promises in writing. If 
these new promises, admissions, and acknowledgments were suffi- 
ciently specific, although made to a third person or to a stranger, 
and it appears that they were intended to be communicated, 
they toll tiie statute, and for that reason are material allegations. 
Section 53 of the Code of Civil Procedure, provides; "No 
acknowledgment shall be sufficient evidence of a new or con- 
tinuing contract whereby to take the case out of the operation 
of this act, unless the same is contained in some writing signed 
by the parties to be charged thereby, but this act shall not alter 
the effect of any payment of principal or interest.'^ An 
acknowledgment of indebtedness made by a debtor to a stranger 
with the intent that it shall be communicated to and influence 
the creditor, is as effectual to defeat the statute of limitations 
as if made to the creditor or his authorized agent. (De Freest 
V. Warner, 98 N. Y. 217; 50 Am. Kep. 657.) It is alleged 
that said promise and acknowledgment were made in relation to 
the claim in question in this action, that it was made to J. D. 
Biggert, who is alleged to have been acting on behalf of per- 
sons interested in the said claim, viz: the interveners. Braith- 
waite was also interested in the claim; he could maintain the 
action in his own name for the benefit of himself and the inter- 
veners as the party with whom and in whose name the con- 
tract was made for the benefit of another, the trustee of an 
express trust. {Braitliwaite v. Power, 1 N. Dak. 455, and 
cases cited; Code Civ. Proc. § 6.) The law would presume 
that an acknowledgment made to the agent of the parties in 
interest, or any of them, was intended to be communicated. 
In the case at bar the acknowledgments were communicated. 
Tiiey tolled the statute of limitations. The allegations con- 
tained in the twenty-second paragraph of the complaint are 
plenary evidence of acknowledgments and new promises, and 
they present material facts to be submitted to the jury. 



212 Bbaithwaitb v. Hahvby. [March T,. 1894 

Whether uew promises related to the debt iu question is for 
the jury, and uo evidence is to be rejected on that issue. {Cook 
V. Martin, 29 Conn. 63; Buckingham v. Smithy 23 Conn, 453; 
Shipley v. Shitting, 66 Md. 558; McCormick v. Brovm, 36 Cal. 
180; 95 Am. Dec. 170; Farrell v. Palmer, 36 Cal. 187; Schmidt 
V. Pfau, 114 111. 494; Porter v. Ulam, 25 CaL 292; 85 Am. 
Dec. 132.) 

Sirevell & Porter, for Respondent. 

I. A judgment rendered in a foreign state or jurisdiction 
against an administrator in such foreign state or jurisdiction is 
utterly without validity or efifect as a claim against an admin* 
istrator of the estate of the same deceased person in this state. 
In such case there is neither privity of law nor estate. This 
doctrine has been so often and so unrelentingly h^ld 'that but 
few leading cases need be cited to sustain it here. {Stacy v. 
Thraslier, 6 How. 44; Aspden v. Nixon, 4 How. 467; Free- 
man on Judgment 3d ed.^ § 163; McLean v. Meek, 18 How. 
16; Stacy v. Thrasher, 6 How. 44; Brodie v. Bickley, 2 Rawle, 
431; Story's Conflict of Laws, 739.) 

II. But the appellant says the defendant in this action 
appeared in the court in North Dakota, employed counsel and 
did other things, and is therefore estopped to deny that a judg- 
ment rendered against a foreign administrator is valid against 
another administrator in this state. To this point the appel* 
lant cites a number of authorities which are no doubt correct 
law in cases to which they apply, but tliey have not the 
remotest application to the case at hand. It is no doubt true 
that iu some oases parties in direct privity may bind Uiemsel ves 
by contesting in litigation where they are not directly parties, 
but that is not this case. {Stacy v. Tlirasher, 6 How. 44; 
Johnson v. Potoers, 139 U. S. 157.) It is urged by appellant 
that by defending in the suit in Dakota, this administrator 
and defendant in this case validated a judgment in a foreign 
jurisdiction so as to make it binding as evidence of debt against 
assets of the deceased in this state. So far from that position 
having a semblance of authority to sustain it, it will be observed 
in the case last cited the supreme court says such judgment 
has no validity as evidence of debt, even though the judgment 



14 Mont.] Braithwaitb v. Harvey. 215 

be agaiDst the same admiuistrator who is sought to be charged 
ill a jurisdiction foreign to the one where the judgment wa£^ 
rendered. If this judgment had been given in the state of 
North Dakota^ in favor of the plaintiff in this action and against 
this ideutical defendant as administrator^ it would have had no 
validity to bind the estate of the deceased in this state. With 
how little show of reason can it be urged then that any acts of 
the defendant in defending a suit in a foreign jurisdiction 
would bind the assets of the deceased in this state. It would 
not have that effect if the judgment had been against this 
defendant instead of one having no privity with him. In dis- 
senting from the majority opinion in Johnson v. Powers, 139 
U. S., Justice Brown, at page 164, says: ''It is true that these 
proceedings are not binding npon others than parties and 
privies, and if this were an action against the administrator of 
the same estate in the state of New York, it is conceded at 
once that under the case of Stacy v. Thrasher, 6 How. 44, the 
action would not lie." (See, also, Woerner's American Law 
of Administration, 360.) 

III. Appellant discusses at considerable length in his brief 
the relations of ancillary or auxiliary administration to admin- 
istration at the domicile. Suppose we should admit that aux- 
iliary and domiciliary administration are the same; suppose we 
should go still further and admit that a judgment actually 
existed in &vor of plaintiff and against this defendant as 
administrator, in a foreign jurisdiction, would such admissions 
confer validity upon such judgment to affect assets of the 
deceased in this jurisdiction? There is not an authority to be 
found, so far as we know, that such would be the effect of his 
judgment. 

IV. But the appellant avers that he had alleged facts in 
his complaint sufficient to show that '' Mr. Leighton in his life- 
time admitted the indebtedness and acknowledged his liability 
thereunder." Suppose again we should admit that as a fact, 
which is not true, but if it were, that would not release a stat- 
ute of bar. Where is the actual unqualified promise to pay 
which must always exist to waive the statute? In the letters 
signed by Mr. Leighton in his lifetime there is scarcely suf- 
ficient to make even a shadow of approach to the legal require- 



214 Braithwaitb v. Harvey. [March T., 1894 

ment to take a barred claim from under the statute of bar. 
Of course appellaut can saj the contrary in his complaint, but 
when he presents^ as he must present, the identical promise 
upon which he relies, the court will judge the matter from , 
that, and not from the mere assertion of the pleader. What 
is pleaded falsely, either as to fact or inference, can never be 
well pleaded. It will be remembered that at the time these 
alleged promises were made by the deceased an action was 
pending in the court in North Dakota against him and the 
two Powers and one Akin. '^ A new promise may arise out 
of such facts as identify the debt, the subject of the promise, 
with such certainty as will clearly determine its character, fix 
the amount due, and show a present unqualified willingness 
and intention to pay it at the time acted upon and acceded 
to by the creditor.'' {Wachter v. AU}ee, 80 111. 47.) Did 
th^se parties or any one of them at the time act upon this pre- 
tended promise, abate the suit, or accept any promise or change 
their conduct to the extent of one hair? Did the promise fix 
any amount due or even intimate any amount which was due 
to any one? The acknowledgment must be a direct, distinct, 
unqualified admission of the debt which the party is liable and 
willing to pay. {McOormick v. Brown, 36 Cal. 185; 95 Am. 
Dec. 170; Biddd v. Brisszolara, 64 Cal. 355; Bell v. Motiison, 
1 Pet. 351.) 

V. And finally, what right has this plaintiff to maintain 
this action ? Our statute in its very inception provides that 
''every action shall be prosecuted in the names of the real party 
in interest except as otherwise provided in the act itself.'' 
(Code Civ. Proa, § 4.) But appellant alleges Braithwaite is 
trustee of an express trust and is therefore entitled under sec- 
tion 6 of the same code to bring this action. Braithwaite's 
right to maintain the former suit it seems was challenged in a 
foreign state. Under the contract which was set up between 
the interveners and Braithwaite, the court decided that be was 
a trustee and therefore, under a statute not dissimilar to ours, 
could maintain the action as such trustee. But all that, and 
whatever there was in the account or contract was merged into 
the judgment which was recovered in that action. (SeasioM v. 
Johnson, 95 U. S. 347.) We are aware of cases which hold 



14 Mont.] Braithwaitb v. Haevby. 215 

that a creditor of a copartnership may proceed against the 
assets of a deceased partner without exhausting his resources 
against the surviving partners^ but we are not aware of any 
case which holds that where a judgment was taken in a joint 
action^ as in this case, the whole amount can be claimed from 
a deceased obligor's estate^ and the other judgment debtors be 
passed by. 

Pemberton, C. J.— Through this action plaintiff seeks to 
recover judgment against Phillip Harvey, administrator of 
Joseph Leighton, deceased, on a demand for the payment of 
five thousand five hundred and thirty-five dollars and ninety- 
three cents, and interest, arising on a contract hereinafter 
referred to. The claim was presented to, and disallowed by, 
the administrator of the decedent. This action was then 
brought in the district court thereon. The questions involved 
in this appeal arise on the action of the trial court in striking 
from the complaint portions thereof, on motion of defendant, 
and thereafter sustaining demurrer interposed to the com- 
plaint, on the ground that it shows no sufficient facts to con- 
stitute a cause of action, because it appears on the face thereof 
that the cause of action is barred by the statute of limitations. 

It appears that in 1880 a contract for the transportation of 
certain freight from Bismarck, Dakota, via the Missouri river 
by boat to Fort Buford, was made between plaintiff, as trans- 
porter, and decedent and several others, as consignors. The 
contract was made and evidenced by the following letter: 

"Bismarck, D. T., Nov. 3, 1880. 
'^Capt Wm. Braithwaite^ Steamer * Eclipse J 

"Dear Sir: On your accepting this proposition, will agree 
to give you one dollar and seventy-five cents ($1.75) per one 
hundred pounds, from Bismarck to Fort Buford, on freight 
up to the amount of one hundred tons, and on all over and 
above one hundred tons, one dollar and fifty cents ($1.50) per 
one hundred pounds. Receipts to be equal to 100 tons to 
Buford. Freight to be pajd on receipt of bills of lading by 
drafb at ten days' sight on Jos. Leighton, St. Paul. 

" Yours, etc. J. C. Barr, 

"Agt. for H. C. Akin, Jos. Leighton & Benton Line." 



216 Braithwaitb v. Harvby. [March T., 1894 

The freight meutioned waa transported^ as appears, with 
some delays and other incidents in relation to the fulfillment 
of the contract, which are not necessary to recite in this deter- 
mination, and thereby the daim for the enforcement of which 
this suit is prosecuted accrued in said year. 

The complaint not only pleads this contract, but alleges that 
on the twelfth day of November, 1887, this plaintiff instituted 
a suit in the district court of the then territory of Dakota, in 
and for the county of Burleigh, now in the state of North 
Dakota, against Joseph Leighton, and several other parties 
alleged to be interested with him, to recover the amount 
alleged to be due plaintiff thereon. This suit was by attach- 
ment, and the property of Joseph Leighton in said territory 
at the time was seized thereunder. All the proceedings in 
said suit, and the history thereof, are set out in the complaint^ 
or referred to as exhibits, and made part thereof, including 
the judgment of the district court, and the appeal therefrom ta 
the supreme court of said territory, and the judgment of said 
supreme court. In these allegations the death of Joseph 
Leighton is shown to have occurred on the second day of Sep- 
tember, 1888, at Custer county, in the state of Montana, where 
he resided. Joseph Leighton was never personally served 
with process in the Dakota suit. After his death one Harvey 
Harris was appointed administrator of his estate in Dakota 
territory, and appeared as such, and defended such suit It 
seems, too, that, pending said suit in Dakota, certain other 
parties were permitted to intervene therein. These matters 
are particularly set out in paragraphs 17, 19, 20, 21, 22, and 
23 of the complaint, and are as follows: 

"17. That thereafter, on or about the eleventh day of Feb- 
ruary, 1889, one Harvey Harris, of said Burleigh county, was 
duly appointed administrator of the estate of said Joseph 
Leighton, deceased, by the then probate court of said Bur- 
leigh county, territory of Dakota, the same being a court of 
general jurisdiction in probate matters, and having and pos- 
sessing jurisdiction for the appointment of the said Harris, as 
hereinbefore shown; that, after qualifying under said appoint- 
ment, in accordance with the laws of the then territory of 
Dakota, now state of North Dakota, the said Harris entered 



14 Mont.] Braithwaitb v. Harvby. 217 

upon the discharge of his duties as such administrator of the 
estate of said Joseph Leighton, deceased^ in said Burleigh 
county and territory, and continued in the discharge of said 
duties as such administrator, until the said estate in said Bur- 
leigh county, then territory of Dakota, now state of North 
Dakota, was fully administered/' 

"19. That thereafter, on or about the fifteenth day of March, 
1889, by stipulation, a copy of which is hereto attached and 
' referred to, and found upon page 46 of Exhibit *1/ and by an 
order of said district court, in which said action was pending, 
a copy of which order is hereto attached and referred to, and 
found upon pages 47 and 48 of Exhibit ^ 1/ hereto attached, 
said Harvey Harris, as administrator of the estate of Joseph 
Leighton, deceased, came into said court, and entered his 
appearance in said action, and as a party defendant therein, 
and as the administrator and successor of the said Joseph 
Leighton, deceased, and that said action was revived and con- 
tinued against said Harris, as said administrator, and there- 
afler proceeded with said Harris as said administrator of said 
Joseph Leighton, deceased, as a party defendant. 

*• 20. That on or about the twenty-third day of Febrnaryy 
1889, William Rea and George F. Robinson, copartners as 
Robinson, Rea & Co., J. C. Kay and Woodruff* McKnighty 
copartners as Kay, McKnight & Co., A. W. Cadman as A. W. 
Cadman & Co., and Joseph McC. Biggert, applied to said court 
to intervene in said action, and by said court were permitted 
so to do, and so did, and thereafter said action proceeded with 
said interveners as parties thereto; and that a copy of the 
order of said court permitting said intervention is hereto 
attached and referred to, and found on pages 51 to 62 of 
Exhibit * 1,' hereto attached; and said interveners served and 
filed their complaint in intervention in said action, and a copy 
of the same is hereto attached, and referred to and found upon 
pages 63 to 60 of said Exhibit * 1/ hereto attached, and that 
thereafter, on or about the twenty-second day of March, 1889,. 
the plaintiff served and filed his answer to said interveners' 
complaint, and a copy of the same is hereto attached, and 
referred to, and made a part hereof, and found upon pages 61 
to 66 of Exhibit * 1/ hereto attached. 



218 Beaithwaite v. Harvby. [March T., 1894 

'^21. That the defendant herein, as the general administrator 
of the estate of said Joseph Leighton, deceased, immediately 
upon bis appointment and qualification as such, as hereinbefore 
shown, was notified of the pendency of said action in said 
Burleigh county, territory of Dakota, now state of North 
Dakota, and of the plaintiff's claim therein, and thereafler said 
action proceeded to trial in said district court, and the defend- 
ant berein tbe same contested and defended in the name of 
said Harvey Harris as administrator, as hereinbefore shown, 
and therefore invoked the jurisdiction and determination of 
said court, employed counsel, produced evidence, and the issues 
of said contest and defense prosecuted to a final determination; 
and such proceedings were bad in said action from time to time 
by the direction and co-operation of the defendant herein, that 
on the twenty-eighth day of August, 1891, final judgment was 
rendered and entered in said action, in favor of the plaintiff 
and the said interveners, and against the defendant Harvey 
Harris, as administrator of the estate of said Joseph Leighton^ 
deceased, to be paid in due course of administration, and the 
other defendants in said action, except Akin, for the sum of 
seven thousand three hundred and thirty-five dollars and 
eighty-five cents, and for certain costs of said action, amount- 
ing to the sum of two hundred and fifty dollars and thirty-six 
cents, and that said judgment is in full force and unreversed^ 
and that a copy thereof is hereto attached, and referred to as, 
and made a part of, this allegation, and found upon pages 73 
and 89 of Exhibit ' 1,' hereto attached. 

^^22. That the said Joseph Leighton, in his lifetime, in writ- 
ing, signed by him, the said Joseph Leighton, and on the 
twenty-first day of July, 1888, acknowledged the said indebted- 
ness under the said contract for the work, labor, and service 
performed under and by virtue of said contract of affreight- 
ment by this plaintiff, as aforesaid, which acknowledgment was 
in words and figures as follows, that ia to say: 

"'Joseph Leighton, E. B. Weirick, 

" * President. Cashier. 

« ^ W. B. Jordan, H. B. Wiley, 

« ' Vice Pres't. Asst Cashier. 

"* 2,752 FiBST National Bank. 

"'Capital |S0,000 

"'Surplus and undivided profits 65,000 



14 Mont.] Braithwaitb v. Harvey. 219 

"'Miles City, Montana, 7/21, 1888. 
« *J. D. Biggert, PUisburg, 

" 'Dear Sir: Nothing from you yet If I don't hear soon, 
I will go to Bismarck, and tender amt due, as I don't want to 
be bothered any more. Whatever is due is ready, as it has 
been for the last seven years, whenever I can safely pay either 
you or Braithwaite. Yours truly, J. Leighton.' 

''That the sum owing to plaintiff, as shown by the allega- 
tions hereinbefore contained, was the amount, and not other- 
wise, referred to in said letter; and the Braithwaite mentioned 
therein is this plaintiff, and none other; and the said J. D. 
Biggert, claiming to act and acting on behalf of said inter* 
venors, was not a stranger to the transaction. That on divers 
and sundry times the said Joseph Leighton acknowledged said 
indebtedness, to wit, on the twenty-seventh day of June, 1888, 
on the twenty-second day of July, 1888, and on the fifth day 
of August, 1888, as will more fully appear from pages 74 to 77 
of Exhibit ^ 1,' hereto annexed, and made a part hereof. That 
again, on the first day of August, 1888, the said Joseph Leigh-^ 
ton, by one George T. Webster, his attorney, duly authorized 
80 to do, acknowledged under oath the making of the contract of 
affreightment hereinbefore mentioned, and the voyage, as will 
more fully appear from pages 42 to 46 of said Exhibit ^ 1,' hereto 
annexed, and made and referred to as a part hereof. 

^'23. That there has been paid plaintiff, and applied in 
liquidation of a part of the amount so due plaititiff, as afore* 
said, from the said Harvey Harris, as administrator of the 
estate of Joseph Leighton, deceased, the sum of four hundred 
and thirteen and 92-100 (413.92) dollars, said payment being 
made on the thirty-first day of March, 1892. That theretofore, 
and the twenty-eighth day of November, 1891, there was paid 
on account of said indebtedness owing to this plaintiff the 
further sum of two thousand dollars ($2,000), which sum was 
paid for and in behalf of the said Joseph Leighton by Kelly 
& Jordan, who had heretofore obligated themselves to pay the 
same for and in behalf of the said Joseph Leighton. And that 
the estate of the said deceased in the territory of Dakota, now 
state of North Dakota, has been fully administered upon, set- 
tled, and exhausted, and said administrator's final accounts 



220 Braithwaitb v. Harvey. [March T., 1894 

preseuted to the couuty court iu aud for said Burleigh county, 
state of North Dakota, the same having exclusive jurisdiction 
therein, aud by said court passed, allowed, and approved, aud 
said administrator discharged from said trust, and that a copy 
of the order of said county court passing, allowing, and approv- 
ing said final account is hereto attached, and referred to and 
made a part hereof, and found on pages 92 to 94 of Exhibit 
'1,' hereto attached." 

On motion of the defendant the court struck these para- 
graphs from the complaint, on the ground that they were 
irrelevant and redundant This action of the court is assigned 
as error. To determine this question it is necessary to deter- 
mine the force and efiect of a judgment against an adminis- 
trator in one state against an administrator of the same estate 
in another state. 

In Johnson v. Powers, 139 U. S. 166, this subject is 
thoroughly discussed, and the authorities are collected and 
cited. In this case Mr. Justice Gray, delivering the opinion 
of the court, says: 

^'A judgment m rem binds only the property within the 
control of the court which rendered it, and a judgment in per-- 
sonam binds only the parties to that judgment and those in 
privity with them. 

'^ A j udgment recovered against the ad ministrator of a deceased 
person in one state is no evidence of debt in a subsequent suit 
by the same plaintiff in another state, either against an admin- 
istrator, whether the same or a different person appointed there, 
or against any other person having assets of the deceased.'' 
(Aspden v. Nixon, 4 How. 467; Stacy v. Thrasher , 6 How. 44; 
McLean v. Meek, 18 How. 16; Low v. BarUett, 8 Allen, 269.) 

In Stacy v. Thrasher, 6 How. 44, in which a judgment, 
recovered in one state against an administrator appointed in 
that state, upon an alleged debt of the intestate, was held to be 
incompetent evidence of the debt in a suit brought by the same 
plaintiff in the circuit court of the United States held within 
another state against an administrator there appointed of the 
same intestate, the reasons given by Mr. Justice Grier have so 
strong a bearing on the case before us, and on the argument 
of the appellant, as to be worth quoting from: 



14 MoutJ Braithwaitb v. Harvky. 221 

"The administrator receives bis autliority from the ordi- 
nary or other officer of the government where the goods of the 
intestate are situate. But coming into such possession by suc- 
cession to the intestate, and encumbered with the duty to pay 
his debts^ he is considered in law as in privity with him, and 
therefore bound or estopped by a judgment against him. Yet 
his representation of his intestate is a qualified one, and extends 
not beyond the assets of which the ordinary had jurisdiction/^ 
Stacy v. DirasheTj 6 How. 63. 

In answering the objection that to apply these principles to 
a judgment obtained in another state of the union would be to 
deny it the faith and credit, and the effect, to which it was 
entitled by the constitution and laws of the United States, he 
observed that it was evidence, and conclusive by way of estop- 
pel, only between the same parties, or their privies, or on the 
same subject matter when the proceeding was in rem; and that 
the parties to the judgments in question were not the same; 
neither were their privies, in blood, in law, or by estate; and 
proceeded as follows: 

"An administrator under grant of administration in one 
state stands in none of these relations to an administrator in 
another. Each is privy to the testator, and would be estopped 
by a judgment against him; but they have no privity with 
each other, in law or in estate. They receive their authority 
from different sovereignties, and over different property. The 
authority of each is paramount to the other. Each is account- 
able to the ordinary from whom he receives his authority. 
Nor does the one come by succession to the other into the trust 
of the same property, encumbered by the same debts.'' {^acy 
V. Thrash^, 6 How. 59, 60.) 

"It is for those who assert this privity to show wherein it 
lies, and the argument for it seems to be this: That the judg- 
ment against the adiAinistrator is against the estate of the 
intestate, and that his estate, wheresoever situate, is liable to 
pay his debts. Therefore the plaintiff, having once established 
his daim against the estate by the judgment of a court, should 
not be called on to make proof of it again. This argument 
assumes that the judgment is in rem, and not in persoimm^ or 
that the estate has a sort of corporate entity and unity. But 



222 Bbaithwaitb v. Harvey, [March T., 1894 

that is not true, either in fact or in l^al construction. The 
judgment is against the person of the administrator, that he 
shall pay the debt of the intestate out of the funds committed 
to his care. If there be another administrator in another state, 
liable to pay the same debt, he maybe subjected to a like 
judgment upon the same demand, but the assets in his hands 
cannot be affected by a judgment to which he is personally a 
stranger. The laws and courts of a state can only affect per- 
sons and things within their jurisdiction. Consequently, botli 
as to the administrator and the property confided to him, a 
judgment in another state is res inter alios ada* It cannot 
even be prima fade evidence of a debt, for, if it have any effect 
at all, it must be as a judgment, and operate by way of estop- 
pel.'' (Stocy V. Uiraslier, 6 How. 60, 61.) 

In Low V. BarUeit, 8 Allen, 269, following the decisions of 
this court, it was held that a judgment allowing a claim against 
the estate of a deceased person in Vermont, under statutes simi- 
lar to those of Michigan, was not competent evidence of debt 
in a suit in equity brought in Massachusetts by the same plain- 
tiff against an executor appointed there, and against legatees 
who had received money from him; the court saying: ^The 
judgment in Vermont was in no sense a judgment against 
them, nor against the property which they had received from 
the executor.* (8 Allen, 266.) 

If the judgment recovered in Dakota against the adminis- 
trator there is of no binding force and effect, not even effectual 
as evidence of a debt, against the administrator in this state, as 
is held by the authority just quoted, then the pleading of the 
same, as is done in this case, could subserve no valuable pur- 
pose, and it cannot be properly contended that the court erred 
in striking the same, and all reference tliereto, from the com- 
plaint. Appellant contends that it was necessary to plead 
such judgment and proceedings in order to show that the 
demand sued on here had been given credit for the amount 
realized under the Dakota judgment. We think this position 
untenable. Such credit could have been given in any suit on 
the demand in litigation. 

The appellant further contends that it was necessary to plead 
the Dakota judgment and proceedings, in order to show that 



14 Mont.] Braithwaitb v. Harvey. 223 

the Montana administrator, the defendant here is estopped 
from disputing the claim sned on by reason of his having 
taken part, as alleged in paragraph 21, stricken from the com- 
plaint, in defending said Dakota suit in the name of Harvey 
Harris, administrator there. We think this contention can- 
not be maintained. There was no privity between these two 
administrators. This defendant had no authority to act or 
bind the estate outside of the jurisdiction of his own state or 
appointment.'' (See Johnson V. Powers, 139 U. S. 166, and 
authorities cited therein. 1 Woerner's American Law of Ad- 
ministration, § 160, p. 362.) 

Appellant contends that, whatever force and effect the court 
might give the Dakota judgment and proceedings set out la 
the complaint, and the action of the court therein, still he has 
a cause of action independent thereof, by reason of the alleged 
new promise in writing of Leighton in his lifetime, pleaded ia 
paragraph 22 of the complaint, which was stricken out by 
the court. After striking out said parts of the complaint, 
the court sustained defendant's demurrer thereto on the 
ground that the demand sued on was barred by the statute of 
limitations. This action of the court is especially attacked 
and complained of by appellant, as he says the court, by strik- 
ing out paragraph 22 of the complaint, left the same demur- 
rable, as said paragraph set up, as claimed, a new promise, 
made by Leighton in his lifetime, to pay the demand sued 
on. While, perhaps, it would have been more appropriate to 
attack this particular paragraph of the complaint by demurrer, 
yet whether prejudicial error was committed by the court iu 
its action we will consider later on. Does paragraph -22 
of the complaint contain and plead such a new promise to 
pay the demand sued on as will relieve it from the bar of the 
statute of limitations? It is conceded that the demand is barred 
unless the bar is removed by the new promise of Leighton in 
his lifetime, set out in said paragraph 22. We will consider 
this question as if said paragraph had not been stricken from 
the complaint. The written new promise of Leighton relied 
on to remove the bar of the statute of limitations in this case 
is as follows: 



224 Braithwaitb v. Hauvey. [March T., 1894 

"Miles Cixy, Montana, 7/21, 1888. 
"J. D. Biggeiiy PiUsburg, 

" Deab Sir: Nothing from you yet. If I don't hear soon, 
I will go to Bismarck, and tender amt. due, as I don't want 
to be bothered any more. Whatever is due is ready, as it has 
been for the last 7 years, whenever I can safely pay either you 
or Braithwaite. Yours truly, 

'* J. Leighton." 

The appellant relies on two other written instruments, signed 
by said Leighton, to relieve this demand from the bar of said 
statute. These instruments are as follows: 

"Miles City, Montana, 6/27, 1888. 
^John Biggeti, PiUAurg, 

" Dear Sir: Have just returned, and have been looking over 
matters. I am not satisfied about the settlement of Eclipse 
trip. Please write me your understanding of it. Also, if I 
settle with your folks, if they will see me clear of Braithwaite, 
&c. Write me at once. Yours truly, 

'* J. Leighton." 

"Miles City, Montana, 7/22, 1888. 
*'J. D. Biggei't, Pittsburg, 

"Dear Sir: Yours, with check, at hand. I am anxious to 
see Joe better. He came out and figured up books, and saw 
that we had a loss for 1, and went away satisfied, but we will 
write him after I get his letter. I cannot wait long for your 
decision. You know I am very ill, and I must have this thing 
off my hands. I want to help you in the matter, but the suit 
has got to be attended to. Very truly, 

"J. Leighton. 

"Why don't you write me about your letter of April, '82?" 

These last two instruments are referred to as exhibits, and 
the first instrument is set out in full in said paragraph 22. 
Said first written instrument or letter is especially relied on by 
appellant as constituting such an acknowledgment of the 
demand sued on, and new promise to pay the same, as to take 
the debt out of the operation of the statute of limitations. 

In Bell V. Morrison, 1 Pet. 352, a case involving the doc- 
trine under discussion^ Mr. Justice Story, speaking for the 



14 Mont.] Bbaithwaits t;. Habvxt. 225 

ooDrt^ says: '' To remove the bar of the statute of limitations 
by a new promise it mast be determinate and unequivocal; 
and, if the new promise is to be raised by implication of law 
from an acknowledgment, there must be an unqualified 
acknowledgment of a subsisting debt which the party is liable 
and willing to pay/' 

In Biddea v. Brizzolara, 56 Cal. 382, the court say: "If 
there be no express promise, but a promise is to be raised by 
^nplication of law from the acknowledgment of the party, such 
an acknowledgment ought to contain an unqualified and direct 
admission of a previous subsisting debt, which the party is lia- 
ble and willing to pay. If there be accompanying drcum-' 
dancei which repd the promise or intention to pay; if the 
expressions be equivocal, vague, and undeterminate, leading to 
no certain conclusion, but at best to probable inferences, which 
may afiect difiTerent minds in different ways, we think they 
ought not to go to a jury as evidence of a new promise to 
revive the cause of action. Mr. Justice Story, Bell v. Morri' 
son, 1 Pet. 362.'' "An acknowledgment of the debt to take 
the case out of the statute of limitations must be clear and 
unambiguous, and must recognize and be directed to the par- 
ticular debt and amount to an unqualified admission that it is 
due and unpaid." (5 Gen. Dig., U. S., § 526, p. 1399, and 
authorities ther^ cited. 

In McCbrmick v. Broum, 36 Cal. 185, 95 Am. Dec 170, the 
court say: " The acknowledgment must be a direct, distinct, 
unqualified admission of the debt which the party is liable and 
willing to pay." 

We think it cannot be contended that the two writings 
claimed to be acknowledgments and new promises, dated 
respectively 6/27, 1888, and 7/22, 1888, and set out above, 
contain any such acknowledgments of this debt, or new prom- 
ise to pay the same, as to relieve the demand sued on from the 
bar of the statute. The instrument dated 7/22, 1888, says 
nothing about this demand. The instrument dated 6/27, 1888, 
shows that Leighton is not satisfied about the settlement of 
the Edipse trip, and asks, ^* If I [Leighton] settle with your 
folks, if they will see me dear of firaithwaite," etc. If there 
is any promise in this, is it not conditional ? This certainly does 
Vox. 2IV.— 15 



226 Braithwaitb v. Harvby. [March T., 1894 

uot come within the requirements to take it out of the opera- 
ation of the statute, even if the instruments were otherwise 
definite and certain, in which respect it seems fatally defective. 
Now, as to the first instrument or letter of Leighton, chiefly 
relied on to take this case out of the statute of limitations, this 
letter, like the others, is written to one J. D. Biggert, at Pitts- 
burg. In this letter Leighton seems to complain of Biggert's 
delay. He says if he does not hear soon, he will go to Bis- 
marck, and tender amount due, as he does not want to be 
bothered any more. Then he says, " Whatever is due is ready, 
as it has been for 7 years, whenever I can safely pay either 
you or Braithwaite." Now, what are the legitimate inferences 
to be drawn from this letter and the others? 1. That Leigh- 
ton was ill, and was anxious to settle this matter in his life- 
time; 2. That he was willing, and had been for seven years, 
te pay whatever was due from him, when the amount could be 
ascertained, and he should know to whom he could safely pay 
such amount. It is very evident that there was a dispute as 
to what was due, and to whom it was payable. Leighton 
seemed anxious to pay when these two important matters were 
settled. His willingness to pay was evidently conditioned 
upon the ascertainment of the amount due, and when he was 
made secure in paying either to the parties represented by Big- 
gert or to Braithwaite. It does not appear that either of these 
things was ever done, or that Leighton's letter and terms 
therein stated were ever accepted or acted upon in any manner 
by plaintiff or any other party connected with this matter. 
These conditions should have been shown to have been per- 
formed by plaintiff before he seeks the benefit of the allied 
new promise to pay. {Bell v. Morrison, 1 Pet. 361.) This is 
not shown to have been done. But plaintiff seems to have 
disregarded the terms, conditions, and overtures of settlement 
contained in this alleged new promise, and now, after the deatli 
of Leighton, seek to avail himself of the benefits thereof, as if 
such conditions were immaterial. We think no other conclu- 
sion can be fairly reached from a pro2)er construction of all 
these letters and alleged new promises to pay. In none of 
these letters is there an unconditional, definite, certain, and 
unqualified acknowledgment of this demand, or any certain 



14 Mont.] MuTH V. Erwin. 227 

demand and promise to pay the same. We are therefore of the 
opinion that these written instruments or letters of Leighton 
are in8u£5cient to remove the bar of the statute of limitations. 
So holding, we see no error in the action of the court in hold- 
ing the complaint bad on demurrer, or that any substantial 
right of appellant was prejudiced by striking said paragraph 
22 from the complaint, as, in our view, the complaint did not^ 
in any event, state facts sufficient to authorize a recovery, for 
the reason that the demand sued on is barred by the statute of 
this state. 

We are of the opinion that the judgment should be affirmed, 
and it is so ordered. 

Affirmed. 

Habwood and De Witt, J J., concur. 



MUTH, Bespokdent, v. ERWIN, AppBLULirr. 

(Babmiiied September 11, 1888. Bedded March 19, 1884.1 

ATSMxmMMMT-^Amendment to affidavU.—li Is not error for the trial court to per- 
mit an attachment plaintiff to amend his complaint and afBdayit on attach- 
ment, withont an affidavit showing ground therefor, and pending a motion to 
dIsaolTe, wbare 4he amendment doea not alfeot the anhstantial zighto of %be 
parties. 

Appeal from Sixth Judicial Disbrict, Park OowUiy. 

Action on promissory note. Defendant's motion to dis- 
solve attachment denied bj Henby, J. Affirmed. 

OompbeU & Starh^ for Appellant. 

Bawxge A Day^ for Respondent. 

Habwood, J. — ^Respond^t, as receiver of the firm of 
Greenhood, Bohn & Co., brought this action against defend- 
ant to enforce payment of a promissory note, and sued out an 
attachment writ in the action, by virtue of which it appears 
certiun property was seized. Thereafter, motion was made by 
the defendant to quash the attachment on the ground that it 
did not appear by averment in the complaint or affidavit for 



228 Merbitt v. McNally. [March T., 1894 

attachment, that the receiver was duly authorized by the court 
appointing him, to bring this action for the enforcement of 
said debt Thereupon, plaintiff, by permission of court, 
amended the complaint and affidavit by inserting therein such 
averment, and thereafter the court overruled the motion to 
dissolve the attachment. Defendant excepted to the action of 
the court in allowing such amendment pending the ruling on 
the motion to dissolve the attachment, and overruling such 
motion, because the amendment had supplied the defect to 
which the motion was pointed Such exception raises the 
only question presented on this appeal. 

The ruling of the trial court, excepted to, undoubtedly con- 
forms to the intendment of the provisions of the Code of Civil 
Procedure, as heretofore held by this court (Joaephi v. Mady 
Qoihing Oo.y 13 Mont 196.) The defect amended was not 
one which affected the merits of the demand or defense thereto, 
and would scarcely need an affidavit to lay a foundation for 
such amendment Moreover, an omission to require an affi- 
davit to show ground for an amendment not affecting the sub- 
stantial rights of the parties would not justify the reversal of 
the judgment (Code Civ. Proc., § 119.) The order of the 
trial court overruling defendant's motion to dissolve the 
aftachment and the judgment will therefore be affirmed. 

Affirmed. 

Pembebtoit, C. J.^ and De Witt^ J.^ concur. 



MERBITTi Appellant^ v. MoNALLY et au, Bebponb- 

ENTB. 
[Sabmitted Jane avisos. I>eoidfidlCaMh 19,18M.] 

NaauGSiTGi— BuiUiny in$peetor^OUy ordinanc$,^k oiiy ordinuioe reqniiing a 
building inapeotor to inspeot buildings in oonne of oonstniotion tnd to *<aee* 
that they are being oonstrncted as provided by the ordinance imposes upon 
him the daty of enforcing from bnilders obedience to its requirements, and 
for a neglect of this duty he is liable in damages to one who sustains injury by 
the fall of a building constructed in a careless and grossly negligent manner, 

Baio— Pteodiny— 2>«/enss.— In an action for damages against a city oiBoer for 
negligenoe of a duty prescribed by ordinance, an objection to the complaint 



14 Mont.] Mbrritt v. McNally. 229 

that it does not ihow that the officer had the meani of enforoing the proyiBions 
of the ordinanoe will not be lUBtained on demorier, bat the Boffioieney of BOOh 
mat of meani •• a defense may be determined upon an answer. 

Appeal from First Judicial Didrid, Leuns and Garhe Oomdy. 

Action for damages. Judgment was rendered for defend- 
ant below by Hunt^ J., on demurrer. Reversed. 

Statement of the case by Mr. Justice Db Wnr: 
This action is against the defendant McNaily as building 
inspector, and against his sureties upon his official bond as such 
inspector. Separate demurrers of MoNally and his sureties, 
respectively, were sustained. Judgment was thereupon entered 
for defendants, from which the plaintiff appeals. The question 
being whether the complaint sets forth a cause of action, it will 
be necessary to recite the principal points in that pleading, 
which are as follows: The city of Helena is a municipal cor- 
poration. This city, under the acts of the legislative assembly, 
has power to regulate, by ordinance, the construction of build- 
ings within the dty. The city council passed an ordinance 
entitled ^* Building,'' known as chapter 10 of the Ordinances of 
the City of Helena. The whole ordinance, which is a lengthy 
one, is pleaded in the complaint. Section 1 of the ordinance 
provides for the appointment of an inspector of buildings, who 
shall be a practical builder, and shall hold his office for the term 
of one year, eta The defendant McNally, prior to the acta 
complained of in the complaint, was duly appointed building 
inspector, and was qualified to act as such at the time men- 
tioned in the complaint. That ordinance further provides: 
'' When any person or persons, or corporation, shall be desirous 
of erecting, repairing, changing, or altering any building, 
buildings, or structure within the limits of the city of Helena, 
he or they shall make application at the office of the building 
inspector for a permit for that purpose, and shall furnish said 
inspector with a written statement of the proposed location, 
dimensions, and manner of construction of the proposed build- 
ing, buildings, or structure, and the materials to be used, and a 
plan of the plumbing, draining, and ventilation, together with 
plans and specifications of the proposed building, buildings, or 



230 Mbrritt v. McNally. [March T., 1894 

structure^ which shall be delivered to said building inspector, 
and remain in his custody a sufficient length of time to allow 
the necessary examination to be made of the same, and, if 
required by the inspector, a copy of said plans and specifica- 
tions shall be filed in the office of said inspector of buildings. 
After which, if it shall appear to said inspector that the laws 
and ordinances of the city are complied with, he shall give the 
permit asked for, upon the payment of the following prescribed 
fees: . . • • Blank forms for the detailed statement as herein 
required may be obtained at the office of the inspector of 
buildings for the applicants to fill out^ describing location of 
proposed structure, number and height of stories, size of joists, 
and distance apart, dimensions of supporting ironwork, for 
what purpose the building, buildings, or structure is designed, 
and such other information applicable to the proposed improve- 
ment, which statement so properly filled out the owner or 
owners, his or their architects or agent, shall sign, with the 
agreement contained in said detailed statement that he or they 
will, in all respects, construct the work in accordance with 
such detailed statement, plans, and specifications, and in com- 
pliance with the laws and ordinances of the city of Helena, and 
it shall not be lawful to proceed to construct, alter, or repair 
any building, buildings, or structure within the limits of said 
city of Helena without such permit/' 

Section 4 of that ordinance further provides as follows: ^ The 
said inspector shall keep an office in the city hall, or such other 
place as shall be provided by the city council, where it shall 
be the duty of said inspector to keep a record of all permits 
issued, which shall be regularly numbered in the order of their 
issue, and also a record of the statements upon which permits 
are issued. He shall also keep a record of, and report to the 
common council, a full and complete register of the number 
description, and size of every building erected in the city dur- 
ing his term of office, of what material constructed, with the 
aggregates of the number, kind, and costs of all buildings, and 
the sanitary condition of all buildings/' 

Section 6 of the ordinance is as follows: '' It shall be the 
duty of every inspector appointed under the provisions of this 
act to Tisit and inspect each and any house or houses, build- 



14 Mont.J Mbrritt v. McNally. 231 

ing or buildings which may be in the course of erection^ con- 
structiouy or alteration within the limits of the citj, and to see 
that each house or houses, building or buildings are being 
erected, constructed, or altered according to the provisions of 
this ordinance, and all acts and ordinances in force in said city, 
and the manner adopted for the security thereof against fires, 
and the safety of the occupants; that the materials used are 
suitable for the purpose, and that the work is done in a sub- 
stantial and workmanlike manner, and is of sufficient strength 
and solidity to answer the purpose for which it is designed, 
and before the foundations are laid he shall examine the 
trenches dug for the same, and be fully satisfied that the soil 
or substratum is sufficient for the structure, or, at least, the 
best that can be obtained, and should the nature of the soil be 
such, and the work of sufficient magnitude as to require piling, 
flagging, or lagging, the same shall be done; promded, that it 
may be deemed necessary by the inspector; that his visits and 
inspection shall be repeated from time to time during the erec- 
tion, construction, or alteration of such house or houses, build- 
ing or buildings, until the walls shall have been completed and 
the same inclosed, when his duties shall terminate. He shall, 
oo application for that purpose, furnish tlie owner or ownersi 
contractor or contractors, his certificate that the said house or 
building is, in all respects, conformable to law and properly 
constructed.'' 

In later sections of the ordinance there are detailed provi- 
mons as to the strength of walls of certain heights, and for the 
use of various kinds of materials, which provisions need not 
be recited in full. 

Section 57 provides as follows: ''Before the erection, con- 
struotioo, or material alteration of any building in the city of 
Helena the owners, architect, or builders shall submit to the 
inspector of buildings full specifications and plans of the pro- 
posed construction or alteration, and a detailed statement in 
writing. Such statement shall give: .... The owner, his 
agent, or architect shall then sign an agreement that he will 
construct the work in accordance with the description as set 
forth in such specifications, plans, or detailed statement, and all 
matters and things connected with such construction or altera- 



232 Mkrritt v. McNally. [March T., 1894 

tion of any building shall be done in strict compliance with 
the building ordinance. Thereupon, the inspector of buildings 
shall issue a permit to make such construction or alteration, 
upon the payment of the fees hereinbefore mentioned in this 
article, and it shall not be lawful to proceed to construct or 
materially alter any building without such permit.'' 

In section 68 we find the following: ^'Any person who 
shall violate any of the provisions of this ordinance, where no 
other penalty is provided, shall be subject to a fine of not less 
than ten dollars, nor exceeding one hundred dollars, for each 
and every ofiTense." 

The complaint then goes on to allege that on the 6th of 
August, 1891, the plaintiff was the owner of, and in possession 
of, certain premises within said city, describing the premises. 
That on or about the last of March, 1891, on premises adjoin- 
ing those of plaintifiT, excavations were made for a building 
foundation, and from that time on, up to and including said 
fifth day of August, 1891, a two-story building of brick and 
stone was in course of erection and construction. 

That it was the duty of said McNally, by virtue of his office 
as building inspector, to see that said building was erected in 
accordance with the laws and ordinances relating to the con- 
struction of buildings in said city, and to visit and examine 
said building, and see that the walls thereof conformed to the 
provisions of said ordinance. That said McNally wrongfully 
disregarded his duty, and failed and n^lected and refused to 
visit and inspect said building, although he well knew that it 
was in process of erection. That he wrongfully neglected and 
failed to see that said building was being constructed accord- 
ing to the provisions of said chapter 10, entitled ^* Building." 
And that he n^lected to see that the building was being con- 
structed in such a manner as to insure the safety of the 
occupants of said building, and of the plaintifiT's adjoining 
premises. 

Then follows detailed allegations of the building inspector's 
negligence to see that certain things were done about said 
building in accordance with the sections of the ordinance which 
have been heretofore cited fully. That, by reason of defend- 



14 Mont.] Mbrbitt v. McNally. 233 

ant's negligence^ the walls of the building were oonstrncted in 
an anskillful, careless, and grossly negligent manner. 

Then follow details showing wherein was the negligence of 
construction. That by reason of said negligeucei on the 6th 
of August, 1891, the building in course of construction fell 
upon the dwelling-house of plaintiff, and crushed and demol- 
ished the same. 

Then follow allegations of the particulars of the damage, 
including the destruction of furniture, the killing of plaintiff's 
infant child, the exposure of his wife to the inclemency of the 
weather, the contracting of physicians' bills, funeral expenses, 
etc. 

The demurrers of the separate defendants were upon the 
ground that the complaint did not state facts sufficient to con- 
stitute a cause of action against the defendants. 

Henri J. Haskell, and E. L. Knowles^ for Appellant 

When one sustains an injury through the misfeasance or 
nonfeasance of a public officer, who acts, or omits to act, con- 
trary to his duty, the law renders him liable in a civil action 
to any person thereby injured. (AdsU v. Brady, 4 Hill, 630; 
40 Am. Dec. 306; N(ywell v. Wright, 3 Allen, 166; 80 Am. 
Dec 62; Hover v. Barhhoof, 44 N. Y. 114; Smith v. Wright, 
24 Barb. 172; Shearman & Bedfield on Negligence, 3d ed., 
§ 168, p. 209, and cases cited in notes; Bennett v. Whitney, 94 
N. Y. 302, 306; Eobinson v. OMmberlain, 34 N. Y. 389; 90 
Am. Dec. 713; Oovemor v. Dodd, 81 111. 162.) When the 
law defines the duties of a public officer his sureties are 
responsible for the faithful performance of such duties,^ and 
are liable in case of his misfeasance or nonfeasance in office. 
(Smith V. Lovell, 2 Mont. 332; Maddox v. Rader, 9 Mont. 126, 
136; Van PeU v. Littler, 14 Cal. 198, 199; ForgaHy v. Flnlay, 
10 Cal. 240; 70 Am. Dec. 714; MoComb v. Beed, 28 Cal. 281; 
87 Am. Dec. 116; ZHegler v. Ocmmonweabh, 12 Pa. St. 227; 
Missoula County v. JEdwards, 3 Mont. 60; Governor v. Ridgtoay, 
12 111. 19.) Section 4 of chapter 10, entitled "Building/' of 
the Bevised Ordinances of the city of Helena, page 89, is 
mandatory, and has a penal provision thereto attached. Sec- 
tion 6 of said chapter is also mandatory, and does not depend 



284 Mbrritt v. McNally. [March T., 1894 

fer its oonstnicfcioii upon the provifiioDB of section 4. It will 
be seen that section 16 of chapter 7 of the Revised Ordi- 
nances of the City of Helena, page 77, is mandatory, bnt 
has no penal provision attached thereto. Section 2, page 
71, of said chapter, is also mandatory. The individual 
cannot sue for the reason that the grievance of one is the 
grievance of all. Not so when the building inspector fails 
to do his duty, and damages thereby accrue to a citizen. 
The requirements of said section 4 are such that the act of 
erecting a building within the city limits is constructive notice 
to the inspector, bnt in this case the pleadings show that the 
inspector had express notice of the construction of the build- 
ing, and willfully neglected to perform his duty. There is no 
ambiguity in this section, and the language used is simple and 
dear. When the meaning of the statute as it stands is dear, 
courts have no power to insert qualifications. (Sedgwick on 
Construction of Statutory and Constitutional Law, p. 326, 
par. 1; Supervisors of Niagara v. Peopk, 7 Hill, 511; C&rbeU 
V. Bradley, 7 Nev. 106, 108; Smith v. WiUiama, 2 Mont. 198.) 
The power of construing a statute strictly or liberally only 
exists in those cases where the intent is ambiguous and the 
effort to arrive at it hopeless. (Sedgwick on Construction of 
Statutory and Constitutional Law, p. 826, par. 2; Koeh v. 
Bridges, 46 Miss. 247; Smith ▼. WiUiams, 2 Mont 199, 201; 
BidtpeU V. Wkitaker, 1 Mich. 469, 480.) The means of arriv- 
ing at the intent are to be found in the statute itself. No 
extrinsic facts are to be taken into consideration. (Sedgwick 
on Construction of Statutory and Constitutional Law, 325, 
note; Damds v. Andes Ins. Co., 2 Mont. 78; Endlich on 
Interpretation of Statutes, § 431, p. 607.) Effect, if possible, 
must be given to every word and clause of a statute. {AUor^ 
ney Oeneral v. Detroit ete. Plank Road Co., 2 Mich. 139, 142; 
Bonnet v. San Francisco, 65 Cal. 231; Eo parte Reis, 64 Cal. 
240; Hyatt v. Allen, 54 CaL 363, 369.) Where words have a 
technical and a popular meaning courts will accord to them their 
popular meaning. (WeUl v. KmfiM, 54 CaL 111, 113; In re 
Maguire, 57 Oal. 604; 40 Am. Bep. 125; Appeal of Houghton, 42 
Cal. 52.) The requirements of a statute can never be dispensed 
with as being directory when the act or omission of it can, by 



14 Mont.] MsRRiTT V. McNally. 235 

any possibility work advantage or injury, however slight, to any 
one affected by it. (Koch v. BridgeSy 45 Miss. 247; Looney v. 
Hughes, 30 Barb. 606, 607, 608; People v. San Francisco^ 36 
Cal. 603; Mines v. OUy of LochpoHj 5 Lans. 21; Territory v. 
Board of Commissioners, 8 Mont. 409.) An officer acting 
under his oath of office and bond is required to understand 
thoroughly the duties, objects, and responsibilities of his office, 
and to at all times know and contemplate the result of a viola- 
tion of his duties. So, if a party contracts with reference to 
a law or ordinance, the law itself becomes a part of the con- 
tract, and he is bound thereby. {MaJLoon v. Eder, 6 Cal. 69.) 
The condition of the bond is that he shall and will faithfully 
and impartially discharge all duties of inspector of building 
in the city of Helena, and that in all things he will faithfully 
discbarge the duties of said office. Such a condition in a 
notary's bond is the only proper condition to be inserted. 
{Tevis V. BandaU, 6 Cal 632; 66 Am. Dec. 647.) Failure of 
a person to perform a duty imposed upon him by statute or 
other legal authority should always be considered evidence 
of negligence or something worse. (Shearman & Redfield on 
N^ligence, §§ 13 a, 64 a, p. 69; Siemers v. Eisen, 64 Cal. 420.) 
Nor is the fact that the defendant contracted faithfully to per- 
form his duties, not to the'plaintiff, but to the government, any 
defense, for the action is founded, not on the contract, but ou 
breach of duty. (Henly v. Mayor of Lyme, 6 Bing. 107, 109; 
Farrani v. Barnes, 11 Com. B., N. S., 663; Marshall v. York 
eto. R. R. Co., 11 Com. B. 656; Burnett v. Lynch, 6 Barn. & 
C.689, 691,693; Winterbottom v. Wright, 10 Mees. & W. 109.) 
A general power, granted by charter or by the legislature, 
includes all incidental powers necessary to the carrying out of 
the general power. (Oray v. OUy of Brooklyn, 7 Hun, 633; 
Mayor etc v. Hoffman, 29 La. Ann. 666; City of Olympia v. 
Mann, 1 "Wash. 389; Baumgartner v. Hasty, 100 Ind. 679, 
680; 60 Am. Rep. 830; Hubbard v. Toum of Medford, 20 Or. 
316; Oranin v. People, 82 N. Y. 318; 37 Am. Rep. 664; JFW- 
fMor V. Curtis, 86 Ala. 364; 1 Dillon on Municipal Corpora- 
tions, % %0, p. 148.) 



236 Mbrritt v. McNally. [March T., 1894 

Ward, Smith & Word, for BespondeDis. 

I. Nowhere does the complaint allege that an application 
was made or a permit granted for the construction of the 
builduig^ the falling of which, it is alleged^ caused the injury. 
The plans and specifications, which under sections 2 and 67 
must be submitted to the inspector, must contain a description 
of the materials to be used in the proposed structure, its pur- 
pose and design, ita proposed location, and the number of its 
stories. The performance of the duties set forth in section 5, 
on the part of the inspector, plainly contemplates the per- 
formance of the requirements of sections 2 and 67 on the part 
of the builder. In other words, the inspection of *' each and 
every building,^' made necessary by section 6, embraces only 
those buildings for which a permit has been obtained. If 
this be so, there was, then, no duty resting upon the defendant 
officer to inspect the building mentioned in the complaint, and 
for his failure to act he is not liable. 

II. The duty of the officer must be entire, absolute, and 
perfect, and he must be clothed with the ability to perform it 
{Nowll V. Wright, 3 Allen, 266; 80 Am. Dec. 70; BarOdi v. 
Oozier, 17 Johns. 460; 8 Am. Dec. 428; Hover v. Bwrkooffy 
44 N, Y. 113; Weed v. BaUstcm, 76 N. Y. 329; Shearman & 
Redfield on Negligence, §§ 172, 173; Beaneft v. Whitney, 94 
N. Y. 302; Mecham on Public Offices, § 669.) 

III. The alleged omission of the inspector to act was not 
the proximate cause of the injury complained o£ It is not 
enough for the plaintiff to show an iujury, but he must go 
further and show that the injury was caused by the negligence 
of the defendant {State v. Harris, 89 Ind. 363; 46 Am. Rep. 
169; Eelava v. Jmes, 83 Ala. 139; 3 Am. St Bep. 699; Zoop 
V. IAtdifield,42 N. Y. 351; 1 Am. Rep. 643; Anihmyv. Slaid, 
11 Met 290; JMecham'on Public Offices, §§ 676, 680, and 
cases.) Would an inspection by the officer in this case have 
averted the injury complained of? Take the case of a build- 
ing which is going up under a permit issued and an agreement 
signed to properly construct the same. The inspector sees 
during his visits that the architect is not following the plans 
and specifications submitted. It may be that the variation is 
a material one; that if allowed to continue it may weaken the 



14 Mont.] Mbrritt v. McNally. 237 

building and render it unsafe. Will it be contended that the 
mere presence of the inspector of buildings, or his visits, how- 
ever often repeated, would lessen or abate the danger? If it 
will not, then this o£Scer is not liable bejond his duty to con- 
demn the structure by refusing a certificate for the same, unless 
under this ordinance he had the power, and it was made his 
duty, to abate the defective building. The exercise of a posi- 
tive power, the ability to condemn and destroy, was the rem- 
edy in such a case. Counsel for appellant seems to see in 
section 5, in the use of the words ^Wisit and inspect and see^' 
that each house and building conforms to the provisions of the 
building ordinance, the conferring upon the inspector such a 
power, but respondents contend that a comparison of section 5 
with the other sections of the ordinance, and a construction of 
the above words in their usual and popular meaning, will lead 
to the conclusion that no such power was, or was intended to 
be, conferred. The powers of the inspector are in their nature 
negative. He may refuse to grant a permit in the first 
instance; he may refuse to issue a certificate that the building 
is properly constructed in the second. Nor is it anywhere iu 
this ordinance made his duty to notify the council, or other 
officer or body, that a building is going up for which a permit 
has not issued, or that an architect is not following in the con- 
struction of t building the plans and specifications submitted. 
In this respect the ordinance may be said to be defective, but 
if 80, the blame cannot fall upon the inspector. To give to 
section 6 the construction appellant seeks to put upon it is to 
render it null and void. Under the charter of the city the 
power to declare and condemn nuisances is vested in the city 
council. Even that body cannot by an ordinance or resolu- 
tion make that a nuisance which is not so in fact. (1 Wood 
on Nuisances, §§ 744; Hennery v. City oj 8L Paul, 37 Fed. 
Eep. 565; Yatea v. Milwaukee, 10 Wall. 497.) A further rea- 
son that the construction sought to be given to section 5 must 
be rejected is that it is vesting in an inspector of buildings the 
functions of a judge, of a jury, and of a police officer. It is 
placing the property of the citizens of the city at the disposal 
of the inspector of buildings. It is delegating to this officer 
functions and powers given to the city by the legislature. 



238 Mbrbitt v. McNally, [March T., 1894 

which the city holds in trusty and which are not sabject to 
delegation. (16 Am. & Eng. Encj. of Law, 1043, note 1, and 
cases.) 

IV. The duties of the inspector of buildings are known as 
quad judiciaL They are owing solely to the public For the 
nonperformance of such duties there is no liability to individ- 
uals. (Meeham on Public Offices, § 673; State v. Harris, 89 
Ind. 363; 46 Am. Rep. 169; Cooley on Torts, 2d ed., 444-47; 
2 Thompson on N^ligence, § 11, p. 822.) 

De Witt, J. — ^The ground on which the demurrers were 
sustained in the court below seems to be that, notwithstanding 
how great the damage may have been which the plaintiff suf- 
fered, the defendant McNally was not, by virtue of his official 
position or otherwise, to be held liable for these injuries. The 
defendant was a public officer, to wit, building inspector of the 
city of Helena, and in the pay of the city as such officer. 
The cause of action attempted to be alleged against him is that^ 
as such officer, he acted so negligently— or perhaps it might 
better be said, so negligently failed to act — ^that the damage 
described in the complaint resulted. Whatever may have been 
the early rulings upon this point, it seems to be settled, in 
modern times, that where a public officer is exercising minis- 
terial powers, and where he performs his duties ciq;ligently, or 
where he carelessly or willfully or knowingly &ils to perform 
the duty at all, and from such failure on his part damage 
results to another, such person so damaged has a cause of action 
against such officer. (Throop on Public Officers, c. 29, § 724 
et seq.; Ra/j/nrfard v. Phdpa, 43 Mich. 342; 38 Am. Rep. 189; 
Hines v. (Xty of Lookport, 50 N. Y. 236; Amy v. BupertMorSf 
11 Wall. 136; Shearman & Bedfield on N^ligence, 324, and 
cases; Robinaon v. Chamberlain, 34 N. Y. 389; Hover v. Bark* 
hooffj 44 N. Y. 113, and review of cases; AddJb v. Brady ^ 4 
Hill, 630; 40 Am. Dec. 305; BenneU v. Whitney, 94 N. Y. 
302; Nowellv. TfVi^A^, 3 AUen, 166; 80 Am.Dea62; Bishop's 
Nonoontract Law, § 796.) 

It is also held that if an officer of this sort is to be liable 
for damages, it must appear that the duty imposed upon him 
was a clear and absolute one. (See cases mpra and ii^/ra.) 



14 Mont.] Mbrritt v. McNally. 239 

"We will therefore first inquire whether the ordinance of the 
city purports to impose upon the building iu8{)ector the duty 
with the neglect of which he is charged. At the outset we 
will endeavor to construe the word "see," as used in section 
5. The words are, "and to see that each house or houses, 
building or buildings, are being erected, constructed, or altered, 
according to the provisions," etc. The respondent would give 
to this word "see" a very literal construction. In his view it 
would seem to mean simply to look at or to observe. On the 
other hand we think the word is used in the sense of "to cause 
to be done or accomplished." A parallel case may be observed 
in section 6, artide YII, of the constitution of the state, which 
reads as follows: " The supreme executive power of the state 
shall be vested in the governor, who shall see that the laws are 
faithiuUy executed." We are satisfied that the word "see," in 
this case, does not mean simply that the governor shall stand 
by and look at or observe the laws being fisiithfully executed, 
but that this provision of the constitution is in the nature of a 
command to the governor to require the laws to be faithfully 
executed, whenever there is need for the interposition of the 
executive arm. The word "see," as used in the ordinance, is 
in the sense defined by the "Century Dictionary," in the fifth 
subdivision of definitions of that word, as follows: "To bring 
about as a result; superintend the execution or the performance 
of a thing so as to effect a specified result; make sure; with an 
object dat^ with Hhat' specifying the result. 'See that ye 
fiill not by the way.' (Gen. xi v: 24.)" We are therefore of the 
opinion that the use of the word "see," in this ordinance, is 
the laying of a duty upon the building inspector to require 
buildings to be erected in accordance with the provisions of the 
ordinance. It seems to us that any other view of the meaning 
of the word "see," in this connection, would be a wholly unrea- 
sonable one. Therefore, we may conclude that the duty was 
clearly imposed upon the building inspector to "see" or to 
require tnat the building in question was properly erected. 

The allegations of the complaint that the building was not 
properly erected, in accordance with the ordinance, are perfectly 
dear; also, the all^tions are dear that the inspector did not 
see that the building was properly erected. Respondents here 



240 Mkbritt v. McNally. [March T., 1894 

interpose the suggestion that, even if a duty is imposed upon a 
public officer, he is not liable for its nonperformance if the 
law provides him no means for the performance. Cases of 
bridge and highway commissioners are cited, in which the com- 
missioners had no funds with which to repair the bridge or 
highway upon which the injury occurred. (Throop on Public 
Officers, 737, and cases; Oarlinghouae v. Jaoob%y 29 N. Y. 
297; Hine% v. OUy of Lockporty 60 N. Y. 236; Shearman & 
Bedfield on Negligence, § 324, and cases; NoweU v. Wright^ 3 
Allen, 166; 80 Am. Dec. 62; Mecham on Public Offices, 
§ 669; Cooley on Torts, 399.) 

. It is contended by respondents that it appears by the com- 
plaint that, even if the duty were laid upon the defendant, the 
building inspector, to require the building to be properly con- 
structed, yet it also appears by the complaint that defendant 
had no means provided him of performing this duty, and he is 
therefore not liable, and the demurrer was consequently prop- 
erly sustained. But we are of opinion that there are all^a- 
tions in the complaint which dispose of respondent's contention 
adversely to him. A total and willful neglect of defendant's 
duty is charged. It was his duty to 'Wisit and inspect" this 
building (Ordinance, § 6), and to ''see" — ^that is, to require — 
that it be properly constructed. The defendant not only did 
not see or require that the building was properly constructed; 
but he neglected to visit or inspect the building as required by 
ordinance (§ 6). Moreover, he refused to visit or inspect the 
building; and, furthermore, he knew that the building was in 
process of construction, and his neglect and refusal to visit and 
inspect the building, or to see that it was properly constructed, 
was wrongful, and with knowledge. By reason of this neglect 
and refusal pf defendant the acoident occurred. So that the 
charge of the complaint is that the ordinance required def<»d- 
ant to perform certain duties, and that he knowingly and will- 
fully not only n^lected, but refused, to perform them, and 
that, as a result of this neglect and refusal, the injury occurred. 
But it does not appear by the complaint that the defendant 
had no means by which he could visit or inspect the bnildbg, 
or see that it was properly constructed, nor does it appear by 
the complaint that defendant was unable so to do. We are 



14 Mont.] Merritt v. McNally. 241 

therefore of 02)iuioQ that this complaint is good on demurrer^ 
and that if it be true that defendant had not the means or tlie 
ability to visit or inspect, or see that the building was prop- 
erly constructed, or was prevented from so doing, the question 
of the defense of such matter may be determined upon an 
answer. 

The objections to the complaint, which we have discussed, 
are those presented by counsel. The judgment of the district 
court is reversed, and the case is remanded, with instructions to 

that court to overrule the demurrer. 

Eeveraed. 

PEBfBEBTON, C. J., and Harwood, J., concurring. — In our 
opinion the complaint is not vulnerable in the points attacked 
by demurrer, as contended by respondents' counsel on the 
argument in this court. The interpretation that the clause of 
section 6 of the ordinance in question, which provides that ^^it 
siiall be the duty of every inspector appointed under the provi- 
sions of this act to visit and inspect each and any house or 
houses, building or buildings, which may be in the course of 
erection, construction, or alteration within the limits of the 
city, and to see that each house or houses, building or build- 
ings, are being erected, constructed, or altered according to 
the provisions of this ordinance,'^ lays upon the building 
inspector no- responsible duty of exertion or action in his offi- 
cial capacity, and authority to inspect and demand of builders 
a compliance with the provisions of that ordinance, or, when 
^'seeing'' the same violated, to lay such information before 
other agents of the city, for the purpose of putting in force the 
means provided by the municipality for the correction of the 
violation of its ordinances, is untenable. Such interpretation 
is neither conformable to the definition of the terms used, as 
shown by dictionaries of authority, nor in accordance with the 
common understanding of the force and effect of such a com- 
mand of law applied to such a subject, or found in context like 
that under consideration, where, all the way through the ordi- 
nance, action is enjoined upon the inspector appointed and 
compensated to discharge the d uties therein prescribed. Accord- 
ing; to the interpretation of counsel for respondents, the build- 
ToL. XIV. -16 



242 Mbrritt v. McNally. [March T., 1894 

iDg inspector might "see" that the ordinance put under his 
monitory care was complied with or violated with the same 
supine inertia on his part in either case. Under such inter- 
pretation, it would have been quite as well, or perhaps even 
better, as attended with less draught on the people's revenue, 
and less danger and deception to inhabitants, arising from the 
exi)ectation that he would see that anj thing was done, for the 
city to have appointed a stone or wooden statue, as to appoint 
a sentient being, to discharge the duties of building " inspector*'; 
for, if respondents' interpretation of the provisions of the ordi- 
nance declaring his duties is correct, whether seeing that the 
provisions of the ordinance were obeyed, or being utterly obliv- 
ious to that fact, amounted to the same thing, so far as 
responsibility on the part of the inspector to exert himself to 
demand obedience or cause arrest of violation went, because, 
under such interpretation, the inspector might "see*' dangerous 
structures rise up, in violation of the ordinance, to fall and 
destroy life and property, and yet neither demand compliance 
with nor report violation of the ordinance to other municipal 
authorities, in the attempt, at least, to prevent the mischief by 
setting in motion such means as the municipal government has 
provided to correct such abuse. This interpretation is not 
according to the common understanding of the effect of such 
injunctions of law, as found in the ordinance prescribing the 
duty of the building inspector. 

The other point of objection urged against the complaint — 
that it does not show that respondent was clothed with the 
necessary power, or had at his disposal the means of enforcing 
the provisions of said ordinance, or arresting proceedings in 
violation of its terms — is not, in our opinion, well taken. 
Whatever facts in defense respondent may have to shield him- 
self from liability for the injury charged to his negligence 
should be set up in answer. If he can show that having used 
the proi>er diligence in exerting the power of his office, and the 
other available means which may have been commanded, and 
having done his duty, the hurt, nevertheless, ensued without 
his fault, because there were no means of arresting the viola- 
tion of the ordinance, or because other agents of the munici- 
pality did not pursue their duty, if it was necessary to call 



14 Mont.] Board Mbd. Exam. v. Kellogg. 243 

upon them, those facts are {)ecul]arly matters of defense, to be 
set up by defendant's answer. The complaint charges that the 
damage resulted from the negligence of defendant, in his fail- 
ure to discharge certain duties pertaining especially to his 
ofiSce. That is the issue which he must meet, and if he is able 
to show that the damage resulted, not from his negligence, but 
from other conditions, it is a matter of defense. 

From a careful consideration of all the objections urged 
against the complaint, we think the demurrer should be over- 
ruled, and the order of this court will be entered accordingly. 



BOARD OF MEDICAL EXAMINERS, Respondent, v. 
KELLOGG, Appellant. 

[Bubmittod March 6, 1894. Decided March 19, 1894.] 

Phtsicuiib akd SuBOEasB—Bevocation of license — Stay of proceedings,— ^ThA 
refasal of the trial court to stay proceedings npon an appeal from a judgment 
reroking the license of a physician to practice his profession wiU not be dis- 
turbed on appeal in the absence of an abase of discretion; nor will this court 
in such case upon motion stay the operation of such judgment pending reriew 
on appeaL 

Appeal from First JudicicU Districty Lewis and Qarke Oov/nty. 

Action by board of medical examiners to revoke the license 
of a physician. On motion for an order fixing supersedeas 
bond and staying operation of the judgment pending an appeal. 
Denied. 

r. J. Wahhf and J. W. Kinsley, for Appellant. 

0. B. Nolan, and Blake & PenweU, for Respondent. 

Per Curiam. — In this case appellant moves this court for 
an order fixing ;the amount and conditions of bond to be exe- 
cuted by appellant and sureties in behalf of a stay of proceed- 
ings on, and superseding the operation of, the judgment of the 
trial court, and asking that, on the execution, approval, and 
filing of such bond, this court make such an order staying tlie 
operation of the judgment i)endiiig review on appeal. 



244 Board Med. Exam. €. Kbllogg. [March T., 1894 

By the judgmcDt of the trial court, appellant's license to 
practice medicine as a physician and surgeon in this state is 
revoked and annulled, with judgment for costs of prosecution. 
Therefore, by the effect of such judgment, appellant stands in 
the attitude of one seeking to practice medicine in this state, 
but without license so to do; and the act of practicing medi- 
cine without license is by statute made a criminal offense, 
punishable by fine or imprisonment, or both. The effect 
sought by an order to stay proceedings on the judgment below, 
in so far as the same regards enforcement of costs, is consum- 
mated by the cost bond upon an appeal; but the further effect 
sought by such order is to license or permit appellant to con- 
tinue the practice of medicine, notwithstanding the revocation 
of his license, until review and final determination of the 
appeal by this court Whether such an order staying pro- 
ceedings on the judgment, as sought, would stay the operation 
of the statute against one practicing medicine without license, 
and shield him from the prosecution and penalty therefor, 
especially if the judgment revoking his license be affirmed, is 
a question of grave importance, which would arise directly for 
determination in the event of such a prosecution, and which, 
in this collateral presentation, we do not feel at liberty to 
determine, as within the purview of this motion. Aside from 
that view, it appears application was made to the trial court 
to stay proceedings in relation to the judgment pending the 
appeal, and such stay was refused. Considering that a stay 
of such a judgment would be a matter of discretion in the trial 
court there is nothing shown in this proceeding, at this time, 
which would lead this court to order the contrary, on the 
ground that such discretion had been abused. 

An order will therefore be entered overruling the motion. 



14 Mout.] In KB Mouillbrat's Estate. 2-15 



In re MOUILLERATS Estate. 

[Submitted February 1, 1898. Decided March 19, 1894.] JJ ^ 

ADinsiSTRATOBS—AUoicanee of daim—Final judgment,— The allowance of a iS 246 

claim agaiust an estate and its approval by the district judge under section 

164 of the Probate Practice Act, providing that eyery claim so allowed and 
approved must be ranked among the acknowledged debts of the estate and 
paid in the due course of administratiom, does not render such claim a final 
judgment so as to protect it from attack by protest agaiust the allowance of 
the administrator's final account. (Ryan y. Kinneyt 2 Mont. 454, distin- 
guished. Habwood, J„ dissenting.) 

&AMsSame—Conte8t,^A. creditor whose claim against an estate may be reduced 
by the allowance of an alleged debt is a person interested in the estate, and 
may contest the administrator's final account under sections 266 and 267 of 
the Probate Practice Ace, providing that on the day appointed for the settle- 
ment of the account any person interested in the estate may appear and con- 
test the same. (Habwood, J., dissenting.) 

SAXK—Same—SUituie of 2imitottons.— Creditors of an estate may, upon the set- 
tlement of an administi-ator's final account, contest an allowed claim as 
barred by limitation, since under section 156 of the Probate Practice Act no 
claim must "be allowed by the administrator which is barred by the statute of 
limitations. 

Appeal from Nirdh Judicial District^ Gallaiin CovmJty. 

Proceedings by creditors to contest an allowed^ claim 
against an estate. The contested claim was disallowed hj 
Armstrong, J. Affirmed. 

Statement of the case by the justice delivering the opinion; 

Nixon and Crave, creditors of the estate, protested against 
the allowance of the claim of Mendenhall, a creditor. The 
district court sustained the protest, and disallowed the Men- 
deuhall claim. Meudenhall and the administrator appeal. 

The administrator, J. P. Martin, filed his final account 
April 20, 1891. This account contains, among others, a list 
of claims of the fifth class, presented and allowed. In this 
list were the claims of the protestauts Nixon for $142.40, and 
Crave for $300, and also the claim of J. S. Meudenhall, the 
appealing creditor, for $400. It appears from the final account 
that the estate will be able to pay only about forty-six per 
cent of said fifth-class claims. 

The claim of Meudenhall was filed September 4, 1890. His 
affiilavit setting forth his claim contains the following state- * 
ments material to this inquiry: That on the 2d of September^ 



246 In bb Mouillerat's Estate. [March T., 1894 

1885, an action was pending on the United States side of tbe 
territorial district court, on a bond for $1,600, in which case 
the United States was plaintiff, and Frank Mouillerat, the 
deceased, and one Olsen, as principals, and Charles Krug and 
said Mendenhall as sureties, were defendants. That on the 
4th of September, 1885, the United States obtained a judg- 
ment against the defendants for $800; that Krug and Men- 
denhall paid this judgment, share and share alike; that neither 
Mouillerat or Olsen had paid to Mendenhall the $400 which 
he thus paid, nor any part thereof. Mendenhall annexes to 
his affidavit, setting forth the above allegations, a certified copy 
of the proceedings in the United States court in the case, to 
which he referred. That record is as follows: 

"Wednesday, September 2d, a. d. 1885. 



"The United States, 



V8, 

"Frank Mouillerat 



ES, I 
etai. ) 



"And now comes the plaintiff, by William H. De Wilt, Esq., 
United States attorney, whereupon tlie plaintiffs dismissed 
their tait herein, the same having been compromised, and 
eight hundred dollars paid by the defendants. 

"It is therefore considered by the court that the defendants 
go hence without day, and recover against the plaintiffs their 
costs incurred herein, taxed at $ '' 

It further appears from the record in the case at bar tliat 
this claim of Mendenhall against the estate of Mouillerat was 
allowed by the administrator June 27, 1890, and approved by 
the court March 23, 1891. 

As above noticed, the final account containing the claim of 
Mendenhall, and that of the protestants, was filed April 20, 
1891. On May 23, 1891, said Nixon and Crave duly filed 
their protest to the allowance of this final account The ground 
assumed by the protestants was, that the claim of Mendenhall 
shows upon its face that it was not a judgment, and if it be 
any claim it is one upon an account not in writing, and if it 
be such an account, sufficient time elapsed between the aocru- 
ing of the account, September 2, 1885, and filing of the same 
against the Mouillerat estate, September 4, 1890, to constitute 



14 Mont.] In rb Mouillbrat's Estatb. 247 

the bar of the statute of limitations. The district court sus- 
tained the protest^ and disallowed the Meiideuhall claim^from 
which disallowance Mendenhall and J. P. Martin^ the admin- 
istrator, take this appeal. 

The position of appellants is this: 1. That the claim of 
Mendenhall having been allowed by the administrator, and 
approved by the court, is a judgment, and cannot be attacked 
by this protest; and 2. That the protestants, Nixon and Crave, 
as creditors of the estate, have no authority to plead the stat- 
ute of limitations, or to compel the administrator to plead it. 

Giarles 8. Hartman, and A. D. McPher^onj for Appellants. 

I. The claim of Mendenhall, being an allowed claim, has 
all the force and effect of a judgment, and cannot be attacked 
collaterally. {Decl^B Estate v. Gherke, 6 Cal. 666; Ryan v. 
Kinney, 2 Mont. 456; Moore v. Hillebrant, 14 Tex. 312; 65 
Am. Dec. 118; Estate of Hidden, 23 Cal. 362; Estate ofSchroe- 
der, 46 Cal. 304-17; Estate of McEinley, 49 Cal. 152; IMate 
of Olenn, 74 Cal. 567; 2 Black on Judgments, § 641, note 678.) 

II. The protestants, Nixon and Crave, as creditors of said 
estate, have no right or authority to plead the statute of limi- 
tations or compel the administrator to plead it. (Wood on 
Limitations of Actions, § 41, pp. 79, 80; 13 Am. & Eng. 
Ency. of Law, 706, title. Limitation of Actions, note 2, and 
cases cited; Scott v. Haneockl 13 Mass. 162; Kennedy v. Pow^ 
eff, 34 Kan. 23; Brookville Nat Bank v. Kimbk, 76 Ind. 
196; Allen v. SmUh, 129 U. S. 465; Shields v. Schiff, 124 
U. S. 351.) The following authorities hold that an executor 
or administrator represents the testator so far as the personal 
property is concerned, and from the personal property he can 
pay a well-founded claim, although barred, without being 
obliged to take advantage of the statute of limitations. (13 
Am. & Eug. Ency. of Law, 707^ note 2, and cases cited.) 
But even if an allowed claim can be attacked collaterally, or if 
a creditor can compel the administrator in this case to plead 
the statute of limitations, is the claim of Mendenhall barred 
by the statute of limitations? It appears from the face of the 
proceedings that the sum of $800 was paid by defendants in 
foil settlement of the case and the compromise judgment of 



248 In re Mouillbrat's Estatb. [March T., 1894 

dismissal entered aooordingly. This payment was the consideiv 
alion for the judgment. It also appears that the entire sum 
that was paid to obtain the compromise judgment aforesaid 
was paid by said Mendenhall and Krug, who were sureties on 
the bond, and, being sureties, they had a right to found their 
claim upon such judgment, and keep it alive as against their 
codefeudants. Upon this question there is some division in 
tlie authorities; those of New York, Massachusetts, Alabama, 
and North Carolina holding in some instances that it cannot 
be done; however, in one New York court it has been held 
that under circumstances showing the suretyship of the party 
paying the judgment, and the fact that he was compelled to 
pay the sum, that he be substituted in place of the creditor 
and acquire his rights. On the other hand, the right to the 
subrogation in such cases is affirmed in Coffee v. TemSy 17 CaK 
239; Wheder'a EstaU, 1 Md. Ch. 80; Br<yum v. White, 29 
N. J. L. 514; Melniyre v. Miller, 13 Mees. & W. 728. It 
appears that Mendenhall and Krug were compelled to pay the 
$800, and did pay it, and therefore they are entitled to be sub- 
rogated to the rights of the United States^ the plaintiff in said 
action. (12 Am. & Eng. Ency. of Law^ 160, note 7, and 
cases cited; B, note 1, and cases cited; Sanford v. McLean, 3 
Paige, 117; 23 Am. Dec 773; NuU v. Moore, 10 Ired. 324; 
Freeman on Judgments, § 468.) Mendenhall having been 
surety on the bond, and having been compelled to pay the 
claim, equity substitutes him in place of the creditor as of 
course without agreement therefor. (Freeman on Judgments, 
§ 468; Sanford v. McLean, 3 Paige, 117; 23 Am. Dec. 773; 
Head v. Gervaia, Walk. 431; 12 Am. Dec, 577; Barringer v. 
Boyden, 7 Jones, 187. See, also, Dempsey v. Btuh, 18 Ohio 
St. 376; Freeman on Judgments, 470; Fleming v. Beaver, 2 
Eawle, 128; 19 Am. Dec. 629, and cases cited.) This compro- 
mise judgment is what Mr. Bishop, in his work on contracts, 
calls a contract created by law. (See Bishop on Contracts, 
§ 556; Gunn v. Barry, 15 Wall. 610; Moaer v. White, 29 
Mich. 69; (yBrim v. Y<mng, 95 N. Y. 428; 47 Am. Rep. 64.) 
Actions upon judgments, contracts, and other written instru- 
meuts or records, under the statute which controls in this case, 
shall be commenced within six years from the time the cause 



14 Mont.] In rb Mouillerat's Estate, 249 

of action accrues. (See Code Civ. Proa, § 41, Comp. Stats.) 
The claim of Meudenball is therefore not barred bj the stat- 
ute of limitations, i/^as properly allowed, and the protest of 
Nixon to the allowance of the administrator should be over* 
ruled« 

lAAce & Luce, for Respondents. 

I. There are two points in administration where an ap- 
proved claim may be contested when application is made for 
the sale of property, and when an account is rendered for set- 
tlement. And it can be contested by a creditor. {Estate of 
Loahe, 62 Cal. 413-15; Estate of HiU, 62 Cal. 186; Weihe v. 
Statham^ 67 CaU 84.) The supreme court of California in 
Bedcett v. Selover^ 7 Cal. 215, 68 Am. Dec. 237, rendered an 
exhaustive opinion on the very point in controversy, that the 
allowance did not bind any one not a party thereto, (See 
opinion in BecheU v. Mover ^ 7 Cal. 241, 242; 68 Am. Dec. 237.) 
It is true this was a contest by the heir, but the reasoning of 
the opinion applies to the creditor who contests under section 
267 of our Probate Practice Act. If there were any doubt of 
this, the foregoing citation and the case of the Esiaie of Hid-' 
den, 23 Cal. 363, cited by appellants, should be conclusive. 
This is no collateral attack. Conceding the allowance to be a 
judgment, it is an erroneous one and has been vacated by the 
court that rendered it, which it had jurisdiction to do, before 
final judgment settling this account and decreeing distribution. 

II. Upon the second proposition there is little need of 
comment. A debtor may waive the statute of limitations, and 
cannot be compelled to raise it, that we know of. An admin- 
istrator cannot waive it, but both the administrator and the 
probate court are by statute expressly forbidden to allow a 
claim barred by the statute. (Comp. Stats., § 166, p. 313; 
Estate of Hidden^ 23 Cal. 362.) You must first have a judg- 
ment before you can claim the right to be subrogated to the 
judgment creditor. You must have paid this judgment before 
any question of subrogation arises. The judgment plainly 
stated that it is a judgment of dismissal by agreement, and that ' 
the defendants recover of the plaintiff their costs; it is a judg- 
ment, but it is a judgment in favor of the defendants. A 



250 In bb Mouillbbat's Estate. [March T., 1894 

jadgment of dismissal bj agreement and compromise is a 
judgment on the merits against the plaintiff. {MeniU v. 
Campbell, 47 Cal. 542; on rehearing, 47 Oal. 548; PhUlpotii 
V. Blaadel, 10 Nev. 19, 23; Bank of QmmontDedth v. Hop- 
Jdna^ 2 Dana, 395.) No claim has ever been presented to the 
administrator except this claim on a pretended judgment, which 
shows on its face that it is a judgment in favor of the very 
party who claims that it is a judgment against him. If any 
claim ever existed which could have been brought against 
Mouillerat, in his lifetime, for money had and received, no 
such claim has ever been presented to the administrator, and 
if it had, it would have been barred by the statute of limita- 
tions. {Chipman v. Morrill^ 20 Cal. 136.) No action for the 
recovery of this $800, under said compromise, could ever have 
beeu sustained upon the facts set forth in the claim of Men- 
denhall. Mr. Sheldon (Sheldon on Subrogation, § 240) says: 
"The doctrine of subrogation is not applied for the mere 
stranger or volunteer who Las paid the debt of another with- 
out any assignment or agreement in subrogation, and without 
being under any legal obligation to make the payment, and 
without being compelled to do so for the preservation of any 
rights or property of his own." Money paid under a com- 
promise does not come within this rule. (JSanford v. McLean, 
3 Paige, 122; 23 Am. Dec. 773; Mna Life Ins. Co. v. JfuWfo- 
pot-^, 124 U.S. 547.) 

Be Witt, J. — Section 154 of the Probate Practice Act 
provides: "Every claim allowed by the executor or adminis* 
trator, and approved by the probate judge, or a copy thereof, 
as hereinafter provided, must, within thirty days thereafter, 
l)e filed in the probate court, and be ranked among the acknowl- 
edged debts of the estate, and be paid in due course of admin- 
istration.'' 

Mendenhall's claim was allowed by the administrator and 
approved by the court. Appellants contend that these facts 
constitute a judgment, which is final, and which must be 
attacked by a motion for a new trial or an appeal, and which 
cannot be disturbed on a contest of the account of the adminis- 
trator. But such is not the law. It is a judgment of a quali- 



14 Mont.] In re Mouillbrat's Estate, 251 

fied nature only. Such approval and allowance i)lace the 
claim ''among the acknowledged debts of the estate, to be paid 
in due course of administration/' {Maffraw v. ilcGlynUy 26 
Cal. 431; EstaU ofLoahe, 62 Cal. 413; Estate of HUl, 62 Cal. 
186; WeUie v. Statham, 67 Cal. 84.) And "in due course of 
administration'^ the estate reaches the stage where it is oper- 
ated upon by the provisions of section 265, et seq., of the Pro- 
bate Practice Act. Section 265 is as follows: 

" When any account is rendered for settlement, the court or 
judge must appoint a day for settlement thereof. The clerk 
must thereupon give notice thereof by causing notices to be 
posted in at least three public places in the county, setting 
forth the name of the estate, the executor or administrator, 
and the day appointed for the settlement of the account, which 
must be on some day of a term of the court. The court or 
probate judge may order such further notice to be given as 
may be proper." Section 267 provides for a contest, as fol- 
lows: "On the day appointed, or any subsequent day to which 
the hearing may be postponed by the court, any person inter- 
ested in the estate may appear and file his exceptions in writ- 
ing to the account, and contest the same.*' 

When this section of the statute provides that ^^any person 
ifdereded in the estate?* may contest the account, it seems to be 
a plain declaration that any person interested may make the 
contest It would seem not o|)en to question that a creditor 
Vras interested in the estate when the account showed the 
liUowance of an alleged debt, which such creditor claimed to 
be wrongfully allowed, and the allowance of which cut down 
the i>ercentage which such creditor was to receive from the 
estate. Such is the position of the creditors and protestants, 
Nixon and Crave, as to the allowance of the Mendenhall claim. 
Such was the course of proceeding in the lower court. Nixon and 
Crave contested the account, as they might, under the provisions 
of sections 265 and 267, etc. The allowance and approval 
of the claim does not seem to be in the nature of a final judg- 
ment, when the statute provides that it shall not be final, but 
shall be open to a contest (Probate Practice Act, § 267) of the 
administrator's account. Such seems to be a very plain view 



252 In re Mouillbrat's Estate. [March T., 1894 

of the statute. Od the other hand, the view contended for by 
appellants would leave a person desiring to contest an aocount 
remediless in many cases. 

Returning to the portion of the Probate Practice Act treating 
of the claims against the estate, we have to observe as follows: 
Section 154 speaks about the allowance of a claim by the 
administrator, and the approval by the probate judge. These 
acts may be dene without any hearing at all. It is true that 
section 156 provides: "When a claim is presented to the pro- 
bate judge for his allowance, he may, in his discretion, examine 
the claimants, and others, on oath, and hear any other legal 
evidence touching the validity of the claim." The judge, it is 
observed, may, in his discretion, examine the claimant and 
hear evidence; but he is not required so to do, and there is 
nothing to prevent him, if he happens to observe no objection 
to the claim, from allowing it without any hearing at all. 
Now, if the [)robate judge pursues this course, which he may 
under the law, and which we doubt not is the most frequent 
occurrence in that court, we have this situation: A claim 
ag&inst the estate has been allowed. Another creditor of the 
estate is injured thereby, for the reason that it reduces the per- 
centage which he is to receive in case the estate does not pay 
its debts in full. That creditor is interested in the estate, and 
there is facing him, according to appellant's view, a final judg- 
ment, which is to his injury, given without his knowledge, and 
without his having a day in court. There has been no hear- 
ing to which he has been invited; there has been no adjudica- 
tion at which he has been notified to appear. Of course, it 
may be said that he can be present in the probate court, or 
before the probate judge, during all the period during which 
claims may be filed, and watch for the presentation of the claim 
to which he believes he has a valid objection. But we are of 
opinion that the law does not require any thing of this sort, 
especially where there is such a simple construction of the law 
as we have above described, which gives such a creditor an 
opportunity to come in upon notice upon the settlement of the 
administrator's account* 

Furthermore, here is another view: Suppose a claim l)e pre- 
sented, allowed, and »j)proved without a hearing, as it mav be. 



14 Mont.J In ru Mouillkrat's Estate. 253 

as above noted; the record would appear in tins way: simply 
the account of the alleged creditor^ supported by his ex parte 
affidavit, and indorsed. In fact, the indorsements upon this 
Mendenhall claim are as good an example as we could cite. 
They appear as follows: 

"No. 20. 
'*In the Di8TRic?r Court 
"op 
'^ Gallatin County, Montana. 
"Jw the Matter of tlie JEstate of 
^^ Frank MouUkrat, Deceased. 
"Claim of John S. Mendenhall, $400.00. 
"The within claim presented to J. P. Martin, admr. of said 
deceased, is allowed and approved for $400.00 this 27th day of 
June, 1890. J. P. Martin, admr. of said deceased. 

"Allowed and approved for $400.00, this 23d day of March, 
1891. Frank Henry, District Judge. 

"Filed Sept. 4, 1890. 

"John McLeod, Clerk, 
"By R. H. Crawford, Deputy Clerf 
Now, according to appellant^s view, the creditor interested 
in the estate, and wishing to make a contest, finds a record of 
the sort described, which is to be held to be a final judgment; 
that is to say, it is a bill or an account, with an ex parte affi- 
davit, and the indorsements of administrator and judge, of 
"Allowed" and "Approved." What could he present on a 
motion for a new trial or appeal? His showing of the wrong- 
fulness of the account would not be in the record, nor would 
there be any evidence to review. We cannot hold such con- 
struction of the law when we have before us section 267, pro- 
viding for a contest by a creditor, in which he may have a 
hearing. 

Byan v. Kinney, 2 Mont. 454, has been mentioned in this 
case. In that case there was clearly an attempt to attack col- 
laterally a final judgment of the probate court. We fully con- 
cur with the decision against that attempt. But here the 
allowance by the administrator, and the approval by the pro- 
bate judge, of the Mendenhall daim^ we have undertaken to 



254 In R£ Mouillbrat's Estatb. [March T., 1894 

showi were not a final judgment, and therefore the eontest of 
Nixou and Crave is neither directed at a final judgment nor is 
it a collateral attack upon what the probate court has done^ 
but, on the contrary, it is a pursuance of the direct j^roceeding, 
provided by sections 265-68 of tlie Probate Practice Act, for 
determining whether or not the Mendenhali claim was to be 
paid out of the Mouillerat estate. Byan v. Kinney, 2 Mont, 
454, did not mention or construe section 267 of the Probate 
Practice Act, or any similar provision, which section 267, we 
hohl, authorizes the contest by Nixon and Crave. That sec- 
tion is part of the Probate Practice Act passed February 16, 
1877 (10th sess., p. 370), a year after the decision of Byan v. 
Kinney, 2 Mont. 454. But even if it, or a similar provision, 
were a part of the law when Byan v. Kinney was decided, it 
would not have been before the court for construction in that 
case, as the proceeding was not taken under said section, or 
any similar thereto. And it is this section, as is apparent 
above, that we hold authorizes this contest. Therefore, Byan 
v. Kinney, 2 Mont. 454, is not applicable to the case al 
bar. 

Appellants contend that the determination of the action in 
the United States court in 1885 was a judgment in favor of 
the United States, and against Mouillerat and his codefendants, 
among whom was Mendenhali, and that Mendenhali was sub- 
rogated to the rights of the United States in that judgment. 
If that be true, then they contend that the statute of limita- 
tions, in reference to judgments, would apply to the Mendenhali 
claim, and that it would not be barred. If the United States 
did not obtain a judgment in the case described in the United 
States court, there was no judgment in which Mendenhali could 
be subrogated. It is clear that the United States did not 
obtain a judgment against Mouillerat, Olsen, Mendenhali, or 
Krug. The record from the United States court states plainly 
that that case was dismissed as compromised; and. it further 
appears from that record that the judgment was that the defend- 
ants go hence without delay, and recover a judgment against the 
plaintiff for their costs. So, there was no judgment in favor 
of the United States. Therefore, the most that appears is that 
Mendenhali paid money for the benefit of Mouillerat in 1885. 



14 Moiit.] In KB Mouillbbat's Estatb« 255 

Mendenliall's claim against Mouillerat, therefore, does not 
appear to be founded upon any judgment or upon any written 
instrument. It was therefore barred by the statute of limi- 
tations (Code Civ. Proc., § 44) in three years from September, 
1885, and was consequently barred on September 4, 1890, when 
it was filed as a claim against the Mouillerat estate. 

Appellants argue that the statute of limitations is a per- 
sonal privilege, and that one cannot be compelled to take 
advantage of it unless he chooses. However true this may be 
as a general principle, it does not apply to the administrator 
in this case, ibr his action is controlled by section 166 of the 
Probate Practice Act, which provides that '^no claim must be 
allowed by the executor or administrator, or by the probate 
judge, which is barred by the statute of limitations.'^ 

The judgment of the district court sustaining the protest of 
Nixon and Crave, and disallowing the claim of Mendenhall, is 
therefore affirmed. 

Pbmberton, C. J., concurs. ' 

Harwoob, J., dissenting. — ^Appellant Mendenhall presented 
his claim against the estate of Mouillerat, and the same was 
approved by the administrator and duly allowed by the court. 
(Probate Practice Act, §§ 153, 154.) About one year there- 
afler, when the administrator presented his final account for 
settlement, certain other creditors of said estate set up a con- 
test of appellant's claim, on the ground that it was barred by 
the statute of limitations. The court sustained said objection, 
whereby appellant was denied payment of his claim out of the 
funds of said estate. The claim was for money alleged to have 
been paid out by Mendenhall, as surety for decedent, in a pro- 
ceeding against decedent in the United States district court in 
the year 1885. The record of said court shows the proceed- 
ing, and that settlement was made; and the evidence undoubt- 
edly establishes payment by Mendenhall, on behalf of decedent, 
as claimed. But it is contended that the record of said pro- 
ceeding in the United States court does not, in itself alone, 
establish payment by the surety; and therefore it is contended 
that appellant's claim would fall within the class barred by 
the lapse of three years. 



256 In be Mouillbrat's Estatb. [March T., 1894 

The first proposition insisted on by appellant is that the dae 
allowauoe of his claim by the administrator and the court 
having jurisdiction of said estate, as provided by lawy amounted 
to the establishment thereof in the nature of a judgment, and 
that said claim i^as not subject to be contested by other cred- 
itors of the estate at the time and in the manner pursued in 
this contest* 

The question as to the effect of the allowance of a claim 
against an estate, as provided by the statute, appears to be one 
of considerable difficulty. Some authorities affirm that such 
allowance places the claim in the same status as a judgment 
(See 2 Black on Judgments, 641, and cases cited; also, Cali- 
fornia cases cited in appellant's brief); and, if that conclusion 
is correct, such allowance cannot be disregarded or ignored, 
and another and independent contest set up against said claim. 
If the order of allowance is in the nature of a judgment, it 
would be necessary, in order to avoid such judgment, to follow 
it up by appeal, and obtain its reversal, or attack it by other 
direct action. 

In 8api>ort of the proposition that the allowance of the 
claim against the estate establishes it in the nature of a judg- 
ment, several provisions of the statute may be pointed to. 
Thus, it is provided that, after allowance in the manner pre- 
scribed, the claim shall be ''filed in the probate court, and be 
ranked among the acknowledged debts of the estate, to be paid 
in due course of administration/' (Probate Practice Act, 
§ 154.) And it is further provided that "a judgment ren- 
dered against an executor or administrator, upon any claim for 
money against the estate of his testator or intestate, only estab- 
lishes the claim in the same manner as if it had been allowed 
by the executor or administrator and the probate judge, and 
the judgment must be that the executor or administrator pay 
in the due course of administration the amount ascertained to 
be due." (Probate Practice Act, § 161.) This provision might 
be taken as bearing strongly in favor of the view contended for 
by appellant — that the proceeding resulting in the allowance 
of the claim was equivalent in its force to a judgment. Again, 
there are provisions of statute for the hearing of evidence by 
the probate judge, as to the merits of the claim, before allow- 



14 Mont.] In bs Mouillebat's Estatb, 257 

aoce (Probate Practice Act, § 156); and also for a reference 
of the claim for investigation through the agency of a referee, 
(Probate Practice Act, §§ 164, 165.) It seems, too, that the 
onler of allowance, and the proceeding leading up to that order, 
are subject to rehearing on motion for new trial, as provided in 
sections 323 and 324 of the Probate Practice Act, and to appeal, 
as provided in section 445 of the Code of Civil Procedure. 
(See In re McFarland'a Estate, 10 Mont. 445.) 

The tendency of all those provisions would seem to point 
to the conclusion that the final allowance of the claim of 
a creditor against an estate by the administrator and probate 
judge amounted to some thing more than a proceeding which 
could be ignored at pleasure, and leave the claim open to con- 
test by any party interested and desiring to question it; and, 
from a consi<leration of i\\t statutes relating to this subject, and 
the cases in which this question has been discussed, I ant 
drawn to the conclusion that such allowance does establish th^ 
claim as against the collateral attack of all except the heirs and 
their representatives. This exception in favor of the heirs is 
made by statute, but does not appear to extend toothers. The 
language is that "all matters, including allowed claims not 
passed upon in the settlement of any former account, or on 
rendering an exhibit, or on making a decree of sale, may be 
eonUsLed by tlie heirs^ for cause shown.'' (Probate Practice Act, 
§ 268.) This section undoubtedly holds the claim open to 
question by Uie heirs in a contest independently of the pjx>ceed- 
ings whereby it was theretofore passed upon and allowed by 
the court. And the language of that section seems to limit 
that privily as one reserved to the heirs alone. If it was 
not the intention to so limit the privilege to set up another 
contest as to the claim after its allowance, why did the legis- 
lature so specifically declare that those matters were open 
to contest "6y the heirs f^^ We have no doubt this is a wise 
and just provision in favor of the heir. Where an estate 
possesses sufi^cient assets to satisfy all demands, there is no 
motive to lead claimants to investigate, find evidence, and con- 
test one another's demands when presented for allowance, so as 
to reduce each claim to its proper proportions, or, if without 
merit, to cause its disallowance altogether. {BeekeU v. Selover, 

Vol. XIV. -17 



258 In rb Mouillbrat's Estate. [March T., 1894 

7 Cal. 216; 68 Am. Dec. 237.) If the claim, however, after 
allowance, is only opeu to ooutest by the heirs, as seems to be 
the inteudment indicated by the language of the statute, it fol- 
lows that the several creditors who so desire must present their 
contest against demands of others when such demands are before 
the court for allowance. A contrary holding would, in effect, 
deny all force to the proceeding of the court wheveby claims 
are investigated and allowed, and subject such proceedings to 
be disregarded at the pleasure of any creditor who wishes to 
introduce anotlier contest, and occupy the attention of the 
court in trying the same. Such holding is contrary to the 
views of the court in Ryan v. Kmney, 2 Mont. 454, and, I 
think, is not in harmony with the theory of the statute provid- 
ing the practice as to the investigation and allowance of claims. 
There appears to be ample provision made by statute to enable 
creditors to contest claims proposed against an estate, as the 
same come up for consideration and allowance; and it would 
seem that such would be the more convenient and acceiitable 
time for contest of individual claims than a subsequent time 
long afler the claim had been allowed and the administrator's 
account is before the court for examination. The result of 
such holding is to keep the affairs of an estate unsettled 
indefinitely. 

The provisions of section 267 of the Probate Practice Act, 
that any person interested in the estate may contest the admin- 
istrator's account, should not be so applied as to annul the force 
of other special provisions of statute in reference to claims of 
third persons against an estate. The administrator's account 
contains numerous items besides accounts of third |)ersons 
against the estate which have been allowed and approved by 
the probate court As to such other terms, the administrator's 
account should be, and is, open to contest by any person inter- 
ested. But, as to claims of third persons against the estate, 
the statute has made special provisions for their presentation, 
contest, and adjudication, even to appeal from court to court. 
According to the holding of the majority of this court, such 
adjudication establishes nothing. It may be brushed aside by 
any person interested in the estate; and, ignoring that adjudi- 
cation, although it had gone to the court of last resort, he may 



14 Mont.] In eb Mouillbrat*s Estate. 259 

again open the contest when the administrator's account is pre- 
sented. Such a result is not according to the theory plainly 
visible in the statutory provisions, nor does it conform to the 
authorities on the subject, especially decisions of the supreme 
court of Montana, cited mpra. 

The accounts of third persons against the estate are not in 
fact the administrator's account. Those accouuts are indepeud- 
ent of the administrator. He is not the one to prosecute them 
against the estate, nor to defend the matter of their allowance 
in case of contest of his account; yet the theory of tlie majority 
opinion in this case seems to be that, because tlie administra- 
tor's account may be contested, the allowed accounts of third 
persons against the estate are thereby thrown open to contest 
as if they were the administrator's accounts. The adminis- 
trator would not be the supporter of such accounts; he should, 
. and probably would, be the contestant at the proper time, and 
until the account was established. Therefore, what difference 
would it make to him if third persons' allowances were struck 
out of his account, unless he bad paid the same on the strength 
of the allowance by the court? But observe the peculiar result 
of the holding in this case. If the administrator, having once 
contested a claim against his estate, even to the court of last 
resort, and has been defeated, and the claim established by such 
adjudication, the administrator can still say, according to the 
holding in this case — "That goes for nothing" — ^and, though 
the estate comprise millions, he may refuse payment, and, 
when the administrator presents his account, commence the 
same contest, and go through the courts with it again. Or 
defenses to claims against the estate may be set up by piece- 
meal — ^some when the claim is presented for allowance, and 
others when the administrator's account is presented; some by 
one, and some by another, interested in the estate. Or, if 
defeated at the first trial, this need not be followed up by 
appeal or motion for new trial, as the statute provides, but 
the attack may be suspended until a more convenient time. 
Such are some of the peculiar results of the holding in this 
case. 

, The citations in the majority opinion neither support its 
reasoning npr its conclusion. In the case of Edate of Loalie, 
62 Cai. 413, the court* expressly decline to consider the point 



260 Ik he Mouillbrat's Estatb. [March T., 1894 

iuvolved in the case here, sajing: '^It is not necessary to con- 
sider how far the allowavce or approval of a claim resembles 
or gives the effect of a judgnieiit/' The California court points 
to the statute of that state as authorizing the contest there under 
consideration. So, the case of Estate ofHUl^ 62 Cat. 186, cited 
in support of the majority opinion, is not in poiut, because the 
contest in that case was ''by the heirs and distributees of 
deceased.'^ Likewise, the case of Weike v. StaOiam^ 67 Oal. 84, 
cited in support of the majority opinion, was an '' action by the 
heirs of William H. Hill/' etc.; and the court say in that case: 
''It has several times been decided that the allowance of a 
claim by the administrator and probate judge is not conclusive 
upon the heirs, but they may contest such allowance in subse- 
quent proceedings of the probate court''; and the California 
statute and cases are there cited. The same rule would hold 
here by special provision of the statute, as we have pointed out 
The case last above mentioned is the latest case cited from Cali- 
fornia, and it may be observed bow carefully tliat court uses 
language to confine the contest at that stage of the claim to the 
heirs. One other case — Magraw v. MeOlynn^ 26 Cal. 431' — is 
cited for support of the majority opinion, but I fail to find any 
such case reported in the book. These citations illustrate how 
easy it is to cite cases as supporting a view, and also bow 
deluded one would be in looking to the citations for oonfiiv 
mation of the jioint in question. 

There is no warrant for the presumption asserted in the 
majority opinion, that the administrator and probate court 
would n^lect the solemn duty, imposed by law upon them, of 
carefully investigating claims against the estate before allow- 
ance thereof; and, had I found reason to subscribe to the con- 
clusion reached in this case by the majority, I should withhold 
concurrence in the observations which carry that imputation. 
If such abuse and negligence in relation to a sacred trust, as 
the opinion "doubts not is the most frequent occurrence in 
that court,'' could be satisfactorily established by proper evi- 
dence, it would be a matter for legislative consideration. It is 
well known that in a judicial inquiry as to what the law is, 
such considerations are not pertinent, except as mere sugges- 
tions looking towards the expediency of a legislative change. 



14 Mont.] Dietrich v* Stbam Dbbdob. 261 

But DO SQch ounclusion is warrantable as a mere presumption; 
and there is no showing that the probate courts in this state 
neglect tiie solemn duties imposed upon them by law and the 
nature of the trust confided to their care, nor was that a matter 
for investigation in the case* M7 investigation of this question 
has led to the belief that a statutory provision for vacating the 
order of allowance of a claim against an estate upon presenta- 
tion of sufficient grounds, supported by affidavit, within reason- 
able time, such as that found in the Probate Code of Missouri, 
would be an improvement of our statute on this point (See 
Kelley's Missouri Probate Guide, § 309, p. 261.) There is 
probably more need for such a provision since the adoption of 
the constitution, giving our district courts original jurisdiction 
of all probate matters; for under the former system, if a claim 
was thought to be erroneously allowed against an estate, the 
whole question could be carried by appeal, for trial anew, into 
the district court. (Code Civ. Proa, §§ 445-58.) This gave 
time and opportunity to reopen the case, and correct errors on 
appeal. But those provisions have become obsolete through 
the changes made by the constitution. 



DIETRICH V. STEAM DREDGE AND AMALGA- 

MATOR. I^gj 

[BabmittodJuM 2S, 1898. Decided ICtroh 26, 1894.] 

Appkax^— iSpeoiaZ order^Time for taking.^An order refneing to open a defimlt is 
a ipeoial order made after final jndgment, from which an appeal, to be roTiew- 
able, most be taken within sixty days. 

ATTAOBVBirr OF BokTB—Appearanoc-^The filing of a demurrer by a judgment 
creditor of a boat in an action bronght to sabjeot it to claims for serrioea, and 
in which the creditor aesnmea to act and appear for himeelf alone, does not 
oonatitnte an appearance of the defendant boat under section 216 of the Code 
of ClYil Procedure, providing that any person interested in a boat that has 
been attached may appear for the defendant and conduct the defense. 

BAMJb—lnUrvtntion.^A. party who is a stranger to a suit as commenced, but who, 
without a showing by complaint or obtaining leave of court, appears upon his 
own motion and demurs to the complaint, is not an intervener within section 
24 of the Code of Civil Procedure, and his demurrer ao filed may bo properly 
disregarded by the trial court. 

Appeal from Nintii JudioicU District, QaUaiin County. 



262 Dietrich v. Stbam D&edob. [March T., 1894 

Action in rem. Judgment was rendered for plaintiff below 
by Armsteong, J. On motion to dismiss appeal* Granted* 

Statement of the case hj the justice delivering the opinon: 

This action was brought under the provisions of title 7, 
chapter 5, of the Code of Civil Procedure^ as to '^ Attachment 
of Boats." 

The complaint opens with the allegation: ''That the defend- 
ant is, and at all times hereinafter mentioned has been, a boat; 
that the same has no name, to the knowledge of the plaintiff, 
but has been used as a steam dredge or shovel, with an amalga- 
mator attached for dredging streams and amalgamating pur- 
poses/' The plaintiff names the owner of defendant as the 
Montana Mining and Investment Company. The action is 
in rem. The complaint sets up the rendering of services by 
plaintiff to the defendant boat, the agreed price for the same, 
the consequent indebtedness to plaintiff, and that the services 
were rendered on board of the boat in furnishing, operating, 
fitting out, etc., under a contract made within this state. The 
further paragraphs of the complaint set out the rendering of 
similar services to the boat by other persons for certain prices, 
and the assignment to plaintiff of the claims of said other per- 
sons against said boat. The complaint prays for a warrant to 
seize the boat, and that the claims set out in the complaint be 
adjudged to be liens against the boat, having preference to any 
other claims, and for judgment for the amount of the same. 

Summons was issued and served upon the alleged boat by 
posting a copy thereupon, according to the provisions of the 
Code of Civil Procedure, section 214. The defendant steam 
dredge and amalgamator itself, or its master, agent, clerk, con- 
signee, or owners (Code Civ. Proc., § 216), never appeared in 
the action by demurrer, answer, or otherwise. 

Within the time allowed by law to file a demurrer or answer, 
the Commercial National Bank filed what it claims to be a 
demurrer. That document introduces itself with the follow- 
ing language: 

'^ Comes now the Commercial National Bank, by its attor- 
neys, L. M. Cuthbert and Robert B. Smith, and says that it 
has an interest in the defendant steam dredge and amalgamator 



14 Mont.] Dietrich t;. Steam Duedgb. 263 

for the reason that it has a judgment against the same, and 
execution levied thereon, and is seeking to make a just debt by 
sale of said property, and therefore demurs to the plaintiQ's 
complaint herein for the following reasons: 1. Tiiat said com- 
plaint does not state facts sufficient to constitute a cause of 
action/' The instrument then contains a specific demurrer to 
each count of the complaint. This document is signed as fol- 
lows: '' L. M. Cuthbert and Word & Smith, attorneys for the 
Commercial National Bank of Cleveland, Ohio.'' On the 
expiration of ten days afler the service of summons upon 
the boat, as above noted, the following default was entered: 

^* In this action the defendant steam dredge and amalgamator, 
having been regularly served with process, and having failed 
to appear and answer the plaintiff's complaint on file herein, 
and the time allowed by law for answering having expired, the 
default of the said defendant in the premises is hereby duly 
entered, according to law, this sixth day of January, A. D. 
1892. John McLeod, Clerk." 

The filing of the alleged demurrer by the Commercial 
National Bank is the only appearance in the case (if it can 
be called an appearance) by any person or thing. 

This demurrer was not ruled upon by the court, but the 
coui-t, on June 18th, entered judgment for the plaintiff on 
the theory of a default, and ignoring the alleged demurrer of 
the Commercial National Bank. The judgment recites: ''And 
default of the said defendant and the said the Montana Min- 
ing, Land, and Investment Company, the owner of the said 
property so seized as aforesaid, having heretofore been duly 
entered for not answering or appearing in said action, and no 
appearance having been filed by the said the Montana Mining, 
Land, and Investment Company, or by any master, agent, clei*k, 
or consignee of, or any other person interested in, the said boat, 
dredge, and amalgamator, its tackle, apparel, furniture, and 
appendages, or by said defendant, and no answer for the said 
company, or by any master, agent, clerk, or consignee of, or 
any other person interested in, the said boat, dredge, and 
amalgamator, its tackle, apparel, furniture, and appendages, or 
the said defendant, having been filed, and the time for so 
answering having fully elajised, the court, having considered 



264 DiETBicH V. St£am Dsbdge. [March T.. 1894 

the premises and the sworn allegations of the complaint^ finds 
iu favor of the plaintiff/' etc This judgment appears to be 
entered June 18, 1892. 

On June 23, 1892, the following motion was filed: 

'^ Comes now the Commercial National Bank of Cleveland, 
Ohio, claiming to be the owner of the above property, and 
moves the court to set aside the default, and open up the judg- 
ment in this cause, and allow the Commercial National Bank 
of Cleveland, Ohio, to file a petition in intervention in this 
cause, upon the affidavit of Rob't B. Smith, herewith tendered. • 
" L. M. CuTHBBRT and Word & Smith, 
^'Attorneys for the Commercial National Bank." 

With this motion was tendered a petition in intervention. 
The motion by the bank to open the default and for leave to 
file intervention was denied September 13, 1892. 

The bank, on the first day of February, 1893, filed the fol- 
lowing notice of appeal: 
" To the above-named jilaifdiffy Loma Dietrich^ and to Messrs. 

Luce & Luce, cUtomeys for plaintiff : 

'^ You will take notice that the Commercial National Bank 
of Cleveland hereby appeals to the supreme court of the state 
of Montana from the order and judgment of the above-entitled 
district court in refusing to entertain the demurrer filed in said 
cause by said bank, and in overruling the same and entering 
judgment for plaintiff in said cause, and from the order refus- 
ing to open up said judgment, and in refusing to allow the said 
Commercial National Bank to file its petition in intervention, 
and make a defense to said action of plaintiff, and to the whole 
of said orders and judgment, and to each of them, and the said 
Commercial National Bank objects, and from the same, and 
each of them, this appeal is prosecuted this January 30th, 
1893. L. M. CuTHBBRT and R. B. Smith, 

'^Attorneys for Commercial National Bank of Cleveland.'' 

This notice of appeal, it is claimed, brings the case before 
this court for review. 

Smith & Wwd^ for Appellant. 



14 Mont.] Dietrich v. Steam D&£Das. 265 

Luce & Luee^ for Bespondent 

L It is contended that the Commercial National Bank's 
demurrer should have been considered. The statute (§ 216, p. 
112) provides who may appear for the defendant boat. By 
the naming of the persons that could appear upon the part of 
the boat all others were excluded, unless they came within the 
provisions of section 24, page 64, of the Compiled Statutes. 
Expremo uniua eat exdusio aUei-ius. The demurrer was not 
an appearance for or on behalf of the boat under the provisions 
of section 216, nor was tiie Commercial National Bank one of 
the persons contemplated by said section who could appear on 
behalf of said boat, it being neither the master, agent, clerk, or 
consignee, nor did it stand in any similar condition towards 
said boat. The words ^' other persons interested in tlie boat'' 
mean other persons ejvsdem generis. When there are general 
words following particular and specific words, the former 
must be confined to things of the same kind. (Sutherland 
on Statutory Construction, §§ 268-73; Sedgwick on Construc- 
tion of Statutory and Constitutional Law, 360, 361.) If the 
demurrer filed by the Commercial National Bank was an 
appearance at all, it was simply an appearance for itself as a 
judgment creditor. 

There is no doubt that the Commercial National Bank had 
such an interest as that it might have intervened in the action 
if the proper application had been made to the court. {Horn 
V. Volcano Water Cb., 13 Cal. 62; 73 Am. Deo. 569; Cofee v. 
Greenfield, 55 Cal. 382.) Not having done so, however, it is 
an interloper at this time and a stranger to the action. 

IL The Commercial National Bank cannot prosecute this 
appeal. An appeal cannot be prosecuted by a stranger to the 
reconl. {Montgomery v. Leavenworth, 2 Cal. 67; Ec parte 
Cutting, 94 U. S. 14; He parU Cockcroft, 104 U. S. 578; Guicm 
v. Liverpool etc. Ins. Oo., 109 U. S. 173; Bayard v. Lombard, 
9 How. 530.) 

III. The second order attempted to be appealed from is 
the order refusing to open up the judgment, and to allow the 
Commercial National Bank to intervene. The appeal is not 
tenable at this time for the order was a special order made after 
final judgment^ and no appeal was taken within sixty days. 



266 DiBTBiCH V. Stbam Dbbdqb. [March T., 1894 

(Comp. Stats., § 421, subd. 3, p. 174.) That the appeal must 
be brought within tiie time specified in the statute or it is lost, 
see 1 American aud English Encyclopedia of Law, 621, and 

cai*es cited. 

De Witt, J. — ^We will first examine the notice of appeal, 
and ascertain what is before us. In the notice it is stated that 
the ap|)ellant appeals from the order of the court refusing to 
open the default, and refusing to allow the Commercial Na- 
tional Bank to intervene. These orders were made September 
13, 1892, upon a motion made June 23, 1892. These were 
special orders, made (September 13th) after final judgment, 
which was entered June 18th. An appeal from a special order 
made after final judgment must be taken within sixty days. 
(Code Civ. Proc., § 421.) This appeal was taken February 1, 
1893, which was much more than sixty days after September 
13tb, the date of the orders. Therefore, as contended by 
respondent, the appeal from the order refusing to open the 
default and allow the bank to intervene is not before us for 
review. We cannot, therefore, inquire into the merits of the 
application to intervene. 

Looking further into the notice of appeal, we find that it 
purports to appeal from some orders which are not appealable, 
but we think it is fairly oonstruable as an appeal from the 
judgment. It appeals from *Hhe order and judgment entering 
judgment.'' To state that an appeal is from a ^'judgment 
entering judgment'' is not apt or well-chosen language, but we 
are of opinion that the intention is expressed to appeal from 
the judgment, and that we should so construe it On the 
appeal from the judgment we may examine the action of the 
court as to the alleged demurrer of the Commercial National 
Bank. It is observed by the record that the court did not 
overrule the alleged demurrer, but, on the contrary, ignored it 
altogether, treated it as naught, and rendered judgment as if 
there were no demurrer filed, and upon the theory that the 
defendant was in defiiult. It is clear that the defendant itself, 
the alleged boat, did not appear, answer, or demur in this case. 
Its default was entered after the time for appearing expired, 
aud judgment was rendered against it. But was the filing by 



14 Mont.] DiETBiCH V. Stkam Debdge. 267 

the Commercial National Bank of the demurrer an apx)earanoe 
of the defendant boat? 

Section 216 of the chapter of the Code of Civil Procedure, 
upon the ''Attachment of Boats/' provides that ''any person, 
master, agent, clerk, consignee, or other person interested in 
the boat, maj appear by himself, his agent, or attorney, for the 
defendant, and conduct the defense of the suit'' 

The bank, in its demurrer, states that it has an interest in 
the boat as fi creditor, but the bank does not appear for the 
defendant. It appears for itself. The demurrer states that it 
is the bank that demurs. The attorneys sign the demurrer as 
attorneys for the bank, and not for the defendant The appeal 
to this court is taken by the bank, and not by the defendant. 
Whatever the bank attempted it attempted for itself. It is a 
creditor trying to get security on the boat, and not a friend of 
the boat, attempting to defend it. Indeed, the whole conten- 
tion of the bank in this case is, not that the boat or the owners 
thereof are aggrieved, but that the bank is injured, and seeks 
redress by appeal. Therefore, the attempted appearance being 
by the bank for itself, and not for the boat, and the boat not 
having appeared in the case below, judgment was properly ren« 
dered against it 

Therefore, taking the ground, as the record shows is the 
fact, that the bank acted for itself in filing the demurrer, did 
it thus get into court and the case, and become a party to this 
action? It was not a party when the complaint was filed and 
the summons issued. It did not become a party by interven- 
ing, as permitted by the Code of Civil Procedure, section 24. 
It was not brought into the case by the court in pursuance to 
section 26 of the Code of Civil Procedure, nor by the provisions 
of section 27. If the bank ever became a party in this case, it 
became so simply by filing the demurrer. But we do not under- 
stand what authority it had to file that alleged pleading. The 
person who may demur to a complaint is the defendant (Code 
Civ. Proc, § 87.) The bank was not a defendant Indeed, the 
bank neither is now, nor ever was, a plaintifT or a defendant or 
an intervener. It is an outsider as to this case. It may be 
conceded, in this discussion, that the facts were such that the 
bank could have become an intervener by properly proceeding 



26S Dietrich v. Staam Dbbdgb, [March T., 1894 

in time under the provisions of section 24 of tlie Code of Civil 
Procedure. That section (24) is as follows: 

''Any person may, before the trial, inlerveuie in an action or 
proceeding who has an interest in the matter of litigation in 
the success of either of the parties, or an interest against both. 
An intervention takes place when a third peraon is permitted 
to become a party to an action or proceeding between other 
persons, either by joining the plaintiff in claiming what is 
sought by the complaint, or by uniting with the defendant in 
resisting the claims of the plaintiff, or by demanding any thing 
adversely to both the plaintiff and defendant, and is made by 
complaint, setting forth the grounds upon which the interven- 
tion rests, filed by leave of the court, and served u{)on the })ar* 
ties to the action or proceeding who have not appeared, and 
upon the attorneys of the parties who have appeared, who may 
answer or demur to it as if it were an original complaint.'^ 

It is observed that this statute provides how a i)erson may 
come into a case who has an interest in the litigation, or in the 
success of either of the parties, or against both. He may not 
come in of his own motion or "of course.'' He must make a 
showing by complaint. He must have leave of court to file 
the complaint. That pleading must be served upon the other 
l>arties, who may answer or demur; and the court must deter- 
mine whether a proposed intervenor may come into the case. 
But this bank ignored all these rules of practice and statute. 
Being an outsider and stranger to the suit as commenced, it 
never asked leave of court to come into the case. It never 
presented any complaint to which the parties already in could 
have demurred or an8wei*ed. It never gave the court oppor- 
tunity to determine whether it had a right to intervene. But 
it steps into the case with its demurrer, and says that it has an 
interest in the litigation; and this statement^ by itself, it deter- 
mines for itself, in its own &vor. It comes into the case ''of 
course,'' and upon its own motion, and without leave. It is 
clear that section 24 provides that the court, and not the inter- 
venor, determines all these matters. Under these views, we 
are of opinion that the district court committed no error when 
it simply disregarded the demurrer filed by the bank, and 
entered judgment for plaintiff. ^ 



14 Mont] Manhattan M. Co. v. Swetbland. 269 

Some very important questions have been argued in this 
case; for example, as to whether the allied boat was, under 
the allegations of the complaint, a boat, and whether a cause 
of action was shown as to the claims which were assigned to 
plaintiff. The constitutionalitj of the statute (title 7, o. 5) 
is also questioned. But it appears that we have no jurisJictiuu 
of this appeal. We have no jurisdiction to open the default 
and allow intervention, because, as shown above, that appeal was 
not taken within the time prescribed by statute. (Code Civ. 
Proc., § 421.) Again, we have no jurisdiction to disturb the 
judgment, because no person who was ever a partj thereto lias 
appealed. 

We see no other course but to dismiss the appeal, and it is 
accordingly so ordered. 

Pehbebton, C. J., and Habwood, J., concur. 



MANHATTAN MALTING COMPANY, Rispondeot, 
V. SWETELAND, Appellant. 

[SabmitteclJaly n, 1S98. Decided Marofa 26, 1804.] 

B?iiiiiia>— Xos( ifutrumenU—CopieB of record, token odmissi&Ztf.—Seotioii 264, 
diTMon 6» of the OompUed Btetates, proriding that an instramentor convey- 
aDce thai is lost or not within the power of the party wishing to nse the same 
maybe proved by a copy certified by the recorder, being special in its character, 
controls section 889 of the Complied Statutes, making certified copies of all 
papers filed in the office of the recorder furima facie eyidenoe in all cases, 
which is a general statute, and, therefore, npon the proof of title in ejectment 
the admission in evidence of certified copies of conveyances, without proof of 
loss or inability to produce the originals, is error. (Fiick v. Oold BiU and 
lee Mountain Min. Co., 8 Hont 298, cited; McEinftry v. Clark, 4 Mont. 870; 
Oaxfi^H M, A M. Co, v. Hammer, 6 Hont. 63, reviewed and modified.) 

Appeal from Ninlk JudicUU Disliictf OaUatin OowUy. 

EjEcriHENT. The cause was tried before Abmstrong, J. 
Plaintiff had judgment below. Reversed. 

Luce & Litce, for Appellant. 

The court erred in i)ermitting the reading from the records 
of deeds by the witness Yaill^ and in allowing the certified 



270 Manhattan M. Co. v. Swetbland. [March T., 1894 

copies to be filed^ as the testimonj showed theorigiDals to be in 
the possession of the plaintiff at this time of trial. A copy of 
the record of any conveyance of real estate or the record itself 
cannot be used as evidence without proof of the loss of the 
original, or that it is not within the power of the party wish- 
ing to use the same. (Comp. Stats., § 264, p. 662.) Statutes 
prescribing forms of procedure or modes of proof must be 
strictly construed and pursued. (Sedgwick on Construction of 
Statutory and Constitutional Law, 276-78.) So, when the 
law prescribed the manner in which an act is to be done, it can 
be done in no other way, (Sutherland on Statutory Construc- 
tion, §§ 326, 392, 393, and cases cited; §§ 454, 459, and cases 
cited.) It may be contended that section 839, page 868, of the 
Compiled Statutes allows a different procedure. This makes 
copies of records ^^prirna fade evidence in all cases.'' This is 
a general statute applying to all records and papers filed. The 
record of a conveyance of real estate only becomes evidence when 
the loss of the original is shown. It is still secondary evidence 
if prima facie^ and must come within the exception. (Sutiier- 
land on Statutory Construction, §§ 326-28; Booth v. Tietjian, 
109 U. S. 208; Macy v. Goodwin, 6 Cal. 580; FaUon v. Dougl^ 
eiiy, 12 Cal. 106; Reeding v. Mullen, SI Cal. 104; 8d>reey.Dorr, 
9 Wheat. 663.) The same doctrine has been announced by the 
supreme court of Montana in Siapleton v.Pecue, 2 Mont. 650. 
The decision in MoKinstry v. Qark, 4 Mont. 370, was based on 
the admissibility of a notice of location, and was followed in 
Garfield M. & M. Co. v. Hammer, 6 Mont. 64, without any 
distinction between deeds and location notices. The true rule 
is laid down in Flick v. Gold HUl & L. M. M. Co., 8 Mont. 
303, to wit: "We understand the true rule to be that, when 
the law requires a record of any instrument, the record itself 
is the best evidence of the facts therein stated*' .... "but 
the rule itself is limited to such facts and instruments as by 
law are required to be of record." In other words, the record 
of a location notice is the best evidence of its contents, it being 
required to be made by law and filed in the recorder's office as 
the foundation of the right to possession of the claim. The 
original deed, however, is the best evidence of its contents, and 
the record thereof at best is only secondary evidence. Giving 



14 Mont.] Manhattan M. Co. v. Swetbland. 271 

to Garfield v. Hammer, 6 Mont 64, and MoKindry v. CHarh, 
4 Mont 370, the greatest possible weight, they amount merely 
to a construction of paragraph 4 of section 627 of the Code of 
Civil Procedure. That a certified copy can be used ^' when the 
original has been recorded, and a certified copy is made evi- 
dence by this code or other statute.^' A certified copy of a 
deed is only made evidence when the original cannot be pro- 
cured. (Code Civ. Proc., § 264. See, also, Toudiard v. 
Keyes, 21 Cal. 202-11; Y(mnge v. QuHbeau, 3 Wall. 636; 
Brooks V. Marbury, 11 Wheat. 79, 82, 83; Hemley v. Tarpey, 
7 Cal. 288,) "To introduce into a cause the copy of any 
paper, the truth of that copy must be established, and sufficient 
reasons for the nonproductiou of tlie original must be shown." 
(C. J. Marshall, in Smith v. GairiTigton, 4 Cranch, 70.) The 
truthfulness of the copy is proved by certificate of the recorder 
under section 839 of the Code of Civil Procedure; the other 
iacts must be shown by the party desiring to use the same. 

JBarftnan, Ha^lman & Staaia, for Respondent. 

Pehbebton, C. J. — ^This is a suit in ejectment, wherein 
plaintiff seeks to recover possession of lot 8, in block 20, of the 
town of Manhattan, in Gallatin county, and for the rents and 
damages for the wrongful withholding of the possession thereof 
by defendant. Defendant, in his answer, denies the material 
allegations of thid complaint, and sets up an alleged equitable 
title to the property in dispute. Judgment was rendered in 
favor of the plaintiff. Defendant moved for new trial, which 
was refused. This appeal is from the judgment and. order 
refusing a new trial* 

In the trial of the case the court permitted the plaintiff to 
prove its title to the land in dispute by offering and using in 
evident the records and certified copies of the patent from the 
government, and all the conveyances of its immediate and 
remote grantors, without any showing of the loss or inability on 
its part to produce the original of such patent and deeds. This 
was done over the objection of the defendant. This action of 
the court is the principal error assigned in this appeal. 

Section 264, page 662, of the Compiled Statutes is as follows: 



272 Manhattan M. Co. v. Swkteland. [March T., 1894 

''When aujsuch oonvejanoeor instrument is acknowledged or 
proved^ certified and recorded lu the manner hereinafter pre- 
scribed^ and it shall be shown to the court that such convey- 
ance or instrument is lost, or not within the f>ower of the party 
wishing to use the same, the record thereof, or the transcript 
of such record, certified by the recorder under the seal of his 
office, may be read in evidence without further proof/' 

Section 82 of 1 Greenleaf on Evidence, fifteenth edition, is 
as follows: ''Best evidence required. A fourth rule which 
governs in the production of evidence is that which requires 
the best evidence of which the case in its nature is susceptible. 
This rule does not demand the greatest amount of evidence 
which can possibly be given of any fact, but its design is to 
prevent the introduction of any which, from the nature of the 
case, supposes that better evidence is in the possession of the 
party. It is adopted for the prevention of fraud; for when it 
is apparent that better evidence is withheld, it is fair to pre- 
sume that the party had some sinister motive for not producing 
it, and that, if ofiered, his design would be frustrated. The 
rule thus becomes essential to the pure administration of jus- 
tice. • • • • Thus a title by deed must be proved by the pro- 
duction of the deed itself, if it is within the power of the party, 
for this is the best evidence of which the case is susceptible; 
and its nonproduction would raise a presumption that it con- 
tained some matter of apparent defeasance.'' 

In all cases when the law requires the evidence of a trans- 
action to be in writing, no other proof can be substituted for 
that, as long as the writing exists, and is in the power of the 
party. (1 Greenleaf on Evidence, 16tb ed., § 86. See, also, 
Taucliard v. Keyes, 21 Cal. 202; Youvge v. Ouilbeau, 3 Wall. 
636; Marbury v. Brooks, 11 Wheat. 79; Smith v. Qimw^ow, 
4 Cranch, 70.) 

The respondent contends that this action of the court is justi- 
fied on the authority of McRinstry v. Clarhy 4 Mont 370, and 
OarjUld etc. Mining Co. v. Hammer, 6 Mont. 53. It will be 
observed upon examination that these cases are mining cases. 
The law requires that the discoverer of a mine shall record a 
certificate of his location. The recording of his certificate of 
location, as required by statute, is a sine qua non to acquiring 



14 Mont.] Manhattan M. Co, v. Swbtbland, 273 

a perfect title to his claim. The best evidence that an instrn- 
ment has been recorded which the law requires to be recorded 
is the record itself. These cases, it is true, are to the effect 
that certified copies of deeds may be admitted in evidence, with- 
out first showing the loss or inability to produce the original 
by the party wishing to use them. These cases proceeded in 
this respect upon the theory that the general principles of evi- 
dence enunciated in the statutes of this state, and section 839, 
page 868, of the Compiled Statutes, which reads as follows: 
" Copies of all papers filed in the office of the recorder of deeds, 
and transcript from the books of record kept therein, certified 
by him under the seal of his office, shall be prima facte evi- 
dence in all cases,'^ and which refers to the duties of the county 
clerk, controlled the question of the admissibility of such evi- 
dence. 

The doctrine of these two cases is materially modified in 
Flick V. Oold Hill do. Mining Co., 8 Mont. 298, wherein the 
court says: " We understand the true rule to be that, when the 
law requires a record of any instrument, the record itself is 
the best evidence of the facts therein stated. In McKinairy v. 
(Xarhf 4 Mont. 370, and Garfield do. Mining Go. v. Hammer, 
6 Mont 53, the court seems to have overlooked or ignored the 
force and effect of section 264, page 662, of the Compiled Stat- 
utes. This statute has special reference to the admissibility of 
the record or certified copy of a conveyance which has been 
lost, or which is not within the custody, power, or control of 
the party desiring to use it in evidence, and it specifically pro- 
vides that such record or certified copy thereof may be used 
^'when it shall be shown to the court that such conveyance or 
instrument has been lost, or not within the power of the party 
wishing to use the same." The statute is special in its char- 
acter, having reference to a special state of facts or condition. 
The rule in such cases is that a special statute shall control gen- 
eral statutes on the same subject. Our statutes provide that, 
when a general and a particular provision are inconsistent, the 
latter is paramount to the former. Compiled Statutes, section 
631, page 225, McKinstry v. Gark, 4 Mont. 370, and Qarfidd 
etc Mining Cb. v. Hammer, 6 Mont. 53, involved in the main 

the construction of statutes relating to instruments which the law 
Vol. XrV.-lS 



u 


^m 


f]5 


177 


IS 


179 


15 


686 


ae*i88 


a8*883 


88*8S4 


89*g06 


14 


274 


17 


174 


1? 


274 


19 


4B3 


14 


274 


23 


307 


14 


274 


80 


834 


L4 


274 


11 


573 



274 Matbb i;. Carothbb3« [March T., 1894 

required to be recorded. The law deed not require deeds or 
conveyances to be recorded. Tbe record of such instruments 
gives tbem no vitah'ty. The record is simply a notice to tbe 
world. We think McKinatry v. Gark, 4 Mont. 370, and <7ar- 
fidd etc Mining Co. v. Hammer, 6 Mont 63, in so far as they 
hold that the record of conveyances, or certified copies thereof, 
are admissible in evidence, without first showing the loss of 
the originals, or that they are not within the power of the 
party wishing to use them in evidence, are in direct conflict 
with the laws of the state, not supported by the elementary 
principles of law, or the great mass of adjudications, and should 
therefore be, in that respect, modified. 

The appellant also complains that the court did not deter- 
mine or pass upon his rights under the alleged equitable defense 
set up in his answer. As the appellant did not insist upon 
this alleged defense, or offer any evidence in support thereof 
on the trial of the case, without passing upon the merits thereof, 
we are unable to find any error in the action of the court in 
this particular. There are other errors assigned, but, as the 
case must go back for new trial, we do not feel called upon to 
treat them now. 

The judgment of the court is reversed^ and the cause re* 
manded for new trial. 

Beversed. 

Harwood, and De Wrrr, JJ., concur. 



MAYER ET AL., Respondents, v. CAROTHERS et al., 
Appellants. 

[Submitted Febraary 24, 1898. Decided March 26, 1B9L] 

MnisB AVD MnfiKO— 5totu<0 of Hmitatiofu. -^The statnte of limitations doos not 
commence to ran against a mining claim until the issuance of a patent there- 
for. (King t, Thonuu, 6 Mont. i09, affirmed.) 

TSovnTJiT-^JHrecting verdict. — Where an equitable defense is pleaded to an action 
of ejectment, and the court peremptorily directs the jury to find for the plain- 
tiff, such direction is, in effect, a nonsuit of defendant's defense, and, there- 
fore, whateyer defendant's testimony tends to prove as to such defense must 
be taken as proved. (McKay v. Jilontana Union By. Co,, IS Mont. 15; Creek 
y. McManus, IS Mont. 152» cited.) 



14 Mont, i Matab v. Cabothsrs. 276 

Sams— ^>e^efit— JE'<2t<ttoM« defente—EBtoppeh— When town lots ritnated upon 
a patented mining claim are claimed by defendants throngh oonveyanoefl from 
one who assamed title thereto under an arrangement hy which the residents 
of a mining gulch, at a meeting held for that purpose, resolred to lay off a 
townsite, and, among other things, provided that each person might take up 
two lots—the fisot that one of plain tlflTs grantors attended such meeting and 
took part in the proceedings, and another took up town lots pursuant thereto, 
does not create an equitable defense to an action of ejectment brought by the 
patentees of such olsim to reooyer possession of the portions covered by the 
lots in controversy. ( TtiUboU y. IRng, 6 Hont. 76, dted.) 

Appeal from Siosth Judicial District, Meagher County. 

Ejectment to recover possession of town lots upon the sur- 
face of a mining claim. The cause was tried before Henbt^ J. 
Plaintiffs had judgment below. Affirmed. 

Took & Wallace, for Appellants. 

L The court erred in excluding evidence of the adverse 
possession of defendants and their predecessors in interest prior 
to the issuance of the patent. After the receipt of the pay- 
ments for the land and issuance of the receiver's certificate, 
the United States held the bare, naked, empty title, and the 
holder was the sole beneficiary in the premises described in it. 
(Comp. Stats., § 542, p. 202; Herr(m v. Dater, 120 U. S. 464; 
United States v. Freyburg,^ 32 Fed. Rep. 195; Hamiltm v. 
Southern etc M. Co.^ 33 Fed. Eep. 562; DaJd v. Montana 
Copper Co., 132 U*. S. 264.) The statute always runs against 
the eestm que trust of a perfect equitable title. (Tiedeman on 
Eeal Property, § 715; UdeU v. Peak, 70 Tex. 547; Uniied 
States V. Beebe, 127 IT. S. 338, in connection with 1 Am. & 
Eng. Ency. of Law, § 12, pp. 243, 244.) The statutes of 
Montana have provided how plaintiffs could lose the right 
to the possession of these town lots, and they have lost it. 
Even if they could invoke the aid of the United States for 
their protection, the courts apply the doctrine of laches, 
when the party seeking to recover is the sole beneficiary. 
{Cawley v. Johnson, 21 Fed. Rep. 492; Hunnicutt v. Peyton, 
102 U. S. 368.) In those forms where an equitable title will 
support or defeat an action of ejectment, the statute will run 
against such equitable title. {Moreland v. Bamhart, 44 Tex* 
275; WriglU v. Hawkins, 28 Tex. 471; Catoley v. Johnson, 



276 Maybb v. Carothbbs. [March T., 1894 

21 Fed. Bep. 492; Adr<m v. Hammond^ 3 McLean, 107; 
Feting v. De Lore, 71 Mo. 13; Hannibal ete. R. B. Ch. v. 
Clark, 68 Mo. 371; Norria v. Moody, 84 Cal. 143; WiUon v. 
Fine, 14 Saw. 38; 38 Fed. Rep. 789, and authorities.) The 
local laws of the state are distinctly recognized in possessory 
actions, so far as mining claims are concerned, and the 
statute runs in all courts, and the legal title in the United 
States is of no consequence, because ejectment is maintainable. 
(U. S. Rev. Stats., §§ 910, 914, 1850, 2322, 2324, 2326; Camp- 
bell V. SUver Bow etc Co., 1 C. C. of App. Rep. 155; 49 Fed. 
Rep. 47; Bdk v. Meagher, 3 Mont. 65; U. S. Stats. 1891, 
§ 16, p. 1101, 2d Sess., 51st Congress.) It is the cause of 
action against which the statute runs, and it is set in motion 
as soon as the cause of action accrues. (Pomeroj's Equity 
Jurisprudence, §§ 1396, 1397, note 3, 1405; Lewis v. Soule, 52 
Iowa, 11, 13; Bteama v. Falmer, 10 Met. 35; Tiedeman on 
Real Property, § 715; Roper v. Holland, 3 Ad. <& E. 99; 1 Am. 
& Eng. Ency. of Law, § 12, pp. 243, 244, note 1, and authori- 
ties cited; Corap. Stats., § 29, p. 65; Faneoeur v. Newhouee, 43 
Fed. Rep. 241, 242.) And section 39, pages 67 and 68, of the 
Compiled Statutes show the only exception to the above rule. 
(Angell on Limitations, 381, 382, 476, 478, 485; Tynan v. 
Walker, 35 Cal. 634; 95 Am. Dec. 152; Woodbury v. OoUins, 
19 Wis, 60.) So a title, easement, or servitude, acquired under 
the statute, is absolute and sufficient upon which to base affirm- 
ative relief. (Arrington v. Liscom, 34 Cal. 365; 94 Am. Dec. 
722; LeffingweU v. Warren, 2 Black, 599, 601.) Suppose that 
the plaintiffs had leased the property for years, and the lessee 
was in possession when the patent was received by the lessor, 
would they not be estopped from evicting the lessee on account 
of his lease? Again, suppose that plaintiff had executed a 
mortgage upon his right and title to the property, after his 
certificate had issued, and it had been foreclosed and sold, and 
the equity of redemption had expired, would the receipt of the 
patent thereafter cut off the rights of the purchaser and author- 
ize a recovery in ejectment by the patentee? And again, tak- 
ing the case as it is, being likewise a title acquired under the 
statute, does the subsequent issuance of the patent reinvest the 
patentee with a right of possession he has los( under the local 



14 Mont.] Matsb v. Cabothers. 277 

laws? Is it not by foroe of the local statute that this right is 
lost in the one case as much as the other^ and does not the loss 
of the right in the one affect the question of the primary dis- 
posal of the soil as much as the other? Hence section 2322 
of the United States Revised Statutes^ granting to the locator^ 
his ^^ heirs and assigns/' the exclusive right to the possession 
of a mining claim, so long as he complies with the local and 
federal statutes, subjects it to a claim less than a fee, that 
accrues not only on account of a conveyance, devise, etc., but 
includes those acquiring rights therein by "other acts of law." 
(Rapalje and Lawrence's Law Dictionary, title "Assignee.") 
The rights of defendants are through and under the grantors 
of plaintiffs, and the plaintiffs are affected by those rights. 
They are, in the sense of the statute, "assignees" of the locator 
on account of which the rights of plaintiffs are affected. In 
this section assignee, in our judgment, means a successor to the 
interest of the locator, which under the law accrues to an 
adverse holder for the period of the statute of limitation. It 
must mean a lawful successor to the interest of the locator to 
subserve the purpose of the statute, else it is exempt from sale 
upon execution, or the operations of law by which that title 
passes. {BaUy v. De Orespigny, L. B. 4 Q. B. 186; Brown 
V. Orookaton etc. Assn., 34 Minn. 645; Anderson's Law Dic- 
tionary, title "Assigns," 82.) So that " assigns," used in con- 
nection with " heirs" before the patent, and referring to rights 
acquired by location, comprises in law a successor to the inter- 
est of the locator. It is, therefore, not an attempt on the part 
of the state to enlarge the grant, so as to include assigns not 
otherwise included, but is a provision contained in the act of 
Congress disposing of the public domain. 

II. The court erred in directing the jury to return a ver- 
dict for the plaintiffs under the facts in evidence before them. 
The question is no longer an open one, that the court acts as a 
special tribunal, under section 2326 of the United States 
Bevised Statutes, for the sole purpose of determining who is 
entitled to a patent, and cannot exercise its general common 
law and equity powers in adjusting and determining any other 
question than that expressly submitted to it. The equitable 
right of ix)sse8sion as between the applicant, or a legal right 



278 Maybb v. Oabothbbs. [March T., 1894 

thereix), growing oat of a lease or other contract relations, can- 
not legitimately enter into the issues to be submitted, but the 
right of possession referred to is a right which carries with it 
a right to a patent, leaving all others, at least of an equitable 
character, to be adjusted in a proper forum, ex post jaxixi the 
patent. The judgment is limited to the facts submitted, and 
is only res judicata as to them. The judgment is the basis of 
the patent, and the patent is only conclusive of the facts upon 
which that judgment is or can be based. Hence it is, we find 
the courts holding tliat these equitable rights between the 
parties are open for adjudication, notwithstanding the patent. 
{Doe V. Waterloo Jf. Cb., 43 Fed. Rep. 219, 221; Hunt v. 
Patdiin, 35 Fed. Rep. 816; Suasenbach v. F^et NaL Bank, 5 
Dak. 477; Doherty v. Jform, 11 Col. 12; Marquez v. -FWzWc, 
101 U. 8. 473; Johnson v. Towdey, 13 Wall. 72; Sheptey v* 
Oman, 91 U. S. 330; and especially Bectar v. Oibbon, 111 
IT. S. 276; Irvine v. MarehaU, 20 How. 668; Burlingtm etc. 
B. B. Cb. V. Johnson, 38 Kan. 142.) It is now settled law 
that there may be two freeholders in the same body of earth, 
measured superficially and perpendicularly down towards the 
center of the earth, to which theoretically the unlimited owner- 
ship of the soil extends. (Washburn on Easements and Servi- 
tudes, 558; WiUdnaon v. Proud, 11 Mees. & W. 33; Bowbotham 
V. Wilson, 8 El. & B. 123, 142; New Jersey Zinc Co. v. New 
Jersey Franiliniie Co., 13 N. J. Eq. 341, 342; MacSwinney 
on Mines, 26, 268.) The presumption of ownership to the 
center of the earth arising from ownership of surface may be 
rebutted by evidence of long, actual, separate enjoyment of the 
surface and the mines of difierent owners. (MacSwinney on 
Mines, 27; Humphries v. Brogden, 12 Q. B. 739; Bom v. 
Greenfel, Ryan & M. 398; OuHis v. Daniel, 10 East, 273; 
Barnes v. Mawson, 1 Maule & S, 84; Cox v. Olue, 5 Com. B. 
548.) No presumption of surface ownership arises from the 
fact of ownership of mines. (MacSwinney on Mines, 26; 
TyrwhiU v. Wynne, 2 Barn. & Aid. 654; MarshaU v. VUes^ 
water etc. Co., 3 Best & S. 748.) The right of property in 
the surface and in the underlying mines may be shown to be 
in difierent hands. (MacSwinney on Mines, 27; Bieh v. 
Johnson, 2 Strange, 1142; Bowe v. Oreenfd, Ryan & M. 398; 



14 Mont.] Mayeb v. Gabothebs. 270 

HodglcvMon v, Fletcher ^ 3 Doug. 34; Sarria v. Ryding^ 5 Mees. 
& W. 72; Cox V. GZw«, 5 Com. B. 548; Keyse v. PoweC, 2 
£1. <& B. 144.) If the grantors of defendauta held an avail- 
able title to the surfaoe in law or equity against the grantors 
of plaintiffs^ it is available in the action against plaintiffs. 
1. Because the jury did not have an opportunity to pass upon 
the notice of defendants and their grantor's equities, as set up 
in their answer, on account of which, for the purposes of this 
trial, it must be assumed they had such notice, and that such 
equities existed. 2. The actual possession and occupancy 
established by defendants, in themselves and predecessors in 
interest, which must be regarded as a fact (the instruction 
shutting it out from the jury), was notice of all their rights 
and equities, whatever they may have been. (Code Civ. Proc., 
33-36; Hughes v. United States, 4 Wall. 232; and see authori- 
ties cited under subdivision 6, which are alike applicable here.) 
3. The acts and declarations of McCureand Sutton, aside from 
thequestion of possession, while holding the Keegan Lodedaim, 
were competent, and binding upon plaiutiffis as their grantees. 
(Code av. Proc., §§ 620, 621; MacSwinney on Mines, 26; 
Q-ease v. Barrett, 1 Cromp. M. & R. 919; Stanley v. Orem, 
12 Cal. 148.) 4. If sufficient in such case to raise an equity 
against the grantors of plaintiffs, it is available against plain- 
tiffs also. (Bryan v. Bamirez, 8 Cal. 461; 68 Am. Dec. 340. 
Stanley v. Oreen, 12 Cal. 148; Snodgraaa v. BicMtts, 13 Cal! 
359; Carpentier v. ThirOm, 24 Cal. 268.) 5. The acts of 
McCure constituted a donation of the property, and the donee 
entering and fencing, in accordance with the terms, could not 
afterwards be evicted by the donor or his successor, with notice 
of such facts as would put a reasonable person upon inquiry. 
(Story v. Black, 5 Mont. 26; 51 Am. Rep. 37; Hughes v. 
Vniied States, 4 Wall. 232; Landes v. Brant, 10 How. 348; 
McEinzie v. Pennll, 15 Ohio St. 162, 168; Jones v. Maris, 47 
Cal. 242; Bay v. Birdsey, 5 Denio, 626; Wade on Notice, 
§§ 273, 279; Williamson v. Brown, 15 N. Y. 355; Harris v. 
Arnold, 1 R. I. 125; Bees v. Smith, 1 Ohio, 127; 13 Am. 
Dec. 599; Rogers v. Jones, 8 N. H. 264; Havens v. Bliss, 26 
N. J. Eq. 363; Wickes v. Lake, 25 Wis. 71; McLaughlin v. 
Slieplierd, 32 Me. 143; 52 Am. Dec. 646; Bailey v. White, 13 



282 Matbb v. Gabothbbs. [March T., 1894 

in 6 Utab, 376; Anzar v. MUUr, 90 Gal. 342, which overrules 
the dietwn of Jastice Fox in Norria v. Moody, 84 Gal. 143; 
King y. Ihomas, 6 Mont. 409; Neader v. Bigdow, 60 CaL 98.) 
Appellants contend, however, that inasmuch as a perfect, equi- 
table title vested in plaintifis when they obtained the receiver's 
receipt for the land in question, and that the United States was 
the holder of the naked, l^al title only, and that inasmuch as 
ejectment may be predicated upon such equitable title, that 
therefore the statute began to run from the date of such 
receiver's receipt Precisely the same argument was advanced 
in the numerous cases in the state courts where the same point 
was involved. However persuasive such argument may be it 
cannot be followed. When the United States gives a patent to 
a man it gives some thing more than a mere piece of paper; it 
gives also the right to possess and enjoy the land described in 
the patent ''With the legal title, when transferred, goes the 
right to possess and enjoy the land, and it would amount to a 
denial of the power of disposal of Congress if these benefits, 
which should follow upon the acquisition of that title, could 
be forfeited because they were not asserted before that title was 
issued." {Oibaon v. aumSeau, 13 Wall. 100.) The case at 
bar is clearly within the principle announced in Sparks v. 
Pierce, 115 U. S. 412; Pierce v. Sparks, 22 N. W. Kep. 491 
(Dak., Feb. 6, 1886). 

II. But counsel for appellants seek to educe a different rule 
in the case at bar because the premises in dispute are a portion 
of the mineral lands of the United States; and while conceding 
that there can be no question of the statute beginning to run 
only on the issuance of a patent for agricultural lands, that as 
regards mineral lands it begins to run from the date of the 
receiver's receipt It is submitted that this is a distinction 
without a difference. It is true that the locator ot mineral 
lands has a much greater control over his claim than has an 
agricultural entryman, prior to final entry, over an agricultural 
claim; but after such final entry, after the issuance of the 
receiver's receipt for the entry money, the rights of the agri- 
cultural entrymen are fully as broad and comprehensive as 
those of the mineral claimant He can dispose of the land; 
it cau be seized under legal process against him; it is subject to 



14 Mont.] Maysb v. Cabothbbs. 283 

tazatioQ; he has nothing farther to do to i^rfect his title than 
to receive the patent therefor; he is the owner of the fnll equi- 
table title; the United States are the holders of the dry, legal 
title merely in trust for him; his entry 'Ms equivalent^ so far as 
the government is concerned, to a patent actually issued. The 
execution and delivery of the patent after the right to it has 
become complete are the mere ministerial acts of the officers 
charged with that dnty.'^ (See cases cited in Steele v. BoUi/, 6 
Utah, 376.) And yet with such a title as this, as we have seen 
in the cases cited, supra^ the unquestioned rule is that the stat- 
ute runs not from the date of the receiver's receipt, but from 
the date of the patent. But we are not without direct author- 
ity that as to mineral lands the statute begins to run only from 
the date of the patent. Precisely the same point was squarely 
raised and so decided in King v. Thoma8f 6 Mont. 409, and in 
Nesder v. BigdaWj 60 Cal. 98, and is involved in Sparks v. 
Pierce, 116 U. 8. 412. Afortiorij if the statute does not begin 
to run at the date of the receiver's receipt, it does not run from 
the date of the location of the claim. 

IIL King y. Tlhomaa, 6 Mont. 409, was decided in 1887; 
the rule there announced was a deliberate judicial decision con- 
curred in by all the court; it is safe to say that it has become 
a rule of property, that many and important rights have grown 
out of the same, and even, therefore, if this court should doubt 
its correctness, it at least should follow it under the doctrine of 
slare deeisie. [Pioche v. Paul, 22 Cal 106; Smith v. McDonald, 
42 Cal. 484.) 

IV. As to the so-called equitable defense. It is apparent, 
both from the plea in the answer and the testimony adduced 
on the trial, that defendants were not basing their alleged 
equitable title upon any title dependent upon that of the plain- 
tiffs, but upon a hostile and adverse one, the contention being 
not only that plaintiffs never owned the lots in dispute, but 
that even if they had owned them, such title as they had had 
passed from them to defendants by virtue of their adverse pos- 
session under the statute of limitations. This being so, it 
would follow that not having asserted such adverse claim at 
the time of the application for the patent to the Keegan lode 
under the United States Revised Statutes, section 2326, they 



284 Mayxb v. Cabothbbs* [March T., 1894 

are now barred from asserting it {Shafer v. OmsUins^ 3 Mont. 
369; MaUingly v. Leunsohuy 8 Mont. 260; BuUe City Smoke^^ 
house Lode Cases, 6 Mont, 397; TcdboU v. Zingr, 6 Mont, 76; 
Sparks v. Pierce, 116 U. 8. 412.) The authorities cited in 
appellant's brief are clearly distinguishable from this view. 
In those cases the claims which were held not necessary to 
assert under section 2326 of the United States Revised Stat- 
utes were such as were dependent upon^ and not hostile to, that 
of the applicant for patent. 

Y. Appellants seem to claim that the form of the two 
deeds to plaintiffs is such as to '^ place them outside the pale 
of bona fide purchasers/' possibly on the ground that tbey con- 
tain the words '^ remise, rdease, and quitclaim." There is noth- 
ingy however, to show that these words were intended to limit 
the estate conveyed by the words of grant, bargain, and sale. 
The evident intent of the grantors was to convey specific inter- 
ests in the Keegan lode, to wit: Ten-twelfths and two-twelfths; 
and even if they were ^'quitclaim," pure and simple, they are 
sufficient to pass the interests conveyed, and would prevail 
over any older but unrecorded conveyance. (Comp. Stats., 
div. 5, §§ 260, 270; Qraff v. MiddleUm, 43 Cal. 341; Frey v. 
aifford, 44 Cal. 335.) 

y I. The consensus of all the authorities is to the effect that 
in order to constitute notice or knowledge to the subsequent 
purchaser there must be a possession which is actual, open, 
visible, exclusive, uninterrupted, unambiguous, and inconsist- 
ent with the record title; it must be an occupation, a possessio 
pedis; the alleged equitable owner, either in person or by his 
agents or lessees, must be on the ground itself; the ground must 
be subject to his will and control; a vacant or constructive 
possession is wholly insufficient. An intending purchaser is 
bound to inquire only of those on the ground at the time of 
the purchase. (5 Lawson's Rights, Remedies, and Practice, 
3831, 3832; Wade on Notice, §§ 288, 291; McMediam v. 
Oriffing, 3 Pick. 149; 15 Am. Dec. 198; BiuJ:; v. HoUotoay, 
2 J. J. Marsh. 180; Boggs v. Vatmer, 6 Watts & S. 469; 
Jleehan v. WUliams, 48 Pa. St. 238; GampbeU v. Brackenridge, 
8 Blackf. 471; Ely v. Wilcox, 20 Wis. 523, 531; 91 Am. Dec 
436; SmUh v. Yule, 31 Cal. 180; 89 Am. Dec. 167; Sairifard 



14 Mont.] - Mayeb v. Carothbrs, 285 

V. Weeks, 38 Kan. 319; 5 Am. St. Rep. 748; Taylor v. Ontral 
Poo. B. B. Co., 67 Cal. 615; Abbott's Trial Evidence, 716, 
717.) Fencing a piece of land is not the actual possession or 
occupation which is essential, {Wolf v, Baldwin, 19 Cal. 306.) 
Nor can it be said that such an act is an unambiguous asser- 
tion of title, or that it is inconsistent with the record title. 
The testimony of defendants, wherein notice on the part of 
plaintiffs was sought to be charged, was wholly insufficient; 
nor was it in any way as broad as the allegations of the answer; 
so that if the court did not err in overruling the demurrer to 
the answer, neither did it err in holding such testimony insuf- 
ficient to charge plaintiffs with fraud. 

YIL Plaintiffs are not estopped from asserting their rights 
because of the erection by defendants of improvements on these 
lots. There was no privity between them and no inducements 
held out; defendants were trespassers from the start as against 
the rights of plaintiffs; and even if any explanation of plain- 
tiff's nonaction were necessary, it is supplied by the fact that 
prior to the erection of any buildings the then husband of 
defendant Cornelia Carothers had sought and obtained per- 
mission from plaintiff to build, and that defendants had not 
asserted an adverse title until shortly prior to the beginning of 
this suit. 

yill. Upon the state of facts of this case there was noth- 
ing to submit to the jury. If the cas^ has been submitted, and 
the jury had brought in a verdict for defendants, the court 
would have been constrained to set it aside as being contrary 
to the evidence; to charge them, therefore, to find for plaintiffs 
was no error. (Martin v. Ward, 69 Cal. 129.) 

De Witt, J. — ^This is an action in the nature of ejectment. 
Plaintifis recovered judgment. Defendants' motion for new 
trial was denied. From the order and the judgment defend- 
ants appeal. The subject of the action is described as lots 6, 
6, 7, 8, and 9, in block 5, of the townsite of the town of Nei- 
hart. These lots are a portion of the surface of the £eegan 
mining claim. Plaintiffs became owners of this mining claim 
by mesne conveyance from the locators on June 30, 1884. 
On July 27^ 1887, plaintiff were granted a patent by the 



286 Mayke v. Carothbrs. [March T., 1894 

United States for Keegan miniDg claim, in pursuance to 
an application made by them, and allowed April 4, 1886. 

There are two points which are urged by appellants, and 
which we will examine. This action was commenced June 27, 
1891. On the trial the defendants offered to prove facts tend- 
ing to show an adverse possession of the premises in contro- 
versy for a period sufficiently long to bar the action, but a 
portion of such period was necessarily prior to July 27, 1887, 
the date of the issuance of the United States patent for the 
Keegan mining claim. The district court held that such tes- 
timony, showing adverse possession prior to the issuance of 
patent, was not competent, for the reason that the statute of 
limitations did not commence to run against a mining claim 
until the issuance of United States patent therefor. This ml- 
ing is assigned as error. The district court in this respect 
followed exactly the decision in King v. Uiomaaj 6 Mont. 409» 
in which case precisely the same point was decided, and in the 
same manner as in the case at bar. In fact, on this appeal we 
must, as to this point, affirm the district court, or we must 
directly overrule the doctrine of King v. Thxmias, 6 Mont. 409. 
Indee<1, the latter is what appellants' counsel, in a very able 
brief, ask us to do. But to reconsider King v. Uiomas, 6 
Mont. 409, would be to disturb a rule of decision and a princi- 
ple as to titles of real property which are now of seven years' 
standing. The case of Kirig v. Thomas, 6 Mont. 409, was 
decided in the year 1887. It is a matter of history in this 
state and in this court that at that time very many cases were 
tried and pending in which the plaintiffs were grantees in 
United States patents for mining claims, and the defendants 
were occupying portions of the surface of such claims for town- 
site purposes. There was great contention at that time in 
such cases as to how the statute of limitations should be applied 
as against lands held as mining claims; that is, whether the 
statute should begin to run at the date of the location of tlie 
claim, or at the date of the issuance of the final receipt from 
the land-office, or at the date of the issuance of patent. King 
v. Thomas, 6 Mont. 409, settled this contention, and announced 
the rule that has now been undisturbed for seven years. It 
must be that many contentions have been settled under this 



14 Mont.] Maybb v. Caeothees. 287 

doctrine, and that many titles to real estate have been governed 
thereby. When we regard the history of conflicts between min- 
ing claimants and townsite claimants in this state, the doctrine 
of stare decisis in regard to such titles appeals to the court with 
very great force. We feel at this time that we must decline to 
reconsider the case of King v. Thomas, 6 Mont. 409, Counsel 
refer to Fioelie v. Paul, 22 Cal. 106, and Smith v. McDonald, 42 
Cal. 484. See, also, BUm v. Qmrtis, 31 Cal. 402; Beed v. Oum- 
bjf, 44 Mo. 206; Moore v. OUy of Albany, 98 N. Y. 410; 1 
Kent's Commentaries, 476; MeUxUfy. Prescott, 10 Mont 293. 

The appellants ui^e a second point as follows: They pleaded 
and offered testimony on what they insist is an equitable defense. 
The offered testimony is as follows: In the spring of 1882 
about fifteen or twenty people were in the gulch where the 
town of Neihart now is; on the 6th of April of that year a 
meeting of those citizens was held for the purpose of laying 
off a townsite; the £eegan was then a located mining claim; 
one of its owners, Paul McCure, attended the citizens' meet- 
ing, and took part in the proceedings. It was resolved at that 
meeting that the surface ground in the gulch be laid out for 
townsite purposes, and the town was named Neihart. From 
the minutes of that meeting, which were offered in evidence, it 
appears that the boundaries of said town were fixed; a recorder 
was appointed to' lay out the town and keep a book of records 
of lots; the size of the lots and widths of the streets were 
defined, and it was resolved that one person could ^'take 
up" two lots only. These lots were " taken up," as it was 
called, by the recorder making an entry in his book, and trans- 
fers of claims seem to have been made in about the same way. 
In pursuance to the proceedings of this citizens' meeting, 
James L. Neihart filed upon, or ^'took up," the ground which 
is now in controversy. Hesold to one Thompson, and Thomp- 
son, on August 3, 1884, sold the premises to the defendants, 
who have put valuable improvements on the same. The own- 
ers of the £eegan claim were aware of the proceedings of the 
citizens' meeting, and one of them, Sutton, took up two town 
lots in pursuance to the proceedings of said meeting. 

The defendants submitted to the court an elaborate set of 
instructions. In view of the action taken by the court, and 



288 Mayer v. Caeothers. [March T., 1894 

set out below^ it is not necessary to review these instructions 
further than to observe that tliey propose to submit the 
so-called equitable defense to tlie jury. The court refused all 
of these instructions^ and submitted the case to the jury upon 
one instruction only, which is as follows: "The court instructs 
the jury that, under the evidence in this case, the defendants 
cannot recover in this action; your verdict must therefore be 
for plaintiffs.*' 

We must here turn aside from this alleged equitable defense, 
and examine for a moment a question of practice as to the action 
of the court just described. Defendants contend that the ac- 
tion of the court in so peremptorily instructing the jury was, in 
effect, a nonsuit of defendants as to the equitable defense, but that 
no motion for a nonsuit was made, and that therefore, although 
the effect of the action was a nonsuit, yet the defendants were 
not in a position to apply the rules governing a nonsuit; that is, 
defendants contend that, instead of nonsuiting their equitable 
defense, the court took the verdict of the jury thereupon. But 
in the view that we have heretofore taken of the nature of a 
direction by the court to find a verdict, we are of opinion that 
defendants were not injured by the action of the court. When 
upon a trial the court peremptorily directs a jury to find for 
the defendant, this is in effect granting a nonsuit against plain* 
tiff, and must be treated as such. {McKay v. Montana Union 
Ry. Co., 13 Mont. 15; also Oeek v.MoManu8, 13 Mont. 162.) 
There seems to be no reason why the ruling of a nonsuit 
against plaintiff should not be applied to what is in effect a 
nonsuit of defendants' defense. Therefore, in this case, when 
the court peremptorily directed the jury to find for the plain* 
tiff, it practically nonsuited defendants as to their equitable 
defense. Therefore the rules and principles applicable to a 
nonsuit should be applied to defendants' situation in this case. 
Therefore, whatever defendants' testimony tends to prove as to 
the equitable defense will be taken as proved, and as the fact 

Therefore, the consideration now before us is whether the di^ 
izens' meeting, and the taking up and transfer of lots, and all 
the other facts detailed, constitute an equitable defense to this 
action of ejectment. This contention, like the first point con- 
sidered in this case, we are of opmion is at rest in this state. 



14 MontJ Maybb v. Oarothers. 289 

{TalbM V. Eing, 6 Mont 76.) We quote from that case as 
follows: 

"Matter is alleged in the answer as an estoppel, and on the 
trial the defendants sought to prove that tlie former owners of 
the Smokehouse claim, and while so the owners thereof, and 
knowing that the said claim would be in the proposed bound- 
aries of the townsite of Butte, joined others in petitioning the 
probate judge to enter said townsite for a imtent, and in 
acoordanoe therewith the town site was patented, and the own- 
ers of the Smokehouse claim accepted from the probate judge 
deeds to lots on said claim; and that these owners declared 
that they would not interpose or assert their title to this min- 
ing claim, or any rights thereunder, as against the townsite 
patent, or those claiming under the same. This testimony was 
rejected, and error assigned accord ingly, 

"All these matters alleged as an estoppel took place and were 
in existence before the time that respondents made their appli^^ 
cation for a patent to the Smokehouse claim. If tliey were 
estopped at all, they were estopped from applying for or 
receiving a patent Subsequent to these alleged acts and 
declarations, the owners of the Smokehouse claim took the- 
necessary steps for procuring a patent thereto. In order to do 
so, they filed their application, as the law required, in the 
proper land-office, showing acompliance with the laws, together 
with a plat and the field notes of their claim, made by and 
under the direction of the surveyor general of the United 
States for Montana, showing the boundaries of their chim, and 
they also, previously to the filing of the application, posted a 
copy of the plat, with a notice of their intended application, in 
a conspicuous place on the claim. When such application was 
filed in the land-office, the register published a notice that such 
apphcation had been made, for the period of sixty days, in a 
newspaper nearest to such claim; and also posted a notice in 
his office for the same period. It is a conclusion from the 
issuing of the patent that all these requiremente were comph'ed 
with in making their application. (Sieel v. Smelting Cb., 106 
U. S. 447.) 

"The object of this exceeding care and publicity in applying 
for a patent for a mining claim is to give notice to any and all 

Vou XIV. —19 y • * 



290 Maybr v. Caeothers. [March T., 1894 

adverse claimants that such application lias been made, in 
order to give tliem an opportunitj to contest in tlie^manuer 
provided by law, and before a court of competent jurisdiction, 
the applicant's right to a patent for the ground he claims. 
The conclusiveness of the title by patent grows out of the fact 
that this opportunity has been given to all adverse claimants 
to contest the right of the patentee. The theory of the law is 
that, unless the adverse claimant sets up his title, and contro- 
verts the right of the applicant for a patent during the period 
prescribed for this pur()ose, he thereby loses his right or title, 
whatever it may be, and cannot thereafter assert the same. 
Therefore, if the respondents were not entitled to a patent for 
the Smokehouse claim, for the reason that they were estopped 
from applying for and demanding the same, an adverse claim 
by appellants would have made this fact to appear^ and 
defeated their application." 

There is a parallel between the facts offered as a defense in 
TaJboU V. King, 6 Mont. 76, and the facts so offered in the 
case at bar, except that in Talbott v. King it would seem that 
a much stronger showing was offered by defendants than was 
shown in the case at bar. Here it is claimed that the mine- 
owners devoted and donated the surface of the Keegan daim 
to townsite purposes, by reason of the fact that one of them 
attended and participated in the citizens' meeting described 
above. In TdlbotL v. Kifog^ 6 Mont. 76, the mine-owners peti- 
tioned the probate judge, an officer recognized by the laws of 
the United States as the proper one for such purpose, to enter 
as a townsite the surface ground of their mining claim, and 
they thus helped to set in motion the governmental machinery 
which finally turned out a United States patent for the town- 
site. 

The result of the action of the citizens of Neihart, including 
the mine owners, was not to obtain any United States title to 
a townsite, but simply to create a recording office, in which 
persons could, as it was said, ^'take up" town lots. On tlie 
other hand, the result of the action of the citizens of Butte, 
including mine-owners, was the issuance of a United States 
patent. The owners of the Keegan claim '^took up" two town 
lots, in pursuance to the proceedings of the citizens' meeting. 



14 Mont.] Maybb v. Cabothers. 291 

The owners of the Smokehouse olaim of Butte accepted deeds 
from the probate judge for lots granted by the townsite patent 
from the government. The owners of the Keegan claim par- 
ticipated in the citizens' meeting described, which purported to 
devote the surface of mining claims to townsite purposes. The 
owners of the Smokehouse claim petitioned a public officer to 
apply for a townsite patent, and declared that they would not 
interpose or assert their title to this mining claim, or any 
rights thereunder, as against the townsite patented or those 
claiming the same. 

It is said in TalboU v. Eingy 6 Mont. 76, that all the mat- 
ters set up took place and were in existence before the time 
that the Smokehouse claimants applied for their mining title* 
Such is true also as to the Keegan claim herein. It is said of 
TaJboU V. King, 6 Mont. 76, if the Smokehouse claimants were 
estopped at all, they were estopped from applying for, or 
from receiving, a patent. Such would also be true as to the 
Keegan claimants. 

We need not compareany further the facts in the Smokehouse 
case and those in the case at bar. We think it is perfectly 
apparent that the Smokehouse case decides the appellants' con- 
tention here adversely to them. If the facts offered in the 
Smokehouse case were held not to constitute a defense, then, 
a fortiori, the less forceful £Eicts offered in the case at bar 
were not a defense, even when their truth is fully conceded. 

The order denying a new trial and the judgment are 
affirmed. 



FfiHBERTON, C. J., and Habwood, J: Without being 
understood as questioning the doctrine of King v. Iliomas, 6 
Mont 409, we concur in the result 



202 Obowlby v. Commissionbbs. [March T., 1891 

CROWLEY, Appellant, v. BOARD OF COMMIS- 
SIONERS OP GALLATIN COUNTY et al,, Re- 

8POKDE17T8. 

[Babmitftad lUrch 13, 18M. Decided March M, 18M.] 

BoAi»^Proo€0ding9 to open—Validiiy.—ltk an aotton to enjoin the opening of a 
road tfarongb plaintifTa land It ia no objection to the validity of the prooeed- 
inga laying out the road that, aa finally ordered opened, it deTi*ted aomewhat 
from the deaoription in the petition therefor. 

SAMm^Same^Quaiyioation of «i«iMrt— JBeoord.— A rewlotion b7 » board of 
coonty commiaaionera ordering a road opened in aecordanoe with their order, 
appointing aa a board of liewera three peraona "who poaaeaa the atatntory 
qoAlificationa,'' ia a anffleient reoord in their proceediuga that the viewera 
i^ppointed were qaalifled *'aa hoaae-holden of aaid oonnty," aa provided by 
atatate. 

BjJtt^Same^'QuaHfieationi of 9ietoeri^Relatiofuhip,^Th» validity of proceed- 
inga to open a road are not aiSected by the fact that two of the viewera appointed 
to act in aoch proceedinga are related to each other; nor by the fact that one of 
inch viewera waa a petitioner for the opening of the road, since the action of 
the viewera being merely adviaory, the party complaining may .demand that 
the qneation of damagea be anbmitted to a Jury, and alao baa the right of appeal. 

BJJtm— Same—Width of rood.— It ia no objection to lach proceedings that the 
width of the propoaed road waa not deaignated in either the report of the 
viewera or the order opening the road, aince the width of all pablic highways 
being fixed by atatnte, aach width prevalia where the proceedings are ailent 
upon that point. 

BAMM—Same-^FindingM try commisHonen—OUiwenihip of petUionert,^lD. the 
absence of statutory reqoirementa aa to citiaenahip of petitioners for the open- 
ing of a road, it ia not neceaaary that the commisaionera find in their proceed- 
inga that the petitionera were dtisena of the United IStatea or of the eoonty, 
or to make findings in detail of fiMts, the recording of which is not rsqnirsd 
by statnta. 

Appeal from Ninth Judicial Didiid^ OaUatin Oounty. 

Action to enjoin the opening of a county road. Judgment 
was rendered for the defendants below hj ABMBTBOKai J.^ on 
demurrer to the complaint Affirmed. 

Hartman & Hartnum^ for Appellant, 

K X. Knoulu & John A. Lum^ for Respondents. 

Habwood^ J. — ^Bj this action plaintiff invoked the power 
of the court to enjoin the opening of a road through his land, 
in his complaint alleging: His ownership of a tract of valuable 
farming land situate in Gkillatin county, giving a particular 
description thereof; that defendant board of county oommis* 



14 Mout.] Crowlby v. Commissionbbs. 293 

Bioners of said county and road supervisor threaten to, and 
were about to, open a road through his said land, pursuant 
to certain proceedings, to wit, a petition for the establishment 
aud opening of said road as a public highway, and the approval 
thereof, and appointment of road viewers by said board of 
county commissioners for the purpose of viewing and report- 
ing upon said proposed road, as provided by law; the report 
of the viewers; the record of the action of the board of county 
commissioners thereon, approving said report, and ordering 
that ''said road is hereby established, and ordered opened, 
according to a resolution adopted by the board of commis- 
sioners hereto attached, and recorded in the journal of pro* 
oeedings of the board of commissioners''; also, the notice that, 
pursuant to those proceedings, said defendant Sloan, road 
supervisor of the district wherein said road is established, had 
been ordered to open and work the same from and after sixty 
days from the da' e of said order, in acconlance therewith. A 
copy of which petition, report, resolution, notice, etc., was 
attached to the complaint as exhibits, to be pait thereof. And 
the plaintiff proceeds to allege: That pursuant to those pro- 
ceedings the defendant board of county commissioners and 
said road supervisor of that road district threaten and are 
about to open a public highway through the described tract of 
land of plaintiff for the distance of one mile, ''one-half mile of 
which will pass through said land diagonally, and the same 
will appropriate about six acres thereof for said road, compel- 
ling plaintiff to build fence a distance of a mile and a half, at 
a cost of two hundred and eighty-eight dollars''; thereby ren- 
dering valueless, for farming purposes, thirty acres of said 
land, which is of great value to plaintiff, and that he will 
thereby also suffer great and irreparable injury and damage 
to all of his premises. That the proposed opening of said 
road by defendants, and the pretended notice, and all the pro- 
ceedings upon which the order for opening said road is based, 
are null and void, and without any force and effect, for various 
alleged causes, which are specifically enumerated in the com- 
plaint. Such of these alleged grounds for avoiding said pro- 
ceedings aa are relied on by appellant to support his complaint 
on this appeal will be set forth and considered further along in 



294 Crowley v. Commibsjonebs. [March T., 1894 

till j opinion. Upon the filing and presentation of the oomplaint 
to tlie judge of the district court wilbin and for said county, 
together with the usual bond in such cases, a temporary 
injunction was by the court granted, forbidding the opening 
of said road until otherwise ordered by court. Thereafter, 
defendants appeared, and demurred to the complaint on the 
ground that it failed to state facts sufficient to constitute a 
cause of action, and such demurrer was, upon consideration, 
sustained. Consequently, the temporary injunction, being 
without support, was dissolved. Plaintiff declined to amend 
his complaint, and judgment of dismissal of the action, with 
4906ts against plaintiff, was therefore entered, from which judg* 
meut and order dissolving the injunction this appeal is brought 
up by plaintifil 

It is apparent from the record and briefs of counsel that 
the demurrer was sustained because, in the opinion of the 
court, the complaint, with the exhibits thereto, shows that the 
county commissioners had proceeded r^ularly, and according 
to the provisions of statute, in the matter of ordering said 
road opened, as far as that proceeding had gone before injunc- 
tion issued. With this premise, we proceed to examine the 
claims on which plaintiff's counsel insist that the proceedings 
for opening said road are void, as specified in the complaint 
and their brief. 

It is several times averred in the complaint that the pro* 
posed road is not sufficiently described in the proceedings for 
opening the same; but nowhere, either in the complaint or 
brief, is there specification of defect or error in such descrii>- 
tion. The proposed road appears to have been suffidentiy 
described to enable plaintiff to make a verified allegation in his 
oomplaint that said road ''runs through plaintiff's said land 
a dktanoe of a mile, and for a distance of half a mile, runs 
through said land diagonally"; that such road will appropriate 
about six acres of said land, and compel plaintiff to build a 
mile and a half of fence, at a cost of two hundred and eighty- 
eight dollars. It seems that plaintiff was able to deduce from 
the description of said road such exact data as to its pro|)Obed 
location and effect on his premises, and all this appean 
to be directly and readily deduoible from the description of 



14 Mont.] Cbowlet v. Commissioners. 295 

said road given iu the various exhibits attached to plaintiff's 
complaint. Tiiat description^ as given in the notice of the 
road supervisor that he would proceed to open said road as 
directed hj said board of commissioners^ and work the same 
sixty days after the date of said order, reads as follows: '^ Be- 
ginning at the N. W. cor. of the N. E. i of sec 22, T. 1 N., 
R. 2 E., and run 2,643 feet S. on the quarter line of said sec 
22; thence, in a S. W. direction^ to a point on the south line 
of sec. 22, 1,698 & 8/10 feet east of the southwest corner of 
said sec; thence, on same course south, 18 degrees 39 minutes 
west, 386 & 7/10 ft.; thence south, 10 degrees 45 minutes west, 
4,195 & 3/10 ft.; thence south, 42 degrees 40 minutes west, 
1,125 & 5/10 ft, to southwest corner of section 27, T. 1 N., 
B. 2 E., — in Gallatin county, state of Montana." If this 
description is not sufficient, plaintiff has &il6d to specify the 
points wherein he has discovered defects or uncertainty. 

There is also an objection that the petition for the opening 
of said road did not accurately describe the same, and further- 
more, that the road, as finally ordered opened, after report of 
the viewers, and consideration of the question of opening such 
road, deviated somewhat from the description in the petition 
therefor. It is not unlikely that after report of the viewers, 
and consideration by the county commissioners of the question 
of opening such road, some deviation from the original pro- 
posed location, as set forth in the petition, might be made. 
Nor has any provision of law been cited, or any reason sug- 
gested, forbidding such an exercise of discretion on the part of 
the public agents charged with the duty of establishing publio 
liighways. Such objection seems to be without force. Besides, 
in this case, the variation between the petition and final order 
for opening the road does not appear to be very great. 

It is further contended that the proceedings of the county 
commissioners in this matter did not show that the viewers 
appointed were qualified ''as householders of said county," as 
provided by statute. The resolution of the board of county 
commissioners authorizing the opening of said road, a copy of 
which is attached to the complaint, recites ''that, in accordance 
with the order of said board of couuty commissioners, ma«1e 
March 14, 1893, appointing three persons, who possess the 



296 Ceowlky v. Commissioners. [March T., 1894 

statutorj qualificatioDSy as a board of viewers^ aud fixiug the 
time for their vieW| the said road is established, aud ordered 
opened.'^ Such is the affirmance of tbe resolution of the 
county commissioners as to the qualification of the road 
viewers appointed in tliat behalf. Plaintiff does not allege 
in his complaint, or assert in the brief of his counsel, that 
either of said viewers were wanting in the qualifications 
required hj law; bat confines his objection to the point tbat 
the commissioners did not record in their proceedings that the 
viewers possessed the statutory qualification, which is evidently 
a mistake, as shown by the resolution of the board of county 
commissioners. 

Again, it is alleged in the complaint, and contended on this 
appeal, that said proceedings of the board of county commis- 
sioners are void because two of said road viewers were brothers- 
in-law, and one of them a petitioner for the opening of said 
road. This is the only objection found in the case which 
appears to be of any force. It is of paramount importance, 
as a safeguard to the administration of justice, that those 
appointed aud empowered to decide upon the rights of parties 
involved in con'.roversy should be disinterested and unbiased; 
aud probably, even in the opening of a public highway, tbe 
better rule would exclude from the viewers those who petition 
for, as well as those wbo oppose, the opening of the same. But 
inasmuch as no statute is violated in appointing a petitioner, 
and inasmuch as the action of the viewers is neither final nor 
controlling, but their recommendation, at most, is advisory to 
the board of county commissioners, subject to be objected to, 
contradicted, and disregarded by the board of commissioners, 
in its final consideration, and, on tbe vital question of damage 
by reason of opening such road, the parties have a right to 
demaud that the same be submitted to a jury, aud to appeal to 
the district court, if dissatisfied, we think, in view of these con- 
ditions, the objection that the petitioner was also a viewer is 
not sufficieut to avoid tbe proceedings. The fact that two of 
the viewers were related to one another, as brothers-in-law, 
does not, in our opinion, amount to ground of exception. 
Jurors sitting iu the trial of a cause may be related^ and yet 



14 Mont.] Crowlby v. Commissioners. 297 

that fact is not disqualificatioD^ if they are not related to either 
party to the controversy. 

A farther objection urged against these proceediDgs is that 
neither the report of the viewers nor the order directing said 
road to be opened designated the width of the proposed road. 
The statute on this subject provides that '^all public highways 
hereafter laid out in this state shall be sixty feet in width , 
unless otherwise ordered/' (Comp. Stals., div. 6^ § 1822.) 
In this proceeding it was not otherwise ordered as to the width 
of said road, and therefore its width is fixed by law; and there 
is no presumption that the supervisor would depart from the 
requirement of the law, nor is it alleged that he threatened or 
was about so to do. The petition asked for the oi>ening of a 
road sixty feet wide, and finally, after the viewers' report was 
brought in and considered, the commissioners ordered the 
supervisor to give the notice required by law, and to open said 
road. There is no force in the objection that the proceedings 
did not specifically require that the road be sixty feet wide, 
inasmuch as the law fixed that width for this road, where the 
proceedings were silent on that point. 

It is further objected that the board of commissioners did 
not, in its proceedings, make findings of certain facts in detail, 
namely, that the petitioners for said road were citizens of the 
United States or of Gallatin county, or that they lived in the 
vicinity of said proposed road, or that the road would be a pub- 
lic convenience or of public utility, or set forth the names of the 
parties whose property would be affected by the opening of such 
road. It is not affirmed that any required fact was wanting 
in the respects just enumerated, but the criticism is that these 
facts were not recorded in detail in the proceedings of the 
board of commissioners. We find no statute requiring that 
the petitioners for the opening of a road must be citizens of the 
United States or the county, nor is there any citation of law 
to that effect. But the petitioners, in their petition for said 
road, represented themselves as citizens of the United States, 
" householders of the county of Gallatin, in the state of Mon- 
tana, and that they reside in the vicinity" of said proposeil 
road. How was this plaintiff injured by the lack of repording 



298 Cbowlby t;. Commissioners. [March T., 1894 

the names of the persons affected by the 0{)eiung of said road, 
or other details meutioued in tbe objection of plaintiff last 
above staled? The statute does not requu*e the recording of 
those facts, nor is there any affirmation of a failure to give the 
notice required by statute in these proceedings to persons inter- 
ested or affected by the opening of said road. Moreover, some 
of these objections contradict the record. For instance, the 
report of the viewers recites that they found '^ said road to be 
practicable, and of public utility and necessity/^ It appears, 
also, tliat the county commissioners, on consideration, adopted 
said report. We find no merit in the last-mentioned objec- 
tions. 

It is further alleged that 'Hhe viewers did not cause a suiw 
vey and plat of the proposed road to be made by the county 
surveyor, or other competent person, as required by law/' 
This all^ation is contradicted by another part of the com- 
plaint; for in the exhibit of the report of the road viewers, 
which plaintiff attaches as part of his complaint, a survey and 
plat are referred to as follows: *'The plat of said road, survey, 
and report of the surveyor is hereto attached, and made part 
of this reporf Also the resolution of said board of county 
commissioners requiring said road to be opened, and awarding 
the estimated damages to plaintiff, contains a reference to the 
survey and plat of said road, as follows: That on the seventh 
day of June, 1893, the board of county commissioners pro- 
ceeded to consider the report of the road viewers, and all 
objections thereto, *'and that it then and there determined to 
open said road as a county road, and accordingly caused tbe 
full and final report of the viewers aforesaid, and plat thereof, 
to be recorded in the office of the county clerk of said county, 
in the book kept for that pur|)ose.'' It is not alleged that no 
survey and plat of said road accompanied these proceedings, as 
mentioned. The allegation of plaintiff is that the viewers did 
not cause a survey and plat to be made ''as required by law.'' 
This is pleading a conclusion of law, for it is not specified 
wherein the survey and plat, mentioned in the exhibits to the 
complaint as having been made, failed to conform with tlie pro- 
visions ui law, nor is any such delect pointed out iu the ai^u- 



14 Mont.] Crowley v. Commissioners. 299 

meut. We find no error in the ruling of the trial court. It 
k therefore affirmed. Affiniied. 

Femberton, C. J., and De Witt, J., concur. 

ON REHEARING. 

Per Curiam. — Appellant's motion for rehearing, filed hereiui 
is largely a repetition of the former treatment of the case, as 
presented hj the briefs in the original hearing. The provhice 
of a petition for rehearing is to call attention to controlling 
facts or authorities which were overlooked, or not given their 
proper force and effect, in the determination of the case. The 
only new matter appearing in this motion for rehearing are 
some bitter complaints against section 1821 (Comp. Stats., div. 
6) of the road law, as being incompatible with American ideas 
of justice, and repugnant to those rights vouchsafed by our 
constitution, in that said section provides that, if the owner of 
land over which a road is laid out by order of the pro]>er 
public agents feels dissatisfied with the damages awarded him 
by the viewers and county commissioners he must petition the 
board of county commissioners for a ** way'' to ascertain the 
compensation to which he is entitled by reason of the damage 
suffered in the premises. This is a misinterpretation of that 
section. By a reference to the original act on file in the office 
of the secretary of state it is found that the word ^^way," as 
printed in said section, is ^' jury." The context of that section 
also shows that undoubtedly the word ''jury," in place of tlie 
word "way," was the intention of the framers of the road law. 
The insertion of the word "jury" in place of the word "way," 
as printed in section 1821 of the road law, would remove tlie 
discomforture so bitterly complained of by appellant in this 
respect Moreover, if he was dissatisfied with the damage 
awarded (which appears to have been the case, as shown by 
his brief originally filed), he was not limited to the jury men* 
tioned in section 1821, to ascertain the damage. By provi- 
sions of the same act he is given the right of appeal to the 
district court to ascertain and recover the damage sufifered, but 
such remedy appears to have been neglected. Motion for 
rehearing ought to be overruled. 



800 Obigos v. Ealispbl Mbr. Co. [March T., 1894 

OBIGGS ET AL., Respondents, v. K ALISPEL MERCAN- 
TILE COMPANY, Appellant. 

[Babmitfted KarcU 6. 1894. Decided AprU 2. 1884.] 

Affbal— Jfofion di$$oMng aUaOimeni—ReeortL—A. Btatement will not be 
■trioken from * record on appeal from an order ovemiling a motion to dia- 
iolTe an attachment, upon the gronnd that it waa not served within the time 
required by Btatnte for the preparation and senrioe of Btatements on appeal, 
where the statement, while not required on each an appeal, contained all th« 
papers necessary to properly present for reTiew the order complained of. 

Appeal from Tenth Judicial DitHriciy Flatiiead Oovmiy. 

On motion to strike from the record a statement on appeaL 
Denied. 

H* O. Molntire, and P. J. MeLaugJdinj for Appellant. 

O. H. Footj and Strevdl & Porter, for Respondents. 

Per CuBLAM. — In this case respondents have interposed a 
motion to strike from the reoord the statement on appeal, on 
the alleged ground that such statement was not prepared or 
served within the time required by law. 

It appears that this appeal is taken from an order overrul- 
ing a motion to quash attachment issued in said actioUi which 
orde? was made on consideration of the affidavit in attach- 
ment, and the complaint. On such an appeal it appears that 
the practice does not strictly require a statement on appeal, 
but that the record may consist of the order, with the affi- 
davits on which the order was made annexed thereto, properly 
authenticated as used on the hearing, ** in the place of the state- 
ment." (Code Civ. Proc., § 437; Hayne on New Trial and 
Appeal, § 261.) This record, although made in the form and 
under the name of a statement on appeal, contains the matter 
required, properly certified by the judge who made the order, 
as being the affidavit on which tbe same was made. Respond- 
ents' motion is therefore overruled. 



14 Monti Carron v. Clark. 801 

CAERON, Respondent, v. OLABE et al., Appellantb. 

[Bafamittod September 0, 1888. Dedded April 2, 1891.] 

BoAim-^Proeeedingg to open^Damagw— Pleading and proof,— V^pon fhe trial of 
■n tctioD to enjoin the construotion of % county roed alleged to have been 
opened withont compliance by the oonnty oommiasionerB with the atatiitory 
reqairementa that the petition for laying oat the road be accompanied by an 
affidavit of posting notices; that the posting of notices by tlie yiewers appointed 
be proTed by an affidavit filed in the county clerk's office, and that such view- 
ers file a report with the said clerk, the mere absence from the files of the 
derk's office of such affidavits and report does not prove that no such proofii 
or report were produced before the board of commisaioners when it acted upon 
the petition and report; nor would the absenoe of such affidavits firom the files 
establish an averment that no such notices were posted, and where plaintiff 
ofliered no farther proof of such alleged omissions a nonsuit should be granted. 

BJOa^Same— Posting notioM— Evidence,— Though proof of the posting of notices 
of the time of meeting of road viewers in prooeedings to open a road is lequired 
to be made by affidavit filed in the office of the county clerk, the testimony of 
% witness that be actually posted the notices is admissible where the sffidavits 
are absent from the files. 

J>MMAawii— Pleading— Evidence.— E^iSioTiee of damage to a crop by stock entering 
and destroying the same is inadmissible where plaintiff merely alleged in his 
oomplaint that the defendant entered upon his land, threw down his fences 
and exposed his crop, without stating the amount of damage, and concluded 
with a prayer for Judgment for five hundred dollars damages for the treepaas. 

AppecUfi'om Fowih Judicial Didrid, Missoula County. 

AonoN for damages and an injunction. The canse was 
tried before William H. Biokford, Esq.^ spedal judge, sit- 
ting in plaoe of Woody, J. PlaintiiBT had jadgment below. 
Reversed. 

Henri J. HatikeU^ for Appellants. 

MarJiaU^ Beeves & Mavshatt^ for Respondent 

Habwood, J^ — ^When plaintilT rested in the introduction of 
testimony on his behalf, defendants moved the court for an 
order of nonsuit of the action (Code Civ. Proc., § 242), on the 
ground that plaintiff had failed to introduce proof tending to 
establish certain material allegations of his complaint. The 
motion was overruled, and that ruling, among otliers, is 
assigned as error. 

The action was brought to enjoin defendants from opening 
a public road through a certain field in possession of plaintiff 



I H dull 

f22 15 



302 Carron v. Clark. [March T., 1894 

as lessee, and to recover damages alleged tobavebeen siistaiued 
by plaiiitifi* resulting from the removal of a portion of the fence 
inclosing said field bj defendants in attempting to open said 
roady as alleged, in violation of the law. 

To lay the foundation for establishing the fiictthat said road 
was opened by defendants without authority of law because of 
faihire to conform their proceedings in that respect to the 
requirements of statute, plaintiff allied in his complaint, 
among other averments: That no order was ever made by said 
board of county commissioners establishing said roa \ or declar- 
ing it a public higiiway, on the 3d of December, 1888, or at 
any other time. That the petition to the board of county 
commissioners for the opening of said road was not accompanied 
by satisfactory proof, or any proof, that notice of sail petition 
had been given by posting notices thereof on the front door of 
tlie county clerk's office, and in three public places in the 
vicinity of said proposed road thirty days previous to the pre- 
sentation of said petition, as required by statute. That when 
the county commissioners appointed viewers to view and mark 
out said road they did not, as required by statute, cause notices 
to be posted in three of the most public places along the pro- 
posed new road five days previous to the date fixed for the 
view thereof, giving to parties interestei notice of the time 
fixed by the county commissioners for the viewers to meet; 
and that no such notices were posted. That a majority of the 
viewers appointed to view and mark out said road did not sign 
a report to the board of county commissioners, as required by 
statute; nor did a majority of the viewers sign any report of 
the view made by them. That, as plaintiff is advised and 
alleges, the order of the board of county commissioners estab- 
lishing said road, or declaring it a public highway, if any such 
order was made, which plaintiff denies, and the order directing 
the supervisor of that road district to remove all obstructions 
from said proposed road, were and are void, on account of tiie 
errors and irregularities above specified. Tiiere are other alle- 
gations of the complaint relating to the dam«age which would 
result from the opening of said road, and had already resulted 
from the attempted o]>ening thereof. All the averments of the 
complaint were denied by the answer of defendants. 



14 Mont.] Carbon v. Clark. 303 

As to proof of the allegations of the complaint, at the (rial; 
plaintifT first introduced considerable testimony as to the field, 
the fence inclosing the same; the character of tlie land inclosed, 
and purposes to which it was devoted (the same being pasture, 
hay, and wooded lands, with some five or siz acres cultivated 
for raising wheat and oats); and further testimony describing 
how said road supervisor, in May, 1889, removed certain por« 
tioos of the fence inclosing said field, claiming to act pursuant 
to the orders of the board of county commissioners establish- 
ing and ordering said supervisor to open such road through 
said field; and the damage which resulted from the removal of 
the fence necessary to o])en such road, and by 'devastation of 
stock entering the field through the way thus opened. 

Plaintiff then undertook to substantiate, by proof, the alle- 
gations of his complaint as to omissions and irregularities 
charged against said board of county commissioners in their 
proceedings through which they claimed to establish and open 
said road as a public highway by authority of law. And the 
only evidence introduced upon that branch of the case appears 
to be certain records of the proceedings of the board of county 
commissioners, introduced and read in evidence by plaintiff, as 
follows: 

An order of June 6, 1888, as follows: ^^In ihe MaUer of 
ihe PeOiaa of Q. W. Diohinson, T. M. MoLaren, William 
Phdps, and others, asking that a road be laid out and estab- 
lished, commencing at a point on the road leading from 
Stevensville to Corvallis, on the section line between sections 
27 and 34, and following said section line as near as practi- 
cable up Burnt Fork until it strikes a point on the road lead- 
ing past James Phelps', in township 9, B. 12 W. J. A. J. 
Chapman, Z. T. Saunders, and Sanford Strout appointed as 
viewers to meet and view said proposed road on June 25th and 
report at regular September session.'^ 

Another order of June 6, 1888, as follows: 
« In ihe Matter of the Boad Petition of O. W. DicUnem, T. M. 
McLaren^ and others. 

''It appearing that the affidavit requiring to be filed as to 
posting of notices on the presentation of a road petition has 



304 Carbon v. Clark. [March T., 1894 

not been filed in the above matter^ ordered^ that the order 
made on yesterday^ appointing viewers^ be, and the same is 
hereby revoked, and said ^letition lie over until next regular 



Another order of September 4, 1888, as follows: 
''In the Matter of the Boad Petition of WiUiam Phelps, Geo. W. 
Dickinson d oL 

'^ Viewers appointed as follows: J. A. J. Chapman, Greo* 
W. Strout, Zacb. Saunders, to meet on October 1st, and report 
at December session/' 

And another order of December 3, 1888, as follows: 
*'In the Matter of the Report of the Boad Viewere Appointed 
upon the Petition of WiUiam Phdpe, Geo. W. JDickmson d aL 
'^Said report read and adopted, and viewers discharged/' 
Lastly, an order of April 16, 1889, as follows: 
*' Ordered, that road supervisor, Thomas Clark, of road dis- 
trict No. 2, remove all obstructions from the road petitioned 
for by George W. Dickinson, Wm. Phelps et al., which was 
declared a public highway on the 3d day of December, 1888; 
and also that he put the said road in shape for public travel.'' 

Plaintifi' also introduced in evidence, from papers and files 
in the office of the county clerk and recorder of said county, 
a petition for the opening of said road, and an affidavit accom* 
panying the same as follows: 

'' To the Honorable, the Board of County Cdmmisnonere of 
Mieaoula County, in CouncU Convened: 

''We, the undersigned, residents and freeholders of Missoula 
county, liable to be assessed for highway labor therein, do 
hereby make application to you, the said commissioners, to lay 
out a highway in said county, in township No. 9, commencing 
at a point on the road leading from Stevensville to Corvallis, 
on the section line between sections number 27 and 34 and foI-> 
lowing said section line, ' or as near as practicable,' up Burnt 
Fork, till it strikes a point on the road leading past James 
Phelps' in said township, and range 12 west. 

''Dated at Stevensville, Missoula county, M. T., May 21, 
1888. 



14 Mont.] Cabron v. Clark. 305 

"[signed] G. W. Dickinson, T. M. McLaren, Thos. 
J. MoFarlin, and forty-one others. 
"[indorsed]: Filed June 4, 1888. 

"Alvin Lent, Co. Clerk, 
"By Gust Moser, Deputy.*' 

"Territory of Montana, "I 
"County of Missoula. / "' 
^'George W. Dickinson, being duly sworn, deposes and says: 
That on or about the fourth day of June, 1888, he assisted in 
posting three notices in the following places, to wit: One on 
the section line between sections 27 and 34, at a point on the 
road leading from Stevensville to Corvallis, in Tp. 9; one on 
said section line, near Tom McFarlin's; and one on the said 
section line on the road leading from Stevensville to E. J. 
Holt's mill; and sent one to the county clerk, to be posted in 
the courthouse at Missoula. Said notices set forth that a peti- 
tion would be presented to the Hon. Board of County Com* 
missioners of Missoula County, to open a public highway on 
the section line between sections 27 and 34, at a point on the 
road leading from Stevensville to Corvallis, in Tp. 9 N., of B. 
20 west, and running east along said section line, or as near as 
practicable, till it strikes the road leading from Stevensville to 
Holt's mill, in Tp. 9, B. 19 west. Geo. W. Dickinson. 

"Subscribed and sworn to before me this 28th day of 
August, '88. J. B. McLaren, Justice of the Peace. 

"[indorsed] 'Affidavit of posting notice for laying out 
road.'" 

According to the record before us, which purports to recite 
all the evidence introduced in this case, the foregoing records 
comprise all the testimony offered by plaintiff to establish the 
all^;ations of his complaint that the defendant board of county 
commissioners ordered said road opened without requiring the 
various notices to be given, and proper report of the road view- 
ers to be returned, as provided by law; and, plaintiff having 
rested in the introduction of his proof, defendants interposed 
their motion for nonsuit. 

It appears to us, afler careful consideration of all the evi- 
Vol. XIV.— 20 



306 Carron v. Clark. [March T., 1894 

dence offered, that the motion for nonsuit ought to have been 
granted. The record in this case clearly discloses that plain- 
tiff failed to introduce proof tending to establish the allega- 
tions of his complaint that the board of county commissioners 
ordered said road opened without the petition therefor being 
accompanied hy satisfactory proof, or any proof, that the 
notice of the presentation thereof had been given as required 
by law, — that is, by posting such notices in three public 
places in the vicinity of said proposed road, and on the 
front door of the county clerk's office, thirty days prior to the 
presentation of the petition to the county commissioners, and 
*' that no such notices were in fact }X)sted/' Nor did plaintiff 
introduce proof tending to support the allegation of his com- 
plaint that when the board of county commissioners appointed 
viewers to view, mark out, and report upon said road the 
county commissioners did not cause notices to be posted in 
three of the most public places along the proposed new road 
five days previous to the date fixed for the view thereof, giv- 
ing notice to the parties interested of the time fixed by the 
county commissioners for the viewers to meet and proceed to 
discharge their duties in the premises, as provided by statute; 
and " that no such notices were posted." Nor was there proof 
introduced tending to show that no report of at least a major- 
ity of the viewers, showing the discharge of their duty in the 
premises, was returned to the board of county commissioners. 
We understand from the presentation of this appeal by 
counsel that in overruling the motion for nonsuit the trial 
court proceeded upon the theory that, if the affidavits affirm- 
ing the posting of the required notices in such proceedings, or 
a report of the viewers, were not found among the files of the 
county clerk's office the conclusion must follow that no such 
proof or report was produced before the board of county com- 
missioners at the proper time, when it acted upon the matters 
under consideration. (Comp. Stats., div. 5, §§ 1809, 1810, 
1815.) And it was further held that if the affidavits showing 
the posting of such notices were absent from the files of the 
county clerk's office it must be concluded, as charged in the 
complaint, that no notices were posted, as required by" law. 
The absence of an affidavit or other paper required to be 



14 Mont.] Oabron v. Clark. 307 

retnrned id such prooeedinga is not sufficient to establish such 
a negative as alleged in the complaint| or to give rise to the 
presumption that the board of county commissioners proceeded 
in the matter under consideration contrary to the provisions 
of statute. {Stockle v. Sibbee, 41 Mich. 615.) Moreover, there 
is in this record no testimony by the proper custodian that 
such affidavits and report of the viewers cannot, with diligent 
search, be found among the files of the county clerk's office. 
From all that appears in this record, it was not even shown 
that all the files of the county clerk's office relating to the 
establishment of said road had been introduced in evidence 
when plaintiff rested io his production of testimony. Such 
was the status of the case when appellants' motion for nonsuit 
was made and overruled. By this ruling of the court plaintiff 
appears to have been relieved of the burden of establishing 
the allegations of his complaint, charging such material omis- 
sions by the board of county commissioners in their proceed- 
ings in reference to the opening of said road. 

When the motion for nonsuit was overruled, defendants did 
not rest the case, as they might have done in view of the state 
in which plaintiff left it, on closing the introduction of his 
proof. Defendants offered evidence tending to contradict the 
all^ations of the complaint; and, upon offering to prove by a 
witness that he actually posted the notices of the time fixed 
for the meeting of the road viewers, such evidence was 
excluded, on the objection that it was not the best evidence of 
that fact. It would seem to be an unnecessarily harsh ruling 
to hold that, if the affidavits were not found among the files 
of said office, the fact of having actually posted the required 
notices could not be proved by evidence of a qualified witness, 
who had knowledge of the actual posting thereof. That char- 
acter of testimony is regarded by courts as more weighty than 
a mere affidavit, because subject to more searching tests of 
verity. It is true that the statute requires that the proof of 
the posting of such notices shall be shown by affidavits filed 
in the office of the county clerk and recorder. (Comp. Stats., 
div. 5, §§ 1809, 1810.) Nor should the filing of such affidavit 
be neglected. But the absence of such an affidavit from the 
files of that office does not alone prove tliat the county com- 



808 Carbon v. Clark. [March T., 1894 

missioners n^lected or violated the daties imposed upon tliem 
hj law in the matter of opening a road, or that such affidavits 
never were filed, as charged in the complaint If so, the loss 
of a paper from the files, and the mere showing of its absence, 
would convict those officers of such dereliction and of trespass, 
as was sought in this case, and subject them to answer in dam- 
ages, although in fact there may have been the most faithful 
and careful observance of the requirements of law on their part. 
The doing of the various acts required by law in reference to 
opening a public highway, and not the mere paper evidence 
thereof, is what authorizes the oi)ening of such road by the 
proper public agents; and the neglect of doing those things 
renders void or voidable such proceedings. 

Negligence on the part of the proper officials to have filed 
and recorded, as the law requires, the proper records in such a 
matter is censurable and punishable* And while it may be 
that the manner of keeping records in said office, or the delin- 
quency in that respect, merits severe censure, still it would not 
be conformable to reason or well-established principles of law 
to declare void the proceedings for opening a road because a 
required affidavit, for instance, showing the posting of certain 
notices was not among the files or records of the proper office, 
if in fact the required notices were posted, and such fact could 
be shown by evidence considered more weighty than an ex parte 
affidavit, because such holding would exclude the force and 
effect of the substantial fulfillment of law in such matters, 
and make the decision turn rather upon a particular method of 
showing such fulfillment And pursuing such theory, although 
the requisite acts were done, and could be shown by evidence of 
even greater weight than such affidavit, the proceeding would be 
declared void, because it was not shown by such affidavit Mr, 
Justice Cooley, in an analogous consideration, and with his usual 
clearness, in Stookle v. Silsbee, 41 Mich. 616, cited above, shows 
that the law regards the substance of things done in such mat- 
ters, rather than to make the manner of proving it the criterion 
for decision when the proceeding is attacked as void. Numer- 
ous decisions could be cited to the same effect, but we deem the 
rule so strongly intrenched in reason as to need no citation to 
show its justness and propriety. If, however, official condact 



14 Mont.] Gabbon v. Clabk. 809 

as to compliance with the reqairementa of law in keeping 
records was under inquiry delinquency in that regard could 
not be excused by showing that the required thing was done, 
although the required record thereof was neglected. That is 
not the point under consideration in this case, but the observa- 
tion is pertinent^ as relieving this treatment of any implication 
that such' official n^ligence may, or would be, in the proper 
inquiry, passed over as unimportant. 

Plaintiff properly alleged in his complaint that the commis- 
sioners and road supervisor n^lected to do certain material 
things required by statute to give them jurisdiction in the 
premises. But when it came to the proof plaintiff did not 
offer evidence tending to prove the omissions charged. With 
introducing certain papers and records from the county clerk's 
office concerning the opening of said road, and without even 
showing that these were all the papers and records filed therein 
concerning that matter, or that search had been made for others, 
he rested his case. From these disclosures of the record it 
dearly appears that the motion for nonsuit should have been 
granted. 

There are other assignments of error as to introduction of 
proof upon the question of damages. The averments of the 
complaint as to damage resulting from the acts of defendants 
areas follows: 

''That on or about May 4, 1889, the defendant, Thomas 
Clark, acting under the authority and orders made by said 
defendants John B. Latimer, W. J. Kennedy, and John Dooley, 
acting as board of county commissioners for said county of 
Missoula, entered upon the land so in possession of plaintiff as 
aforesaid, and threw down his fences, and exposed his crop, 
and has, from the said fourth day of May, 1889, kept said 
fences open, and the crop of plaintiff exposed, and threaten to 
keep open a public road through and over the land in posses- 
sion of plaintiff as aforesaid." 

The amount of damage resulting from said acts of defendants 
is not alleged. The complaint, after averring that defendants 
assumed to act by authority of their office and certain proceed- 
ings in opening a public highway through said field^ and their 



310 Carron v. Clark. [March T., 1894 

various omissions to comply with the statute iu that respect^ 
then closes witii the prayer that plaintiff ^Hherefore prays for 
judgment against the defendants in the sum of five hundred 
dollars for damages for the trespass aforesaid, and for injunc- 
tion restraining defendants/' etc., from opening and keeping 
open said road. 

The omission to allege the amount of damage resulting from 
the wrongful acts of defendants, complained of, in throwing 
down plaintiff's fence, and exposing his crop, is an example 
of the looseness with which this pleading is drawn, as regards 
its allegation of damages. But the particular point on which 
error is urged is that under the allegations of said complaint it 
was error to admit, over defendants' objection and exception, 
evidence of the damage to a crop of wheat, hay, or pasture, by 
reason of stock entering by the way opened by defendants, and 
destroying the same, because it is only alleged that the crop 
of plaintiff was exposed by opening said fences, and not that 
the crop was damaged by the entering of the stock thereon. 
Nor is there any allegation that any particular kind or quantity 
or value of crop was destroyed, or even that any cattle entered 
the field through the way opened. The only allegation is that 
plaintiff's crop was exposed, without averring that it was dam- 
aged in any manner or amount whatever. It would be just as 
pertinent to this all^ation to prove damage for money paid 
out by plaintiff in hiring servants to guard the place opened, 
as to prove damage for stock entering, under the all^ations of 
this complaint; either of which items of damage might be |)er- 
missible if the foundation for proof were laid in the pleading. 
But if either could be pro^ierly proved without a more particu- 
lar allegation, how oould a defendant apprehend what damage 
would be proved against him, and prepare to rebut the charges? 
(Boone's Code Pleading, § 18, and cases cited.) 

On the points mentioned the pleading is unquestionably 
defective, and it was error to admit such proof over the objec- 
tion of defendants thereto. 

As shown above, the motion for nonsuit should have been 
granted. An order will therefore be entered remanding the 
caueej with directions to the trial court to reverse the judg- 



14 Mont.] Stevenson v. Cabwell. 811 

meDt, and enter nonfiuit therein acoording to the requirement 
of statute in such cases. 

Beversed. 

Pbmberton^ C. J.^ and De Witt, J., ooneurred. 



STEVENSON, Rispondent, v. CAD WELL, Appellant. 

tSnbmitted October 8, 1898. Dedded Apxil 2, 1894.] 

AmALS— DismiMoJ— KuZffD of court.— A. rule of the district court requiring appeftb 
from Jostiee'B oonris to be filed within thirty days ftfter the appeal is perfected 
is in DO sense Jarisdictional, bat simply a regulation of practice to be applied 
with a reasonable discretion, and therefore the failure of an appellant to com- 
jAj therewith should not be made ground of dismissal where the appeal is filed 
before the hearing of the motion to dismiss, and it further appears that as 
appellant was entitled to a Jury trial and no jury was in attendance until after 
the flUng of the appeal the respondent conld not hare been injured by ttie 
delay. 

AppecUfrom MrUh Judicial Didrid^ OaBatin County. 

Plaintiff's motion to dismiss the appeal was granted by 
Benton, J., sitting in place of Abmstbong, J. Beversed. 

Statement of the case by the justice delivering the opinion: 
This action was originally commenced in a court of the jus* 
iice of the peace. Judgment was rendered in favor of plaintiff 
March 13, 1893. Defendant in due time gave notice of appeal, 
and filed a bond upon appeal. On March 2l8t the justice 
made out his transcript of the proceedings in the case, and left 
the same with the clerk of the district court On April 24th 
plaintiff served defendant with notice of a motion to dismiss 
his appeal, on the ground that the same was not filed in the 
district court within the time allowed for filing it, as provided 
by statute and the rules of practice of the court, nor was the 
same docketed within the time so allowed. The motion was 
noticed to be made upon records of the case and an affidavit 
to be filed. On May Ist defendant paid to the clerk his filing 
fee, and the case was then filed and docketed. The defendant 
filed his affidavit in resistance to the motion to dismiss. The 
motion was heard May 8th, and granted. Defendant's appeal 




812 Stevenson v. Cadwell. [March T., 1894 

was dismissed, and judgmeut for costs was reudered iu favor 
of plaintiff. Defendant now appeals. 

E. P. OadtoeU, pro «e. 

There is no statute or practice to sustain the order appealed 
from. The only authority the district court had for making 
said order is its rule 2, and the only warrant for said rule is 
section 523, page 198, of the Code of Civil Procedure. Of 
course this statute means, if it means any thing, that to regulate 
the practice and procedure rules may be made. Not to make 
a new practice or procedure, or to change in any way that 
which is already existing, but to regulate that already existing 
and established by the code. Olearly the rule is not such as 
is contemplated by section 523. For instead of regulating a 
practice already in vogue it tears down and endeavors to 
establish a new practice; gives back to the justice^s court that 
which the law says it has parted with — ^its jurisdiction. Ad- 
mitting the rule to be good, is not the object of all rules of 
court to promote justice rather than to defeat it? Such is the 
doctrine of the California courts. {People v. WilHama, 32 Cal. 
281; FickeU v. Wallaoe, 54 Cal. 147; Peoi^ v. Zee, 14 Cal. 
612.) Here is a cause in which the appeal was perfected dur- 
ing a vacation of the district court, at a time when the jury 
was not in attendance upon the court. The cause is a jury 
cause. It could not be tried until one week afler the transcript 
was in fact filed. Who was prejudiced? Certainly not the 
plaintiff, for the cause could not have been tried at any time 
between the date of the appeal and the actual filing of the 
transcript. The rule at best is merely directory — not jurisdic- 
tional — and this supreme court has repeatedly held that being 
80 it .should be liberally construed. {State v. Bdker^ 8 Nev. 
141; McQuillan v. Doruxhoe, 49 Cal. 157; Territory v. Ifoo- 
Key, 8 Mont. 169; People v. Lake Q>., 33 Cal. 487; Territory 
V. Flowers, 2 Mont 392; Wood v. Forbes, 6 CaL 62; Shaw v. 
BandaU, 16 Cal. 384.) 

Stoats & Hotlowayj for Respondent. 

The authority of the district judge to make the rule is 
unquestioned. (Code Civ. Proc., § 523; McKay v. Superior 



14 Mont.] Stevenson v. Cadwell. 313 

Oourtj 86 Cal. 431.) Upon the failure of appellant to file the 
transcript within the time prescribed by the court rules the 
appeal will be dismissed. {In re BeecPs Edate (CaL March 
17, 1892) 29 Pac. Rep. 245; TraMng y. Meyer^ 3 Wjo. 133; 
Cbfltnt V. Johns<m, 3 Wyo. 133; Levy y. Eoereti (Cal, Oct. 4, 
1892), 31 Pac. Rep. Ill; 1 Am. & Eng. Ency. of Law, 627; 
MeKay y. Superior Court, 86 Cal. 431.) The filing of a 
transcript after notice of motion to dismiss for failure 
to file within the prescribed time will not cure the defect. 
{Welch V. Kenney, 47 Cal. 414.) If the rule is merely direc- 
tory, as appellant claims, then its enforcement in this case was 
a matter purely within the discretion of the court, and no error 
can be predicated of the ruling unless there was a violent abuse 
of that discretion, which we feel sure will not be imputed of 
the honorable judge presiding, and that this court will follow 
the universal rule that orders or decrees involving the exer- 
cise of judicial discretion are not subject to review in a court 
of errors; only a violent abuse of that discretion will be inter- 
fered with. {Pomeraj^a Leasee v. Bank of Indiana^ 1 Wall. 
598; United States v. AtherUm, 102 U. S. 372.) Abuse of 
judicial discretion which will justify interference with, implies 
not only error of judgment but partiality, passion, and per- 
versity of will. {People v. New York Gent. R E. Co., 29 
N. Y. 431; White v. Leeds, 51 Pa. St 189.) 

De Witt, J. — ^There was a rule of the district court that 
appeals from justice's courts to the district court must be filed 
within thirty days after the appeal is perfected, and that if, 
through the neglect of the appellant, the same be not so filed, 
the appeal may be dismissed. The appeal was not filed in the 
district court within thirty days after it was perfected, and in 
consequence thereof the district court dismissed the appeal. 
The only inquiry which we will make is whether the district 
court exercised a sound discretion in applying this rule and 
dismissing the appeal. We are inclined to think it did not. 
Defendant's appeal was perfected as required by statute. The 
dismissal was not for a failure to comply with the law, but, on 
the contrary, for simply neglecting to observe a rule of the 
court. The object of the rule is certainly not to deny parties 



314 St£V£nson v. Oadwsll. [March T., 1894 

a hearing who wish one. The object is to require appeal ca^es 
to be brought ou promptly for trial. It seems to us that the 
object of the rule was attained in this case. The appeal did 
not lie unheard for any* unconscionable length of time. 
Respondent gave notice of his motion to dismiss at once upon 
the expiration of the thirty days. Afler respondent had 
served appellant with notice of his motioni and a week before 
the motion was heard, appellant gave to the clerk of the dis- 
trict court his filing fees, and the api)eal was filed and docketed. 
It also appears that this was a case wherein appellant was enti- 
tled to a jury trial, and that no jury was in attendance upon 
the court from the date of appeal until May 1st, the day when 
the case was docketed. Therefore respondent was in no way 
injured. He could not have had a trial sooner under any cir- 
cumstances. This rule of the court is in no sense a jurisdic 
tional matter. It is not like some statutes regulating appeals 
where a compliance with the statute is necessary to give the 
court jurisdiction. The rule was simply a regulation of prac- 
tice which the court must apply with a reasonable discretion. 

We are not satisfied that an appellant should be turned 
away from court under the circumstances shown in this case. 
We believe that the results sought to be accomplished by the 
rule were in fact attained — that is, the opportunity for a speedy 
hearing of the appeal — and, that being true, the rule should 
not have been used to wholly deny a trial of the case. The 
action of the district court is reversed, and the case is remanded, 
with instructions to deny the motion to dismiss the appeal. 

The respondent makes no question as to reviewing, on appeal, 
the action of the district court in this case. {Howard v. QiMttn, 
2 Mont. 340; Marsh v. Einna, 2 Mont 547; Ihritory v. Mil- 
roy, 7 Mont. 559.) 

Pemberton, C. J., and Habwood, J., concur. 



14 Mout.] Casey v. Wright. 315 

CASEY, Respondent, v. WRIGHT, Appetj.ant. | fg J70 

[Submitted October 3, 1893. Decided April 2, 189i.] 14 sijl 

36 864 

TiZATiOM— Ctoud upon title— Complaint in action to remove,— L complaint in 
an action to set aside a tax deed as a cload upon plaintiiTB title, wLich avers 
an irregular assessment of the property in controyersy and its subsequent sale 
for unpaid taxes, but which does not allege some injustice or injury to plain- 
tiff resulting from such assessment, or that plaiutiflF has paid, or oflfers to 
pay, the taxes for which the property is properly chargeable, fails to state a 
cause of action for equitable relief. 

Bakb— iSafo of property in gross,— L tax sale of plaintiffs town lots, in connec- 
tion witii others, for the gross amount of taxes due upon all is yoid. 

Appeal from Seventh Judicial District^ Ouster CoutUy. 

Action to remove a cloud upon title. Judgment was ren- 
dered for the plaintiff below by MilbubN| J. Reversed. 

Middleton & lAghi, for Appellant 

StreveU & Porter, for Respondent. 

Pembebton, C. J. — Plaintiff claims in his complaint to be 
the owner of lots 1, 2, and 3, in block 81, of Miles City in 
Custer county in this state, and alleges that the defendant 
claims some interest or title therein by virtue of a tax deed to 
said pro|)erty, which is of record in said county, and which 
said tax deed is claimed to be a cloud on the title of plaintii! 
to said property. This suit is brought to remove said cloud. 

The plaintiff alleges in his complaint, in substance, that 
said lots were attempted to be assessed for taxes for the year 
1888, by the assessor of said county; that tlie assessment 
thereof was invalid, for the reason that said lots were assessed 
in gross, and not separately; that the taxes thereon for said 
year were not paid, and that they were thereafter sold by the 
treasurer of said county for such delinquent taxes; that said 
lols and eight others in different blocks of said Miles City, 
were sold in a lump, or in gross, for the total amount of taxes 
remaining unpaid for said year 1888 on all of said lots so sold 
by said treasurer; the plaintiff allegiug such gross assessment 
aud gross sale of said lots, being in violation of law, were, for 
such reason, void. 

The defendant demurred to the complaint on the ground 



316 Casky v. Wright. [March T., 1894 

that it did not state facts sufficient to constitute a cause of 
action. Tiiis demurrer was overruled. The defendant filed 
his answer, which contains a general denial in words and form, 
but he sets out tiierein the assessment of said lots for said year 
1888, contained in the tax list including said property for said 
year, which list was made out and returned by the assessor, as 
no owner of said property returned any list thereof for said 
year. The answer also contains a copy of the certificate of 
sale of the transfer of said property so sold for taxes for said 
year, and also a copy of the tax deed attacked in this action. 
From these exhibits, which are part of the answer, and must 
be construed with the denial therein contained, we think the 
allegations of tlie complaint, in these respects, were not suffi- 
ciently denied. On these grounds, among others, the plaintiff 
demurred to the answer, and the demurrer was sustained. 
Defendant declining to amend, and having decided to stand on 
his answer, judgment was rendered in favor of the plaintiff. 
Defendant appeals from the judgment. 

The first assignment of error is the action of the court in 
overruling defendant's demurrer to the complaint The com- 
plaint contains no all^ation of payment, or any offer to pay 
whatever just amount of taxes such lots were l^lly charge- 
able with for the year 1888. Defendant claims that, although 
the assessment complained of may have been irregular, and, in 
some cases, might be held invalid, yet that in this equitable 
proceeding for cancellation the plaintiff, before he can ask 
equity, must do or offer to do equity, which rule would require 
that he pay or offer to pay the just amount of taxes for which 
said lots were legally chargeable for said year. Defendant 
further claims that said complaint does not charge that the 
taxes assessed against said lots were unjust or unequal^ or show 
any other equitable grounds for not paying Uiem. 

In StocUe v. Silsbee^ 41 Mich. 616, in a case involving an 
irregular assessment, Mr. Justice Cooley says: ''In reviewing 
the case it is a little embarrassing not to find the defectd which 
are supposed to be fatal pointed out, esi>ecially as the finding 
recites many irregularities, some of which are obviously trivial 
and unimportant, and unworthy of a moment's consideration. 
Pos.sib1y some of these may have seemed to the court fatal. 



14 Mont.] Casby v. Wright. 817 

but the time lias gone by, if it ever was, when the proceedings 
of taxing officers are to be criticised with microscopic nicety; 
and the exact time and method of every step examined to 
detect a departure from the law, however insignificant or 
unconstitutional. The policy of the law is that parties shall 
pay legal taxes, even though there may be some irregularity in 
demanding them, and that they shall complain to the courts 
of those errors only which may injure them. The possibility 
of collecting the state revenue depends upon the observance of 
this policy, and we do not feel called upon to examine in detail 
every irregularity which a record may show." 

In Fifidd v. Mannette Co.^ 62 Wis. 632, a case similar to 
the one at bar, the court says: ''It was further said in the case 
of HaH V. Smithy 44 Wis. 218: 'Nor do we understand that 
the rule, long established in courts of equity, that h^ who 
seeks equity must do equity, is qualified or abrogated in favor 
of a party who seeks to remove a cloud upon his title to real 
estate by reason of illegal proceedings taken to enforce a valid 
tax assessed thereon, and that such party may demand as a 
right from a court of equity that such cloud shall be removed 
without his doing what justice and equity demand; that is, pay 
the tax. None of the cases in this court recognize any such 
right on the part of the plaintiff, and we think no such right 
exists. It would be a gross impeachment of the power of a 
court of equity to deny it the right to demand of its suitors 
good faith and common honesty before it shall be compelled to 
grant them any relief.' .... We must hold, therefore, that 
a complaint which does not allege in direct terms the injustice 
and inequality of the tax assessed upon the plaintifi^'s lands, 
and further allege a state of facts which, if proved on tbe trial, 
would establish the truth of the general allegation of its injus- 
tice, does not state facts sufficient to constitute a cause of action 
for equitable relief, unless there be a further allegation of an 
ofler to ])ay the taxes justly chargeable to the property of the 
plaintiff on account of which he seeks relief.'' 

In Wiscimsin Cent. R. B. Co. v. Lincoln Co., 67 Wis. 478, 
where the assessment roll was not signed or verified by the 
assessor, as required by law, the court say: ** The question is, 
do these irregularities and defects in the assessment and levy- 



318 Gasby t;. Wright. [March T., 1894 

ing of the taxes of 1876^ or either of them, render the tax pro- 
ceedings so utterly null and void that it can correctly be said 
that no taxes were assessed against the plaintiff's land in that 
year? If none were so assessed, probably the exception in sec- 
tion 4, chapter 21, of Laws of 1877, will not apply to such 
lands. We conceive that the judgment of this court in Fifidd 
V. MarineUe Cb., 62 Wis. 532, answers the above question in 
the negative. In that case, as in this, the document purport- 
ing to be the assessment-roll, and which was the foundation of 
all the subsequent tax proceedings, was not signed, or other- 
wise verified, by the assessor. It was held that the tax certifi- 
cates were not necessarily void in equity because of such 
omission, and that, to entitle the plaintiff to relief, he must 
show that the tax levied against his property was unequal and 
unjust; and, as a condition of relief, he must offer to pay the 
sum as taxes which in justice and in equity he ought to pay. 
In other words, it was held that such defective assessment is 
not a nullity, furnishing no foundation for a tax based upon 
it; but that a court of equity regards such assessment and tax 
levy as conditionally voidable; the condition being that the 
party complaining of the omissions and defects in the tax pro- 
ceedings must show that these have resulted in injustice to 
him, and must pay, or offer to pay, the amount which, under 
a just assessment, would be required of him.'' In ISaie v. 
Cooper J 69 Wis. 666, the court says: '^The relator is asking 
relief from an improper assessment in view of taxation. In 
such a case he must show equity in his behalf and not attempt to 
evade just taxation." In Northern Pae. R. JB. Co. v. PaUeraoHf 
10 Mout. 90, this court quotes with approval the language of 
Mr. Justice Miller in National Bank v. Eimball, 103 U. 8. 
732, which is as follows: ''We have announced more than 
once that it is the established rule of this court that no one 
can be permitted to go into a court of equity to enjoin the col- 
lection of a tax until he has shown himself entitled to the aid 
of the court by paying so much of the tax assessed against him 
as it can be plainly seen he ought to pay; that he shall not be 
permitted, because his tax is in excess of what is just and law- 
ful, to screen himself from paying any tax at all until the pre- 
cise amount which he ought to pay is ascertained by a court of 



14 Mont.] Casky v. Wbiqht. 319 

equity; and that the owner of property liable to taxation is 
bound to contribute his lawful share to the current expenses of 
the government^ and cannot throw that share on others while 
he engages in an expensive and protracted litigation to ascer- 
tain that the amount which he is assessed is or is not a few 
dollars more than it ought to be, but that, before he asks this 
exact and scrupulous justice, he must first do equity, by pay- 
ing so much as it is dear he ought to pay, and contest and 
delay only the remainder. {State Railroad Tax cases, 92 
U. S. 675.) This bill attempts to evade this rule by alleging 
that the tax is wholly void, and therefore none of it ought to 
be paid.'' (See, also, Ward v. Cdmmissioners, 12 Mont 23.) 

From a consideration of these authorities it seems to us that 
the complaint should allege some injustice or injury to plaintiff, 
resulting from said alleged invalid assessment, or payment, or 
an offer of payment, of the just and legal taxes for which said 
property was properly chargeable for said year 1888, before 
equity will grant him the relief sought in Xhis action. In this 
respect we think the complaint bad, and the demurrer thereto 
should, for these reasons, have been sustained* 

The appellant further complains of the action of the court 
in sustaining the demurrer of plaintiff to the answer. The 
answer discloses the fact, as shown above, that the lots in con- 
troversy, with eight others, were sold by the treasurer of said 
county, all together, for the gross amount of taxes due on the 
eleven lots for the year 1888. 

In Terrill v. Oroves^ 18 Cal. 149, a case very similar to the 
one under consideration, the court says: ''The plaintiff claims 
under a tax deed. It seems that these lots were assessed as the 
property of one Alonzo Green. They were separately listed, 
but valued jointly, apd the aggregate tax on all of them, and 
of two other lots in other blocks, set down. The lots sued for 
were contiguous to each other, and formed a part of block num- 
ber twenty-eight on the plan of the city. These lots were put 
up and sold together for the aggregate amount of this tax. 
The appellants contend that this was illegal, and that the sale 
and the consequent deed were void; and we are of the same 
opinion/' We think the authorities are almost uniform that 



14 naol 
16 433' 



320 McGuLLOH V. Price. [March T., 1894 

sach a sale is void. (See Blackwell on Tax Title8| 4th ed.^ 313; 
Cooley on Taxation, 341, 342, and authorities cited.) 

We think, therefore, tiiere was no error in the action of the 
court sustaining the plaintiff's demurrer to the answer of 
defendant. But it does not follow because the sale of said 
property was void that the assessment of the three lots in contro- 
versy was also void. In this proceeding we hold the assessment 
voidable only upon a proper showing that the assessment was 
unjust or injurious to plaiutifi*, or that he had paid, or offered 
to pay, the amount of taxes justly chargeable to said property 
for said year 1888, which amount is easily ascertainable from 
the tax books and rate of assessment for said year, said three 
lots having been assessed separately from the eight others with 
which they were sold. 

There are other errors assigned, and extensively discussed in 
the briefs, but we do not consider it necessary to treat them, as 
we think the matters treated are decisive of the case. The 
case is reversed and remanded, with instructions to sustain 
the demurrer to the complaint, and for further proceedings in 
conformity with these views. 

BeverseJL 

Habwood and De Wnr, J J., oononn 



MoCULLOH, Respondent, v. PRICE, Appeltjlnt. 

[Submitted October 6, 1898. Decided AprQ 9. ISM.] 

J>MB)&-~Descr%ption^A8$ignmenU,^A. deeoriptioii of re$X estate la a deed of 
Msignment, as ill the lands of the grantor of eyery deioription belonging to 
him and wheresoeTer eitaated, passes the title of the lands to the asaignee, and 
is not insufficient as being too general. 

Sua—JMignmerU—Bxen\piion.^A. deed of assignment oonToying ell the grantor*! 
lands is not void for nnoertaintj in that it excepts property exempt firom 
execntion nnder the laws of the state, which exempt property ii not spedflc- 
ally described. 

Appeal from Fird Judicial Diatridf Leuna and darhe OounJty. 

Ejectment. The cause was tried before Hunt, J. Plain- 
tiff had judgment below. Affirmed. 

Henry C. BmHh, for Appellant 



14 Mont.] McGuLLOH t;. Peicb. 821 

H. O. MelnHre, for Respondent. 

A deed of assignment containing a general description of the 
property assigned is sufficient to pass the title to real estate. 
In the following authorities deeds, mortgages, and assignments 
for the benefit of creditors have all been discussed. (WiUon 
V. Boyce, 92 U. S. 320-25; BraAear v. West^ 7 Pet 608-14; 
Peltigrew v. Dobbdaar, 63 Cal. 396; lAok v. G^DonnM, 3 
Gal. 59; 58 Am. Dec. 38?; Frey v. Qiffordy 44 Cal. 343; 
Sadler v. Immel, 15 Nev. 269; Broum v. Warren^ 16 Nev. 
237; Eettogg v. Slawaon, 15 Barb. 58; Piatt v. LoU, 17 N. Y. 
478; Turner v. Jaycox, 40 N. Y. 472; Raynor v. Raynor^ 21 
Hun, 36; Jackson v. Delancey, 11 Johns. 365; Strong v. X^n, 
38 Minn. 315; Jamaica etc, Corp. v. Cliandler^ 9 Allen, 159; 
Harmon v. James, 7 Smedes & M. Ill; 45 Am. Dec. 296; 
Blair v. BrunSy 8 Col. 397; Bitner v. JVino Fori rfo. Land Co., 
67 Tex. 341; Haii)ey v. JEcfen«, 69 Tex. 420; PreUyman v. 
TFo&fon, 34 111. 175; Bird v. J5ird, 40 Me. 398; 6 Lawson's 
Bights, Remedies, and Practice, § 3017, p. 4889; Boone on 
mortgages, § 6; 1 Jones on Mortgages, § 65; Burrill on 
Assignments, § 95, p. 137.) It is proper to insert in an 
assignment a clause excepting exempt property from its terms. 
(Burrill on Assignments, 137, 138; 4 Lawson's Bights, Beme* 
dies, and Practice, § 1988, p. 3388, note 12; Richardson v. 
Marqueze, 59 Miss, 80; 42 Am. Bep. 353.) 

DeWitt, J. — This is an action in the nature of ejectment, 
in which plaintiff recovere<i judgment. A motion for a new 
trial was denied. From this order, and from the judgment, 
defendant appeals. 

Bespondent contends that the order denying the new trial 
cannot now be reviewed, because the notice of motion was not 
filed in time. But we may pass this contention, because the 
only point made upon the motion for a new trial is also 
properly preserved in a bill of exceptions; thus becoming part 
of the judgment-roll, and reviewable on the appeal from the 
jadgment. That point is as follows: Plaintifi* relied for title 
to the premises in controversy upon a deed of general assign- 
ment for the benefit of creditors made by Bennet Price, 

defendant, to 8. E. Atkinson, as his assignee, said Atkinson 
Vol. XIV.--21 



322 McCuLLOH V. Pbica. [March T., 1894 

afterwards conveying to plaintilT. When the deel of assign- 
ment was offered in evidence as part of plaintiff's chain of 
title defendant objected to it upon two grounds. His objec- 
tions were overruled. He excepted, and now urges error in 
this respect. 

' The first objection was that, in the deed of assignment, tlie 
description of the property was insufficient to pass the title to 
real estate. The instrument was executed by this defendant 
and J. H. Jurgens and wife. The granting and descriptive 
portion of the deed of assignment is as follows: ^^Said parties 
have/' etc., '^and by these presents do grant, bargain, sell, 
assign, transfer, and set over to," etc., ''all and singular, the 
lands, tenements, hereditaments, and appurtenances, goods, etc. 
[describing personal property], of every description, belonging 
to the said parties of the first part, or either of them, or in 
which they, or either of them, have any right or interest 
.... and wheresoever said property, or any jwirt thereof, 
may be situated." 

This description, appellant contends, is insufficient, as being 
too general. He does not cite us to any authorities supporting 
his contention. The description is of all the lands of this 
appellant, of every description, belonging to him, wherever 
situated. 

The United States supreme court said in Wibon v. jBoyoe, 92 
U. S. 325: "The question is. Does the word 'property,' in the 
statute, create a valid lien on these lands? The generality of 
its language forms no objection to the validity of the mortgage. 
A deed 'of all my estate' is sufficient. So, a deed 'of all my 
lands, wherever situated,' is good to pass title. {Jackson y. 
DeLanoey, 4 Cow. 427; Pond v. Bergh, 10 Paige, 140; 1 
Atkinson on Conveyancing, 2.) A mortgage 'of all n^y prop- 
erty,' like the one we are considering, is sufficient to transfer 
title." 

We also cite as follows from Petiigrew v. Dobbelaar, 63 Cal. 
396: "Appellant also urges that the second deed from Harvey 
to Lacey contains no description, and is void. The descriptive 
clause is, 'AH lands aud real estate belonging to the said part/ 
of the first part, wherever the same may be situated, together/ 
etc. If the lands in controversy belonged to Harvey they 



14 Mont.] McCuLLOH v. Prick. 323 

passed by the deed last mentioned. (Xibi v. (/DonneH, 3 Cal. 
59; 58Ara. Dec. 3830" 

In the case at bar there is no question but the lands belonged 
to Price when the assignment was made. The contention in 
this case is between assignor and assignee's grantee. There is 
DO claim that this general description attempted to cover any 
fraud, or was likely to work any fraud. There is no reference 
to any schedule to limit the general description. Under all 
these circumstances, there can be no doubt that the description 
of the premises was sufficient. {Frey v. Clifford, 44 Cal. 343; 
Brawn v. Warren, 16 Nev. 237; Prettyman v. WaUUm, 34 111. 
175; Kellogg v. Slawaon, 15 Barb. 58; Harmon v. James, 7 
Smedes & M. Ill; 45 Am. Dec 296; Strong v. Li/nn, 38 
Minn. 315; Jackson v.DeLaneey, 11 Johns. 365; 6 Lawson's 
Kights, Remedies, and Practice, § 3017, p. 4889; 1 Jones on 
Mortgages, § 65; Burrill on Assignments, 5th ed., § 95.) 

Tlie second objection made to the introduction in evidence 
of the deed of assignment was that it was void for uncertainty, 
in that it provides that certain exempt property shall be 
excepted from the operation of the deed, which exempt prop- 
erty is uncertain in amount. To the descriptive part of the 
deed, which we have quoted heretofore in this opinion, is added 
the clause, ^^ Except what are exempt to them (the first parties), 
or either of them, from execution, by the laws of Montana 
Territory.'** 

Appellant cites us to no authority holding that such excep- 
tion renders the deed of assignment void, nor does he suggest 
any reasons why it should be so held. It was, indeed, so held 
in Tennessee; but the Tennessee decisions were reviewed, and, 
as we think, their reasons refuted, in Richardson v. Marqueze, 
59 Miss. 80, 42 Am. Rep. 353, in which case the court says, 
after speaking of the Tennessee cases: 

"But we dissent from them, in thinking that a failure specif- 
ically to describe the exempt property renders the conveyance 
void for uncertainty. If it has any evil effect whatever, mani- 
festly, it must be to render void the claim for exemption, and 
to cause a forfeiture of such claim. It is the exception or reser- 
vation that is insuflQciently described, and thereby left uncertain 
and void, while the conveying words of the instrument, being 



324 McCuLLOH V. Price, [March T., 1894 

definite, and embracing all the property of the grantor, must 
be operatiye to pass it all. Tlie rule is well settled that iu 
order to except certain property out of a conveyance, which 
without the exception would carry all, the words of exception 
must be as definite as tliose required to convey title, and that 
if they are not so the whole property passes. An excep- 
tion must be a part only of the thing granted; must be a 
particular thing out of the general one, and must be described 
with certainty. (Coke on Littleton, 142 a.) In a grant of land, 
excepting one and a half acres, the exception is void for uncer- 
tainty, and the title to the whole passes to the grantee. The 
language both of grants and of exceptions is to be taken strongly 
against the grantor. (Darling v. OrofweUy 6 N. H. 421, and 
cases cited.) We agree, however, with the supreme court of 
Michigan, in Smith v. Mitdiell, 12 Mich. 180, that a reservation 
of exempt property, without a minute specification of it, neither 
avoids the deed, nor is void in itself for uncertainty. That is 
certain which may be made certain. The law fixes the amount 
of the exemption, and points out the mode of its ascertainment. 
It was remarked by the court, in the case last cited, that 'a 
bona fide selection is as practicable here as under a levy.' We 
are not aware that officers holding executions or attachments 
ever experience any difficulty in finding out what is and what 
is not exempt by law to the debtor; and this, it would seem, 
can be as readily done by an assignee under a general assign- 
ment Where the right of selection resides in the debtor, he 
can easily be made to exercise it, or forfeit it; and to compel 
bim to do so would seem far more reasonable than to declare 
a conveyance embracing thousands of dollars' worth of prop- 
erty void, because of the failure accurately to enumerate and 
describe the two mules, or the four cows and calves, that he 
claims as exempt." 

The authorities are with the view expressed in the Missis- 
sippi case. (See cases therein cited; also, Burrill on Assign- 
ment, 6th ed., § 96, p. 142; 4 Lawson's Rights, Remedies, 
and Practice, § 1988, p. 3388, and cases cited in these text- 
books.) Whatever was said in QoU v. HxMell, 61 Wis. 293, 
following the Tennessee cases, and looking to appellant's view 
of this matter, was abandoned upon a rehearing of the case 



14 Mont.] Rausoh v. Rausch. 825 

(OoU V. HubbeU, 61 Wis. 300), following the case of First NaJU 
Bank v. JSooJbetf, 61 Wis. 336. 

We are therefore of opinion that the objections to the deed of 
assignment were properly overruled. The judgment b there- 
fore affirmed* 



PembebtoNi C. J.| and Habwoop, J.^ concur. 



BAUSCH) Appellant, v. RAUSCH, Respondent, 

[Babmitted Vebrouy 26. 18M. Bedded April 9, 18M.1 

B woi g «L — Eytrftoftto tifl^— I>ot00r.~A wifie who edminieten npon the estate of % 
hnebend, tOjWhom she suppoeed ehe wm UwftiUj married, and retome m 
belonging: to him propciiy which he had parohaaed with her money, wron^- 
ftillj taking the title in hia own name, and allows the same to be set apart by 
the oonrt as her homestead, ia not thereby estopped from asserting an equi- 
table title to the property as against the lawful wifo seeking to enforce a dower 
right therein. 

Afpetdfrom Mrd Jwlunal District^ Lewis and Clarhe Oounty. 

AcmoN to enforce dower. The caase was tried before 
Buck, J, Defendant had judgment below. Affirmed, 

MeCbnndl, Clayberg A Ounn, for Appellant. 

L The respondent having petitioned the probate court to 
have the property in controversy set apart to her as a home- 
steady and said petition having been granted and an order of 
the probate court having been made setting said property apart 
to her as a homestead^ she cannot now be heard to say that 
George Rausch was not seised and possessed of said property 
in his own right at the time of his death. The probate court 
must have found before making said order that said property 
was a part of the estate of George Rauscli, deceased, and the 
respondent is concluded by tin's finding. ^^ Necessary and 
inevitable inferences — facts without which the judgment could 
not have been rendered — are equally covered by the estop- 
pel as if they were specifically found in so many words." 
(2 Black on Judgments, § 613.) Under the statutes of this 



326 Kausch v. Kausch, [March 'i'., 1894 

state, the court is only autliorized to set apart as a homestead 
property belougiug to the estate. The respondent having pre- 
sented proof by her verified petition invoked the adjudication 
of the court that this property was a part of the estate of 
Greorge Rausch, deceased, and obtained an order based on this 
fact she is now estopped from asserting otherwise. (^McDonald 
V. EainoTy 8 Johns, 442; 2 Black on Judgments, § 632.) 
Orders of the probate court are conclusive of the facts found 
and of the facts necessary to the making of said orders, 
(2 Black on Judgments, § 633.) The respondent upon the 
plainest principles of justice and under all the decisions is 
estopped by the said order of the probate court made in her 
favor, and obtained upon her petition from disputing the facts 
upon which said order rests and necessary to the making 
thereof. 

II. The respondent having stated in the probate court, 
under the solemnity of an oath, that this property was tlie 
propei-ty of another whose estate she was administering ui)on; 
and this same property having been appraised as the properly 
of said estate, upon her application; the respondent having 
gone still further and asked the court to set apart this property 
to her as a homestead, and claimed she was entitled to it out of 
the property of Greorge Rausch, deceased, and an order having 
been made setting said property apart to her as a homestead 
upon her petition, and she having taken the benefits of said 
order, she is now estopped from claiming it as her separate 
property. The respondent's previous conduct and her asser- 
tions are wholly inconsistent with the fact that this pro{)er(y 
was her own individual and separate property, or that Greorge 
Rausch held it in trust for her. An administratrix who finds 
proi>erty among the assets of an estate and takes possession of 
it as the property of the estate, laying no claim to it herself, 
is estopped from setting up her claim adverse to the estate. 
(Miller v. Jones, 26 Ala. 247; Manlgavli v. 2)«w, 1 Bail. Eq. 
283; Bigelow on Estoppel, 3d ed., 435; Benjamin v. QUI, 45 
6a. 110; 2 Herman on Estop|iel, § 1125, p. 1261, and numer- 
ous cases cited in note.) 

III. The respondent having accepted this property as a 
homestead under said order of the probate court, and having 



14 Mont.] Bausch v. Kausch. 827 

goue into possessioo^ and couUuuing to hold the same, as found 
by tlie court, is estopped from asserting a title paramount to 
tiiat of the estate. {Phelan v. Kelley, 25 Wend. 389; Jackson 
V. Streeier, 5 Cow. 629; 2 Devlin on Deeds, 1289.) The court 
having found that the appellant was the lawful wife of George 
Rausch, deceased, at the time of his death we respectfully sub- 
mit that under the other findings of fact made by the court 
said appellant is entitled to her dower interest in said property. 
The right of the wife to dower in the lauds of which her hus- 
band was seised during coverture is given by the Act of Feb- 
ruary 11, 1876, and affirmed by the supreme court in Chadvnck 
Y. Taiem, 9 Mont 354. 

Oeorge F. Shdion, for Bespondent. 

I. The plaintiff forfeited her right to dower by the fact 
that she and said Greorge Bausch separated in 1861, and in 
1878 she married again, not having met or cohabited with her 
first husband after such separation. If a woman leaves her 
husband of her own free will, and afterwards lives in adultery, 
the dower is forfeited. (2 Scribner on Dower, 633 et seq.; 
HeiheringUm v. Oraham, 6 Bing. 135; Woodtoard v. Dowse, 
10 Com. B., N. S.,722.) The statute, 13 Edw. 1, 34, com- 
monly called the statute of Westminster the 2d,' upon which 
the above decisions are based, has been recognized as a part of 
the American common law, when no re-enactment has been 
made in terms. {Bdl v. Needy, 1 Bail. 312; 19 Am. Dec. 
686; Bed v. Elder, 62 Pa. St. 308; 1 Am. Bep. 414.) The 
common law of England has been adopted by express enact* 
ment in Montana. (Comp. Stats. 647.) The common law as 
adopted by the legislature of Montana included such British 
statutes of a general nature not local to that kingdom or not 
in conflict with the constitution or laws of the United States, 
nor of the territory as were in force at the time of the inde- 
pendence of the United States. {Beni v. Thompson, 138 U. S. 
114; Wilson v. Davis, 1 Mont. 193.) The principle that a 
wife who voluntarily leaves her husband and lives in adultery 
with another man cannot be heard afterwards to claim an 
interest in his estate by the application of a doctrine analogous 
to that of equitable estoppels has been uniformly recognized 



828 Eausch v. Rauscit. [March T., 1894 

by the ooarts. (Arthur v. Israd, 15 Col. 147; 22 Am. St. 
Eep. 381; Duke v. Seed, 64 Tex. 705; Prater v. Prater, 87 
Tenu. 78; 10 Am. St. Rep. 623; Odiom^s Appeal, 64 Pa. St. 
175; 93 Am. Dec. 683; Gamer v. Gamer, 38 Iiid. 139.) 

II. The doctrine of estoppel invoked by appellant is with* 
oQt foundation in law or fact. It is claimed that respondent 
is estopped by the inventory and petition to set aside home- 
stead from asserting title in herself. Thai there is no merit 
in this contention is established by numerous and well-con- 
sidered authorities. {Aniliony v. Qiapnvan, 65 Cah 73; In re 
Bauer^e Estate, 79 Cal. 311; Baker v. BrickeU, 87 Cal. 342; 
Haley v. Oatewood, 74 Tex. 281; Carter v. McManue, 15 La. 
Ann. 676; WerklieUer v. Werklieiaer, 3 Rawle, 326.) The 
doctrine of estoppel is based ui)on the principle that some one 
will be legally injured by permitting another to speak the 
truth, but inasmuch as appellant could, under no conceivable 
state of facts, have any greater or better title than George 
Bauschy and as he had no title at all as against respondent, 
appellant has suffered no injury and respondent has only 
received tardy justice. 

Harwood, J. — ^This case involves a claim by plaintiff to a 
dower interest in certain lands situate in Helena, Lewis and 
Clarke county, in the possession of defendant, who claims to 
be the sole and exclusive owner thereof. On the trial of the 
action in the district court findings of fact were made, and 
thereon judgment was entered in favor of defendant, in effect 
adjudging that plaintiff had made out no right of dower in the 
premises in question; and therefore adjudging defendant's title 
quieted as against said claim of plaintiff. Plaintiff appealed 
from the judgment, insisting, in this court, that, according to 
the findings of fact, the judgment should have been rendered 
in her favor, establishing her claim of dower in said premises. 

In brief, the facts as presented by the findings are as fol- 
lows: That plaintiff and George Rausch were married in Aus- 
tria, August 28, 1847; that about five years thereafter Greorge 
immigrated to America, where he was joined later by plaintiff, 
his wife; they lived together in Milwaukee, Wisconsin, some 
time^ and afterwards in Denver, then territory of Colorado, 



14 Mont] Bausch v. Kausch. 829 

where, in the year 1861, these spouses separated, as found by 
the court, each apparently going his and her own way, as subse- 
quent events seem to imply, to seek their fortunes respectively, 
independently of one another, and, as the findings recite, never 
met again. The findings further show that George Rausch 
came to Montana, and in the course of events, about the year 
1868, married the woman who is defendant in tins action, rep- 
resenting to her that his former wife was dead, and that there 
was no legal impediment to his marriage with Eliza, this 
defendant; tliat the latter marriage was solemnized by a priest 
of the Roman Catholic church, in the city of Helena, theu 
territory of Montana; that at the time of this marriage, as the 
findings show, defendant Eliza Rausch was possessed of money 
of her own earnings, acquired prior thereto, to the amount of 
about two thousand two hundred and fifty dollars, and that said 
(}eorge Rausch, at the time of his marriage with Eliza, had 
nothing in the nature of money or property, not even sufficient 
means for his own maintenance, and after such marriage he was 
supported entirely by the property and earnings of defendant, 
Eliza, until his death, which occurred in September, 1887; 
that, on a certain occasion after said last-mentioned marriage, 
defendant, having concluded to buy the property in question, 
delivered to said Greorge Rausch, out of her own funds, money 
sufficient to purchase the same, with direction to purchase it 
and have tlie title conveyed to her name, which he promised to 
do; that said George Rausch with such funds purchased the 
property in question from the probate judge holding, as trus- 
tee, the townsite of Helena, but caused the title of said prop- 
erty to be conveyed to him, the said George Rausch, instead 
of defendant, contrary to the express agreement between said 
George and Eliza when the money was delivered to him to buy 
said property; that some time afterwards, when defendant dis- 
covered that the title had been placed In the name of George 
Rausch, she was assured by him that it was all right; that 
defendant was unable to read or write, and was ignorant as to 
her legal rights in the premises; and the title to said ))ro})erty 
remained in the name of George Rausch until he died in 1887, 
Upon his death, administration proceedings were had as to 
said property in his name, and, among other things, the prop- 



330 Rausch v. Bausch. [March T., 1894 

eriy iu question was, by order of the probate court Laving 
jurisdiction thereof, set apart to defendant as her homestead, she 
then being the supposed wife of the deceased, George Rausclu 

While these events were transpiring in reference to the his- 
tory of George Rausch, the plaintiff in this action, Johannah 
Catherine Bausch, as appears from the findings, sought also to 
carve out her fortune in the great western hemisphere, inde* 
peudently of Greorge, her husband, and, among other events, at 
Laramie City, Wyoming, entered into marriage bonds with 
one Patrick G. Murphy, and lived with him in that relation 
about seven years, when she obtained a divorce from him in 
the courts of that jurisdiction, on the ground of his desertion 
and failure to support hen 

Now, after all these events, and after the death of Bausch, 
plaintiff asserts her claim to dower right in said property, pur- 
chased with defendant's money, in the city of Helena, and has 
instituted this action to enforce such dower claim. Defendant 
Eliza, in opposition thereto, set up, not only the proceedings 
setting said property apart to her as her homestead by order of 
the probate court, but also alleging her equitable right to said 
property by reason of its having been purchased with her 
money as aforesaid; all of which facts are found, and are 
admitted to be true as the case now stands. But plaintiff's 
counsel insist that defendant, having administered on the estate 
of G^rge Bausch, and returned said property in the lists as 
property belonging to his estate, and having allowed tlie same 
to be set apart as her homestead, under her sup{)osed right as 
the wife of George Bausch, is thereby estopped from now 
asserting that said property was not, in fact or in equity, the 
property of George Bausch, bat that she was, and still is, the 
equitable owner thereof, independently of her supposed relation 
to Bausch by marriage. 

The estoppel proposed to bar the assertion of defendant's 
equitable right to said property cannot be maintained. The 
position taken by plaintiff's counsel throughout the argument 
of this case is that defendant was never the lawful wife of 
Bausch; that her marriage with him was void in law. But 
that she was deceived and acted innocently, and without 
knowledge of any legal im|)ediment to such marriage, is not 



14 Mont.] Kausch v. Eausch. 331 

disputed. Such appears to have been the view held by the 
trial oourty aud is uot controveiled by defeudaut's couusel, aud 
there seems to be no ground upon which to question its cor- 
rectness. Then, admitting that defendant was never the law- ' 
ful wife of Rausch^ the acts and proceedings in reference to 
his estate in favor of defendant, based upon the assumption 
that she was his lawful widow, must have been void. But 
those void proceedings were brought about by deception aud 
imposition practiced upon defendant, Eliza, an innocent and 
injured party. That nominal marriage of George Rausch with 
defendant) and the proceedings based upon that fialse assump- 
tion, being void, what were their relations in respect to said 
property? It would seem to be that of one person receiving 
money as agent for another, and with direction and under- 
standing that such funds should be invested in the purchase 
of certain property for, and the title thereto conveyed to, 
the party furnishing the purchasing price; but, contrary to 
such understanding and the right of the party furnishing the 
money, the agent causes the title of said proi)erty to be con* 
veyed to his own name. Under such conditions, the legal 
title is held by the latter, as trustee for the former, and such 
trust will be enforced, to the end that the equitable owner be 
invested with the title of his or her own estate. 

There is no principle of estoppel to bar defendant, under the 
conditions shown in this case, from asserting her right to said 
property. If so, then she is estopped by having suffered 
wrongs and imposition through the misconduct of others in 
matters wherein she was innocent and deceived; and the law of 
estoppel, so operating, would augment her iujury. Such is 
not the office of estoppel. It is interi)osed against guilty con- 
duct to prevent imposition, deception, and injury to others 
acting in goo<l faith in reference to the same subject. Nor 
does it api)ear that any disadvantage resulted to plaintiff from 
the events recited. Nor is her conduct as free from question 
as that of defendant, against whom no suspicion of bad faith 
or guilty knowledge is suggested. For, as appears from the 
findings of fact, plaintiff* not only entered into formal marriage 
relations with said Murphy after she and Bansch separated 
(although it is found that she believed Bausch dead when she 



832 Statb v. Cook, [March T., 1894 

married Murphy), but "long before the death of Rauech, and 
prior to plaintiff 's divorce from Murphy, she knew that Greorge 
Rausch was alive, and was living with defendant as her hus- 
' band." But there is no showing that defendant was given any 
information as to the relation which existed between plaintiff 
and said Rausch. 

There is no ground shown upon which plaintiff can recover. 
Let tlie judgment stand affirmed. 

AffirmecL 

Fembrktos, C. J., and De Wttt, J., concurred. 



STATE KX RBL. BAILEY r. COOK, State Atjditob. 

[Submitted April 2» 1894. Decided April 18, 1891.] 

AppBOPBUTiOHi~2Viafi«/0r of unuMd portion to ^neral fimdU—Whetk the legial*- 
tare appropriates specific sums of money for each of the two ensuing fiscal yean 
to be used in the construction of a state prison, and only a smaU portion of the 
fund is used during the first year, the unused portion of the appropriation did 
not thereby lapse so as to authorize tlie state auditor, at the expiratlcm of the 
first fiscal year, to transfer it, together with the appropriation for the second 
fiscal year, to the general fund of the state. 

Original PfiocEEDiNa. Application for writ of mandate. 
Granted. 

0. F. Ooddard, for Relator. 

Henri J. HaakeU, attorney general, for the state, Bespondeni 

Pemberton, C. J. — On the twenty-sixth day of July, 1893, 
the relator entered into a contract with the prison commis- 
sioners of the state to furnish sand to be used in the bnilding 
of the eastern state prison at Billings. On the seventeenth 
day of February, 1894, said relator presented his bill in the 
sum of four hundred and twenty-five dollars for furnishing 
said sand, to the state board of examiners, which was allowed 
by said board, and thereafter transmitted to said respondent, 
with a request for a warrant on the state treasurer for said sum. 
The auditor refused to draw his warrant for said sum. Upon 
such refusal to draw his warrant the relator makes this appli- 



14 Mont.] State v. Cook. 333 

caiion to this court for a writ of mandate to require said auditor 
to draw said warraut for said claim. 

By the act of March 3, 1893 (Laws 1893, § 15, p. 197), 
forty-two thousand dollars were appropriated for the year 
1893, to be used in the coustruction of said eastern prison, 
and thirty thousand dollars appropriated for the same purpose 
for the year 1894. It seems that only nine dollars of said 
fund was actually used and paid out in the fiscal year 1893. 
The auditor contends that he is not required to draw his war- 
raut for the claim of relator, for the reason that the unused 
balance of said appropriation of forty-two thousand dollars 
was, on the first day of December, 1893, that being the day on 
which the fiscal year of 1893 ended, by law transferred to the 
general fund of the state, and that as the whole amount of said 
appropriation for the year 1893 was not used and paid out 
during said year, and was for that reason so transferred to the 
general fund, and thirty thousand dollars appropriated for the 
year 1894 was also transferred to the general fund on the first 
day of December, 1893, and that there is therefore no appro- 
priated fund on which he can draw his warrant to pay relator's 
daim. We do not think this position tenable. The appro- 
priation involved is for a specific purpose, and is for two years. 
We think the appropriation in question, being for two years, 
is subject to any demands and liabilities that may be incurred 
by the state's agents during the whole period that it was 
intended by the legislature that it should continue. Any 
other construction would prevent tlie state's paying its legal 
obligation, and embarrass ic in carrying out the public enter- 
prises contemplated by the legislature in enacting such appro- 
priation laws. This view has been held in other jurisdictions 
under similar constitutions and laws to ours. (See People v. 
Needles, 96 111. 577; People v. Swigert, 107 111. 494.) 

We think the contention of respondent that said appropria- 
tion or any part thereof lapsed on the first day of December, 
1893, the end of the fiscal year for 1893, and was lawfully 
transferred to the general fund on that day, is not supported 
by authority or any legitimate construction of the laws of this 
state. 

It 18 therefore ordered that a peremptory writ of mandate 



884 Logan v. Rickards. [March T., 1894 

iBsne in. tliis case, requiring said auditor to issue his warraDt, 
in accordance with the application of the relator. 

OfvnUd. 
Habwood and De Wnr, JJ., concur. 



LOGAN« Respondent, v. RICKARDS et Aii., Appel- 
lants. 

[Submitted April 9, 1894. Deolded April 16, 189L] 

Afpxjll— I><«miMat~jFVfidin^— BH«/i.— An appeal will not be dismiMed for fkil- 
uro of appellants to exoept to flndinsi or to lek for farther flndingi; nor to 
file briefs within the time required by the mlee of thii ooort 

Appeal Jr(ym Ninth Judicial Didriol, OaHatin County. 

On Motion to dismiss appeal. Denied. 

E. P. OadtoeUy for the motion. 

Hariman & Harlman, oorUra. 

Per CiTBiAM. — Respondent's motion to dismiss appeal herein 
should be overruled. 

1. As to the failure of appellants to except to findings, or 
to ask for further findings, that is a matter to be considered 
on submission of the appeal for determination. Moreover, 
there may be other matters relating to the judgment-roll, 
which appellants may, if desired, have reviewed; and we can« 
not assume at the present time that the findings, or want of 
findings, will be the only question presented on such appeal. 

2. As to the specification that briefs have not been filed by 
ap])ellants within the time required by the rules of this court, 
while that may be cause for summary disposal of the appeal 
there has, so far, been no rule adopted providing for the dis- 
mi&snl of appeals for failure to file brie& within the time pre- 
scribed. 

Motion denied. 



14 Mont.] Gould t;. Barnard. 335 



GOULD, ET AL., RjBSPONDENTSy V. BARNARD, Appel- 

liANT. 2d 4S2\ 

[Bnbmitied October 16, 1898. Decided April 16. 1894.] 

NoKBUiT.'After;,the OTerraling of a motion for nonsuit plaintlfF'B case is entitled 
to any snpport supplied by the cTidence offered on behalf of the defendantb 
{8\D$eney t. Great Falis eto. By. Co., 11 Mont^ 531; MoKay t. Montana Union 
By. Co., 13 Mont. 15, cited.) 

KiaHANia*8 Lnnr— ^u5con<raotori.— In an action by subcontractors to foreoloee a 
lien, proof that the owner paid the contractor withont showing that the sub- 
contractors reoeiTcd payment is insufficient to defeat the lien, as the owner in 
order to protect his property should hare seen that the subcontractors were 
paid for their work within the contract price. 

Appeal from Second Judicial District, Siher Bow (hvmty, 

AcnoK to fpreolose meohanic's lien. Judgment was ren- 
dered for the plaintiffs below by McHatton, J. Affirmed. 

BobvMon A Stapleton, for Appellant. 

Forbia A Forbia, for Respondents. 

Per CiTBiAM. — ^Tbe record herein presents a singular ease. 
The action was brought to enforce payment of f 346.60 for 
certain plumbing all^;ed to have been done in defendant's 
buildings situate in the city of Butte, Montana, by foreclosure 
of a mechanic's lien on said building. The controversy centers 
upon the plumbing done in fitting rooms in said building to 
be occupied by Dr. Murray. It appears that the block was 
rebuilt, after destruction by fire, by J. W. Lambouru, con- 
tractor and builder, under a contract with defendant, Baruard, 
the owner of said property; that such contract provided for 
the construction of said block, with certain plumbing to be 
done therein, which building contract, according to the testi- 
mony of defendant, contemplated and included the plumbing, 
which U the subject of controversy in this suit. It fuilher 
appears that plaintiffs were contracted with by said Lambouru 
to do certain other plumbing in said building, under two 
special contracts, one of which called for plumbing to the 
amount of |790, and the other called for plumbing to the 
amount of |465. In their complaint plaintiffs set forth three 
items of plumbing — the first two above mentioned, and the 



836 Gould v. Barnard. [March T., 1894 

third item of |345.60 — ^and admit payment of the first two, 
and seek to enforce payment for the third item by this actioD, 
by foreclosure of the lien which it appears they filed upon said 
property. Defendant denies that the value of said third item 
of plumbing exceeded f 100, and also alleges that the same was 
included and paid for in the plumbing comprised in the con« 
tract above mentioned^ for which f 790 were paid. 

The jury impaneled to try the issue involved returned their 
verdict in favor of plaintiiTs, and judgment was rendered 
accordingly, foreclosing their lien. The case is here on defend* 
ant's appeal from the order denying his motion for new trial 
on the assignment tliat the evidence is insufficient to support 
the verdict; appellant's counsel insisting that there is no evi- 
dence to support tlie finding that the plumbing here in contro- 
versy was done under, or by virtue of, any contract. 

We are inclined to the opinion that it might have been 
necessary to sustain appellant's contention, had the want of a 
contract or authority to do said work been made an issue, and 
defendant's counsel had rested their case upon their motion for 
nonsuit interposed at the close .of plain tijSs' testimony; for the 
record, up to that point, hardly presents sufficient evidence to 
support a finding in favor of plaintiffs. The weakness of the 
case, up to that point, lies in the failure to show, substantially, 
an express or implied contract on the part of defendant, or his 
builder, Lanibourn, with plaintiffs, to do the plumbing in 
question. But defendant did not rest on his motion for non- 
suit, and his position was never so strong afterwards. The 
testimony which he introduced, we think, materially cures the 
weakness of plaintifib' showing, and they are entitled to any 
support supplied by the evidence offered on the part of defend- 
ant after the motion for nonsuit was overruled. (Sweeney v. 
Oreat Falls etc. Ry. Co.y 11 Mont. 631; McKay v, Montana 
Union Ry. Q)., 13 Mont. 15.) 

It is shown by the evidence offered by defendant that the 
plumbing in controversy was done in fitting up said rooms for 
Dr. Murray, as provided in the contract between defendant, 
Barnard, and Lambourn, contractor, to erect and finish said 
block. Defendant, Barnard, asserts this in his testimony; and 
the same is asserted in the deposition of Lambourn, introduced 



14 Mont] Gould v. Barnard. 337 

on behalf of defendant, with the qualification, according to 
Lambourn's statement, that such plumbing exceeded that called 
for in the building contract by one item. The same is further 
shown by the testimony of Perry on behalf of defendant, to 
the effect that he, along with defendant, on the completion of 
said building, went through it, and checked up the items of 
plumbing, to see whether the same had been done as required 
by the terms of the building contract with Lambouru, and 
that they found such plumbing, including that in the rooms 
for Dr. Murray, done satisfactorily, according to the terms of 
said contract Therefore, it a]>pears that this plumbing in 
controversy was not work or expense put upon said building 
in excess of that conteijiplated by the building contract; and 
it also follows that said contractor, Lambourn, pursuant to the 
terms of the building contract, was obliged to do, or cause to 
be done, the plumbing in said rooms, as it was found by the 
owner in checking the work over. The evidence introduced 
on behalf of defendant shows that both the contractor. Lam- 
bourn, and Barnard were present every day during the con- 
struction and plumbing of said building, superintending the 
same. Now, as observed above, the evidence offered in the 
case is obscure, as to showing any special contract to do this 
particular plumbing, but the amount of a contract, expressed 
or implied, to do the plumbing in said rooms, was not the real 
issue presented by defendant's answer. The answer does not 
deny that plaiutifis had authority to do said plumbing. The 
issue tendered is, as before stated: 1. That the value of said 
plumbing does not exceed $100; and 2. That it was paid for 
in the item of |790 paid to plaintiffs for certain plumbing 
in said building, as aforesaid. The answer does not contro- 
vert the fact that plaintifib had express or implied authority to 
do the plumbing in controversy. The controversy is therefore 
narrowed down, according to the pleadings, to the question 
whether said plumbing was of the reasonable value alleged by 
plainti&, and whether it had been paid for, on both of which 
issues the evidence offered by defendant hardly raises a substan- 
tial conflict 



338 May v. Hill. [March T., 1894 

The case made out shows that defendant contracted with 
Lambourn to have said plumbing in the rooms to be occupied 
by Dr. Murray done along with the rest of the plumbing 
called for in the building contract, and that defendant paid 
Lambourn therefor. But that plaintiffs received payment for 
said plumbing is not shown. As the lien law now stands in 
this state, in order to protect his property against this lien, 
Barnard should have seen to it that the subcontractors were 
paid for work done, within the contract price. The building 
is therefore liable to a lien therefor. Order denying a new 
trial a£Srmed. 

All concur. 



MAY, Bbspondent, v. HILL et al., BBANA6AN et al., 
Lin^BVEKOBS, Appellants. 

[Sabmitted September 11, 189S. Decided April 2, 189i.] 

AmomtiiiT OF Debt— i^otioe^Priortty a* againtt aUaefimenL^^oUob to a Ann 
of the Msignment of a debt due by it is soiBoieDtly shown by proof that the 
liaignee left with the person in faU charge of the firm's businees a written 
order for the claim which was retained by such person with an nnderstanding 
of the Bitoation, so as to gi^e snoh assignee priority OTor a creditor of tiie 
assignor who garnished the Arm after snoh notice. Bnt quare, was proof of 
inch notice material? 

Appeal from Fifth Judicial DUtrict^ J^enan Oou/niy. 

Action by assignee of debt. Attaching creditor intervenes 
and defends. Judgment was rendered for plaintiff below by 
Qalbbaith, J. Affirmed. 

Statement of the case by Mr. Justice De Witt. 

In October, 1891, Hill et a/., defendants, were indebted in 
the sum of two hundred and ninety-seven dollars and eighty- 
six cents, to one O. Rivard. This action is brought by the 
plaintiff, May, against Hill et al.^ alleging that this indebted- 
ness from defendants to Rivard had been assigned to May, 
the plaintiff, for a valuable consideration. The indebtedness 
claimed in the complaint was three hundred and ninety-five 
dollars. Defendants filed an answer, in which they admit an 



14 Mont.] May v. Hill. 339 

indebtedness of two hundred and ninety-seven dollars and 
eighty-six cents. They further state that John Branagan 
et oZ. have garnished this money in an action by them against 
Rivard. By consent, defendants retired from the litigation 
after paying the money into court, and Branagan et al. filed an 
answer, and became defendants. It is not necessary to recite 
their answer in full. It is sufficient to state that the conten- 
tion upon the trial was between the plaintiff, May, claiming 
the funds in the hands of Hill e^ a^ by virtue of Rivard's 
assignment of the same to him, by order drawn upon Hill 
et aL, and Branagan et a/., claiming the same funds by virtue 
of a garnishment served upon Hill etaL in sl suit of Branagan 
et al. against Rivard. The jury found for the plaintiff for the 
amount of money theretofore paid into court by Hill d oL 
The defendant interveners moved for a new trial, which motion 
was denied. From the order and the judgment the intervenors 
appeal. 

Cowan & Parker^ for Appellants. 

De Witt, J. — It was specified in moving for new trial that 
the evidence did not show an assignment of the indebtedness 
by Rivard to May. But this specification is not pressed, and 
indeed it could not be plausibly urged in face of the record in 
this case. There was ample testimony of the existence, about 
October 13th to 20th, of the indebtedness from Hill d al. to 
Rivard. It was in evidence, uncontradicted, that Rivard was 
indebted to May in a sum equal to or more than the debt from 
Hill d al. to Rivard, and that, in consideration of this indebted- 
ness, Rivard assigned and transferred to May, by written order, 
the debt of Hill d al, to him (Rivard). It was also specified 
that the evidence was insufficient, in that it did not show that 
any notice of the assignment and transfer from Rivard to May 
was given to Hill d al. prior to the service of garnishment in 
the case of Branagan d al. against Rivard. It was assumed 
by counsel, and the case was tried by the court upon the theory 
that notice of the assignment from Rivard to May was mate- 
rial. We will regard the case from this point of view of the 
court below. 



840 May v. Hill. [March T., 1894 

The record shows that Hill et al. were a firm, under the 
name of Hill, Logan & Co., composed of George H. Hill, 
William K Logan, and Theodore H. Eleinscbmidt. Thej 
were conducting a wood business and store. Their headquar- 
ters, office^ and store were in the neighborhood of the railroad 
station of Bernice. Eleinschmidt and Hill took no active 
part in the business, and never came to the place at all, except 
for an occasional visit. Logan came sometimes. One Mar- 
tenstein was in charge of the store, and keeping the books and 
accounts of the firm. Somewhere from the 13th to the 21st 
of October, and before Branagan's garnishment of Hill d aL, 
May went to the Hill store, and gave to Martenstein, the book* 
keeper, and left with him, the written order by Bivard upon 
Hill etoLto him (May). He told Martenstein that, by virtue 
of said written order, he claimed the money due from Hill, 
Logan & Co. to Rivard. Martenstein perfectly understood 
his claim, and retained the order. At that time Hill and 
Eleinschmidt were not about the business, nor was Logan 
there for some ten days during this period. In fact, Marten- 
stein, was the only person in charge of the place, and the only 
person about connected with or representing the firm. 

It is said by appellant that this book-keeper disclaimed any 
authority. All that the book-keeper disclaimed was authority 
to give a written acceptance of the order. It is a matter of no 
materiality in this case whether the book-keeper accepted the 
order or not We do not understand how May could have 
possibly given this order, or notice of its existence, to Hill, 
Logan & Co., in any other way than he did. He took it to 
their recognized place of business, where all their aflairs out 
of which this account grew were conducted. He gave it to 
the person in full charge of that business, when the fact was 
that two members of the firm were never there, and one mem- 
ber was seldom there, and was upon a long absence at the time 
of May's visit. It was simply a matter of giving the notice 
as he did, or not giving it at all. We are of opinion that, if 
it were necessary in this case to prove notice to Hill, Logan & 
Co. of the assignment from Rivard to May, there was evidence 
of the notice ample to sustain the verdict 



14 Mont.] Sell v. Oravbs. 341 

Appellants in their brief contend that the order from Bivard 
to Maj is tainted with fraad. Bat this question is not raised 
by specification or by issne in the pleadings. 

The appellants contend that there were certain errors com- 
mitted in the instrnctions, but their contention in this respect 
is in the same line as their specification as to the insufficiency 
of the evidence to sustain the verdict. We have diown that 
the evidence was amply sufi^cient, and we are also of opinion 
that the instructions very properly presented the case^ under 
the evidence, to the jury. 

The judgment of the district courts and the order denying 
new trial^ are affirmed. 

PembebioKj C. J., concurs. 



SELL, Appellant, v. GBAYES, Respondent. 

[Babmitt6dlUroh80,18U. Deddad April 16, 18U.] 

Nsw Tsui^Faing $tatemerU,^-A Btttemeni on motion for a new trill whloh was 
not filed after lettlement m required by labdiTieion 8 of lection 398 of the 
Oode of OiTil Prooedore will not be stricken fh>m the record on appeal where 
it WM filed wiib the <derk before eettlement, need npon the hearing of the 
motion, and thereafter remained aa a file of the oonrt. 

BAJoSeUUment of ttatemefU.-^A. statement on motion for a new trial will not 
be Btricken firom the record npon the alleged ground that it waa not presented 
to the Jodge who tried the oaee, or deliyered to the clerk for the Judge to settie 
and sign within ten days after serrioe of the proposed amendmeDts, where it 
appeared that after the statement and amendments thereto were filed both 
were presented to ibe Judge and settled in the presence of respeotiTe oounsel. 

BJOOr^ettlement of staiement— Waiver of objection,^The appearance and taking 
part in the settlement of a statement on motion for a new trial by coufisel 
for respondent ooostitntes a wairer of objection to the suflloienoy of sppel* 
lanf s notioe of intention to apply for the settlement thereof. 

Appeal from Tenth Judicial District, Oomdy of Flathead. 

On HonoN to strike from the record the statement on 
motion for a new trial. DeniecL 

Mclntire & Clinton, for Appellant. 

Banford & OnM, and Wakh & Newman, for Respondent. 



342 Sell v. Graves. [March T., 1894 

Per Curiam. — ^Respondent moves this court to eliminate 
from the record the statement on motion for new trial: 

1. Because the statement was not filed after the same was 
settled and allowed by the judge who tried the action. The 
motion cannot be sustained on this ground, because it appears 
from the statement that the same was filed with the clerk imme- 
diately after being prepared and served. Thereupon, respond- 
ent filed amendments, and thereafter, as the record shows, the 
court, with both counsel present, and aft^er hearing their argu- 
ments, ^'settled said statement on motion for new trial, as being 
full and correct, and duly signed the certificate in accordance 
therewith.'^ While the record does not show that the statement 
was refiled with the clerk aft^r being settled it does show the 
filing of the statement and amendments with the clerk before the 
statement was settled and aft^erwards the motion for new trial 
was heard thereon. The statement on motion for new trial 
should be filed after settlement. (Code Civ. Proc., § 298, subd. 
3.) But in this case the statement was filed before it was settled, 
and the tendency oF all the proceedings shows that it remained 
with the clerk, as a file of the court, from the time it was first 
filed until' it was settled, and the motion for new trial heard 
thereon, and still remains as such file. Under such state of 
facts, all the point amounts to is that the statement was filed 
before instead of aft«r settlement, and this irregularity we 
think insufficient, as ground for striking out the statement. 

2. Bespondent urges the elimination of the statement on 
motion for new trial from the record because the same ''was 
not presented to the judge who tried the cause, or delivered to 
the clerk for the judge to settle and sign, within ten days after 
service of the proposed amendments." On this point, as before 
recited, the record shows that the statement, after being prepared 
and served, was filed with the clerk, and amendments were pro- 
posed thereto by respondent, and filed with the clerk; and 
thereafter, as the record discloses, the same were presented to 
the judge and settled, counsel for both parties being present. 
Under these circumstances, how it can be maintained that the 
statement and amendments were not ''delivered to the clerk of 
the court for the judge'' we are unable to conceive. The 
record shows that both the statement and the amendments, 



14 Mont.] Kanb v. Downing, 343 

from the time of their preparation^ were filed with the clerk^ 
and; in due course^ were presented to the judge. . There is no 
merit, on that allied ground, for striking out the statement. 

The third ground on which respondent, moves to strike the 
statement on motion for new trial from the record is that 
appellant failed to give respondent five days' notice of his 
intention to apply to the judge who tried the cause to settle the 
statement. This ground of objection to the statement loses its 
force, in view of the disclosure of the record that respondent's 
counsel appeared, and took part in the settlement of the state- 
ment, on motion for new trial. 

The motion of respondent to strike out the statement on 
motion for new trial will, therefore, be overruled. 

Motion overruled. 

All concur. 



THOMAS KANE AND COMPANY, Appellant, v. 
DOWNING, Eespondent. 

[Bnbmitted October 6. 1898. IXeoided April 16, ISM.] 

BuBflGBimoir to Fuhd— Zur&tiUy of delinquent tubscrtber—New promiae,^A, 
delinqnent lubeoriber io a fond for the oonBtmctlon of in opera-hoiue is 
liable in in action brought to enforce payment of hia sabBcription without 
proof on the part of the plaintlfT that Home liability wai inenrred pnrsnant to 
defendant's repeated promiaef to pay, made fnbseqnent to his snbioription, 
where the action was based, not upon snob subsequent promises, but upon his 
original subscription. 

Bamb— /Sflfne— JIbidmcs.— ETidence that when a delinqueni subscriber signed a 
subscription list the cost and character of the building contemplated was fully 
explained to him, and that the trustees proceeded with the completion of the 
enterprise, relying upon the subscription of defendant and others, is proper 
where defendant pleaded that his subscription was intended for a lets expen- 
siTe enterprise. 

Appeal from Eighth Judicial Didrid, Cascade County. 

Action to recover delinquent subscription to a fund. The 
cause was tried before Benton, J. Defendant had judgment 
below. Seversed. 

Ed L. Biahopj for Appellant. 

L The defendant does not claim to have revoked his sub* 
scription, if at all, prior to the time the opera-house company, 



344 Kanb v. DowNiNa. [March T., 1894 

relying upon the same^ with others, had let the contract for 
the building of the opera-hoase and incurred liability thereby 
to an amount exceeding the total of the subscriptions. No 
payee being named in the subscriptions in question, the defend- 
ant's subscription constituted a continuing offer to pay the 
same to any person who accomplished the object of the sub> 
scription, "They who advanced money, did work, or fur- 
nished materials, were proper promisees or payees/' and the 
Great Falls Opera House Company, by accepting the subscrip- 
tions in question and building the opera-house, became the 
payee to whom the promise was made, as if made to it by 
name. {Moaure v. WUsm, 43 111. 356; HaU v. OUy of Vir- 
ginia, 91 HL 636; Bobmison v. ifarcfc, 3 Scam. 198; jRryor v. 
Cain, 26 111. 292; MUler v. Ballard, 46 111. 379; Orunoold v. 
Ihisteea of Peoria University, 26 111. 41; 79 Am. Dec. 361; 
Swain v. HiU, 30 Mo. App. 436; CcmsUKk v. Howd, 15 Mich. 
241; Tkonvpson v. Page, 1 Met. 669; Homes v. D(ma, 12 
Mass. 190; 7 Am. Dec 66; Farmmgton Academy v. AUen, 14 
Mass. 172; 7 Am. Dec. 201; Bryant v. Chodnow, 5 Pick. 228; 
University of D$s Moines v. Livingston, 66 Iowa, 202.) 

II. The organization of the Great Falls Opera House 
Company and the uniting therein as stockholders of the sub- 
scribers, for the purpose of collecting the subscriptions in 
question and building the opera-house, constituted the com- 
pany the common representative, agent, or trustee for the 
entire body of the subscribers to carry out the object of the 
subscriptions. (Stoain v. Hill, 30 Mo. App. 436; Edinboro 
Academy v. Bobinson, 37 Pa. St. 210; 78 Am. Dec. 421; 
Shober v. Lancaster Qmnty Park Assn,, 68 Pa. St. 431; Oib^ 
bons v. Orinsdl, 79 Wis. 365; MarysvUle etc. Oo. v. Johnson, 
93 Cal. 538; 27 Am. St. Rep. 215; Athol Music HaU Oo. v. 
Oarey, 116 Mass. 471.) 

III. When tlie Great Falls Opera House Company 
accepted and proceeded to collect the subscriptions it thereby 
agreed to hold and appropriate the funds subscribed in con- 
formity with the terms and object of the subscription, which 
implied promise could have been enforced, and thus mutual 
and independent promises were made which constituted a legal 
and sufficient consideration for each other. {Ladie^ OoL InsL 



14 Mont.] Kane v. Dowhinq. 345 

V. li^ench^ 16 Gray, 201; Maine Oniral Ind. v. HcukeB, 73 
Me. 142, 143; 26 Am. L. B. 2.) If either of the three pre- 
ceding propoeitions are correct, the court evidently erred in 
instracting the jury that in order to oonstitate defendant's 
promise to pay the subscriptions to the company a waiver, they 
must find that the company incurred liability in the erection 
of the opera-house by reason of the promise, or took some 
action in the building of the house they would not have taken 
but for such promise. 

ly. The admitted promise of defendant to pay to the 
company, knowing that it had been formed for that purpose, 
must be held to be a ratification of the acts of his co-subscrib- 
en, and to have the same effect as if he had consented to the 
organization. Defendant had ample opportunity to ascertain 
by reading the first subscription paper, or by inquiry, whether 
the opera-house to which he was subscribing was the same one 
of which he had talked with Qerin, and how the same was to be 
built, owned, and controlled. Without doing this he signed 
an absolute, unconditional subscription, and upon the faith of 
this others have not only subscribed to the enterprise, but have 
since paid in a large share of it; the corporation has been 
organized, engaged in business, expending large sums of 
money, upon the strength of these subscriptions in entire 
ignorance of the alleged misunderstandings or agreements set 
up in the answer, while defendant stood by to see whether it 
was going to be a profitable investment before coming in and 
claiming his interest in the enterprise. To permit defendant 
to release 'himself from liability on any such ground would 
be a fraud on others who have subscribed and paid for stock, 
and upon the corporation which has been organized and 
incurred liabilities in reliance upon the subscriptions. His 
promise being unconditional he cannot be allowed to invoke 
conditions. {HaskeU v. WcfrfhingUm^ 90 Mo. 660; Minne^ 
apolis Thrahing Machine Oo. v. Davis^ 40 Minn. 110; 12 Am. 
St. Rep. 701; Oeargt v. Harris, 4 N. H. 633; 17 Am. Dec. 
446; OOeaheimer v. IfumpsM Mfg. Cb., 44 Mo. App. 182, 
and cases dted; Bhowhogan dc.B. B. Q>. v. JEtfwiTian, 77 Me. 
370.) 



846 Kakb v. Downing. [March T., 1894 

Ledie & Downingj for Respondent 

Per Curiam. — ^This action is fonndel npon two certain 
promises by defendant to pay the sums of |200 and $100 by 
way of subscription to a fund for the purpose of constructing 
an opera-house in the city of Great Falls, Montana. These 
promises read as follows: '^ We, the undersigned, hereby sub- 
scribe and agree to pay the amounts set opposite our respective 
names, for the purpose of erecting an opera-house in the city 
of Great Falls, upon the rear 50 feet of lots 1 and 2, in block 
309; said land to be subscribed at the rate of $6,000, and the 
building to cost |1 6,000,'' — to which defendant subscribed 
$200, along with about seventy other parties, who subscribed 
divers sums, ranging from $25 to $2,600 each. 

The second subscription to the fund, for the same purpose^ 
reads as follows: *^ We, the undersigned, hereby subscribe and 
agree to pay the further amounts set opposite our names, for 
the purpose of erecting the proposed opera-house in the city 
of Great Falls,''— to which defendant subscribed $100; which 
undertakings or promises to pay are set forth in the complaint 
And it is further alleged therein that pursuant to said sub- 
scription, and by the concurrence of a majority of said sub- 
scribers to the fund for said purpose, at a meeting, of which 
all were notified, and at which a majority of said subscribers 
were present, it was determined to organize a corporation, pur- 
suant to the laws of Montana, in the name of the ^' Great 
Falls Opera House Company," to proceed in due course to 
build an opera-house on the land mentioned with the funds so 
subscribed in the subscription lists above set forth; that the 
various subscribers to said fund paid their subscriptions 
respectively, with the exception of about $2,500, delinquent, 
among which is that of defendant. 

Plaintiff is a corporation, organized and existing under the 
laws of the state of Illinois, and, as alleged in the complaint^ 
had obtained a judgment against the Great Falls Opera House 
Company in the sum of $757.48, and such proceedings were 
had as authorized plaintiff to bring this action to enforce pay- 
ment of defendant's subscription to said opera-bouse fund. 

The answer of defendant does not deny that he signed said 



14 Mont.] Eans v. Dowminq. 347 

sabeoription lists, as aforesaid, but sets up two grounds of 
defense against the enforcement thereof: 1. Defendant alleges 
that, before any corporation was formed or any liability 
incurred in furtherance of the scheme of building said 0]>era- 
house pursuant to said subscription, he revoked and rescinded 
his subscription thereto; 2. For further defense, he alleges 
that, prior to signing said subscription list, defendant, with a 
few other citizens of Great Falls, discussed the project of build- 
ing an opera-house in said city, which should cost the sum of 
$6,000, exclusive of the lot on which the same should be 
erected; the same to be constructed and owned by the persons 
contemplating the erection thereof, as a copartnership under- 
taking, under the management of John Gerin. That the sum 
sued for in this action was defendant's subscription for the 
building of an opera-house of that character and under those 
conditions. But that contrary thereto, and without defend- 
ant's knowledge or consent, a corporation was formed, and 
obtained possession of said subscription lists which he signed, 
and proceeded to erect an opera-house in said city at a cost 
greatly exceeding |6,000, to which he had subscribed, to wit, 
at a cost exceeding $40,000; that, by reason of such change in 
the character of the company, the cost, management, and man- 
ner of carrying out said enterprise, defendant was released from 
the obligation entered into by said subscriptions. 

The trial which ensued resulted in a verdict by the jury in 
&vor of defendant, whereupon plaintiff moved the court for a 
new trial, on a statement of the case containing all the evidence 
introduced at the trial, and setting forth numerous specifica- 
tions of error in the rulings of the court during the trial; and, 
further, that the evidence is insufficient to support the verdict. 

The record discloses that, upon the trial, plaintiff offered 
proof in support of its complaint to the effect that in the spring 
of 1891 the project for building said opera-house was initiated 
by a meeting of a large number of the citizens of said city, the 
purpose of which was to consider the subject of building an 
opera-house therein; and thereat said enterprise was agreed 
upon and inaugurated by opening a subscription list, which 
was oiiealated and subscribed to, as above mentioned, by about 
70 subscribers, in divers sums, aggregating about $18,356, 



348 ELufB V. Downing. [March T., 1894 

besides the rite on which said building was to be erected, 
valued at $6,000; and thereto defendant subscribed the sum of 
|200. That, when he signed said subscription list the purw 
pose thereof was fully explained to him. And thereafter, at 
another meeting of the subscribers, it being determined that 
the funds already subscribed were insufficient to erect an opera- 
house of the character desired, it was proposed and determined 
to endeavor to increase the original subscription 50 per cent 
Accordingly, another subscription paper was prepared, and 
signed by all present, raising their original subscriptions 50 
per cent, and the same being presented to defendant, with 
explanation of the object and purpose thereof, be signed the 
same in the sum of $100, increasing his original subscripticNi 
60 per cent That immediately thereafter, at a meeting of a 
majority of the subscribers, a committee was appointed to 
organize and incorporate the Great Falls Opera House Com- 
pany, and proceed with the building of the opera-house pui^ 
suant to the plans and purposes of the subscribers to said 
subscription lists, which was done. That the secretary of said 
company thereafter, on all occasions when meetings of the 
stockholders thereof were called, or to be held, sent writtai 
notices of such meetings to all the subscribers on said lists, 
including defendant; and also, from time to time, called on 
said subscribers for payment of certain proportions of their 
subscriptions, respectively, as directed by order of the trustees 
of said company. That, defendant being delinquent, the treas- 
urer of said company also called on him personally, when the 
construction of said opera-house was considerably advanoed, 
and requested payment of defendant's subscription, and was 
assured by defendant that in a few days he would call on the 
treasurer and pay the same in full, but, such payment not hav- 
ing been made, defendant was again called on personally by a 
collector appointed by the company to collect the delinquent 
subscriptions on said lists, to whom, on two occasions, defend- 
ant promised to make payment, but that he failed to pay the 
same. 

The evidence introduced by defendant does not in any man- 
ner substantially contradict the proof offered by plaintiff. Nor 
is there proof offered by defendant to establish the all^;ation 



14 Mont.] Eans v. Dowmikq* 349 

toat he rescinded or revoked his said aubscriptioDS before the 
building of said [opera-house was entered upon hy said com- 
pany^ or at anj other time. 

As to the defense set up by defendant, that the subscriptions 
in question were made by him to build an opera-house^ at a 
cost of $6y000, by a copartnership consisting of a few persons, 
residents of Great Falls, and to be managed by Gerin, the same 
should not have been considered at all, nor evidence in relation 
thereto admitted over the objection of plaintiff, because that 
defense does not controvert the allegation of the complaint or 
the promises on which this action is founded, set forth in said 
subscription lists. Nor does that defense allege facts in avoid- 
ance of those promises. The subscription list pleaded in the 
first instance sets forth the purpose thereof, to wit, that '' we, 
the undersigned, subscribe and agree to pay the amounts set 
opposite our respective names, for the purpose of erecting an 
opera-house in the city of Great Falls, upon the rear 60 feet of 
lots 1 and 2, in block 309; said land to be subscribed at the 
rate of f 6,000, and the building to cost $16,000^'; an I this 
subscription list was signed by defendant at the close thereof, 
with more than 60 names preceding his, subscribing funds 
aggregating over $18,000 for the purpose mentioned. Defend- 
ant does not deny that he signed that and the subsequent 
paper increasing his subscription thereto. Nor does he in any 
manner allege circumstances of deceit or fraud whereby he was 
induced to subscribe to that enterprise. Whatever discussion, 
arrangement, or determination may have been had by defend* 
ant and others as to the erection of an opera-house in said city, 
at the cost of $6,000, exclusive of the ground on which it was 
to be built, by a copartnership, under the management of 
G^in, it is plain from the subscription lists on which this 
action is founded that the same do not contemplate such a 
scheme, and expressly show another, to which defendant sub- 
scribed; and defendant has failed to set up facts to avoid the 
same. But admitting the signing of said lists, which on their 
face propose a building to cost greatly exceeding $6,000, and 
in no manner alleging grounds to avoid his promise to pay 
funds subscribed thereto, defendant seeks in defense to set up 
the £ict that, prior to subscribing to that enterprise| he had, 



850 Kanb v. Downing. [March T., 1894 

with others, discussed a different one; which might have been 
all true, but does not constitute a defense to this action. But 
the court allowed defendant to undertake to establish by proof 
that character of defense, and the same inconsistency appears 
in stronger light from the evidence offered by defendant, for 
his own proof shows that the scheme for building an opera- 
house at the cost of $6,000, which defendant alleges he had 
discussed with Grerin, the promoter and proposed manager 
thereof, was abandoned, Mr. Gerin, testifying on behalf of 
defendant^ in speaking of that scheme, says: ^^The house 
originally contemplated by me, and devised, was not built 
The enterprise as planned by me was not carried out" Fur- 
thermore, defendant's repeated promises to pay his subscrip- 
tions demanded in this action, when said opera-house was 
well advanced towards completion, contradicts the allied 
defense of the revocation of said subscriptions as fictitions and 
unfounded in fact, and also tends to show that such subscrip- 
tions were not understood by defendant to apply to the (6,000 
opera-house scheme. 

We have no doubt that with proper rulings of the court as 
to admission of testimony consistent with the material allega- 
tions of the pleadings, and with proper instructions to the jury, 
a verdict would have been properly returned in favor of plain- 
tiff, because, according to the showing of the record, no sub- 
stantial defense to the action was supjiorted by proof. 

The court instructed the jnry^ in ^ect, that notwithstanding 
defendant's repeated promises to pay said subscriptions, while 
said opera-house building was in course of construction, and 
notwithstanding the showing on the face of the papers, and 
other evidence, to the effect that such subscriptions were not 
made in contemplation of building an opera-house at the cost 
of $6,000, still plaintiff must show that the opera-house com- 
pany incurred some liability pursuant to such promises of 
defendant to pay said subscriptions, made subsequent to sign- 
ing the same, or recovery could not be had. This was error. 
Plaintiff sued on the original promises, and no substantial 
defense thereto was supported by proof. 

The instructions offered by plaintiff, and refused by the 
court, plainly and fairly stated the law applicable to the trans- 



14 Mont.] Eane v. Downing. 851 

action in question, with more liberality towards defendant's 
allied defense than was justified in vjew of the substance 
thereof and the want of proof to support the same. Likewise, 
the instructions offered bj plaintiff, and given by the court, 
were proper and liberal statements of the law applicable to the 
case, as developed in the pleadings and proof, but the court 
erroneously modified the same by inserting therein the propo- 
sition that plaintiff could not recover unless it was shown that 
the opera-house company actually proceeded to incur liability, 
relying upon the promises of defendant to pay said subscriptions 
when he was called on as a delinquent, after the opera-house 
construction was nearly completed. So, as to the numerous 
assignments of error in the exclusion of testimony^offered by 
plaintiff, such as testimony of witnesses that, when defendant 
signed said subscription lists, the building contemplated by the 
subscribers thereto, as to cost and character, was fully explained 
to defendant, and that the property would be bonded to raise 
funds, in addition to that subscribed, sufficient to erect such 
opera-house, and that explanation of like character was made 
when he signed the additional subscription list; also, the exclu- 
sion of evidence offered by plaintiff to the effect that the trus- 
tees of said company proceeded in the construction of said 
opera-house, relying on the subscription of the funds made by 
defendant and others, as shown in said subscription lists. 
Such evidence was proper, and should have been admitted, and 
we are unable to understand why the court excluded the same, 
in view of the pleadings in this case. The assignments of 
error, some twenty-six altogether, are well taken. The rulings 
thus excepted to grew out of the erroneous theory on which 
the court appears to have proceeded in the trial of this action, 
which we think has been sufficiently discussed without treating 
in detail the other assignments. All those rulings are a suc- 
cession of minor errors, emanating from the erroneous tiieory 
adopted by the court, as heretofore shown. 

The order denying plaintiff's motion for new trial must 
therefore be reversed, and the cause remanded for trial de novo, 
proceeding therein according to the views herein expressed. 

Order reversed. 

All concur. 



352 Cook v. Gbsbnouoh. [March T., 1894 



^^ ___ COOK, Rbspokdbnt, v. GREENOUQH ep jll., Appel- 

li ^ [Babmitted October 17, 1888. DMidad April 16» 18M.] 



Laxntcnov Boxd— l>ama^M— .iltoriMy'f /«•.— In an aotion upon an injaneiion 
bond the fiurt that plaintiff became liable for attomey'a feet in the injunction 
■nit is anfflciently ihown by proof that he employed an attorney who prooored 
a diMolation of the injunction, and of the reaaonable value of his aerrloea. 

BAMm^8ame—Sxpm§$»,-'A yerdict for expensee in procuring a dinolution of aa 
injunction, in ezoew of what were actually proved, ia improper, and ihonld be 
nmitted to the amount warranted by the evidenoe or a new trial giantad. 

Appeal from Fourth Judieial DiBtriet^ MisMuIa Oowuty. 

Action upon an injunction bond. The canse was tried 
before Mabshall. J., who denied defendant's motion for a 
new trial. Bevened oonditionallj. 

Waiter A Wood, for Appellants. 

The complaint should state that the plaintiff has paid his 
attorney's fee. (WiUsch v. MeEvoy, 25 CaL 170; Jaokton v. 
Port, 17 Johns. 479; ChurckUl v. Hunt, 3 Denio, 321; Prader 
V. Grimm, 28 Cal. 11; WUde v. Joel, 6 Duer, 671; BudamenU 
V. Stewart, 65 Cal. 116; MUeheU v. Hatdey, 79 Cal. 301; 
Hovey v. BiMer lip Fenoil Co., 60 N. Y. 336; JDiArow v. 
Garcia, 62 N. Y. 664; 1 Sedgwick on Damages, $ 237; Hedgee 
V. Meyers, 6 111. App. 347.) 

Benry C Stiff, for Respondent. 

There are some decisions holding that the attorney's fee mnst 
be paid by the plaintiff before he can recover therefor on the 
injunction bond, but there are numerous decisions to the effect 
that the incurrence of a liability to pay the fee is all that is 
necessary to entitle him to recover. {Miles v. Edwards, 6 
Mont 180; Underhill v. Spencer, 26 Kan. 71; Loofborow v; 
Slmffer, 29 Ean. 416; Brown v. Jones, 6 Nev. 374; Noble v. 
Amdd, 23 Ohio St. 264; ShvUz v. Morri9on, 3 Met. (Ky.) 98; 
SUde V. Thaidher, 66 111. 267.) 

Per Curiam. — ^Tliis action is bronght against the sureties 
on an injunction bond to recover damages suffered by defend- 



14 Mont] Cook v. Gbssnougq. 863 

ant in the injanotion suit wherein such bond was exeonted and 
delivered, by reason of the employment of counsel and other 
expense incurred in procuring a dissolution of the injunction. 
Plaintiff recovered by the verdict of the jury one hundred dol- 
lars for counsel fees, and seventy-five dollars for other expenses 
incurred in the injunction action. This appeal is by defend- 
ants from an order denying new trial. The specifications are 
that the evidence does not sustain the verdict in two respects: 

1. Appellants contend that there is no evidence that plaintiff 
herein became liable to pay an attorney fee for services in the 
injunction action; but, on the contrary, the evidence does show 
that plaintiff's attorney in that action was employed by him, 
and that he performed the services which resulted in a disso- 
lution of said injunction, and that the services were reasonably 
worth one hundred and fifty dollars. Defendants admit such 
services were worth one hundred dollars, and this amount was 
found by the jury therefor. These facta dearly show that 
plaintiff became liable for such attorney's services. 

2. The verdict also gave seventy-five dollars for other ex- 
penses. The evidence in this respect^ by the most liberal inter- 
pretation, shows damages not exceeding thirty-two dollars and 
fifty cents. The court should have required plaintifi to remit 
the amount of damages not warranted by the evidence, or 
granted a new triaL 

The case is remanded, with directions to grant a new trial, 
luiIeBS such excessive damages are remitted. 

Bemanded. 
All concur. 

Vou ZIT.— 38 




854 Watkins ii. MoBBis. [March T., 1894 



WATKINS ET AL., APPELLANlBy V. MORRIS £T AL^ 

Respondents. 

[8abmittedJftniuu7 81,189i. Dedded April 28, 1894.] 

AmkL—Oo9t bond.— Bni one cost bond ii required in Appeftling from » Jndff* 
ment and tn order, where fooii appeal is oonaolidated into one record. 

Appeal from Bird Judicial District^ Lewis and Clarke Cbwnig. 

On motion to dismiss appeal. Granted as to appeal from 
the jadgment. 

Walsh A Newman^ for the motion. 

Henry C. Smith, and F. N.A8.n. Molntire, eonira. 

Per CuBiAic. — In this case the respondents move to dismiss 
the appeal on two grounds: 1. Becaase it appears that there is 
an appeal from the jadgment, and also an appeal from an 
order denying a motion for new trial, and there is but one 
cost bond given; 2. Because the notice of appeal from the 
judgment was not served or filed within one year after the 
entry of judgment. 

The first ground of the motion to dismiss is not well taken. 
It has been the universal practice in this state, and in the late 
territory, in appealing from a judgment and an order, where 
such appeal is consolidated in one record, to give but one cost 
bond. The matter has never been before this court for adjudi- 
cation, but it b held in California that the giving of one bond 
in such an appeal is sufficient. The supreme court of Cali- 
fornia said, in the case of Chester v. Bakersfield ele. Assn. 
64 Cal. 42: ^'The practice of filing but one undertaking where 
appeals are taken, as in this case, both from the judgment and 
order denying new trial, is about as well settled as any ques- 
tion of tliat kind can be, and we do not think that it should 
now be treated as an open one.'' (See, also, Hayne on New 
Trial and Appeal, § 211, p. 646.) 

It appears that the appeal from the judgment was not taken 
within one year after the judgment was entered. That appeal 
must therefore be dismissed, and it is so ordered. Appellants 



14 Mont.] Cbowb v. La Mott. 855 

themselves concede that this must be done, and say that they 
do not insist upon that appeal. Tliis leaves the case pending 
in this court upon the appeal from the order denying new 
triaU 
All concur. 



CROWE, Appellant, v. LA MOTT et al., Respondents, 

[Babmitted Nojembor S» 1883. Dedded April 28, 189i.] 

Equitt— Complaint to redegm—OkaUel morigag^.-^Jji an action to redeem from a 
chattel mortgage a oomplaint which alleges that after the matarity of the debt 
the assignee of the mortgagee took possession of the property and has ever 
■inoe held possession, treating the same as his own and seUing portions thereof; 
bnt which does not allege any facts showing that in taking possession defend- 
ant in any manner Tiolated the terms of the mortgage or otherwise wrongfnllj 
oonverted the property, fails to show grounds for equitable relief. 

Appeal from Seventh Judicial District, YeHowdone County. 

Action in eqqity to redeem from a chattel mortgage. 
Defendant's demurrer to the complaint was sustained bj Mil- 
BUBN, J. Affirmed. 

K P. Ckidwdl, for Appellant. 

I. A mortgagor may maintain his suit in equity to redeem 
from a chattel mortgage after conditions broken, and after pos- 
session is taken of the mortgaged property by the mortgagee or 
his assignee. (Jones on Chattel Mortgages, § 801; 8 Am. & 
Eng. Ency. of Law, 200; Heyland v. Badger, 35 Cal. 404; 
Broum v. Bementy 8 Johns. 96; 3 Am. & Eog. Eucy. of Law, 
200; Charter v. Stevem, 3 Denio, 35; 45 Am. Dea 444; Sand" 
ford V. Flivt, 24 Mich. 26; Van Brunt v. WakeUe, 11 Mich. 
177; Porter v. Pamdey, 62 N. Y. 185; 2 Story on Equity 
Jurisprudence, § 1031; Story on Bailments, § 287; Spaulding 
V. Barnes, 4 Gray, 330; Dupuy v. Oibson, 36 III. 197; Flan- 
ders V. Oiamberlain, 24 Mich. 305.) 

IL The complaint is sufficient. (Jones on Real Estate 
Mortgages, 1090-99.) As to whether it is necessary to show 
and plead a tender kept alive in court, see Daubenspedo v. Piatt, 
22 Cal. 334; OoldsmiVi v. Osborne, 1 Edw. Oh. 560; WaUer v. 
Harris, 7 Paige, 168; Jones on Chattel Mortgages, § 690; 



366 Obowb 9. La Mott. [Maroh T., 1894 

Lavigne v. Naramore, 52 YU 267; TaOon v. Emsm^ 3 Nek 
63-74; Jones on Real Estate Mortgages, § 1095; Adams v. 
Nebraska do. Bank, 4 Neb. 370. Wlien it is neoessary to 
allege and show tender, see AUerton v* Belden, 49 N. Y. 373; 
Lamb v. J^riey, 41 Mich. 719. As to whether we are entitled 
to ask for an accounting in an action to redeem, see Quia ▼• 
Brittain, 1 Ho£ Ch. 353; Barion v. May, 3 Sand. Ch. 460. 

0. F. Ooddard, for Respondents. 

Upon the breach of the condition the legal title to the chat- 
tels mortgaged becomes absolute in the mortgagee, and the 
mor^gor from thenceforth has no rights except such as are 
recognized by courts of equity. The mortgagee may thereupon 
take possession of the property, and so &r as the legal rights 
of the parties are concerned he may treat it as his own, and 
may squander, destroy, or give it away. (Thomas on Mort- 
gages, 145; Jones on Chattel Mortgages, 699-702; Brotm 
V. Bemetd, 8 Johns. 95; Addey v. Fmok, 7 Cow. 290; Lcvng- 
don V. Bud, 9 Wend. 80; PaJbohm v. Pwrcc, 12 Wend. 61; 
Jvdsm V. EoBton, 58 N. Y. 664; Heyland v. Badger, 36 Gal. 
409.) After default the mortgaged property may be sold by 
the mortgagee as his own, and although the mortgage contain 
a power of sale^ it will not be neoessary for him to act under it 
in order to vest the title in the purchaser. If the mortgagee, 
after taking the property into his possession, has sold or 
destroyed it, and thereby put it beyond the power of the oourt 
to allow a redemption so as to reinvest the title in the mort- 
gagor, the mortgagor may still seek compensation in equity, 
but relief in equity can be granted only upon payment or ten* 
der of payment of the whole mortgage debt, which must be 
averred and proved. To enforce his equity the appellant must 
do or appear to do equity, and that in an elective way. 
(Jones on Chattel Mortgages, §§ 684, 690; Thomas on Mort- 
gages, 449; Hall v. DiUon, 56 How. Pr. 19; Halslead ▼. 
Bwarbi, 46 How. Pr. 289; Heylmd v. Badger, 36 Cal. 412.) 

Per C0BIAM. — ^By this action plaintiff invokes the inter- 
position of the equity power of the court to compel defendant 
to allow plaintiff to redeem certain goods and chattels from the 



14 Mont] Cbows v. La Mott. 357 

eacumbranoe of a mortgage thereoDy and on snoh redemption 
to require defendant to deliver to plaintiff all of said chattels 
now in possession of defendant, and, further, to require defend- 
ant to account for all proceeds derived from sales of portions 
of said chattels since defendant took possession thereof, pre- 
tending to act pursuant to said mortgage. 

The complaint seta forth: That to secure payment of three 
thousand dollars, evidenced by a promissory note executed and 
delivered by plaintiff to defendant Sebastian Wustum, plaintiff 
duly executed, acknowledged, and delivered to him a chattel 
mortgage of plaintiff's one-half interest in and to a certain 
band of horses, and other personal property, which said prom* 
issory note and mortgage were thereafter duly assigned and 
delivered to defendant La Mott. That, after maturity of the 
debt secured by said mortgage, defendant La Mott took posses* 
sion of said chattels, and has ever since held possesion thereof, 
treating the same as his own, and selling portions thereof, the 
proceeds of which sales amount to three thousand dollars; That 
said property was of the value of eighteen thousand dollars. 
(This averment not being clear, however, as to whether plain-* 
tiff's half interest, or the whole property, was of that value.) 

Li addition to said chattel mortgage executed and delivered 
to secure said debt, certain real estate was also mortgaged as 
further security for the same debt, which real estate was, on 
default of payment, after maturity, of said debt, sold, pursu** 
ant to the order of court, in a foreclosure action, in the sum 
of five hundred dollars, to be applied on said mortgage debt 
That, since defendant La Mott took possession of said chattels^ 
ho executed and delivered to defendant Wustum a chattel 
mortgage thereon, purporting to secure a debt of three thou* 
sand dollars owing by La Mott to said Wustum. Wherefore, 
defendant Wustum is made party to this action, as still having 
an interest in said chattels. Plaintiff further alleges that he 
is able, willing, and desirous to pay all that may be found due 
on his said mortgage, and interest, after an accounting and 
credit thereon of the proceeds derived from sales of said 
chattels by La Mott since he took possession thereof, as well 
as the proceeds derived from the sale of said real estate under 
said foreclosure proceedings. And plaintiff asks that an 



358 Ceowk v. La Mott. [March T., 1894 

account be required by order of court as to said proceeds^ and 
to give credit accordingly, and ascertain the amount due on 
said debt, and that redemption of said property be allowed and 
enforced on behalf of plaintiff as aforesaid. 

The complaint was demurred to on the averment that it fails 
to state facts sufficient to constitute a cause of action. This 
demurrer was, on consideration by the court, sustained; and, 
plaintiff having declined to amend his complaint, judgment 
was entered in favor of defendants, from which plaintiff prose- 
cutes this appeal, insisting that his complaiut shows sufficient 
grounds for equitable relief in the behalf demanded by plain- 
tiff. 

The demurrer was well taken, because, as appears from an 
examination of the complaint, plaintiff entirely failed to allege 
any fact showing that, in taking possession of said chattels, 
defendant, in any manner, proceeded contrary to, or in n^lect 
or violation of, the terms of said mortgage. According to 
plaintiff's complaint, defendant La Mott took possession 0/ 
said chattels after maturity of the mortgage debt secured 
thereby. So far plaintiff proceeds according to the terms of 
the mortgage, which is, in hoBO verba, made part of plaintiff's 
complaint. Thereafter, if La Mott proceeded to extinguish 
the title and right of redemption in plaintifl^ by advertisement 
and sale, according to the terms of said mortgage, or caused 
the same to be done by action of the sheriff of said county, 
according to law, and the terms of said mortgage, or accom- 
plished the same by foreclosure thereof through action in court^ 
defendant may lawfully have become the purchaser of said 
chattels, and still continue in possession, treating the same as 
his own, as alleged in the complaint. But that La Mott did 
neglect to do those things the complaint does not show. The 
complaint is entirely silent upon these important and material 
points. It is not permissible to assume, without averment, 
that a man proceeded wrongfully to convert property. The 
facts showing such ~ wrongful conversion must be alleged. 
Defendant La Mott may have done all the complaint allies 
in regard to said property, and yet violated no right or equity 
of plaintiff, provided he likewise fulfilled the terms of said 
mortgage as to advertisement and sale of the property, and 



14 Mont.] McOuDLB v. Edsali.. 859 

payment to plaintiff of any residue of the proceeds after sat- 
isfying the mortgage debt. If he fulfilled those conditions^ 
and became purchaser of said property, his title may have 
thereby become absolute. But, if he neglected those condi- 
tions of the mortgage, there would be ground for an action on 
behalf of plaintiff; and a court of equity would grant relief 
if there appeared to be no adequate remedy at law, as for 
wrongful conversion — a question not raised on this appeal, and 
therefore not necessary to be here considered. But the com- 
plaint is entirely wanting in allegations showing that defend- 
ant n^lected to proceed in his action regarding said chattels 
according to the terms and conditions of said mortgage, and 
therein the complaint ^appears to be insufficient. Judgment 
affirmed. 

Pehbebton* C. J., and Habwood, J.^ concur. 



Mc<}niBE^ AppELLAXTTy «. JBD3ALL et al.^ Eebponb- 

ENTB. 

[Bnbmitied Mtfoh 21. 1808. Dedded April 28, 189i.] 

TxMAiiTM^O<mntercktlm.^TJudin seetioni 89 tnd 90 of the Code of OiTil Prooo- 
dore, permitting a defendant, by uiBweT, to plead an ezlating oonnterclaim aa 
new matter oonttituting a defenae, it ia error for the oonrt to permit defendant 
bj amendment to plead aooonterolaim maturing after the action ia oommenoed. 

Appeal from NirUh Judicial Disbriot, OtUkUin Qnmty. 

JuDGKENT was rendered by Abmstbong, J., for plaintiff, 
less a counterclaim. Beversed as to allowance of defendant's 
counterclaim. 

E. P. Oadwell, for Appellant. 

Luee & Luce, for Respondents. 

Per Curiam. — The sole question involved in this case ia 
whether the trial court erred in permitting defendants, by 
amendment of their answer, to plead a counterclaim against 
the demand of plaintiff, which counterclaim matured after 



S 346 



860 McOuiBB V. Edsall. [March T., 1894 

plaintiff's action waa oommenoed. The court allowed snob 
amendment during the trial, and permitted evidence to be sub- 
mitted in support of the counterclaim thus introduced into the 
action. This practice cannot be sustained. Our statute pro- 
vides upon this subject that the defendant, by answer, may 
plead a counterclaim* as new matter constituting a defense 
(Code Civ. Proc., § 89), and that the counterclaim mentioned 
''shall be one existing in favor of the defendant or plaint ifi^ 
and against a plaintiff or defendant, between whom a several 
judgment might be had in the action arising out of the follow- 
ing causes of action/' (Code Civ. Proo., § 90.) 

With scarcely any conflict of opinion, it is held that the 
counterclaim thus pleaded must be one existing and matured 
for action in favor of the party asserting the same at the time 
the action was commenced wherein such counterclaim is sought 
to be pleaded. This is held in several California cases, where 
the subject appears to have been carefully considered, under 
like provisions of statute, from which state, no doubt, our 
statute on this subject was borrowed. Not only so; such hold- 
ing is supported by the great weight of reason^ as will be 
found expounded in the following cases. {Paige v. Oarter, 64 
Cal. 489; Oannon v. Dougherty, 41 Cal. 661; J^eys v. Hamr 
cooJfe, 57 Cal. 646; Traffbrd v. BaU, 7 R. I. 104; 82 Am. Dec. 
689; Lee v. Lee, 31 Ga. 26; 76 Am. Dec. 681; Smith v. Wask- 
wiffton Oaslight Co., 31 Md. 12; 100 Am. Deo. 49; Haye^ v. 
Hayee, 2 Del. Ch. 191; 73 Am. Dec. 709; 8mUk v. Ewer, 22 
Pa. St. 116; 60 Am. Dec 73; Shepherd v. Turner, 3 McCord, 
249; 16 Am. Dec 631; Oregg v. Jame9, Breese, 143; 12 Am. 
Dec 162; HiU v. Kroft, 29 Pa. St. 188; SpeerB v. Sterrett, 29 
Pa« St. 194; Ly<m v. Petty, 65 Cal. 322; Bliss on Code Plead- 
ing, § 369, et seq.) 

It appears that upon the trial defendants succeeded in estab- 
lishing their counterclaim to the satisfaction of the jury, and 
the same was offset against the demand of plaintiff, and plain- 
tiff was given judgment for the amount of his demand over and 
above such offset We are satisfied that this was error, and 
that therefore the judgment must be reversed and a new trial 
ordered. This court cannot direct judgment, for the reason 
that there was a conflict in the testimony^ and there is nothing 



14 Mont.] EuNB V. Hanks. 361 

before us hy which we may determine whether the jury, by 
their verdict, allowed all of the eoanterclaim, or only a part 
thereo£ Or whether they reduced plaintiff's claim, instead of 
allowing the whole of the counterclaim. {Lebcher v. Ornimw* 
sioners, 9 Mont 315.) Judgment reversed and cause remanded 
for new trial. p.,^^^ 

All concur. 



KLINE, Bespondent, «, TTANKE et al., appellants. ^ |g| 

[Sabmitted Noramber 3. 1898. Dedded April 28, 189i. 

Taus^Direetlng werdict—AeHon for rmt— On fhe trial of aa action to noorw 
rent it ia error for tbe ooort to direct the Jury to find for the plaintiff when 
there ia OTidenoe tending to aupport a defenae that defendant did not enter the 
premiaea in qneation nnder » leaae for yeara, bnt merely aa a tenant from month 
to month. 

Aanon on LsAas— De/maea, consistency of. —Jn an action npon a leaae a defenae 
that defendant waa merely a tenant from month to month ia not inooudatent 
with a defenae that l^ reaaon of acta and omiaaiona of the plaintUT, amounting 
to an etlotion, defendanta were oompeUed to remore from the premiaea. 

Appeal from Fbrd Judieiat Didrid, Lewis and Clarke County. 

AcmoN on a leaae. The cause was tried before BucK| J., 
who directed a verdict for plaintifEl Reversed. 

Henry C. SmUh, for Appellants, 

An i^reement for a lease will not be enforced if its condi- 
tions are unperformed or broken by the landlord. (1 Taylor's 
Landlord and Tenant, § 388; Tomilinaon v. Day^ 2 Brod. & 
B. 681.) A tenant whose rent is payable monthly under a 
general holding or a void parol lease will hold from month to 
month, (Hurd v. Whilaett, 4 Col. 77; Western Union Tel. Co. 
V. Fain, 52 Ga. 18; Brotmidl v. Weloh, 91 111. 523.) The 
failure to complete the building amounted to an eviction. 
{Boyee v. Guggenhein, 106 Mass. 201; 8 Am. Rep. 322; Skally 
V. Shute, 132 Mass. 367.) The evidence as to the presence of 
the lewd woman and the nuisances complained of should have 
gone to the jury. {Dyett v. Pendleton, 8 Cow. 727; Cohen v. 
Dupont, 1 Sand. 260; Alger v. Kennedy, 49 Vt. 109; 24 Am. 
Rep. 117; Balligan v. Wade, 21 111. 470; 74 Am. Dec. 108; 



862 Elins v. Hankk. [March T., 1894 

Bissea V. Lloyd, 100 111, 214; 1 Tay Ws Landlord and Ten- 
anty § 381; Bowboiham y. Pearce, 6 Houst. 135; LevUzh/ v. Oatir 
nrnfff 33 CaK 299.) At least it was a question for the jary as 
to whether by his acts plaintiff did not intend an eviction* 
(1 Taylor's Landlord and Tenant, § 381.) 

C JB. Fleischer^ also for Appellants. 

H. 8. Hepner, for Respondent. 

Even though an agreement to give a more formal lease be 
embodied in the writing, still, if there are words of present 
demise, it has been held to be only in the nature of a covenant 
for further assurance. (Taylor's Landlord and Tenant, § 41, 
and cases cited; Tiedeman on Real Property, § 179; Wash- 
burn on £eal Property, 397, 398; 1 Woodfall on Landlord 
and Tenant, *95, 96; BaUett v. Wylie, 3 Johns. 44, 47, 48; 3 
Am. Dec. 457; Jackson v. Kisselbrack, 10 Johns. 336; 6 Am. 
Dec. 341; Whitney v. Attaire, 1 N. Y. 305; Ba4xm v. Bowdoin, 
22 Pick. 401. See, also, Ouipman v. Bluok, 4 Bing. N. C. 187.) 
The theory on which appellants based their case rested upon a 
new and different agreement than the one set out by plaintiff. 
This new agreement was alleged tenanqrfrom month to month. 
Appellants' contention of an eviction under such theory should 
have no standing, inasmuch as they were at liberty to vacate 
the premises at the expiration of each month; As there was 
no evidence to indicate a notice of intention to move, testi- 
mony of an eviction would have been proper, provided the 
new agreement (under which such eviction is alleged to have 
taken place) had been proven. This they failed to do. 

Per CuBiAH. — ^The object of this action is to recover rent 
alleged to be due from defendants to plaintiff under the terms 
of a lease of certain premises in the city of Helena, which 
demand is for rent accrued after defendants vacated said prem- 
ises. The instrument on which plaintiff relies as a lease, set 
forth in his complaint, discloses a contract between plaintiff 
and defendants, whereby plaintiff agreed to erect a certain de- 
scribed building on one-half of lot 31, block 2, of said city, to 
be completed and ready for occupation by defendants on or 



14 Mont] Klinb v. Hanks. 363 

before Augnst 15^ 1890, and to lease the same to defendants 
for the period of five years from that date at a rent of fifty- 
two dollars and fifty cents per month, payable in advance; and 
defendants, on their part, agreed, by the terms of said instru- 
ment, to lease said premises for said period at the rent afore- 
said, when so erected by plaintiff according to the terms of 
said contract. 

Defendants, by answer, admit the execution of said contract, 
but allege that the same never became effectual, because said 
building was never completed as provided thereby. That 
defendants went into said building under another and entirely 
different contract, entered into with plaintiff about the time 
said building was completed; that is, a parol contract, whereby 
defendants agreed with plaintiff to lease said building from 
month to month, at a rent of fifly-two dollars and fifty 
cents per month, and not otherwise. And defendants, for 
further defense, allege that said building, by reason of the acts 
and omissions of plaintiff, became untenantable, whereby de- 
fendants' eviction therefrom' was caused by plaintiff, in that 
no substantial roof was put upon said building, so as to pre- 
vent leakage, and by reason thereof great quantities of water 
came into said building upon defendants' goods, furniture, and 
fixtures, whereby the same were damaged, and defendants' 
business greatly interrupted. That plaintiff was frequently 
notified of such defective condition of said roof, the leakage, 
and the injury to defendants' goods and business therefrom; 
but that plaintiff neglected to repair the roof of said building 
to prevent such leakage. That the lower part of said build- 
ing occupied by said defendants was by them used for the pur- 
pose of conducting a butcher's business therein, and the upper 
part of said building so leased by defendants was used for 
residence purposes by one of the defendants and his family. 
That plaintiff had control of other parts of the second story of 
said building, and occupied apartments therein. That said upper 
story was so arranged that it was necessary for both plaintiff 
and those residing therein by his permission, and defendants 
and his family, to use a hallway, hydrant, and sink in com- 
mon, in their occupation thereof. That plaintiff's conduct in 
his use and occupation of that portion of the building^ and the 



S64 Elikb v. Hanks. [March T., 1894 

parposes for which he allowed the same to be ased, were sach 
as amoaated to a contiDuing nuisance, whereby defendants' use 
and enjoyment of the portion thereof by them leased was pre- 
vented, in this: that plaintiff emptied into said sink, situated 
under said hydrant, wheref rom defendant and his family, resid- 
ing in the upper part of said building, obtained water for fam- 
ily use, certain filthy matter, brought thereto from plaintiff's 
lodging apartments, whereby and wherefrom noxious odors, 
offensive to the senses and deleterious to health, arose and per- ' 
meated the upper part of said building, and that such nuisance 
was continued a long time; and that plaintiff also allowed lewd 
women to occupy apartments in the upper story of said build- 
ing, with whom defendant's wife was compelled to meet in her 
use of said common hallway therein, whereby defendant was 
prevented from continuing his occupation of said building with 
comfort and enjoyment, or with safety to the health of himself 
and family, and was thereby compelled to remove therefrom 
as evicted by the acts of plaintiff. 

By replication plaintiff put in issue all the affirmative alle- 
gations of the answer, and on the issues thus raised by the 
pleadings the trial ensued, whereat both parties introduced 
testimony in support of their contention; but at the close of 
the introduction of testimony the court, having excluded cer- 
tain testimony offered on the part of defendants, directed the 
jury, on motion of plaintiff, to return a verdict in his favor, 
which the jury did accordingly. 

The assignments of error which we deem necessary to examine 
relate to the action of the trial court in striking out certain 
testimony introduced by defendants, and also excluding other 
evidence by them offered, and peremptorily directing the jury 
to return their verdict for plaintiff; which assignments will 
now be considered. 

Upon the trial, plaintiff introduced evidence tending to sup* 
port the allegations of the complaint, and, plaintiff having 
rested, defendants introduced evidence on their part, tending 
to support their defense that said original contract providing 
for the erection of said building by plaintiff, and the lease 
thereof by defendants for the period of five years, was aban* 
doned by reason of the failure of plaintiff to erect and com- 



14 Mont.] KuKB V. Hankb. 865 

plete the same within the time provided; and that defendants 
did not enter said premises pursuant to the terms of said con- 
tract^ but went in under a parol agreement to lease and occupy 
said premises from month to month, as averred in the answer. 
This evidence was admitted, and tends to support that branch 
of the defense, whereby it dearly appears that the peremptory 
direction of the court to the jury to find for plaintiff, without 
consideration of the evidence ofi'ered in support of that defense, 
was erroneous. Not only so, the testimony of Schopfer, stricken 
out, and that of other witnesses offered by defendants and ex- 
cluded by the court, tended to support the allegations of defend- 
ants' answer as to the imperfect roof on said building, the 
leakage, and the creation and maintenance of a nuisance therein 
by plaintiff. The objection to said evidence, sustained by the 
court, states that the same is immaterial, irrelevant, and incom- 
petent It appears to be tainted with none of those diar- 
acteristics, for the testimony excluded purported to be that of 
witnesses having personal knowledge of the conditions men- 
tioned. 

But the more remote cause of irrelevancy suggested is 
that defendants' two defenses set ug are inconsistent Even 
this would not justify the ruling of the court which denied 
defendants the benefit of both defenses by directing the jury to 
return a verdict for plaintiff, without consideration of any part 
of the defense. The suggestion that the defense affirming that 
defendants were, in effect, evicted from said premises by the 
alleged misconduct of plaintiff is inconsistent with the other 
all^;ed defenses to the effect that defendants had only leased 
from month to month, and therefore defendants should not be 
allowed to prove both defenses, cannot be maintained. Defend- 
ants may allege as many defenses as they have. Two are 
alleged in this case. It may well have been considered by 
defendants that the court and jury might not adopt their con- 
tention that they went into said premises under an agreement 
to rent from month to month, independently of the original 
contract If the court and jury interpreted the facts and cir* 
eumstances against defendants on that defense, and hdd that 
defendants were committed to a lease for five years, can it be 
maintained that they could not show facts of which plaintiff 
was the author, amounting to an eviction of defendants during 



. 366 MiLLiGAN V. Cupp. [March T., 1894 

said term of five years? We think not. There is no inoon- 
sistencj, contradiction, or incompatibility in these two defenses 
which forbids pressing both forward with such evidence as 
defendants can command. 

Judgment and order reversed, and caase remanded for new 
trial, 

Beoened, 

All concur. 



MILLIGAN, Rbbpondent, v. CUFF, Appellaistt. 

[Sabmiitod October 26, 1898. Decided April 38, 1804.] 

FoBOiBLB Emtet ahd Uhlawtdl Dxtaxhxe— PZaififtfT fnutl haoe pMeealle po^ 
MS«i<m.~The leiaor of a lot upon which the leoee had erected a building 
nnder a lease proyiding that all improTemeDti put upon the premiaee dioold 
become forfeited upon default in payment of rent for wixij days, cannot, after 
lefaiing a tender of two months' rent, upon the exprees ground that rent 
for three monthi was due, maintain an action for forcible entry against the 
defendant to whom the lease had been transferred, where it appeared that 
immediately after refusing the two months' rent he had placed two men witiiin^ 
the building during the temporary absence of the defendant who had occupied 
the houM during the preceding night and that day until one o'clock, when he 
went out for dinner, and who upon returning had forced his w»y into the 
house and turned out the men, since the plaintiff had acquired no peaceable 
possession at the time of defendant's entry; and had the two months' rent been 
accepted there would haye been no sixty days' defult under which a forfeiture 
of the building could have been declared. 

BiJa—PoBseuion &yp2ain^.— The mere fiaet that lessor of premises had giten 
permission to the lessee's mortgagee to remoye some furniture fh>m an upper 
story and store it in a lower room, after such permission had been reftiaed bj 
the lessee's agent, does not establish such a posaession ai to enable the lessor 
to maintain an action for forcible entry. 

Appeal from Third Judicial Didrid, Deer Lodge County. 

Action for forcible entry and unlawful detainer. The 
cause was tried before Dubfee, J. Plaintiff had judgment 
below. Reversed. 

BrazeUon & Scharnxkow^tot Appellant 

The evidence conclusively shows that the defendant, or his 
ageutSy were in constant possession of the property, although 
frequently absent for a short time. That during such absence 
George Plaisted went upon the premises. That upon his 
return the defendant again took possession^ without force. 



14 Mont.] MiLLiGAN V. Cuff. 867 

Defendant entered in good faith and under claim of title aa 
lessee, and therefore could not be guilty of unlawful detainer, 
{Oonray v. Duane, 45 Cal. 597; Powdl v. Lane, 45 Cal. 677; 
Shelby v. Houston, 38 Cal. 422.) No other evidence of pos- 
session on the part of plaintifi* was produced than that George 
Plaisted went upon the property in controversy for a short 
time, during the temporary absence of the defendant or his 
agents. This was a wrongful entry on his part, and is not 
such a possession as will maintain an action of this character. 
{Mason V. Hawes, 52 Conn. 12; 52 Am. Rep. 552; Harring^ 
Um V. 8coU, 1 Mich. 17; MUckeU v. Carder, 21 W. Va. 277.) 
No evidence of any character is produced by the plaintiff that 
any demand whatever was made for rent, or a notice of forfeit- 
ure served on defendant This is necessary before a recovery 
can be had. (2 Woodfall on Landlord and Tenant, § 449; 
8 Am. & Eng. Ency. of Law, 140; Johnston v. Hargrove, 81 
Va, 118; Cane v. Woodward, 66 111. 477.) No attempt what- 
ever is made to show that a demand for possession was made 
as required by statute, to recover possession from a tenant for 
covenant broken. A failure to make this demand is an abso- 
lute bar to this action. (Code Civ. Proc., § 727, Comp. Stats.; 
Martin y.Splivalo, 56 Cal. 128; King v. QmnoUy, 51 Cal. 183; 
MoDemU v. Lambert, 80 Ala. 536; McLean v. SpraU, 19 Fla. 
97.) The court, in giving instructions for plaintiff,' erred in 
holding that the only issue was the fact whether or not on 
March 12, 1890, the plaintiff or agent was in the possession, 
and the defendant took possession forcibly. The plaintiff hav- 
ing admitted the execution of the lease, and failed to prove its 
forfeiture, the possession of plaintiff would, of itself, be wrong- 
ful, and not the issue to be presented to the jury, as they so 
were in saia instructions, unless the demand for rent and pos- 
session or declaration of forfeiture was also made, and found 
by the jury. (Nason v. Best, 17 Kan. 408; Hyde v. Ooldsby, 
25 Mo. App. 29; Lichty v. CXark; 10 Neb. 472; DuUtm v. 
(Mby, 35 Me. 505; WiUiamson v. Paztm, 18 Gratt. 475.) 

Durfee & Brown, for Bespondent. 

The act of forcible entry and detainer is a summary proceed- 
ing to recover possession of premises forcibly or unlawfully 



868 MiLLiQAN V. CuFP. [March T., 1894 

detained. The inquiry in sach cases is confined to the actual, 
peaceable possession of the plaintiff in the original complaint 
and the unlawful or forcible ouster or detention by the defend- 
ant — the object of the law being to prevent the disturbance of 
the public peace by the forcible assertion of a private right. 
Questions of title or right of possession cannot arise; a forcible 
entry upon the actual possession of the plaintiff being proven, 
he would be entitled to restitution, though the feensimple title 
and present right of possession are shown to be in the defend* 
ant The authorities on this point are numerous and uniform. 
{Parks V. Barklet/, 1 Mont. 514; Boardman v. Thompson^ 3 
Mont 387; &ieehy v. Flaherty, 8 Mont 366; VM v. HoOm, 
60 Cal 570; HoOand v. Qrem, 62 Cal. 67; Qidding v. '76 Zand 
and Waier Oo., 83 Cal. 100.) The testimony shows that the 
plaintiff by her agent, George Plaisted^ was in actual and 
peaceable possession of the property in controversy from Feb* 
ruary 26th or 28th, 1890, to March 12th, 1890, and had let a 
portion of the house to other persons for storage purposes. 
The testimony further shows that the property bad been vacant 
and abandoned several months prior to the taking possession 
of it by the plaintiff; that the manner of obtaining poesesaion 
of the property was peaceable; that the plaintiff was ousted 
from possession, and the property detained by force and violence. 
The law requires no one to do a vain thing; the property in 
controversy was abandoned and the whereabouts of thedefend* 
ant or his grantor unknown; the plaintiff, through her agent^ 
used every diligence to collect the rent due, without ancoefls; 
the defendant and his grantor had forfdted all right of posses- 
sion they ever had, by nonpayment of rent and abandonment 
As to whether the plaintiff demanded rent, or declared a for* 
feiture, is immaterial, if her possession was actual and peac^ 
able and her ouster violent and forcible. The law is fixed on 
this point, and the cases already cited on this subject are con* 
elusive. Had the possession of the plaintiff been scrambling^ 
or other than open, peaceable, and notorious, the jury under the 
instructions given for both the plaintiff and defendant had 
ample warrant to so find and give the defendant their ver- 
dict. 



14 Mont.] MiLUGAN V. Cupp. 869 

Per CuBiAM. — By tbU action, plaintiflF seeks judgment for 
restitation of possession of a certain lot and building thereon 
situate in Phillipsburgh, Deer Lodge county, whereof plaintiff, 
by ber complaint, avers that she was on the 12th of March, 
1890, the owner and in peaceable possession; that defendant, 
then and there, contrary to tlie statute in such cases made and 
provided, entered into said premises, and with strong hand 
took possession thereof, and ever since has wrongfully withheld 
possession, to plaintiff's damage in the sum of one hundred 
dollars. Wherefore, plaintiff demands judgment for restitution 
of said premises, and damages, in the sum of one hundred 
dollars, for wrongfully entering and withholding possession 
thereof. Defendant on his part, pleads not guilty of the 
alleged forcible entry or unlawful detainer, and denies that 
plaintiff is entitled to any dami^ by reason of defendant's 
occupation of said premises. 

Plaintiff prevailed on the trial, recovering judgment for 
restitution of possession of said premises, and for damages 
greatly exceeding the amount alleged or demanded in the com- 
plaint, to wit, seven hundred and thirty-three dollars. 

Defendant's motion for new trial specifies error in certain 
instructions to the jury, and that the evidence is insufficient 
to support the verdict; and, his motion for new trial having 
been overruled, he appeals from that order, insisting that his 
specifications are well founded, as shown by the record. 

After the action was instituted plaintiff died^ and the present 
plaintiff was substituted as her administrator. 

The evidence shows that one Morris leased said lot about 
Angust 7, 1889, fi>r the period of three years, conditioned, as 
shown by the lease introduced in evidence, that the lessee 
(Morris) should have the possession and use of said premises 
for three years from that date, for which he agreed to pay the 
sum of twenty-five dollars per month rent, payable monthly in 
advance, and that default of such payment for sixty days should 
subject the leasehold, and all improvements put upon said 
premises by the lessee, to forfeiture; that, pursuant to such 
lease, Morris took possession, and erected on said lot a two- 
story frame building 24 x 85 feet in dimensions, at a cost of 
about two thousand five hundred dollars, arranging the lower 
Vol. XIV.-24 



870 MiLLiGAN V. Cupp. [March T., 1894 

story for the purpose of oonductiog a saloon business therein, 
and furnishing the same with certain fixtures for the purpose 
of carrying on such business; that the upper story of said 
building was arranged in rooms, carpeted and furnished, for 
lodging purposes. That Morris did not engage in a saloon 
business in said building, as was intended by him when he 
erected the same, for the reason, as he asserts in his testimony, 
that the opportunity for such business was then unpromising. 
But it appears the upper rooms were used for lodging purposes 
by Morris, as far as he could find tenants therefor, during a 
short period after the building was completed and furnished; 
his wife the while having charge and taking care of the 
lodging department of said house; that Morris, finding it neces- 
sary, on account of the quiet state of business at Phillipsburgh, 
to go elsewhere to seek employment, about October 2, 1889, 
removed to Anaconda, where he found employment, and 
brought his wife and family there shortly afterwards, leaving 
said premises, with the furniture and fixtures therein, in charge 
of defendant. Cuff, to whom, according to the testimony of 
defendant and Morris, the leasehold and improvements on 
said lot had been sold and conveyed by Morris. Afterwards, 
Morris sent from Anaconda toplaintift fifty-one dollars in 
payment of the rent, which, as all parties agree, paid the rent 
up to December 16th of that year. Defendant Cuff, appears 
to have assumed control over said premises aft;er the departure 
of Morris, but was absent therefrom most of the time during 
said winter. He claims to have left the premises in charge of 
Charles McDermott, to take care of the building, and rent the 
rooms in the upper story, in his absence. McDermott testifies 
that he did the same in the absence of Cuff, and collected some 
rents from lodgers in said rooms, and this is not disputed. 
During all this time plaintiff, lessor of said premises, and her 
husband, (xeorge Pliaisted, who acted as her agent in respect to 
said lease and premises, resided a short distance therefrom; and 
Greorge Plaisted testifies, on behalf of plaintiff, that during said 
winter the building on said lot was not occupied, with the 
exception of the occasional occupation of some of the rooms by 
lodgers; that during said winter he frequently passed by said 



14 Mont. I MiLLiGAN V. Cuff. 371 

building, and on one occasion closed and put a prop against 
the door thereof. 

The event which plaintiff claims amounted to a forcible 
entry and unlawful taking of possession of said premises by 
defendant occurred about March 12^ 1890 (the particular date 
being immaterial, except that these events happened prior to 
March 16th, which all agree). At that time there were three 
months' rent due. That according to the testimony of all the 
parties, about that date Morris and Cuff visited G^rge Plaisted, 
plaintifi 's agent, at the residence of the latter, and offered to 
pay two months' rent, but Plaisted declined to take such pay- 
ment. In speaking of this interview, in his testimony on 
behalf of plaintiff, Plaisted says; ^^I wanted full rent. I 
wouldn't take two months' rent, as they offered." And, accord- 
ing to his testimony, that is the only reason he asserted for 
declining the payment of two months' rent offered by defend- 
ant* Immediately afler this interview, as shown by the testi- 
mony, Plaisted called to his aid Simmons and Sherman, 
whom he brought to said house, and directed them to stay 
there, and hold possession thereof while he (Plaisted) would go 
down town, as he said, and procure a lock, and return. As 
Plaisted started on such errand, when but a short distance 
from said house, he met defendant apparently going to the 
house. Thereupon Plaisted turned and followed defendant. 
Defendant, on reaching said house, attempted to open the door 
and enter; but, finding the latch fastened, he climbed into the 
house through a large opening in the door, where the glass 
formerly therein had been broken out. While so doing, Sim- 
mons tried to prevent defendant from entering; but failing, 
defendant came in, and said to Simmons, ^^Now, you go out." 
Whereupon Simmons went out, as all the witnesses agree. On 
the part of plaintiff, however, the witnesses assert that, when 
defendant ordered Simmons out, he took hold of his shoulder, 
and pushed him. This defendant denies. It also appears that 
about the same time defendant ordered Sherman out, and he 
went out, also. While these events were transpiring plaintiff's 
agent, Greorge Plaisted, was just outside of the building. There- 
after def Midant continued in possession, and this action was 
immediately instituted in the justice's court of that township. 



872 MiLLiGAN V. Cuff. [March T., 1894 

founded entirelj upon the proposition that, when the episode 
just desoribed occurred, plaintiff was in the peaceable possession 
of said premises, and that said acts of defendant, Cuff, amounted 
to a forcible entry and unlawful detainer thereof. 

The decision of the case must turn upon the question as to 
which of these two contending parties had actual possession, in 
contemplation of law, at the time defendant entered, and ordered 
Simmons and Sherman out of said house. The evidence intro* 
duced on behalf of defendant, and not disputed, is to the 
effect that both Morris and defendant had occupied and slept 
in said building during the previous night, and were in posses* 
•ion thereof daring that morning ; that there were fixtures 
and furniture in said building belonging to either Morris or 
defendant, Cuff, the evidence not being dear which of them 
owned the fixtures and furniture remaining therein; that, as 
before stated. Cuff had that morning offered Plaisted payment 
pf two months' rent due on said lease; that^ when Plaisted 
declined to receive such payment^ he did so on the express 
ground that he wanted all the rent paid, with no intimation 
(hat he had assumed possession of said premises, or intended 
to insist on a forfeiture of the leasehold and improvements 
because the rent was in arrears. His expressions to defendant, 
as related in his own testimony, fairlgr implied that the pay<^ 
ment of the rent in full would be satisftotory to plainti£ It 
is to be borne in mind, too, that had Plaisted received die two 
months' rent, as offered, on that occasion there would have 
l^emained only one month's rent in arrears at that time, and for 
tpch arrears the leasehold and improvements would not have^ 
been subject to forfeiture. Nor was plaintiff or her agen^ 
Plaisted, actually in possession at the time be declined to receive 
the payment offered; but, according to the evidence disclosed 
by this record, defendant was in possession, actually occupying 
said premises. Defendant testifies that he not only slept in 
said house the night previous, but was there during that day 
until about one o'clock, when he went down town to a restau-^ 
rant for his dinner, and was returning therefrom when he met 
Plaisted, and on going to the house found Simmons and Sher-^ 
man therdn, and ordered them out as aforesaid. His testimony 
stands uncontradicted. According to the testimony disclosed 



14 Mont.] MiLLiGAN V. CuFP, 373 

hj the record, without ooDflict, plaintiff had acquired no ac* 
tuai peaceable possesaion when the event took place on which 
heaseerts that defendant made a forcible entry into said prem- 
ises. At most plaintiff attempted to gain possession of said 
premises and failed. We do not think plaintiff even succeeded 
in getting what might be termed '* scrambling possession.'' 
{Boicera v. Oierokee Bob, 45 Cal. 602, and cases cited; VoB v. 
BuOer, 49 Cal. 74.) The inference to be gathered from the 
facts shown by the record is that plaintiff proposed and sought 
to assume possession of said premises, and forfeit to her use 
and benefit the improvements thereon, of the value of ovei^ 
two thousand dollars* for three months' rail, at twenty-five 
dollars per month, then in arrears. Without notice or intima^ 
tion to the lessee of such purpose plaintiff attempted to take 
possession of said premises, but fiuled to establish peaceable 
possession, for she was repulsed in the attempt Instead of 
being the one against whom i forcible entry was made, plain- 
tiff herself, through her agent, was attempting to make ail 
unlawful entry and failed. As before observed, had plains 
tiff received (lie two months' rent offered there would have 
been only thirty days' rent then in arrears, and consequently 
tlie leasehold and improvements would not have been sub- 
ject to forfeiture, under the terms of the lease. But, while 
these environing circumstances may haj^e a bearing explana- 
tory of the acts and intentions of the parties they relate more 
directly to the right of possession, which is not under consid- 
eration in this case. The decision turns upon the question ail 
to who was in actual possession when the event occurred on 
which plaintiff founds this action. 

Plaintiff appears to rely to some extent on the fact that prior 
to her attempt to take possession of said premises, as aforesaid, 
she had given permission to Evans & Co. to store some 
furniture in the lower room of said building. The facts on 
this point, as disclosed by the record, show that Evans & 
Co. held a chattel mortgage on certain furniture in the 
upper rooms of said building, and, on taking possession thereof 
to foreclose the mortgage, they applied to McDermott, who, 
according to the testimony on behalf of defendant, was in 
charge of said building for a time, as a representative of 



374 MiLLiGAN V. Cuff. [March T., 1894 

defendant, Cuff, for permission to take said goods from the 
upper story, and store the same a short time in the lower 
room; that McDermott declined to give any such permission, 
whereupon Evans & Co. applied to Plaisted for like per- 
mission in respect to said goods, and, according to Plaisted's 
testimony, he granted the same, and said goods were trans- 
ferred from the upper to the lower story of said building, and 
remained there, in the care of Evans & Co. a short time, 
until sold in foreclosure of said mortgage. It does not appear 
that plaintiff had any interest in said goods whatever. The 
same appear to have been the property of Morris, subject to 
the lien of Evans & Co* thereon; and the mere permission 
which plaintiff asserts he gave to Evans & Co. to move said 
goods from one part of said building to another does not, 
under the circumstances, have any weight in determining the 
main question in this case. 

The impression gained on the argument of this case was that 
the &cts supported plaintiff's recovery, but^ on a thorough 
consideration of the facts presented by the record, we find the 
evidence entirely insufficient to sustain the finding that defend- 
ant made the forcible entry or unlawful detainer charged 
in the complaint. Moreover, the damages awarded greatly 
exceed the amount warranted under the allegations of the 
complaint 

The instruction by the court to the jury which excluded 
from its consideration the acts of McDermott, as representative 
of Cufi^ as shown in evidence, on the ground that Cuff, as rep- 
resentative of Morris in said lease, could not delegate his 
authority to McDermott, was inconsistent with the charge to 
the jury to consider the acts of Simmons and Sherman in 
attempting to take and hold possession of said premises at the 
instance of plaintiff's agent, Plaisted, as acts authorized by 
plaintiff, and done in her behalf; the court thus assuming and 
charging the jury that Plaisted, as agent of pluntiff, could 
delegate his authority to act in aid and benefit of plaintiff in 
reference to said premises, but that a representative of Morris^ 
in charge of said building, could do no such thing. This 
instruction, in efftsct, lays down one rule of law to govern 



14 Mont.] Brooks v. Jordan. 375 

plaiatiff^s side of the case, and a contrarj rule to govern the 

defendant, under similar conditions. 

Judgment and order denying new trial reversed, and the 

cause remanded, with directions to grant defendant's motion 

for new trial, d , 

.i, MeversecL 

All concur. 



BROOKE, Respondent, v. JORDAN, Appem^ant, 

[Babmltted Aogiui 9, 1883. Dedded April 80, 1891] 

MnBEBom^lloit deed—ffearsay.—TbB introdactioik in evidenoe of the record of 
the probata ooort reciting the ezecntion and deliyery by the probate Judge of 
a deed of a lot, accompanied by testimony of the grantee's attorney that be 
placed the deed in his safe at the request of the grantee; that his office waa 
afterwards burglarized and the deed and other papers abstracted from the safe^ 
and that he had on sereral occasions made diligent but unavailing search in 
his office, and also at the grantee's house and other places to find said deed, 
constitutes a sufficient foundation for proof of the contentB of such lost deed. 
And such sufficient foundation being laid, testimony by such attorney that the 
person who robbed the safe confessed to having burned aU the papers, while 
objectionable as hearsay, would not be ground for rcTersal. 

TowiiBin—5iiro^.— Although certain lots were not laid off and platted by a cer- 
tain surrey as part of the original townsite of Helena this fact did not render 
such lots open to appropriation and entry as public land, where the 2ooia in 
quo was within the townsite as entered and patented by the probate Judge. 

Appeal from Unt Judicial District, Lewis and Garke CownJty. 

Ejectment to recover possesBion of town lots. The canse 
was tried before Buck, J, Plaintiff had judgment below. 
Affirmed, 

T. J. Walshj for Appellant. 

Some evidence was given from which it might be inferred 
that the deed may have been destroyed, but unless the evidence 
is conclusive of destruction, proof of search must be made, 
(Jackson v. Hasbrouek, 12 Johns, 192.) Under the authorities 
it is indispensable that the heirs or personal representatives, in 
ease the grantee is dead, should be called to testify to having 
searched for the missing deed, or their failure to testify must 
be explained, (Wharton on Evidence, 144.) The lack of 
their testimony is not supplied by the testimony of Shober to 
the effect that they had searched. {Taunton Bank v. Richard^ 



1 14 srm 

16 47. 
8e»480 
38*924 



876 Bbookb v. Jordan. [March T., 18&4 

9m, 6 Pick. 443; PorJUiu v. Corhdt, 1 Can & P. 282.) Tbo 
trial took place in April, 1892. The last search made by the 
witness for the deed was in 1888 or 1889. This was altogether 
too remote. {Fierier v. TFibm, 13 Pa. St 641.) Proof of 
due execution is an essential prerequisite to the introduction of 
secondary evidence of the contents of a lost deed. {PcrUr v. 
TFtbon, 13 Pa. St. 641; Perry v. BoberU, 17 Mo. 36; Loftin 
V* Loftin, 96 N. C. 94.) There must be clear and satisfactory 
evidence of the genuineness of the signature. {Slone v. nonuUf 
12 Pa. St 209; PoUm y. Qdeman, 86 Ala. 94.) The contents 
of the deed must be clearly established. {Lampe v. Kennedy, 
66 Wis. 249; HweU v. Walker, 62 Iowa, 266; Wakefield v. 
Day, 41 Minn. 344; Edwarde v. Noye», 65 N. T. 125.) Hear- 
say is not admissible upon this issue any more than upon any 
other. (Phillips on Evidence, 517.) 

Shober A Baeoh, for Respondent 

The sufficiency of the preliminary proof to lay a foundation 
for the introduction of a lost instrument rests in the sound 
discretion of the court. The object of the ^roof is merely to 
establish a reasonable presumption of the loss of the instru- 
ment (1 Greenleaf on Evidence, par. 658; 13 Am. & Eng. 
^noj.'oi Law, 1088; Oonoly v. Oayle, 61 Ala. 116; Ckmden 
V. Belgrade, 78 Me. 204; Oraham v. CkmpbeU, 56 Qa. 258; 
MeOulloh V. Hoffman, 73 N. Y. 615.) All that is required is 
reasonable diligence to obtain the original. {Minor v. ItBoi' 
eon, 7 Pet 99; Jemigan v. State, 81 Ala. 58.) The testimony 
shows that diligent but unsuccessful search was made in all 
places where, if it were still in existence, it should have been 
found. The search was resumed after plaintiff's death with 
no better result Its loss will be presumed. {Fretwell v. 
Morrow, 7 Qa. 264; Vaughn v. Biggera, 6 Ga. 188.) Testi- 
mony by the proper custodian of a deed that he has searched 
for it and cannot find it opens the door for the admission of 
secondary evidence. ( Woody v. Dean, 24 8. C. 499; Poetel v. 
Palmer, 71 Iowa, 157.) The secondary evidence having been 
admitted, it became the province of the jury to judge of its 
credit and weight It took the place of primary evidence and 
was entitled to the same consideration. {Bagley v. MoMickle, 



14 Mont.] Brookb v. Jobdan. 377 

9 CaL 480; Oraham v. CdmpbeUj 56 Oa. 258.) The question as 
to the proper proof of the regular execution of the instrumenti 
and the particularity of the testimony to establish its contents 
has been passed upon bj various courts, where it was held that 
when a deed to real estate has been lost, and its loss and the 
Gonients thereof have been established, it will be presumed that 
it was executed in accordance with the formalities required by 
law. {Oiridy v. BunJ^, 25 Fla. 942; Parks v. OaudU, 58 Tex. 
216; Qmgdon v. Morgan, 14 8. C. 587; Heaoook v. Lubuke, 
107 III 396.) 

Per CuBiAU. — By this action in the nature of gectment 
plaintiff seeks to recover possession of lots 9 and 10, block 64, 
of the dty of Helena, whereof he alleges in his complaint 
ownership in fee and right of possession at all times since July 
1, 1886, on which date, while plaintiff was such owner, and 
entitled to possession of said premises, defendant wrongfully 
entered and took possession of the same, and has ever since 
wrongfully withheld possession thereof from plaintiff, to his 
damage in the sum of fifly dollars; wherefore plaintiff 
demands judgment for possession, damages, and costs. 

The issue raised by the answer of defendant is correctly 
stated in the brief of his counsel, as follows: '' Defendant 
denies plaintiff's title, and alleges that the locm in gtM is not 
a part of the original townsite of Helena, but of the N. E. i 
of the N. W. t of the N. R J of sec. 36, tp. 10 N., R. 4 W., 
of which defendant is the owner.'' 

Before the trial plaintiff departed this life, and his admin* 
istrators were substituted as plaintiffs in the action. 

Upon the verdict returned by the jury judgment was 
entered in favor of plaintiff for recovery of possession of the 
premises described, one dollar damages, and costs; and defend- 
ant's motion for new trial was overruled, and he appealed 
from that order and the judgment. 

The record raises for determination the following points: 

1. It appears that decedent's title to lot 10 of said block 
was shown by the introduction of a deed of conveyance thereof, 
duly executed and delivered to him by the probate judge of 
Lewis and Clarke county, who held title to said townsite as 



S78 Brookb v. Jobdan. [March T., 1894 

trustee. But to establish title to lot 9 in decedent it wa9 
•ought to prove the contents of a deed claimed to have also 
been executed aud delivered by said trustee, conveying said lot 
9 to plaintiff, which deed was lost before the same was recorded. 
After certain preliminary proof was introduced as to the exe- 
cution and delivery of said deed conveying lot 9 to decedent, 
the court permitted proof of its contents. On this point it is 
contended by appellant that sufficient foundation had not been 
laid for proof of the contents of the alleged deed as a lost 
instrument^ because the evidence did not show sufficient search 
therefor to authorize the proof of its contents. The evidence 
produced on behalf of plaintiff in this r^rd is: 1. A record 
of the probate court, introduced in evidence without objection, 
which record recites that a deed of conveyance of said lot 9, 
block 64, of the townsite of Helena, was executed and delivered 
by the probate judge conveying the.same to Benjamin C. Brooke 
on December 21, 1875; and 2. The testimony of witness John 
H. Shober, Esq., was introduced on behalf of plaintiff, to the ' 
effect that said deed was put into his custody by decedent, along 
with other papers for safe-keeping; that said witness, a lawyer 
by profession, carefully examined said deed at the solicitation 
of decedent, and from such examination testifies that the instru- 
ment was a good and sufficient deed of conveyance of said 
lot duly executed by said probate judge as grantor, to the 
decedent, Benjamin C. Brooke, grantee; that witness put into 
his safe said deed, with other documents belonging to dece- 
dent, for safe-l^eeping; that afterwards the office of witness 
Shober was burglarized, and his safe broken open, and certain 
papers and documents belonging to himself, as well as papers 
and documents belonging to decedent, were abstracted from 
said safe, and the deed in question could not be found aft^r 
that event. As to search for said deed, this witness testifies 
that he made diligent search therefor in hb office, on several 
occasions, at the request of decedent, and on other occasions 
decedent and witness searched in the tatter's office together for 
said deed; and that they also went together and searched dili- 
gently therefor in the house of decedent; that, after Benjamin 
C. Brooke departed this life, witness Shober, along with one 
of the administrators of decedent, aud also an heir t>f the deoe* 



14 Mont.] Brooks v. Jobdan, 879 

dent, again made diligent search for said lost deed in places 
where they thought it might be foandy which last search was 
made nine or ten months before the trial of this action. Said 
heir also testified to the fact of making the search last mea- 
tionedy and each witness testified that such diligent searchiug 
was unavailing to find said deed. 

Witness Shober, while giving his testimony, stated that the 
person who burglarized his office, and abstracted from his safe 
certain papers, was an individual employed to take care of 
said office, and that, after arrest upon the charge of such burg- 
lary, said person confessed the same, jand said he burned all 
the papers he took from the witness^ safe. Defendant moved 
the court to strike out the statement of witness as to what said 
burglar confessed in r^ard to his disposition of the papers 
taken, which motion was overruled, and that ruling of the 
oonrt is made the basis of an assignment of error, which assign-* 
ment may conveniently be considered along with the main 
question as to the sufficiency of proof of the loss of said deed. 

While the testimony of the witness as to what said person 
stated in respect to his disposition of the papers and documents 
taken from the office of witness Shober was hearsay, and, like 
many remarks made by witnesses, was objectionable from a 
technical point of view, still its effect was not so prejudicial 
as to be ground for reversal. At most, that statement bears 
upon the question of the loss or destruction of said deed, to lay 
the foundation for proof of its contents, which is a question 
addressed to the court as a matter of law. Whether sufficient 
foundation was laid for proof of the contents of said instru- 
ment is a question of law for the court to decide; and we are 
fully satisfied that the evidence produced, independently of the 
objectionable statement, was sufficient to justify the court in 
allowing' proof of the contents of the lost instrument. The 
objectionable statement of the witness, therefore, being entirely 
addressed to the court, on a point fully supported, without 
regard thereto, was undoubtedly put out of consideration by 
the court in passing upon the point in question, as fully as 
though the court had excluded or stricken out said hearsay 
statement Indeed, there was nothing in that statement to 
exclude from the jury, because there was nothing therein for 



880 Bbookb v. Jordan. [March T., 1894 

the jury to ooustder. Both the oaajor and minor assignments 
mentioned are untenable. 

It is further contended bj appellant that the evidence offered 
on the part of plaintiff is insufficient to support the verdict, in 
that there is no proof that the lots in question are situate 
within the townsite of Helena, '* according to the lines of said 
townsite established by the survey of Wheaton/' While this 
may be true, the proof is clear and positive, by the testimony 
of surveyors showing competency and personal knowledge, that 
the lots in question are within the townsite of Helena as 
entered by the probate judge, trustee in that behalf, as shown 
by the patent issued to him therefor; and the evidence is 
equally positive that said lots in question do not lie within th6 
parcel of ground described in the answtf, by subdivisions of 
the United States survey, and alleged to be the property of 
defendant. All that appellant's point amounts to in this 
r^ard, therefore, is that, if those lots were not hid off and 
platted by Wbeaton as part of the townsite of Helena defend<« 
ant was at liberty to enter and appropriate them to his own 
nse, notwithstanding said lots were a part of said townsite, and 
duly laid off and platted by authority of the proper publiii 
agents, bat not by Wheaton, who appears to have first su^ 
veyed and platted at least a part of said townsite. The titl6 
of parties to parcels of land running to them from the United 
States by patent through mesne con veyanoes is not interrupted, 
broken, or divested, because, forsooth, the surveyor who sur* 
veyed or platted the same was of one name or auother, so that 
the land in question is clearly and exactly identified, as in the 
present case. 

^ , It is further insisted by appellant that the court committed 
errors in giving and refusing certain instructions. This is 
equally untenable. The instructions, as given to the jury, 
&irly and adequately state the law applicable to the case, as 
developed in the pleadings and proof of the respective parties. 
There is no merit in the appeal. The judgment and order 
overruling defendant's motion for a new trial will therefore be 
affirmed. 

Affinned. 

All concur. 



14 Mont.] Statjb v. Railway Co. 381 

STATE EX BEL. HASKELL, Attobney Genebal^ v. 
GREAT NORTHERN RAILWAY COMPANY. 

[Babxnitted April 28, 18M. Dedded April 80, 18M.] 

Mabdaxus— /urisdiction to compel railroad to operate its Knes.-~Thig oonrt hat 
no jorifldiction to iMme a wzit of mandamui to compel an intentate railroad, 
the employeea of wbioh haye gone out on a general atrUe, to operate its line 
within this state npon a petition alleging that snfBoient competent men are 
available and willing to Mrre laid road for reaaonable compenaation. 

Original PBOCEEDiKa. Application for writ of man- 
date. Denied. 

Henri J. Baakdt, T. J. Wahh, and R. R PwrceB, for 
Relator. 

Per CuBiAX.-!— Upon this petition the attorney general asks 
this court to issae a writ of mandamus addressed to and com- 
manding the Great Northern Railway Company to operate its 
lines of railway in this state^ as it had been accustomed to do 
prior to the thirteenth day of April^ 1894| when suoh operar 
tions ceased altogether, as described in the petition, to the end 
tiiat the public shall not be inconvenienced and damaged by 
deprivation of the use of this qiuxd public agency of commerce^ 
travel, and communieatioa. 

In making this application counsel on behalf of the petition 
admit — ^afiict of general notoriety, too— that the cessation of 
operation of sud railway was occasioned by a general refusal 
of the employees of said company engaged in operating the 
same up to that date to serve the company for the wages pro- 
posed to be paid, and because of the disagreement on that sub- 
ject the employees on said lines went out on what is known as 
a general ^'strike/' awaiting an adjustment of that contro- 
versy. 

The petition alleges that sufficient competent, skillful, and 
experienced men are available, ready, and willing to serve said 
company in the operation (^ said road for reasonable compen- 
sation; and this is admitted to be the main predicate upon 
which a decision in this proceeding would turn if the court 
entertains the proceeding. It is therefore proposed that this 
court shall inquire and determine what would be a fichedule of 



882 State v. Railway Co. [March T., 1894 

reasonable wages for a corps of skilled and unskilled employees 
necessary to operate said railway, and then ascertain whether 
the requisite number of employees can be procured at the 
wages determined, and, if that fact is found to be true, as 
alleged, then command the operation of sjiid railway under *the 
penalties attached to disobedience of the writ of mandamus. 

Those questions mentioned must be determined by the court 
upon proper inquiry whether the respondent should answer and 
traverse the allegations of the petition or no, because the court, 
before sending forth this extraordinary writ, will, by careful 
inquiry, become satisfied of its own jurisdiction, and. that the 
conditions are such that the act commanded is feasible of per- 
formance. 

If the proposed scheme is feasible, and the court has juris- 
diction to carry it out, it evidently affords a remedy going far 
towards the solution of a problem of great moment to all par- 
ties concerned* But, aside from the relations of this property 
to interstate jurisdiction, as shown by the averments of the 
petition, already asserted by the United States courts to some 
extent, the difficulty is that this court does not at present possess 
jurisdiction for the arbitrament of the question involved, as 
aforesaid, and, having ascertained what is just in the piemises^ 
to enforce the same U|ion contending parties. 

The time may come when the state, that is, the national 
government, by reason of its interstate jurisdiction, may, by 
proper provisions of law, come into the attitude of permanent 
trustee of such property so vitally related to the wel&re of the 
whole people, instead of the occasional exercise of trusteeship 
by receivers, when the property has become financially swamped; 
and then the proper courts will be empowered to interpose an 
equitable authority in a threefold direction for the orderly 
correction of abuses existing towards employees and investors 
(minority as well as majority stockholders) of the vast capital 
involved in such property, and also towards the public as 
patrons thereof. For the reasons suggested, we must deny this 
application.' The cases called to our attention lead to this con- 
clusion also. 

All concur. 



14 Mont.J Statb v. Ekynolds. 383 

STATE EX REL. MARION v. REYNOLDS, Sheriff. 

[Babmitted April 80, 1894. Deoided May 8, 1894.] 

Cbpqmal JjAM— Stay of exectttUm,— The approval by tbe oonii, pending a motion 
for a new trial and for a stay of execution, of a bond conditioned for the 
defendant's appearance and obedience to all orders of the oonrt does not by 
implication stay execution of the sentence, and the defendant may be lawfully 
imprisoned pending the determination of fhe motion for a new trial. 

Sake— ImprisonmetU for eosta.— When costs of prosecution are required by the 
statute under which a oonYiction is had to be included in the fine assessed, the 
defendant may properly be imprisoned under a Judgment including such cost 
as part of the fine. (State ▼. SuUioan, 9 Mont. 494, cited.) 

OonsTiTUTioRAL tiAW—SeUing 2igiior.— Section 261, diyision 4, of the Compiled 
Statutes, prohibiting the sale of liquors in any place where women or minors 
are employed, is constitutional, being a proper exercise of police regulation. 

Applioation for writ of habeas corpus. Petitioner re- 
mandecL 

Cteorge HaJdom^ and C £. OampbeU^ for Relator. 

Hefnri J. HaskeUy aUomey general^ for the State, Respondent. 

I. The act is constitutional. The right to engage in the 
occupation or business of keeping a beer hall, and engaging in 
the sale of liquor where women are employed for the purposes 
of the business therein carried on is not an inherent right of 
citizens. {Ex parte Chridensen, 85 Cal. 213; Eb parte Sing 
iec, 96 Cal. 359; 31 Am. St. Rep. 218; In re Maguire, 57 Cal. 
605, 610; 40 Am. Rep. 125; Ex parte FUehlin, 96 Cal. 360; 
31 Am. St. Rep. 223; Orowley v. Christensen, 137 U. S. 91; 
MeKinney v. 8taU, 3 Wyo. 727.) 

II. It is not objectional as class legislation. (Ex parte 
Ruhack, 86 Cal. 275; 20 Am. St. Rep. 226; In re Ak Fong, 
3 Saw. 151; Ah Kaw v. Nman^ 5 Saw. 564.) 

III. It is a proper exercise of police power. ( Wynehamer 
V. People^ 13 N. Y. 451; Chy Lumg v. Freeman, 92 U. S. 275; 
People V. Oregier, 138 111. 418; Ex parte Hayes, 98 Cal. 655.) 

Per CuBiAM. — This is an application for discharge from 
imprisonment, through the writ of habeas corpus. 

It appears that relator was indicted and convicted under the 
provisions of section 261, page 578, of the Compiled Statutes, 
which reads as follows: ^'That hereafter it shall be unlawful 



384 Statb v. Reynolds. [March T., 1894 

for any person or persons, company or corporationi to sell or 
dispose of any spirituous, vinous, or malt liquors in any room, 
kail, or other place where women or minors are employed or 
are allowed to assemble for the purpose of the business therein 
carried on J* And the penalty of fine in the sum of three hun- 
dred dollars and costs, together with imprisonment sixty days 
in the county jail, was assessed as punishment, on the verdict 
of the jury. At the close of the trial, defendant announced 
his intention to move for a new trial, and thereupon moved the 
court to stay execution, pending determination of said motion, 
on defendant's giving a good and sufficient bond, to be approved 
by the court conditioned for his appearance, and obedience to 
all orders of court in the case. Thereupon, as disclosed by 
the record, defendant procured to be executed on his behalf a 
bond conditioned as mentioned, which was approved by the 
court, and filed; but, without granting any stay of execution, 
tlie court sentenced the prisoner according to the verdict, and 
ordered him inta custody, for imprisonment^ aa .provided by 
the judgment. 

The first point insisted on by prisoner's counsel as ground 
for discharge b that by reason of having produced said bond, 
and the same having been approved by the court, and filed, the 
court, in efiect, by implication, granted a stay of execution 
pending the determination of the motion for new trial; or, as 
otherwise stated, that the court, while retaining defendant's 
bond or stay, could not lawfully imprison him on the judg* 
meut during the pendency of said motion for new trial. 

The facts shown hardly bear the interpretation insisted on 
by defendant's counsel. It does not follow that because certain 
things were done looking toward a stay of the execution, the 
court, by implication, had granted such stay. If so, the mov- 
ing for some order which the court may grant or refuse, and 
the filing of a bond in the premises, which the court might 
readily approve if requested so to do, while still considering 
the propriety of granting the order sought, would ocftnmit the 
court as having granted the order moved for, unless the oour( 
made some special order, annulling the bond, to escape from 
the implication that the motion had been granted. This view 
is wholly untenable. 



14 Mont.] State v. Rbynolds. 385 

Secondly, it is affirmed that tlie imprisoDment of defendant 
on this oonvictiou is illegal because the judgment includes the 
cost of prosecution as part of the fine. Bj reference to the 
statute under which the conviction was had it will be seen 
that the costs of prosecution are required to be included in the 
fine assessed. Therefore, this objection is untenable. {Stale v. 
SuUivan, 9 Mont. 494.) Moreover, if the statute was so 
framed that the costs could not be properly included in the 
fine the prisoner would not, for that reason, be entitled to dis- 
charge at this time, because it appears that he is confined at 
present on the judgment for imprisonment independently of 
the fine. 

Thirdly, petitioner's counsel urge the proposition that the 
provisions of said statute are unconstitutional because, in effect, 
it prohibits a certain class, u «., women, from being employed 
in a plac^ where intoxicating liquors are sold, and therefore 
restrains such persons from engaging in a lawful employment. 
This statute does not forbid the employment of women or 
minors, but it does prohibit all persons and companies from 
selling intoxicating liquors in a place where women or minors 
are employed or assembled for the purposes of the business. 
There appears to be wisdom and propriety in this provision, 
as a police regulation, and we fail to find in it the infringement 
of any provision of our constitution. The California court, 
in cases cited on this point, had under consideration constitu- 
tional provisions which are not found in the constitution of 
this state, and which also appear to have been greatly modi- 
fied by revision of the California constitution since the cases 
relied on were decided. 

Other points were urged, relating to procedure, which are 
not pertinent to the inquiry on liabeas corpus. Besides, the 
record of court proceedings is not properly before us in this 
proceeding. {In re McOiddieony 10 Mont. 115.) 

Finding no ground for discharge of petitioner he must be 
remanded to custody, and the order of this court will be 
entered accordingly. Prisoner remanded. 

All concur. 
Vol. XIV.-25 



386 SiMPKiNS V. SiMPKiNS. [March T., 1894 

SIMPKINS, Respondent, v. SIMPKINS, Appellant. 

tSnbmitied NoTember 24, 1888. Decided May 7, 18M.] 

JtrBoxKNT BT Dktault— DivoTce— IfoKofi to «a«af«.— Befaial to Tioaie % default 
Jodgment in a divoroe case upon motion is an abuse of diaoretion where it 
appeared that defendant, who was a nonreeident, immediately upon reoelT- 
ing the summons employed ooansel where she li?ed, who at once wrote to a 
local attorney inquiring whether he would appear for defendant; that the lat^ 
ter appeared in the case, but, after securing plaintiff's acceptance of a compro- 
mise as to alimony which he understood he was authorised to offer on behalf 
of defendant wrote that he would withdraw from the case unless such com- 
promise was accepted by defendant; that defendant reftiaed such proposed 
compromise .by telegraph, and followed the same with letters explaining such 
refusal, but which were returned unopened; that upon receipt of such message 
ha declined to file defendant's answer which he had in his possession* and 
which disclosed a meritorious defense; and, refttsing to take further action 
iuifered the case to go by default Nor would the merits of the motion be 
alfected by the fact that the plaintiff had remarried immediately after such 
Judgment; the condition of the parties to such marriage not being of defend- 
ant's creation. 

Appeal from Third Judicial District, Deer Lodge County. 

AcnoN for divorce. Defendant's motion to vacate the jadg- 
ment was denied by DukfeEi J. Reversed. 

Statement of the case hy the court. 

This is an action for divorce, commenced by filing complaint 
March 23, 1892, in the tiiird judicial district court in and for 
Deer Lodge county, the plaintiff alleging that he was a resi* 
dent of that county. It appears that defendant was at the city 
of La Crosse, Wisconsin, at the time of the commencement of 
the action. The service of summons was by publication, and by 
mailing a copy thereof to defendant at La Crosse. Demurrer 
was filed April 22d, by H. B. Whitehill, attorney for defend- 
ant. The demurrer was heard and overruled August 13th« 
No further pleading being filed by defendant, on August 14th 
her default was entered for failure to answer, and proof was 
heard upon the part of plaintifiT, and judgment dissolving the 
bonds of matrimony between plaintiff and defendant was made 
and entered. On September 22d a motion was made by 
defendant to set aside the judgment, open the default, and 
allow her to defend the action. On that motion an answer 
was tendered, whicli apparently pleaded a good defense to the 



14 Mont.] SiMPKiNS V. SiMPEiNS. 387 

cause of action set up in the ooraplaint. Her motion was by 
the court denied. From this order she appeals. 

It will be necessary to state somewhat fully the facts upon 
which the motion was based. The defendant filed her own 
aiBdavity setting forth what she claims was her diligence in 
attempting to defend the case, and she annexed to said affidavit 
tlie correspondence between her attorney, W. S. Burroughs, in 
La Crosse, Wisconsin, and H. B. Whitehill, in Deer Lodge, 
Montana. Her affidavit was not contradicted except in one 
matter, which is noticed in the opinion below. From this 
affidavit, and the letters annexed, the following facts appear: 
Immediately upon receipt by her, through the mail, of a copy 
of the summons, she went to W. 8. Burroughs, an attorney in 
La Crosse, Wisconsin, and employed him as her counsel; It 
appears that she was cognizant of the whole correspondence 
which afterwards took place between Mr. Burroughs and Mr. 
Whitehill. Mr. Burroughs at once (on April 19th) wrote to 
Mr. Whitehill (having obtained his name from the 1^1 
directory), and stated the fiict of the commencement of the 
action, and inquired whether Mr. Whitehill would appear in 
the case for defendant as local attorney. In this letter he 
informed his correspondent of the condition of defendant and 
the number of her children, and something of her circum- 
stances and marital history. 

To this letter Mr. Whitehill sent the following answer; 
^'Deeb Lodge, Montana, April 2l8t, 1892. 
" Wm. 8. BurrougJis, Esq., 

''Dear Sir: Tour letter of the 19th inst. is just received. 
I will look up the complaint in 8imphin» v. SimpkinSy and 
put in an appearance for Mrs. Simpkins so as to prevent a 
default being taken against her. In case of a contest in the 
matter I shall charge $250.00. A portion of that, however,* 
can be collected from the husband. In case we can make a 
settlement and procure an allowance for Mrs. S.'s support 
without trial I shall charge $100.00. If Simpkins is so 
very determined to have the divorce it is very likely that Mr. 
Titus will make some offer here when he finds an appearance 
Ims been made. In the mean time you might notify me of 
the facts as to the desertion, which you say is the ground 



388 SiMPKiNS V. SiMPKiNS. [March T., 1894 

alleged for divorce, and also what amount Mrs. Simpkiiis 
would acoept as alimonj. Yours very truly, 

"H. R. Whitbhill." 

(Mr. Titus was plaintiff's attorney.) 

In aooordanoe with this letter of April 21st| Mr. Whitehill 
on the next day filed a general demurrer on the part of defend- 
ant To this letter Mr. Burroughs, on May 2d, replied sub- 
stantially as follows: That his client would not be able to pay 
the amount charged by Mr. Whitehill. He then asks whether 
he cannot go on with the case, and gets his fee by virtue of an 
order of the court for counsel fees against the plaintiff. He 
discusses the procedure for obtaining such order quite at length. 
Then he sets forth the facts of defendant's defense. 

The cause of action set up in the complaint is desertion 
solely. 

In this letter Mr. Burroughs set out fully the facts which 
he claims showed that there was no desertion. He states that 
such facts can be proved, and says that depositions will be 
taken at La Crosse to prove the same. He thus furnishes the 
Deer Lodge counsel the material for preparing an answer. As 
to what the defendant would be willing to accept as alimony, 
her La Crosse counsel, in this letter, says: I think as she now 
looks at the matter, if he would pay you, and send to her 
11,000.00, she would let him go. Have the kindness to write 
me that you have appeared and prevented default.'' 

In reply to this letter of Mr* Burroughs, Mr. Whitehill, on 
May 26th, writes, and, afler apologizing for some delay, says: 
'^ The case stands on a general demurrer, which Mr. Titus does 
not seem anxious to get rid of, so there has been no hurry. I 
shall look out for the case, and see that no advantage is taken 
of Mrs. Simpkins, and in the course of a couple of weeks, when 
•this term of court adjourns, will prepare the answer necessary, 
and seud you for Mrs. Simpkins to verify." 

Pursuant to this letter, on July 7th, Mr. Whitehill sends 
the following: 
« Wm. 8. Burrougha, E8q., 

''D£AB SiB: Inclosed I send yon answer in &mpkmB v. 
Bimpkins for verification before a notary publia Our next 
term of court begins on the 18th iust. Please return the 



14 Mont.] SiMPKiNS t;. Simpkins. 889 

answer at once. At the time of filing I will have citation 
issued for Simpkins to show causey if anj^ why alimony pm^ 
dade lUe should not be allowed, and have an order made for 
expenses and attorney's fees. 

*' Tours truly, 

"H. R. Whttehill/' 

Ul>on receipt of this answer Mr. Burroughs had it verified 
at once, and on July 11th forwarded it to Mr. Whitehill. On 
July 9th Mr. Whitehill advised Mr. Burroughs of some nego- 
tiation of compromise as to alimony, talked of between him 
and Simpkins' attorney. To this letter Mr. Burroughs replies 
that his client cannot accept a |1,000 alimony; that she has 
no means of her own, and has two minor children, one 17 and 
one 19 years of age. He says that the defendant wishes to 
resist tlie divorce, but, if it is to be granted, she cannot get 
along upon $1,000, and makes the following proposition, 
which she, through Burroughs, in this letter, authorizes Mr. 
Whitehill to make, namely, that she will accept |2,000 for 
herself and the payment of Mr. Whitehill's fees, or the plain- 
tiff may pay her $1,000, and secure her in some way the pay- 
ment of |25 a mouth towards the support of her daughter, 
who is 17 years old, until she shall became of age, which in 
Wisconsin is 21 years. 

To this letter Mr. Whitehill replies, on July 24th, as follows: 
^'D£ER LoDQE, Montana, July 24th, 1892. 
''TFifi. 8. BurrcvghB, Esq., 

''Dear Sib: I am surprised at your letter of the 16th 
inst. stating that Mrs. Simpkins now demands $2,000. Some 
time ago Mr. Titus came to me and offered $500 and $25 
per mouth alimony during the minority of the youngest 
child. (Full age for females here is 18 years.) I told him 
that I could not settle on such terms, but that, if he would 
pay Mrs. Simpkins $1,000 cash, and my fee, I would allow 
him to enter judgment. I gave him time, at his request, 
to see Simpkins. He came back in a few days after; and said 
that Simpkins could only raise $500; that he would pay her 
that amount only, and no alimony, but would pay my fee. I 
told him again no, but that, if he would pay Mrs. S. $1,000, 
I would reduce my fee to $100, making $1,100, and costs of 



390 SiMPKTNB V. 81MPKINS. [March T., 1894 

court At that time Mrs. Simpkins' answer had not been re* 
turned^ so I told Mr. Titus that, unless my proposition was 
accepted by the 23d instant, I would file the answer, and cite 
Simpkins to appear and answer why an order of court should 
not be made compelling him to pay attorney's fee and alimony 
pendente lite. He agreed to see Simpkins again, but said: *I 
know Simpkins has not got that much money, but he may be 
able to borrow it/ Yesterday Mr. Titus came again, and said 
Simpkins had arranged to borrow |500, but I told him Mrs. 
Simpkins now wants $2,000. Now, I was authorized by your 
letter of May 2d to settle with Simpkins for |1,000 cash and 
my fee. I am satisfied that he has no money or property that 
we can reach at all, and that, in case of a contest, Mrs. Simp- 
kins can get nothing at all. Even were we to get a decree 
for alimony none can be collected. Simpkins would simply 
resign his position as conductor, and go ofi^ to some other state. 
But I do not propose to bother with Mrs. Simpkins' case any 
further. If she wishes to take |1,000, and let Simpkins take 
a divorce, she can get it. If not, I shall withdraw from the 
case, and you may arrange at once for some other attorney to 
appear for her here. I shall not file the answer at alL Simp- 
kins will simply dismiss his case here, refuse to pay her any 
thing, and make application in some otlier court^ where she 
can get no notice of the proceedings, and he will get his divorce 
without paying her one cent. Answer at once by telegraph 
whether this offer is accepted or not. 

"Tours truly, 

"H. R. Whttehill.'' 

Burroughs then, on July 28th, telegraphs as follows: 

'' To H. B. WhiiehUl^ Attorney y Deer Lodge, Montancu No; 
Mrs. Simpkins will not aocepU File answer and application 
for alimony, as promised in your last letter. I will write 
to-night. Wif. S. Burroughs.'' 

Upon receipt of this telegram Mr. Whitehill declined to file 
the answer which had been prepared by him, and refused to 
have anything further to do with the case, and so informed 
plaintiff's attorney. 

On JuTy 28th, the day of sending the above telegram, and 
also on August 17th and August 29th, Mr. Burroughs wrote 



14 Mont.] SiMPKINS V, SiMPKINS. 891 

to Mr. Whitehill at his regular Deer Lodge address, and thesg 
three letters came back to Burroughs, indorsed '^Return to 
\irriter/' lu these three letters Burroughs urged Whitehill to 
go on with the case, and begs him at least to file the answer. 
During the time that these tliree letters were being written and 
forwarded aud returned unopened to the writer the judgment 
was entered, of which defendant had no knowledge. On the 
6th of August the demurrer was set for hearing for the 13th. 
On that daj the demurrer was overruled, aud defendant given 
twenty^four hours to answer. She was then in Wisconsin, and 
was unrepresented by counsel in Deer Lodge. At the ezpira* 
tion of this twenty-four hours her default was entered, and on 
the following day the judgment was entered. On the same day 
— the 16th of August — the plaintiff married another woman. 
Upon this showing the district court declined to set aside the 
judgment and open the default. The question before us is 
whether the court abused a sound discretion in denying this 
application. 

BrazeUon & Schamikow, for Appellant. 

The provisions of section 116 of the Code of Civil Proced- 
ore, upon which this motion is based are liberal in their terms, 
remedial in their character, and are designed to afford parties 
a simple, speedy, and efficient remedy in a most worthy class 
of cases. The power conferred thereby should be exercised by 
courts in the same liberal spirit in which they are designed, in 
furtherance of justice, so that cases may be tried ou their 
merits. The exercise of the mere discretion of the court ought 
to tend, in a reasonable degree at least, to brifig about a judg- 
ment upon the very merits of the case; and when the circum- 
stances are such as to lead the court to hesitate upon the motion 
it is better, as a general rule, that the doubt should be resolved 
in favor of the application. (Watson v. San Francisco dc 
R R. Co., 41 Cal. 20; Cameron v. Oarroa, 67 Cal. 600; 
Dougherty v. Nevada Bank, 68 Cal. 275.) When a party 
applies promptly for relief after he has notice of the judgment, 
and has not been guilty of gross laches, and his affidavits and 
answer present a meritorious defense, the court should not 
hesitate to set aside a default and allow him to file his answer. 



892 SiMPKiNS V. SiMPKiNS. [March T., 1894 

(BueU V. Emerichy 85 Cal. 116; Beidy v. ScoU, 53 Cal. 69 
Haggeriy v. Walker^ 21 Neb. 596; Gi-iswold Linseed Oil Co. v. 
Lee, 1 S. Dak. 531; 36 Am. St. Rep. 761; TayUyr v. TrumbuU, 
32 Neb. 508; MaUyne v. Big Plant Mining Oo., 93 Cal. 384.) 

Rogers A Rogers, for Respondent. 

The decree was fairly obtained; there is no pretense that 
plaintifF perpetrated a fraud upon defendant or in any manner 
imposed upon the court. In such cases the decree of divorce 
will not be set aside and the defendant allowed to answer to the 
merits of the action. (2 Bishop on Marriage^ Divorce^ and 
Sei)aration, §§ 1533-35; Davis v. Davis, 30 111. 180-84; Lewis 
V. Leans, 15 Kan. 181; R(mse v. R<mse, 47 Iowa, 422; Whiting 
V. Whiting, 114 Mass. 494; Broum v. Brown, 59 111. 315; 
Holbi^ooh V. Holbrook, 114 Mass. 568; Oreene v. Oreene, 2 
Gray, 361; Lucas v. Lucas, 3 Gray, 136.) The negligence of 
counsel is not cause for vacating a judgment. {Haighi v. Green, 
19 Cal. 118; MtUholland v. Heyneman, 19 Cal. 605; Ekd v. 
Swift, 47 Cal. 620; Smith v. TunsUad, 56 Cal. 175.) 

Per CuBiAM. — ^The motion of defendant in this case to open 
the default was upon the ground of allied excusable neglect 
on her part The Code of Civil Procedure provides that "the 
court may . • • • relieve a party, or his legal representatives, 
from a judgment, order, or other proceeding taken against him 
through his mistake, inadvertence, surprise^ or excusable 
neglect.'^ (§116.) 

Defendant contends upon her motion that, if there were any 
neglect on her part in allowing default and judgment to eo 
against her, it was excusable. It is perfectly evident from all 
the facts shown by defendant's affidavit, and by the corre- 
spondence between her counsel in La Crosse and Deer Lodge, 
that she was anxious to defend this action. There is nothing 
whatever looking to any intention to neglect it or allow it to 
go by default. Her attitude was that of vigilance from her 
very first knowledge of the commencement of the action up to 
the time when she learned that the judgment had been ren- 
dered. At that time she came at once from Wisconsin to Deer 
Lodge, a distance of one thousand two hundred miles, and 



14 Mont.] SiMPKiNS V. SiMPKiNS. 893 

promptly commenced proceedings for the purpose of setting 
aside the judgment and obtaining leave to defend the action. 
She had at once^ upon receiving the summons bj mail, con- 
sulted an attorney at her home in Wisconsin, and through him 
had secured the services of an attorney at Deer Lodge. She 
was cognizant of the letters written by Mr. Burroughs to Mr. 
Whitehill. From them it clearly appears that she was 
extremely vigilant and attentive to every step in the case. 
When finally the ju<1gment was rendered against her she had 
at that time a verified answer in the hands of her Deer Lodge 
attorneyi setting up a complete and meritorious defense. 

Wherein was defendant's negligence? It was sought to be 
argued that it was in not at once employing other counsel upon 
the receipt by her of Mr. WhitehilPs letter of July 24th, in 
which he said that unless she accepted certain terms of com- 
promise, which he set forth, he would have nothing more to 
do with the case. It appears by Mr. Titus' affidavit, in con- 
tradiction of defendant, that at this time the defendant and 
her La Crosse attorney knew the names of Deer Lodge attorneys 
other than Mr. Whitehill. It is claimed by plaintiff* that it 
was negligence in defendant, in that u{)on the receipt of this 
letter she did not at once employ some one else. , But it must 
be remembered that Mr. Whitehill then had charge of her case, 
and that he had in his possession the verified answer which 
she had sent to him to file. Furthermore, Mr. Whitehill 
never informed defendant that he had withdrawn from the 
case. He had simply told her that he would do so if she did 
not accept those certain terms, which she claims she had never 
authorized him to offer to plaintiff. The most that ap|.ears is 
that Mr. Burroughs had said at one time that he thought those 
terms might be accepted. Burroughs telegraphed for Mrs. 
Simpkins, to Whitehill, that she did not accept the terms, and 
requesting Whitehill to file the answer and go on with the 
defense. Then it was that Burroughs wrote fully, setting 
forth, by reference to the correspondence, that defendant had 
not authorized the offer which Whitehill thought he had power 
to make. This was July 28th. This letter Mr. Whitehill 
never opened. Nor did he open the two others which followed 
it; but, on the other hand, he returned them unopened to the 



894 SiMPKiNS V. SiMPKiNS. [March T., 1894 

writer. We are of opinion that the defendant and her La 
Crosse representative had reason to ex[>ect at least that these 
letters would be opened and read hy Mr. Whitehill. They 
explained fully that the offer which Mr. Whitehill claimed 
that he was authorized to make to plaintiff's attorney had not 
been so authorized. The defendant had the right to believe 
that when Mr. Whitehill received these letters he would read 
them^ and that, having read them^ their contents would lead 
him to file her answer, or place her in some position to secure 
other counselj or at. least notify her of his witlidrawal from the 
case. 

No question was raised as to Mr. Whitehill's fees, and, the 
defendant having the right to believe that her Deer Lodge 
oounsel would read the letters following July 28th, there waa 
no reason apparent to her why he would leave her in default. 
If Mr. Whitehill had read the unopened letters he would 
have read therein the defendant's statements that he (White- 
hill) was mistaken when he considered that he was authorized 
to make the offer to plaintiff's attorney which he mentions 
in his letter of July 28th, and the nonconcurrence in which 
proposition by defendant was the cause of Whitehill's threat- 
ened withdrawal. Then Mr. Whitehill, or any other fair 
attorney, if he still persisted in withdrawing from the oase^ 
would have notified defendant, and put her in a position not 
to suffer a default by his withdrawal. That is to say, this is 
what defendant, sitting in her home at La Crosse, one thou- 
sand two hundred miles from the court, had reason to believe; 
and, so having reason to believe, she was not n^ligent in act- 
ing as if she so believed. 

We can see no n^ligenoe whatever of defendant which was 
not absolutely excusable; and indeed it is difficult to find any 
negligence on her part at all. 

Under all these facts of the case we are of opinion tliat it 
would be a reproach upon the administration of the law to 
allow this judgment to stand. Divorce laws and procedure in 
some jurisdictions are often a subject of adverse criticism. If 
such a proceeding as the one before us is allowed to pass with 
approval or unchallenged such criticism would be wholly 
just. 



14 Mont] SiMPKiNS V. SiHPKiNS. 396 

It is urged that the merits of the motion are affected by the 
fact that plaiutiff has remarried since the rendering of the 
divorce judgment Yes^ plaintiff has remarried^ according to 
the record, and he did this before the ink was dry upon the 
judgment divorcing him by default from the woman who had 
been his wife for twenty-five years, who had borne his children 
and reared them to near their majority, and who had kept the 
home and hearth for him and his children during all' these 
years. And this judgment, obtained without a hearing on 
the part of defendant, was upon a complaint not charging 
cruelty or adultery, or any of the graver offenses against the 
marriage contract, but upon a complaint alleging desertion 
only, and a desertion after twenty-five years of married life— 
a charge by plaintiff, upon the truth of which all the circum- 
stances of this case throw the gravest suspicion. In this con- 
nection it is appropriate to notice the verified answer which 
was tendered with the motion. That answer not only denies 
the allegation of desertion, but it emphatically denies that 
plaintiff is a resident of the state of Montana, and it sets up 
facts which, if true, show that he is a resident of the city of 
La Crosse, Wisconsin. It alleges that the plaintiff was a rail- 
road conductor, and that he was employed in different places, 
and that, after having had many homes at divers times, they 
finally settled in this home in La Crosse; that plaintiff always 
treated it as such, and that he spoke of it as such in the letters 
which he wrote to defendant and his children; that he wrote 
to them in affectionate terms, and visited them np to a short 
time before commencing this suit, and up to that time sent 
them money and presents; and that never did he intimate his 
claim of defendant's alleged desertion, or of his intention to 
claim a residence in Montana. Now, under all these circum- 
stances, for plaintiff to claim that his remarriage, in this hot 
and indecent haste, is pertinent upon this motion is a sorry 
sort of a reply to the motion of defendant setting up the 
pitiable facts disclosed by this record. Nor is the situation of 
the person whom plaintiff purported to marry on August 16th 
a consideration that can set aside the rights of this defendant. 
Such condition is not of defendant's creation or her fault 



14 


m\ 


15 


7 


3«»757l 


40» 


66 


W*8»| 


14 


890 


24 


499 


14 


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28 


SIM 


U 


396 


32 


161 



396 State v. District Court. [March T., 1894 

The order denying the motion to oi>en the default is reversed| 

and the case is remanded, \irith directions to the district court 

to grant the application, and to set aside the judgment, and 

allow defendant to file her answer and make defense. 

aCcocfmcu 
All ooncur. 



STATE, EX REL. NIXON v. SECOND JUDICIAL DIS- 
TRICT COURT et ai. 

[Submitted Mmj 10, 18M. Decided Mmj 14, 18M.] 

AUMOVT—Orcler not revieuxMe on eertiorari or hab0a$ oorpuM.-^An order reqiiSv> 
iDg the peyment of alimony by a defendant in a divorce case ia a Jadgment 
fh)m which an appeal will lie, and therefore neither cfrtiorari nor habeatt oor- 
pu» are aTailable to reyiew the action of the coort in impriBoning the dafend* 
ant for contempt in disobedience of inch order. 

BAMM^Semedy v:here party unable to pay,— One who has become unable to pay 
alimony adjudged against him in a divorce case may inatitnte proceedings 
seeking a modification of the Judgment under section 1004, division 6, Com« 
piled Statutes, allowing the court from time to time to make such altarationa 
in the allowance of alimony as shall appear reasonable and Jusi 

Application for writ of oertiorari in aid of habecu eorpua. 
Writ denied. 

John W. CotUr, for Relator. 

Oeorge Haldam, and (Xwer M. Eatt, for Respondents. 

Per CuBiAM. — This is an application for a writ of eertiorari 
to review the action of the district court in committing the 
relator to jail for contempt in disobedience of an order oom- 
pelting him to pay alimony pendente lite to the plaintiff Id the 
divorce action of May Nixon against the relator. This appli* 
cation is made in aid of an application of a writ of habeae 
oorpu8f in which relator alleges that he is unlawfully impris- 
oned by virtue of the order of the district court, committing 
him for contempt, as above recited. 

In that divorce action the court made an order that the 
defendant (relator herein) pay to plaintiff as alimony pendente 
lite forty dollars a month, and as counsel fees sixty dollars. 
This alimony was paid for some months, and no appeal was 



14 Mont.] State v. District Court, 897 

taken from the order; nor does relator now complain that the 
order as originally made was wrong in any respect. But the 
alimony was not paid for the month of March, nor since that 
time. Belator was accordingly cited in the district court to 
show cause why he should not be punished for contempt for 
the nonpayment of the same. On that hearing he recited facts 
which be claimed showed his inability, or his want of faculty, 
to pay the alimony. Notwithstanding this attempted showing 
on his part, the court ordered him imprisoned until the order 
for alimony was obeyed. This imprisonment relator alleges 
was illegal, and on this writ of certiorari he asks us to review 
the action of the district court in ordering him imprisoned on 
such contempt proceedings. He also asks a discharge on his 
application for a writ of haheas corpus* 

The order to pay alimony pendente Hie was a judgment 
whicb was appealable. {In re Finkelstein, 13 Mont. 425.) 
No appeal was taken by defendant in the divorce case from 
that order or judgment. When that judgment was rendered, 
it must be presumed that the court passed upon and decided 
the matter of defendant's faculty to pay the alimony; that is 
to say, that action of the court adjudicated two matters: 

1. That the defendant should pay such sum as alimony; and 

2. That he had the faculty to pay it. That judgment remained 
unattacked when the contempt proceedings were taken which 
resulted in this present imprisonment of the relator. That 
order for alimony was a judgment, and had the characteristics 
and attributes of a judgment A judgment cannot be attacked, 
as it was sought to do in this case, by presenting affidavits on 
a proceeding seeking to enforce such judgment. When the 
affidavits were presenled on the contempt proceeding, tliere 
stood against the defendant a valid unchallenged judgment, 
requiring him to pay the alimony, as therein set forth. If he 
considered that judgment was wrong originally he could have 
appealed therefrom. But, as above noted, he never appealed 
from that judgment, and does not even now contend that it 
was not properly rendered; but he urges before us at this time 
that when the contempt proceedings were taken in the district 
court circumstances had arisen, and changes in his affairs had 
taken placCi which rendered a compliance with the judgment 



898 State v. District Court. [March T., 1894 

at that time— Murcli, 1894 — impossible. But he could uoi 
urge or present those facts while the integrity of the judgmen* 
was allowed to remain unassailed. It was practicallj attempt- 
ing to avoid a judgment or order by ex parte affidavits in a 
proceeding not directed against the judgment If the defend- 
ant in the divorce suit (relator herein) had become unable to 
pay the alimony adjudged against him he had a remedy. A 
court would not imprison him for hb inability or want of 
faculty to pay the alimony; but his remedy is not by habeas 
corpus or eeiiiorati. He should have sought a modification of 
the judgment for alimony by a proceeding for that purpose. 
The alimony was pendente lite. The court had continuing 
jurisdiction over that subject, and over the person of defendant 
in that case. If any doubt could be presented as to this being 
the law generally, that doubt would be resolved by our statute, 
which provides, in reference to divorces, that the court ''may 
also grant alimony pendente lite; and the court may, on appli- 
cation, from time to time, make such alterations in the allow- 
ance of alimony and maintenance as shall appear reasonable 
and just" (Comp. Stats., div. 6, § 1004. See, also, 1 Bishop 
on Marriage & Divorce, §§ 489-93.) If the relator herein had 
made a regular application for a reduction of the alimony to 
the district court in which the suit was pending he could have 
presented all of this showing as to his want of faculty (o pay 
the alimony, and plaintiff could have rebutted such showing 
and the court would then have determined whether the ali* 
mony should be reduced. On such determination an order 
would be made, from which the defendant could have an 
appeal, and on such appeal this court would have made a 
review. 

But as the matter is now before us the question of reduc- 
tion of the alimony has never been tried or determined in a 
proper proceeding by the district court, nor was there oppor- 
tunity offered to so try and determine.' The court acted within 
its jurisdiction. It had jurisdiction to make the original order 
for alimony. That order had never been set aside or attacked 
by proper i)rocecding, and the court certainly had jurisdiction 
to enforce its order. 



14 Mont>1 Statb v. English. 899 

The order of commitmeDt therefore appearing to be war- 
ranted by the proceedings as shown on return to the writ of 
certiorari, and no ground being shown to warrant the prison* 
er's discharge, he must be remanded to custody, and judg- 
ment will be entered accordingly. The prisoner is therefore 
remanded. 

All concur. 






STATE, BispoNBENT, V. ENGLISH, Appellant. 

[Submitted May 7. 1834. Decided May U, ISM.] 

hMaoMKJ^Formtr aequUtal^Se» yucKcoto.— Where defendant and another itole 
a steer from the herd of one owner, and about an hoar after i tola a oow from 
the herd of another owner, diiying both off together, the stealing of each ani- 
mal was a complete and independent ofbnse, and an aeqaittal as to the theft of 
the steer is not a bar to a prosecation for the theft of ttie oow. Nor is the 
defense of an aHU, established upon the trial for larceny of the steer, res 
jftdieaia that defendant was not present when the cow was stolen. 

EnDBROB— Cof^estiotif of oooompZioe.— Confessions hj an aooompUoe in crime 
not made in the presence of the defendant, nor daring the commission of the 
offense or Ui its fbrtheraaoe, and not part of the res geOa, are inadmissible 
against the defendant. 

Ajppealjrom ISghih Judicial DMriot, Cascade OownJty* 

CoTsmonos for larceny. Defendant was tried before Ben- 
ton, J. Reversed. 

Douglas Martin, Ed L. Bishop, and J. 0. Bair, for Appel- 
lant. 

I. It must be conceded in this case that the steer, of tUe 
stealing of which appellant was acquitted, and the cow, for 
the stealing of which he is now prosecuted, were taken by the 
same two persons upon the same occasion; that the taking and 
driving liway of the two animals was all one transaction, and 
that they were taken under such circumstances that the defend- 
ant could not be guilty of the larceny of the one and not 
guilty of the larceny of the other. {State v. Cooper, 13 N. J. 
li. 361; 25 Am. Dec. 490; State v. Colgate, 31 Kan. 511; 47 
Am. Rep. 509; Lander v. Arno, 65 Me. 26; Bishop's Crim- 
inal Law (1892), 937; State v. Ihurston, 2 McMull. 382; 
Phillips V. State, 85 Tenn. 551; Roberts v. Stale, 14 Ga. 8; 58 



400 State t;. English. [March T., 1894 

Am. Dec. 528; Wibon v. State, 45 Tex. 78; 23 Am. Dec. 602; 
Qypenhaven v. StaJte, 15 Ga. 264; Lortxm v. State, 7 Mo. 59; 
37 Am. Dec. 179; Slate y. Hefxnesey, 23 Ohio St. 339; 13 Am. 
Bep. 253; State v. Nelem, 29 Me. 335; Fuimer v. Gmimon- 
weaUh, 97 Pa. St. 506; State v. Paul, 81 Iowa. 596; State v. 
Lareon^ 85 Iowa, 659; Bex v. Bteaedale, 2 Car. & K. 765.) 
''To constitute simaltaneousuess it is not necessary that there 
should be exact coincidence in a particular point of time.'' 
(Wharton's Criminal Evidence^ § 589; Wharton's Criminal 
Law, § 931.) In determining whether a transaction consti- 
tutes more than one offense, the ownership of the articles stolen 
is immaterial. (Hoike v. United States, 3 McAr. 370; 36 Am. 
Rep. 106; Lowe v. StaU, 57 Ga. 171; StaU v. Mofj>hin, 37 Mo. 
373; Lortan v. Staie, 7 Mo. 59; 37 Am. Dec 179; State v. 
Newtxm, 42 Vt 537; Rapalje's Criminal Procedure, 159; 
Nidioh V. CainiMmweaUh, 78 Ky. 180; Bishop's New Crim- 
inal Law, 637; Wihon v. SUxU, 45 Tex. 78; 23 Am. Dec. 602; 
Wharton's Criminal Evidence, § 588.) The prosecution when- 
ever it is at liberty to join in one indictment all articles simul- 
taneously stolen may be treated, when it selects one of them 
for trial, as barring itself from indicting for the others. 
(Wharton's Criminal Pleading and Practice, 340; note io Boberte 
V. suae, 58 Am. Deo. 539.) 

II. Even though the judgment of acquittal be not a bar 
to this action, still if the record shows that the particular con- 
troversy sought to be concluded was necessarily tried and 
determined, or that the verdict could not have been rendered 
without deciding that matter, then such judgment is conclusive 
evidence, and the prosecution was estopped to assert the 
contrary. {Stale v. Dewey, 65 Yt. 196; Kldnsclimidt v. Binzel, 
35 Pao. Bep. 464, 466; ante, p. 31; Herman on Estoppel and 
Bes Judicata, §§ 106, 111.) The only defense made by appel- 
lant in the case in which he was acquitted, was an alibi — that 
he was not present when the two animals were together driven 
away, and was not one of the two persons who drove them 
away, and in finding him not guilty the jury necessarily passed 
upon and decided that question. There was no other possible 
ground that they could find him not guilty upon, and the con- 



14 Mont.] State v. English. 401 

dusion is inevitable. "A judgment is conclusive upon every 
matter actually and necessarily decided in the former suit, 
though not then directly the point in issue. If the facts 
involved in the second suit are so cardinal that without them 
the former decision cannot stand, they must now be taken as 
conclusively settled." (Freeman on Judgments, §§ 256, 258. 
See, also, liusseU v. Place, 94 U. S. 606; Herman on Estoppel 
and Res Judicata, §§ 105, 226, 227; Tuska v. O'Brien, 68 N. Y. 
449; Pray y. Hageman, 98 N. Y, 358; Bigelow on Estoppel, 
110.) 

IIL The act or declaration of one conspirAfor or accom- 
plice in the prosecution of the enterprise is considered the act 
or declaration of all, and is evidence against all. Each is 
deemed to assent to or command what is done by any other in 
furtherance of the common object. (Wharton's Criminal Law, 
§ 702.) The act or declaration must be done or made during 
the pendency of the conspiracy, in pursuance of the common 
design and in furtherance of its objects. (Brotcn v. UnUed 
SiaUa, 150 U. S. 93; 1 Greenleaf on Evidence, § 111; People 
V. Moore, 45 Cal. 19; People v. Stanlej/, 47 Cal. 114; 17 Am. 
V. Moore, 45 Cal. 19; People v. Stanley, 47 Cal. 114; 17 Am. 
Rep. 401; Wharton's Criminal Evidence, 598; Rapalje's 
Criminal Evidence, 254.) Actfi or declarations not done or 
made during the i)endency of the conspiracy to carry out the 
design are inadmissible against a co-conspirator. (LuUrell v. 
State, 31 Tex. Cr. Rep. 493.) The distinction between acts 
or declarations done or made in furtherance of the common 
design, and those not so made, is illustrated clearly in the fol- 
lowing decisions: Slate v. McGee^ 81 Iowa, 17; Potion v. 
Stale, 6 Ohio St. 470, 471; Samples v. People, 121 111. 547. 
Statements as to measures taken in the execution or further- 
ance of any such common design are not relevant. (7 Am. & 
Eng. Ency. of Law, 49. note 1; Lojan v. United l^ates, 144 
U. S. 263; New Yoj-k Guar. & Ind. Co. v. Oleaaon, 78 N. Y. 
514, 515.) Mere narratives of past events are not admissible. 
(1 Greenleaf on Evidence, § 111; People y. Aleck, 61 Cal. 138; 
People V. English, 52 Cal. 211; People v. DUwood, 94 Cal. 89; 
People V. Ii-vnn, 77 Cal. 504.) 
Vol. XIV.— 26 



402 State v. English. [March T., 1894 

AUomejf Oeneral Henri J. Haskell, for the state, Respond- 
•ent. 

L The defendant's plea of autrefois aoquii is not a good 
plea in bar to this information. (Price v. State, 19 Ohio, 424; 
iSlate V. Williams, 45 La. Ann. 936; OommonwecUih v. Raby^ 
12 Pick. 496; AsfUon v. Stale, 31 Tex. Cr. Rep. 482; Reddich 
V. Stale, 31 Tex. Cr. Rep. 587; People v. Kerm, 8 Utah, 268; 
Cbmmonwealth v. Bakeman, 105 Mass. 53; Wrigld v. State, 17 
Tex. App. 152; Alexander v. StaJU, 21 Tex. App. 407; 57 
Am. Rep. 617; HarringUm v. State, 31 Tex. Cr. Rep. 577; 
Kedon v. Oommonwealih, 92 Ky. 522; Winn v. State, 82 Wis. 
671; (hmmonwealth v. Fredericks, 155 Mass. 455; Stale v. 
Hoimeman, 16 Kan. 455.) In Tertitory v. Willard, 8 Mont. 
332, the court defines the rule by which the correctness of the 
plea of aiUrefois acquU can be tested, as follows: ''Where the 
evidence necessary to support the several indictments would 
have been sufficient to procure a legal conviction upon the 
first the plea is generally good, but not otherwise.^' (Comp. 
Stats., § 313, div. 3.) 

II. The second point contended for by appellant must 
dei>end, if decided in his favor, ui)on the law of res judicata 
laid down in civil cases. The authorities cited by the state 
u{K>n the first point are conclusive upon the second raised by 
the defendant. In order to successfully plead res judicata the 
record in the first case must be before the court in this case. 
(RusseU V. Place, 94 U. 8. 606; Aiken v. Peck, 22 Vt. 260; 
Hooker v. Hvlbard, 102 Mass. 245.) 

Per Curiam. — The defendant appeals from the judgment 
convicting him of the crime of larceny of one cow. The juilg- 
ment must be reversed upon one of the points argued, but we 
will express our views upon some other questions raised, as it 
seems that they will necessarily be before the court again on a 
new trial. 

The defendant was tried upon a plea of not guilty, and also 
upon the plea of autrefois acquit. The defendant and one Les- 
lie De Witt were charged with stealing a cow, named in this 
information, and belonging to one Lars Waldeland. They 
were also charged with stealing a steer belonging to Charles 



14 Mont.] Statb v. English. 403 

Carthrae. This defendant, English, was fried for the offense 
of stealing the steer, and was duly acquitted. He was then 
tried on the other information for stealing the cow, and was 
convicted. It is from the judgment on this conviction that 
he now appeals. 

The acquittal on the charge of stealing the steer is what the 
defendant claimed as a former acquittal which barred this 
]>rosecution. His argument proceeds upon the theorj^ that the 
taking of the steer and the cow was one act, and therefore there 
could be but one prosecution. On the trial of this information 
the evidence as to the taking of the animals was to the effect that 
De Witt and this defendant first cut out the steer from Carth- 
rae's herd, drove it away some distance, and left it; that about 
half an hour or an hour afterwards they went to the herd of 
Waldeland, from half mile to a mile distant, and took the cow 
mentioned in this information, drove her to where they had left 
the steer, and then drove them both way. We are of opinion 
that there were clearly two acts and two offenses in these trans- 
actions. The takings of the two animals were at different times, 
and at different places, under different circumstances, and from 
different owners. Each was in itself an absolute, complete, and 
independent offense We cannot doubt that, if an information 
h;id set up what the facts showei in this case, namely, that 
these persons took, 'and drove away the steer of Carthrae, and 
half au hour or an hour later, and half a mile or a mile re- 
moved, took, and drove away the cow of Waldeland, a court 
would have held that the information was bad, in that it set 
up two offenses. But defendant here is informed against for 
stealing the cow only, and on the trial of that information he 
was not in jeopardy of a conviction for stealing the steer. It 
is said in the case of Territory v. WUlard^ 8 Mont. 328, quot- 
ing from Wharton: " Where the evidence necessary to support 
the second indictment would have been sufficient to procure a 
l^al conviction upon the first, the plea of autrefois is generally 
good, but not otherwise.'' Applying that rule to the case at 
bar, it is dear that the evidence necessary to support the 
information for stealing the cow would not have been suffi- 
cient to procure a legal conviction upon the information for 
stealing the steer. (See, also, Territoy-y v. Stocker, 9 Mont. 6.) 



404 Statb v. Engush. [March T., 1894 

There can be no doubt that the plea of former acquittal in 
this case is insufficient. It should have been bo determined as 
a question of law by the court. 

Defendant also makes the contention that the judgmeut 
upon the trial for stealing the steer is res adjwdicaJta in this: 
that the only defense made upon the trial was an alibi that the 
defendant being acquitted, it is res adjudiecUa that he was not 
present when the steer was stolen; and that the evidenoe in 
this case shows that the steer and cow were stolen together 
and therefore it was established as res adjudiocUa that defend- 
ant was not present when the cow was stolen. But we have 
heretofore shown that the stealing of the steer aud cow were 
two offenses, committed at different times and places. The 
defendant, under the circumstances appearing, was not neces- 
sarily absent from the one stealing because he was absent from 
the other. 

It seems, upon the argument of this case, that Leslie 
De Witt, the associate of defendant in these transactions, had, 
before the trial of this cause, been convicted and sentenced for 
his participation in these events. On this trial the court, over 
the objection of defendant, admitted in evidence testimony of 
the confessions made by De Witt, implicating him and defend- 
ant in the stealing of the cow. It is clear from the testimony 
that these confessions were not made in the presence of defend- 
ant, nor were they made during the pendency of the commis- 
sion of tlie larceny, nor in its furtherance, nor were they part 
of the res gesUz. They were simply narrations by De Witt, 
after the larceny was completed, of the events which were past 
and accomplished. Under sach circumstances the confessions 
of an accomplice, or of one of two persons charged with a 
crime, can be used as against the confessing person only. In 
the case at bar they were used as against the other person only. 
This was error. This is elementary, and ancient and modern 
law; and it is just. (1 Greenleaf on Evidence, §§ 111, 233; 
Wharton's Criminal Evidence, 8th ed., § 699; 3 Am. & 
Eng. Ency. of Law, 482, notes and cases; Wharton's Crimi- 
nal Law, § 696; People v. Moorey 45 Cal. 19; McGehee 
V. Siate^ 58 Ala. 360; Qmnumtoealth v. Thompson, 99 Mass. 
444; Cable v. Oommmtoealih (Ky.), 20 8. W. Eep. 220; SUiU 



14 Mont.] Waitb v. Vinson. • 405 

V. Dondon, 45 La, Ann. 744.) See, also, cases cited by api^el- 
lant It is a matter of regret that proseoatiDg attorneys should 
insist ui>OD, and the trial court permit^ the introduction of 
illegal evidence, which must result in the reversal of cases, 
when such errors could be so easily avoided by a little reflec- 
tion and research of the authorities. 

The judgment is reversed, and the case is remanded for a 
new trial. 

All concar. 

MtvctBccU 



WAITE. Respondent, v. VINSON bt aii., Appellants. 

[Submitted January 8, 18M. Decided May 14, 1804.] 

VAETKEBSBJF—OonitrucHoe iraud^Sale of parinenhip properly ly one partner 
without consent of (he other.—k sale by one partner of a large portion of the 
firm property for the purpose of paying firm obligations, the proceeds of the 
sale being devoted to that purpose, though made without the concurrence of 
the other partner, but with his knowledge that a sale was contemplated, can- 
not be avoided as aconstmctiye fraud at the suit of the noficoncurring partner, 
upon the mere showing that the vendee knew of the latter's interest in the 
property and want of consent, where the price paid was the ftill market Talue 
and the sale was highly beneficial to the interests of the firm. 

l^Tjm—FraudviJienJt Male^Besdeeion— Tender of prioe.— Where one partner seeks 
relief In equity firom an alleged fraudulent sale of partnership property made 
by the other partner without his consent, where a fair price was obtained and 
the proceeds devoted to the liquidation of the firm obligations, be must first 
do equity by tendering to the vendee the price which he paid for the prop- 
erty. {Maioy Y. Berkin, 11 Mont 188, cited.) 

Appeal jrom Tenth Judicial Distrid^ Ferguis Counbi^ 

Action for accounting and to rescind a sale. The cause 
was tried before Du Bo6E, J. Plaintifi' had judgment below. 
Beversed. 

Oeorge W. Taylor, for Appellants. 

I. A member of a copartnership may, without the consent 
of his copartner, dispose of the partnership property for the 
purpose of discharging the partnership debts, there being no 
assets on hand with which such debts can otherwise be paid. 
Where the copartner was absent from the state such a convey- 
ance has been sustained in Anderson y. Tompkins, 1 Brock. 466; 



14 405 
d33 89 



406 Waitb v. Vinson. [March T., 1894 

McOuUough v. 8<mmerviUe, 8 Leigh, 415; Gordon y. Cannon, 
18 Gratt. 387. Also where the copartner was not absent from 
the state. (MabbeU v. WhiU, 12 N. T. 442; Grcuer v. S«B- 
wageri, 25 N. Y. 317.) 

II. The next question is, Was there any fraud on the part 
of Vinson, and was David an innooent purchaser? Fraud is 
the gist of the action, and we hold that having allied fraud, 
it is incumbent on the plaintiff to show the same beyond doubt, 
and unless fraud is shown then he cannot maintain his action. 
One who alleges fraud must clearly and distinctly jtrove 
the fraud he alleges. (8 Am. & Eng. Eucy. of Law, 654.) 
If a case of actual fraud be allied relief cannot be had by 
proving constructive fraud. (8 Am. & Eng. Ency. of Law, 
664, note 3; Mount Vernon Bank v. Sime, 2 B. I. 129; 57 
Am. Dec. 709; Piper v. Hoard, 107 N. T. 67; 1 Am. St. Rep. 
785.) Fraud must be proved by evidence so clear and strong 
as to produce satisfactory conviction. {Qreer v. Caldwdl^ 14 
Oa. 207; 58 Am. Deo. 653.) 

E^ W. Morrison, for Respondent. 

The copartnership was formed for the purpose of engaging 
in the sheep business. Consequently the transfer by Vinson 
was not in the usual course of the business of the firm, nor 
for carrying out the purpose for which the firm was organized. 
It was clearly not within the scope of his authority. In 
Osborne v. Barge, 29 Fed. Rep. 726, the court, after stating 
the general rule governing the authority of each partner, says: 
'' But that, as to acts not in furtherance of the business of the 
partnership in the ordinary way, but which may put an end 
to the same, or the natural result of which is to take control 
and management of the firm business and properly from tlie 
partners, it is necessary, to sustain the validity of such acts, 
that it ap})ear that the same were done with the assent of all 
tlie partners.'^ Indeed, the rule is well settled that the author* 
ity of each copartner to dispose of the property of the firm 
without the consent of his copartners extends only to the usual 
business of the firm. (Note to Davies v. Atkinson, 7 Am. St 
Rep. 377; 1 Bates on Partnership, §§ 401, 404; 17 Am. & 
Eng. Ency. of Law, 987, 988, note 1; 2 Lawsou's Rights, 



14 Mont.] Waitb o. Vinson. 407 

Remedies^ and Practice, §§ 646, 1216, note 1.) One partner 
has no implied power, without the consent of his copartner, to 
sell the property of the firm, upon the continued use of which 
the business of the firm depends. (Authorities cited, supra; 
17 Am. & Eug. Ency. of Law, 1011, note 3; Blaker v. Sands, 
29 Kan. 551; Hunter v. Waynich, 67 Iowa, 656; Myers v. 
MoviUm, 71 Cal. 498; Shellito v. Sampson, 61 Iowa, 40; Mo- 
Nair v. WUcoXy 121 Pa. St. 437; 6 Am. St. Rep. 799; 1 Bates 
on Partnership, § 338; Mayer v. Bemsiein, 69 Miss. 17; ShaU 
tuck V. Oiandler, 40 Kan. 516; 10 Am. St Rep. 227; Lotoen- 
siein V. Flauraud, 82 N. Y. 494; Osborne v. Barge, 29 Fed. 
Rep. 725; Coleman v. Darling^ 66 Wis. 156; 67 Am. Rep. 
253; Stdnhofi v. Fyhiie, 6 Mont. 463.) 

Wade & Barrows, also for Respondent, 

Per CtJBiAM. — ^The object of this action, brought by a mem- 
ber of a copartnership firm, as deduced from the pleadings, 
ap|)ear8 to be twofold. 

1. To obtain dissolution of the copartnership existing, as 
alleged, between plainti T and defendant Vinson, in the firm 
name of W. E. Vinson & Co.; to acquire an accounting, to 
ascertain and state the account of each member, touching their 
respective interests in and obligations to said firm; to provide 
ior the payment of the firm's debts out of the assets thereof; 
and then to make division of the property or proceeds remain- 
ing, according to the re8i)ective interests of the copartners; and, 
in general, to wind up the afiiiirs of said firm. 

2. To cancel and set aside a sale of certain property of said 
firm, made by defendant Vinson, one member thereof, acting 
on behalf of the firm, to defendant C. C. David, not a member 
of said firm, which sale is alleged to be fraudulent and void 
for the reasons hereinafter set forth, as alleged in the com- 
plaint. 

To the end that these purposes of the action might be efieo- 
tual, plaintiff asked, and, on commencement of the action, 
obtained, appointment of a receiver to take charge of all the 
property of said firm, including the proi)erty sold to defend- 
ant David, and also obtained an injunction restraining defend- 
ants from interfering with the property in question. 



408 Waitb v. Vinson. [March T., 1894 

The assigDments of error brought up for consideration by 
this appeal relate entirely to the last-mentioned branch of the 
adjudication, namely, the cancellation of said sale, and dispos- 
sesision of defendant David of those effects claimed to have 
been sold and delivered to him. As to the dissolution, account- 
ing, |)ayment of debts, and winding up of the affairs of said 
firm, the action appears to have been still pending in the trial 
court when the present ap|)eal was taken from the judgment 
declaring said sale to defendant David null and void. There- 
fore, the proceedings, pleadings, evidence, and judgment relat- 
ing to the cancellation of said sale, as shown by the record, 
will be reviewed upon the assignments specified in defendant's 
motion for new trial, which motion was overruled, and from 
which order, as well as the judgment, this appeal was taken. 

The amended complaint, on which the action is founded, 
sets forth: That in November, 1890, plaintiff and defendant 
Vinson entered into a copartnership, on equal terms and shares, 
for the purpose of engaging in and carrying on the business of 
sheep raiicliing in Meagher county, Montana, under the firm 
name and style of W. E. Vinson & Co., and thereupon 
engaged in and continued such business until about October 
25, 1892. That, during the continuance of said copartnership 
business, defendant Vinson has wrongfully applied to his own 
use, out of the receipts of said business, certain money, the 
amount of which plaintiff is unable to state, because said 
defendant has neglected and refused to account to plaintiff 
therefor, although often requested so to do. 

" III. That on or about the twenty-fifth day of October, 
1892, the said defendant W. E. Vinson, without the knowl- 
edge or assent of the plaintiff, assigned and tiansferred his 
interest in the said property of the said copartnership, being 
the property used for carrying on the business thereof, to the 
defendant C. C. David, wiio well knew of the plaintiff's inter- 
est therein, and who now claims to be the owner thereof, and 
who also claims, as the plaintiff is informed, to be the owner 
of the entire partnership property of the said firm, by pur- 
chase from the said W. E. Vinson; and that the said C. C. 
David, without the knowledge or consent of the plaintiff, has 
taken exclusive possession of the said property, and refuses 



14 Mont.] Waite v. Vinson. 409 

to recognize the plaintiff's interest therein^ and is conducting 
the business thereof upon his own account, aud threatens 
to deprive the plaintiff of his interest therein, and refuses to 
account to the plaintiff therefor. Since the said transfer the 
defendants have also taken possession of the books and stock 
and all effects of the said copartnership, and ever since have 
prevented the plaintiff from having access to the same, or from 
participating in any manner in the partnership business, to the 
plaintiff's great and irreparable injury and damage. 

^' ly. That the said sale and transfer was made for the pur- 
l>ose of defeating and defrauding this plaintiff, in this: That 
the said copartnership is indebted to this plaintiff, on account 
of moneys advanced by the said plaintiff to the said copartner- 
ship for the purpose of defraying the expenses and carrying on 
the business thereof, in the sum of three hundred (300) dollars 
over and above his share of the capital stock thereof, and also 
that the said copartnership is indebted in a large sum to other 
parties, for the payment of which the plaintiff is individually 
liable, all of which the defendant C. C. David well knew at 
the time of the sale and transfer/' 

Following these allegations, the complaint sets forth a list 
of the property of said firm, and demands judgment: 1. That 
said copartnership be dissolved, and that an accounting be 
taken, etc., according to the usual practice in such cases; 2. 
That a receiver of the property of said firm be appointed, 
clothed with the usual power in such cases; 3. That defend- 
ants be restrained by injunction from interfering with said 
property; 4. That the effects of the firm be sold, and its lia- 
bilities discharged, and the surplus, if any, divided between 
the parties according to their respective interests. 

In reviewing a case on the assignment that the findings or 
decision is not warranted by the evidence it is necessary to 
refer to the complaint to see what has been alleged as ground 
for the relief sought and obtained by the decision, and what 
issue has been formed thereon by the other pleadings, as a 
starting point from which to review and consider the evidence 
on such assignment. In looking into the complaint for the 
grounds alleged for annulling said sale it is found that all the 
averments relating thereto are comprised in paragraphs 3 and 



410 Waitb v. ViiJSOK. [March T., 1S84 

4, quoted above, wlierefrom it will be observed that while 
there are undoubtedly sufficient facts allied to 8up|K)rt au 
action for dissolution, accounting, and division between the 
copartners, or their successors in interest, according to their 
respective interests in the coparinership effects, the averments 
relating to said sale are not sufficient to show any fraud touch- 
ing that matter. When stripped of verbiage the allegations of 
the complaint relating to the alleged fraudulent sale are to the 
efiect that Vinson, at a certain time, '^assigned and transferred 
his interest in the property of said copartnership" to defendant 
David, who well knew of plaintiff's interest therein, and who, 
as plaintiff is informed, claims to be the owner of the entire part- 
nership property by purchase from Vinson; that defendant 
David, without knowledge or consent of plaintiff, has taken 
possession of said property, and refuses to recognize plaintiff's 
exclusive interest therein, and threatens to deprive plaintiff 
thereof. The further allegations found in paragraph 3 of the 
complaint, to the effect that defendants have also taken possession 
of the books, stock, and all the effects of said copartnership, and 
ever since prevented plaintiff from access to the same, and from 
participating in the business of said firm, have no bearing upon 
the question of the fraudulent sale, as showing grounds for its 
vacation. . Besides, the jury found that such allegations as to 
the taking of the books, eta, and refusing plaintiff access 
tliereto, were not triie. Moreover, the allegation that ^defend- 
ants'' had taken the books includes one copartner, who could 
rightfully be in possession of the books and papers of said firm, 
but could not rightfully deprive other members of access 
thereto. Those allegations, however, do not relate to tlie 
matter of fraudulent sale, which is tlie subject of special inquiry 
on this appeal. The all^ation that defendant Vinson ''assigned 
and transferred his interest in said co|)artnership property" to 
defendant David without consent of plaintiff, the vendee David 
knowing that plaintiff' had an interest therein, is not ground 
for avoidance of the sale of Vinson's interest. A copartner 
may sell his interest in a firm to any purchaser found willing 
to buy, or his intei^est may be sold under execution, without 
assent of the other members of the firm; and that alone 
amounts to no fraud on the other members^ unless some pro- 



14 Mont.] . Waitb v. Vinson. 411 

vision of the partnership agreement is violated thereby^ 
although the sale of a member's interest to a stranger is held 
ground for dissolution and winding up of the affairs of the 
firm, because the other members are not bound to continue 
in copartnership with a stranger, with whom they have not 
chosen to engage in such relation. (Parsons on Partnership^ 
§§ 9, 106.) All the further allegations relating to the charge of 
fraudulent sale are comprised in paragraph 4 of the complaint, 
which avers that said sale — that is, the sale of Vinson's inter- 
est in the copartnership, was made for the purpose of defeating 
and defrauding plaintiff, in that said copartnership is indebted 
to plaintiff, for money by him advanced to the firm, in the 
sum of $300 over and above his share of the capital, and also 
because said firm is indebted to other parties in a large sum, 
for which plaintiff is individually liable, all of which was 
well known to defendant David at the time of said sale and 
transfer. 

Giving these averments all reasonable force and effect, or 
even going beyond the rule, and giving them the strongest 
interpretation admissible iu favor of plaintiff's case, and they 
fail to disclose sufficient ground to warrant the cancellation of 
the sale alleged; for, granting that the firm was indebted to 
plaintiff and others as alleged, that fact did not forbid a sale 
by Vinson of his interest in the firm, as allied, if he could 
find any one willing to buy it Nor did that fact relieve Vin- 
son from liability to plaintiff for overdrafts out of the firm 
assets. Nor did it relieve Vinson from his liability, along 
with plaintiff, for the debts of the firm contracted prior to (he 
sale of Vinson's interest Nor did such sale relieve the firm 
or defendant Vinson of their liabilities to plaintiff for his 
advancements in au accounting. This sale of Vinson's inter- 
est may have put his affairs in better condition to meet such 
liabilities; and if defendant David, having bought Vinson's 
interest, undertook to assume the whole property of the firm 
as his own, and exclude plaintiff from his rights therein, as 
alleged, while such conduct was ground for dissolution, 
accounting, and winding up of the affairs of the co|)artner8hip, 
in the proper action, and by interiK>sition of a receiver, it was 
not ground for the cancellation of the sale of Vinson's inters 



412 Waitb v. Vinson. [March T., 1894 

est to David. When the affairs of the firm were thas wound 
up, David would, if he showed title to Vinson's interest, be 
entitled to Vinson's share of the residue, if anj was found to 
belong to him on the accounting. Such is the showing of the 
complaint on the subject of the alleged fraudulent sale; and, 
while no question is raised touching its sufficiency in that 
regard, we must consider what its allegations are, in order to 
understand on what alleged facta it is proposed to cancel said 
sale, and to ascertain from the pleadings the issue on that sub- 
ject. 

Defendants made separate answers. The answer of Vinson, 
after denying each allegation of the complaint, for further 
defense, by way of new master, alleges that by the terms of a 
verbal agreement, whereby said copartnership was formed, 
Vinson was made the sole and exclusive agent and manager of 
its business, with power to buy, sell, and otherwise handle and 
manage the property and business thereof, and also empowered 
to contract debts on behalf of the firm, and secure the same, 
if necessary, by execution of a mortgage on the firm property, 
or to sell the property of the firm to satisfy such debts; that, 
at the time of the formation of said copartnership, defendant 
Vinson was the owner and in possession of certain real and 
])er8onal ])roperty, consisting of horses, cattle, sheep, and other 
personal proi)erty, together with certain corrals, fences, houses, 
and other improvements upon lands owned by said defendant, 
of the value of $4,000, as agreed by and between plaintiff 
and defendant Vinson in said copartnership agreement; that, 
according to the terms of said copartnership agreement, the 
whole of said property was, by Vinson, transferred to said 
copartnership firm, as capital stock thereof, in consideration of 
which transfer plaintil!' agreed to pay defendant Vinson for 
the one-half interest in said property and in the copartnership 
business the sum of $2,000: that although payment thereof 
had been often requested, plaintiff has failed and refused to pay 
the same, except the sum of $209.60 paid thereon by plaintiff; 
that in said copartnership agreement it was agreed between 
plaintiff and defendant, as members of said firm, that for his 
services as manager of the copartnership business, to be car- 
ried on as aforesaid, defendant Vinson was to receive from the 



14 Mont.] Waitb v. Vinson. 413 

firm the sum of $40 per month; that there is due and owing 
from said firm to defendant Vinson, by reason of sach serv- 
iceSi under the provisions of the contract, $1,160, which sum 
has not been paid, except as hereinafter stated; that, bj reason 
of plaintifiTs failure and refusal to pay his share of the ex- 
penses of said copartnership business, the firm became heavily 
indebted to divers parties, to wit, in the sum of $6,471, exclu- 
sive of the amount due defendant Vinson for services aforesaid; 
that prior to the 26th of October, 1892, and prior to the sale 
of certain copartnership effects mentioned below, defendant 
Vinson notified plaintiff of the condition of the business of 
said firm, and demanded of him a settlement, and further noti- 
fied plaintiff of the mortgage existing on the sheep belonging 
to saiJ firm to secure indebtedness to the amount of $4,500, 
and notified plaintiff that, unless he paid the amounts due from 
him to said copartnership, it would be necessary to sell part or 
all of the property and effects of the firm for the purpose of 
liquidating its indebtedness, all of which plaintiff well knew, 
that plaintiff failed and neglected to comply with said requests 
of Vinson, and Vinson, for the purpose of paying the indebt- 
edness of said firm, and for no other purpose, sold to defend- 
ant C. C. David 1,920 head of stock sheep, 4 head of horses, 
8 head of cattle, and certain other personal property of said 
copartnership, for the sum of $2,714, ''subject to the terms 
and conditions of a certain mortgage of $4,500 against the 
said sheep, making the aggregate purchase price of said prop- 
erty $7,214; that the price received for said property was 
its full, fair, and just value"; that said sum of $2,714 so 
received by defendant Vinson for the sale and transfer of 
said property, and the whole thereof, was paid out by defend- 
ant Vinson in payment of tlie partnership indebtedness, except 
the sum of $843, which defendant retained as part payment of 
the amonut due him from plaintiff, and the further sum of 
$82, still in the bank to the credit of the firm, which was 
reserved to pay certain indebtedness of the firm to W. W. 
De Witt, amounting to the sum of $76 and interest, which 
this ('efendant was restrained from paying by the injunction 
issued in this action; that there is still due from plaintiff to 
this defendant on account of the purchase price of one-half 



414 Waitb v. Vinson. [March T., 1894 

interest in tlie busines"^^ aud on account of wages due him as 
manager thereof^ the sum of about $1,000. 

The answer of defendant David specificallj denies the alle- 
gations of the complaint relating to him, and to the alleged 
fraudulent purchase of said property^ or an interest therein, 
by Iiim^ and further denies that he is insolvent, or unable to 
respond in damages to any extent which might be awarded to 
plaintiff for his interest in said property, and alleges that he 
(David) is the owner of real and personal property of the value 
of $20,000, subject to execution, but does not deny that he 
knew the property sold to him was copartnership effects, or 
that plaintiff had an interest therein as a member of said firm, 
or that the sale was made without plaintiff's consent, and for 
further defense alleges, substantially, the same facts regarding 
the sale and delivery of certain described property of said firm 
to him by Vinson, subject to mortgage, and the payment of 
the consideration, as set forth in the answer of Vinson, and 
that said sale and purchase was made in good faith, and the 
consideration paid therefor was a full and fair valuation of the 
property in question, and denies that he (defendant David) 
claims ownership of, or has ever taken possession of or assumed 
any control over, any property of said firm, except that bought 
by him as aforesaid; that, aside from that transaction, he has 
had nothing to do with, nor is concerned in, said copartnership 
firm. 

Plaintiff, by replication, put in issue the new matter allied 
in said answers, except that he does not deny the allegation of 
the answers that the sale to David was of certain property of 
the firm outright, and not of Vinson's interest therein, only, 
as alleged in the complaint. But plaintiff denies that David 
paid therefor the sum stated in the answers, or the full, fair, 
or just valuation thereof. The replication also admits that 
defendant Vinson is entitled to the sum of $960 for services 
rendered said firm under the provisions of the [)artnersliip 
agreement* 

It therefore appears that two issues were raised as to the 
alleged fraudulent sale. One issue raised by the allegation of 
the complaint and answer was as to an alleged fraudulent sale 
of Vinson's interest in said firm, which allegation of fraud 



14 Mont.] Waitk v. Vinson. 416 

was preclicaled on the fact that plaintiff Waite had an inter- 
est in said firm property, and l)a<l made advancements thereto 
over and above his share of the capital, and was also liable for 
the firm debt8| all of which was known to defendant David 
when he bought Yii^s^^i^'s interest, which facts constitute no 
fraud, because, notwithstanding those facts, Vinson, as a copart- 
ner, had a right to sell his interest in the firm, nnless condi- 
tions of the copartnership compact forbade such sale for a 
stated period, and no such conditions are alleged. Nor did 
such purchase exceed the right of defendant David to buy if 
he saw fit. The answer denies those allegations of the com* 
plaint, and thus raises an immaterial issue touching said sale, 
so far as any issue is raised between the complaint and answer. 
The other issue, as to the alleged fraudulent sale, and the only 
material issue in that respect, is raised by the new matter alleged 
in the answer, to the effect that, by said sale to David, certain 
described property of the firm was sold outright, in good faith, 
for the full value thereof, paid and assumed by David, which 
averments as to the alleged good faith of said sale, fair price, 
and payment were denied by the replication. This appears to 
have been the issue tried. 

Therefore, it is apparent, and should be observed, that while 
defendant David may have been a proper party to the action 
for dissolution and accounting, as successor to Vinson's inter- 
est in the firrn^ by purchase, that allegation presented no ground 
for cancellation of the sale of Vinson's interest, and does not 
appear to have been relied on after defendant David answered, 
disclaiming ownership of any interest in the firm, but claiming 
to have purchased certain property thereof outright. But by 
the real issue relating to David, raised by the new and affirm- 
ative averments of the answer and denials of the replication, 
it really became an action involving two distinct causes, which 
could not be properly joined; that is, an action between part- 
ners for dissolution, etc., and also joining therewith an action 
against a stranger to the firm, to set aside a sale of firm proj)- 
erty made to him on grounds of alleged fraud. But no ques- 
tion is raised as to this peculiar aspect of the case, and therefore 
the same is only noticed here to avoid the implication that such 
practice as appears in this case was sanctioned as proper. 



416 Waite v. Vinson. [March T., 1894 

The main assigDment, and the one tinder which all theqtie&> 
lions presented by this appeal may be considered^ is that the 
evidence is insufficient to justify the finding that such sale was 
fraudulent, and the decision that the same be declared void. 

At the trial plaint ifi* fell as far short of producing proof 
tending to show a fraudulent purpose on the part of either 
party to said sale as he did of alleging fads to that end in the 
complaint. The evidence introduced by both parties, with 
scarcely any contradiction on material {)oints, shows the state 
of facts alleged in Vinson's answer regarding the condition of 
the firm in general when said sale was made, and tlie facts 
relating thereto. 

It appears from the evidence that plaintiff resided in the 
state of New York, while defendant Vinson was in sole charge 
and management of said copartnership business in Montana, 
except in so far as he was occasionally advised in relation 
thereto by plaiutiflf's agent, Walter A. Waite; that the firm 
was indebted substantially as alleged in Vinson's answer; that 
plaintifiT was in default somewhat in relation to said firm, but 
that question pertains to an accounting between the members, 
a question with which we have nothing to do in this appeal. 

The sheep belonging to the firm were mortgaged, as alleged 
in Vinson's answer, as to which mortgage, and debt secured 
thei*eby, and several renewals thereof, plaintiff appears to have 
had full knowledge, and there apjiears to have been no ques- 
tion raised as to its good faith and validity, so far as shown 
by the record; and, besides that mortgage debt, the firm was 
indebted to divers parties, aggr^ting about $2,000, as alleged 
by Vinson, over and above the amount due Vinson from the 
firm. Prior to the sale in controversy, it appears that there 
had been interviews between Vinson and plaintiff's agent, 
Walter A. Waite, and with plaintiff himself, who appears on 
one occasion to have been in Montana, wherein the state of 
business of said firm was discussed, and an adjustment between 
the parties, and payment of the amount claimed to be due from 
plaintiff to the firm and to Vinson, was requested by the latter. 
The books and papers relating to the firm's affairs were avail- 
able for examination by plaintiff and his agent, and it api^ears 
from the testimony of Walter A. Waite that he examined said 



14 Mont.] Waite v. Vinson. 417 

books^ to some extent, at least. In tliode interviews the pai*- 
ties also discussed the matter of the sale and purchase of 
Waite's interest, for which it appears he asked $5,000, but 
Vinson declined to pay so much therefor. It appears, also, 
that defendant Vinson notified plaintifi* that unless a settle- 
ment of his indebtedness to the firm was immediately made, 
and something done to raise money to pay the indebtedness 
of the firm, a considerable portion of the property thereof must 
be sold to raise funds to pay the outstanding indebtedness 
thereof, and that unless such settlement and provision for 
payment of the debts were made, defendant Vinson would 
proceed to sell a portion of the firm property to raise money 
to satisfy its indebtedness. But no such adjustment, settle- 
ment, and provision for payment of the firm debts were made 
by the partners, acting together. 

Under these conditions defendant Vinson, on the 25th of 
October, 1892, sold to defendant David certain effects of the 
firm, described in a bill of sale thereof, for the consideration 
of |2,714, paid by David therefor, subject, by express terms of 
the bill of sale, to the chattel mortgage thereon to secure the 
sum of $4,500. The jury found that such payment of |2,714 
was made by David, and this finding is fully in accord with 
the evidence; and there is no evidence in the record to sup|K)rt 
the modification of that£nding by the court, to the effect that 
defendant David placed in the bank, to the credit of W. £. 
Vinson & Co., $2,000, ''but as to what amount of that money 
was used by Vinson in paying the debts of the firm, and as to 
wliat amount was paid back to C. C. David, is a question the 
court will refer to a referee to decide, with other questions 
involving an account between the parties.'^ Such modification 
is wholly without support, because there was no evidence intro- 
duced to justify such intimation, and this record purports to 
contain all the evidence introduced. Fraud must be proved, 
and not presumed. According to the evidence disclosed by 
this record, David paid over to Vinson, in purchase of the 
property sold, said sum of $2,714, and Vinson used about 
$2,000 thereof in payment of the debts of the firm, as shown 
by a schedule of the debts paid, proved and introduced in evi- 
dence; and Vinson retained the residue of said purchase money 
Vol. XIV. -27 



418 Waitb v. Vinson. [March T., 1894 

to applj on the indebtedness claimed to be due him from said 
firm. And according to the express terms of the bill of sale 
introduced in evidence, executed between Vinson & Co., by 
IT. E. Vinson on one part, and C. C. David on the other, as 
evidence of said sale and transfer, it was provided that the 
property sold and therein described passed to David, subject to 
said mortgage of $4,500 on said stock sheep. Hence, David 
was obliged to relieve the mortgaged property of that encum- 
brance, or lose his investment therein. The consideration paid 
for said property, subject to the mortgage, is sliown by the evi- 
dence to have been its full market value at the time of said 
sale, and greatly exceeding its value at the time of the trial, 
because, soon after the sale, there was an extraordinary decline 
in the value of sheep. In view of the conditions shown in 
evidence, said sale was expedient and highly beneficial to tlie 
interests of the firm, from every consideration, had it been 
allowed by plaintifi? to stand. Nor is there any fact shown in 
relation to said sale which tends to support the allegation of 
fraudulent puqxMe on the part of either defendant in relation 
thereto. Nor is any fact shown from which, by a justifiable 
implication, it can be presumed that either defendant thereby 
sought or intended to defraud the plaintiff or said firm. The 
price paid, and the use of the funds in discharging the debts 
of the firm, and the conduct of the purchaser in offering to 
rescind the sale on return of the price paid, as shown by ilie 
evidence, and not disputed, except by unsupported averment 
of the replication, all tend to contradict the allegation of fraud- 
ulent purpose on the part of defendants in said sale and pur- 
chase. 

The only question of importance affecting said sale to 
David is whether such a sale of a large portion of the firm 
property by one member, without the concurrence of the other 
member — of which fact the vendee was cognizant — may be 
avoided, on complaint of the nonconcnrring member, as for 
constructive or implied fraud in law. This question may, by 
liberal interpretation, be said to have been raised by the plead- 
ings. The complaint alleges that when defendant David 
bought, he knew of plaintiff's interest in said property as a 
member of said firm, and that the sale was without plaintiff's 



14 Mont.] Waitb v. Vinson. 419 

consent. It is true the complaint might justly be put out of 
consideration, as entirely insufficient, for it avers a sale of Yin- 
sou's interest in the firm, without plaintiff's consent, which 
averment, as we have seen, is insufficient to avoid such sale. 
But looking at the complaint along with the other pleadings, 
with somewhat liberal construction, as no point is made as to 
the insufficiency of any of them — viewed also in the light of 
the evidence introduced — it seems proper to regard the show- 
ing as an affirmance and admission that, when defendant David 
])urchased said property of the firm he knew plaintiff was a 
member interested therein, and was aware that plaintiff did 
not concur in the sale. We have given much attention to this 
point, and find that the authorities, if cases were viewed sepa- 
rately, might be said to exhibit considerable conflict of opinion. 
It is held in certain cases — and very justly, we think — ^that 
4iucb a sale was unwarranted, where there were no circum- 
stances shown which necessitated the sale for the protection or 
advantage of the firm, and ought to be set aside, or the pur- 
chaser held to have only succeeded to the interest of the mem- 
ber making such sale, and be required to account to the 
noncoucurriog member for his interest. (1 Bates on Partner- 
ship, §§ 401-05, and cases cited. This, of course, would be 
done equitably to the parties; and if the price paid was the 
fair value of the property, and the purchase money had been 
used to pay firm obligations, for which the complaining mem- 
ber was liable, or in part for that purpose, and in part been 
retained by a partner found on an accounting entitled thereto, 
there would hardly be any material injury to the complaining 
member through the sale. It certainly would not be equitable 
to hold that the purchase price might be retained, and go to 
the liquidation of firm debts for which the complaining partner 
was liable, and at the same time set aside the sale, and deprive 
the purchaser of the property bought, without any restoration 
of the purchase money, as was done in this case. On the other 
hand, there are authorities which affirm the right of a partner 
in management of the firm business to sell sufficient of the firm 
property, in bulk, to raise funds to pay its obligations. (Par- 
sons on Partnership, 4th ed., §§ 108-10, and cases cited.) It 
is worthy of consideration whether this is not a just and 



420 Waitb «. Vinson, [March T., 1 894 

equitable holding, too; otherwise, the noneoncurring paKner 
might, through sheer stubbornness, prevent an advantageous 
sale necessary to raise funds for payment of firm debts, and 
thereby subject the firm property to seizure, forced sale at 
diminished price, as well as having the proceeds further dimin- 
ished by expense of such proceedings, thereby working great 
loss to the firm, and consequently to the members seeking to 
promote the interests of the firm through such sale. Mr. Par- 
sons states his conclusion, from investigation of the subject and 
authorities, that such a sale, necessitated by the condition of 
the firm affairs, and in promotion of its best interests, if honest, 
and ** without bad faith on the part of any party, we should 
say it was a valid transaction, which the law would enforce/' 
(Parsons on Partnership, 4th ed., § 109.) No doubt, both 
lines of cases are founded on just principles, when applied to 
the circumstances involved, and in that view the decisions are 
harmonious; and it is observable that the cases, from the lan- 
guage used, seem to contemplate that under other circumstances 
the decision might be otherwise. 

We return now to some further consideration of the facta 
shown in relation to the sale in question in the case at bar. 

This is not an action by creditors to avoid the sale of prop- 
erty, on the ground that it was made with intent to defraud 
them of their rights. If it were, they would fail completely 
upon the fiicts shown in this case, because no fraud which 
would be sufiicient to avoid said sale on the complaint of 
creditors has been shown. But this is an equitable action by 
one interested in the property, as joint owner, to rescind the 
sale because of alleged fraud perpetrated upon him through 
that transaction. In such a case the first inquiry which arises 
is whether he who seeks the equitable interference of the court 
has also done, or offered to do, equity in the premises. {Maloy 
v. BerMrif 11 Mont 138.) That question arises here, and 
must be answered in the negative, against the plaintiff. As 
the case is disclosed by the record, this sale was made by one 
partner, for the full value of the property sold, as appeared 
when the sale was made; and for a price exceeding die real 
value of the property, according to the conditions unforeseen 
at that time; and a large part of the purchase price was nsed 



14 Mont.] Waitb v. Vinson. 421 

in the liquidation of the debts of the firm, for which plaiDtiflP 
was liable. But, through this action, he seeks the cancellation 
of said sale without any offer or provision whatever to restore 
to David the amount paid in the purchase of said property. 

Even where property is bought under circumstances of 
oppression and fraud, which are entirely absent from this case 
equity does not cancel the sale without provision for restora- 
tion of the price paid. {Maloy v. Berkin, 11 Mont. 138, and 
cases cited.) But had such offer been made, or had defendant 
David's proposition to that effect been accepted, it would not 
have been necessary to go to court to obtain a cancellation of 
said sale; for it appears, without dispute, from the evidence 
that after tlie sale was made several interviews were had 
between plaintiff, represented by his attorney and agent, and 
David and Vinson, in respect to said sale, wherein it appears 
defendant repeatedly offered to rescind the sale, and deliver the 
property back, if the firm would restore to him the money he 
had paid in said purchase, and the expense he had been to in 
caring lor the sheep after delivery to him. And, moreover on 
one occasion, defendant David went further, and offered to 
plaintiff, through his agent and attorney, a complete rescission 
of said sale, and restoration of the property to the firm, on the 
repayment to him of the money which he had paid to the firm 
in said purchase, and he (David) would suffer the loss of such 
expense, amounting to about $400. And furthermore, there 
being a dispute between Waite and Vinson as to the portion 
of said purchase money retained by Vinson to apply on his 
claim against said firm, David offered to allow the sale to 
be rescinded on payment to him of the purchase price, which 
had been used directly for plaintiff's benefit, in payment 
of the debts of the firm, to the amount of about |2,000, out- 
side of Vinson's claim; and David offered to depend upon 
Vinson, individually, to restore that portion of the purchase 
price which he had retained to apply on his claims against the 
firnu This offer eliminated, as far as defendant David was 
able, all disputed conditions upon which plaintiff Waite could 
rightfully refuse to concede to the equitable condition on which 
David offered a rescission of said sale. But it appears plain- 
1 iff and his counsel entirely ignored those propositions, and 



422 Waits v. Vinson. [March T., 1894 

proceeded in this action to take said property away from David, 
through the receiver^ Id the attempt to cancel said sale, and 
recover the property sold, at the same time retaining tlie bene- 
fit of the purchase price paid by David, which went to the pay* 
roent of obligations for which plaintiff was not only liable as 
a member of said firm, but, if its assets were insufficient to 
liquidate its liabilities, he was liable therefor wholly and indi* 
vidually, as between himself and the creditors of tlie firm. 
After the property was taken from David, as we are informed 
by counsel, it was not retained for the firm by payment of the 
encumbrance thereon, but the mortgage was foreclosed by tke 
mortgagee. Thns, as a result of this unwarranted attack on 
said sale, the mortgaged property was taken away from David 
without the slightest benefit to the firm, bat injury to all con- 
oemed. 

The case, so far as it relates to said sale, and to defendant 
David, exhibits an abuse of the processes of the court. The 
facts shown were insufficient to warrant the cancellation of said 
sale to David, but warranted the contrary decision, which 
should have been made on the evidence produced. 

The judgment declaring void said sale to defendant David 
should therefore be reversed, and the case is remanded, with 
direction to enter judgment in favor of defendant David, to 
the effect that no cause for cancellation of the sale of said 
partnership effects, described in said bill of sale to him, has 
been shown, and therefore that plaintiff take nothing by said 
action, so far as it relates to defendant David, and that said 
defendant have judgment against plaintiff for his costs 
expended therein; and it will be ordered accordingly. 

RevenecL 

Pemberton, C. J., and Habwood, J., concur. Dfi Witt, 
J., concurs in the reversal. 



14 Mont.] Thomas v. Chambbbs. 428 



THOMAS, Appellant, v. CHAMBERS bt al., Respond- 



rSubmitted Febrnary 12, 1891. Decided May 14. 180i.] 

JuDomMT BT DsFAULT— Jfofion to vacoU—Smfflcieney of grounds,— Thongh • 
defendant may hare a meritoriouB defense to an actiou the mere neglect of his 
counael to file an answer in time, which neglect is neither explained or 
excused, is not a ground upon which a defanli judgment may be vacated under 
section 116 of the Code of Civil Procedure, providing that a party may be 
relieved from a Judgment taken by mistake, inadvertence, surprise, or excus- 
able neglect. 

Appeal from Eighth Judicial District^ Cascade County. 

Defendaitts' motion to vacate the jadgment was granted 
by Benton, J. Reversed. 

Ed L. Biehopf for Appellant. 

Jadgment will not be set aside without affidavit of excusa- 
ble neglect or inadvertence and also of merits. {Lamb v. Crcu- 
tm etc. Cd.f 1 Mont. 64; 3 Esteems Pleadings, 362; Bailey v. 
Taaffe^ 29 Cat. 424.) The only excuse respondents attempt to 
set up is the negligence of their attorney. Negligence of attor- 
ney or agent is uniformly treated as the negligence of the client 
or principal, except in New York and North Carolina. (Free- 
man on Judgments, § 112, and cases cited.) Act or omission 
of attorney is act or omission of client, and no negligence will 
be excusable in the former, which would not be in the latter. 
(1 Black on Judgments, 341, and cases cited.) Mistake or 
neglect of attorney is not ground for vacating a judgment 
unless the mistake or negligence would be excusable if attri- 
butable to the client (12 Am. & Eng. Ency. of Law, 136, 
and cases cited.) A judgment will not be vacated because an 
attorney neglected to file the pleading in due time. (12 Am. 
& Eng. Ency. of Liaw, 135, and cases cited.) 

Thomas E. Brady^ for Respondents. 

Whether any particular state of facts do or do not consti- 
tute the inadvertence or excusable neglect for which a party 
may obtain relief under any statute, is not determined by the 
statute itself, but is left entirely to the discretion of the trial 



14 428 
16 92 



ENT. H 423 



14 428 
39 689 



424 Thomas v. Chambers. [March T., 1894 

judge or court {Benedid y, Spendiff^ 9 Mont 88.) This 
court has expressly refused to adopt the rule held by some of 
the California cases that the neglect of an attorney furnishes 
no ground for vacating a judgment rendered through such 
neglect {BrUcoe v. McOaffay, 8 Mont 336.) And has 
reversed a trial court for refusing to set aside a judgment in a 
case where attorneys who had been employed failed to plead 
in time. {Heardi v. McAllister ^ 9 Mont 405; Clevdand v. 
Bumham, 55 Wis. 598. See, also, Whiteside v. Logan, 7 
Mont 381; Watson v. San F\'ancisoo etc. R. R. Cb., 41 Cat 
20; Jensen v. Barbour^ 12 Mont 576.) Mrs. Chambers hav- 
ing intrusted her husband with attending to her defense, was 
properly relieved from the judgment {Nicholson v. Oox, 83 
N. a 44; 35 Am. Sep. 556.) 

Per CuRiAM.*-In the court below, the appellant recovered 
judgment by default against the respondents. The respond- 
ents had been personally served with summons, and employed 
counsel to defend the action. Within ten days from date of 
service of summons on the defendants, their counsel filed a 
demurrer to the complaint The demurrer, upon a hearing, 
was by the court overruled, and the defendants given five days 
thereafter to answer the complaint No answer having been 
filed within that time, judgment was regularly rendered, for 
want thereof, against the defendants. Thereafter the defend- 
ants filed their motion, supported by afiidavit and accompanied 
by answer, to set aside said judgment. The court granted the 
motion. From this action of the court this appeal is prose- 
cuted. 

The afiidavit of James Chambers in support of the motion 
to set aside the judgment is as follows: ''James Chambers, 
being first duly sworn, says that he is one of the defendants 
in the above-entitled action, and that the codefendant is his 
wife; that the summons herein was served upon him and his 
wife on the thirteenth day of December, 1892; that within 
the period of time allowed by law for him to appear in and 
answer to the complaint herein, and within ten days from the 
time of said service, to wit, on the eighteenth day of December, 
1892, he did employ one Peter M. Baum, a dnly authorised 



14 Mont.] Thomas v. Chambers. 425 

practitioner at the bar of Cascade county, to render appearance 
for him and his said wife, and to interpose their defense to this 
action; that, at the time of so engaging the said Peter M. Baum, 
deponent did pay him the retainer fee which was asked by the 
said Baum herein, and was advised by the said Peter M. Baum 
that he would, at the proper time, interpose hifl defense, and 
communicate with him as to when he would need his signature 
to any pleadings; whereupon, on or about the twenty-third day 
of December, 1892, as deponent is informed and believes, the 
said Peter M. Baum did, in behalf of defense, interpose a 
demurrer to plaintiff's complaint herein, which was on the 

day of January, 1893, passed upon by the court and 

overruled, and defendants, as appears by the record of the 
court proceedings herein, were granted five days within which 
to file answer to said complaint. Deponent alleges that he and 
his codefendaiit relied absolutely and entirely upon their said 
attorney, Peter M. Baum, to prepare the pleadings in the above 
case, and attend to all the preliminaries necessary in preparing 
said case for trial. Deponent alleges further that at no time 
previous to the nineteenth day of January, 1893, were he or 
his oodefendant advised of the action of this court, and they 
had no communication nor advice from their said attorney as 
to the condition of their case until said last-mentioned date, 
when, accidentally, deponent was advised that said demurrer 
had been overruled, the time to file defendants' answer had 
expired, that the defendants were in default, and a judgment 
had been entered for the plaintiff against them, for the sum of 

dollars; that defendants did, upon learning said facts, 

employ counsel at once to make application to this court to 
oi)en said default and set aside aforesaid judgment.'' 

The affidavit also alleges that defendants have a meritorious 
defense to the action, and tenders an answer, which apparently 
contains a complete defense, if the facts alleged therein are true. 

Our statute provides that the court may, upon such terms as 
may be just and the payment of costs, relieve a party or his 
legal representative from a judgment taken against him by 
mistake, inadvertence, surprise, or excusable neglect (Code 
Civ. Proc., § 116.) The question for us to determine is, Have 
the respondents, by this affidavit, brought themselves within 



426 Statb v. Kbllooo. [March T., 1894 

the provisions of this statute? They show that tbey employed 
oonusel to defend this action. Their counsel failed or neglected 
to prepare and have filed their answer within the time fixed by 
the court. No reason is given why he failed or n^lected lo 
do so. The failure or neglect to file answer is in no way sought 
to be excused. No excusable neglect is shown, or sought to 
be shown. If this judgment, upon this showing, can be set 
aside, then any judgment by default can be" set aside for the 
simple asking. We see no such showing of excusable n^lect 
as to authorize the court, in the exercise of judicial discretion, 
to set aside the judgment in this case. 

The order of the court below setting aside the judgment is 
reversed. 

All concur. 



14 486 

14 46Z 

ai*i077 



STATE EX REL. BALDWIN, Rbspondbnt, v. KELLOGG, 
Appktjmnt. 

[Sabmittod May 11,^1894. Dedddd JniM i, 18M.] 

PBnxoiAin AHD SuBGiowB— JAfcKooZ .BbEamiiMfv—Ptoadin^.— While a oompkint 
in prooeediDgs inatitated before the Btate board of medical ezAminers t§ reToka 
a phyeician'B lioense must Bet forth facta which constitiite an oliBnae plead- 
ings mast not be too strictly oonstmed nor shoold too doae obaerfaiioe of the 
science of pleading be required. 

BAMM^Same— Revocation of lioenM9^8ufflciency af eomptoint.— Revocation of a 
physician's license for unprofessional, dishonorable, and immoral oondnct 
oannot be sustained upon a complaint which merely chaiiged that on agiren 
date the defendant placed in a fhrnaoe a headless fcstus, about seven months 
old, with intent to destroy the same and conceal its birtli; snd that at tlie 
coroner's inquest over such foetus he testified that the ohUd was the result 
of a miscarriage, its head having become detached in delivery; that he would 
not disclose the mother's name, as she hsd requested him not to make it 
known, and that he had been advised that he need not disclose it; thathe wltb* 
held it, not through fear of incriminating himself, but to avoid the publicity it 
would give the mother, but that he would give her name to the coroner the 
next day, who could use his discretion in the matter, wliile upon the next day 
he refused to give her name upon the ground that she had left the state, and 
without her preaence to explain her condition at the time his answer might 
incriminate him, since neither the attempt to bum the fostus nor the refussl 
to disclose the mother's name was of necessity either unprofessional, di^ 
honorable, or immoral, but both were acts as consistent with innocence ss 
with guilt. (Habwood, J., ditaenting.) 

Appeal Jrom First Judicial Didrict Lewis and Uarie Qmfdg. 



14 Mont.] State v. KELLoaa. 427 

Special proceeding institnted beiore the state board of medi- 
cal ezamiDers to revoke defendant's license to practice medicine 
and surgery. The board convicted defendant of unprofessional, 
dishonorable, and immoral conduct, and revoked his license* 
Defendant appealed to the district court. The cause was tried 
before Buck and Hunt, JJ., sitting concurrently, who ren- 
dered a judgment revoking defendant's license. Reversed. 

Statement of the case by the justice delivering the opinion: 
The state board of medical examiners organized and have 
been acting under the provisions of what is called the ^^ Medi- 
cal Law,*' which was approved February 28, 1889 (16 Sess. 
Laws, p. 175.) The appellant is a practicing physician in the 
state of Montana. The proceedings which resulted in this 
appeal were originally instituted before the medical board for 
the purpose of revoking appellant's license as a physician and 
surgeon. The Medical Law, above quoted, provides that the 
board may revoke a physician's certificate for unprofessional, 
dishonorable, or immoral conduct. The complaint which was 
filed before the medical board against the appellant. Dr. Kel- 
logg, charged him with such conduct, and gave 8i)ecification8. 
The portion of the complaint which is material in this inquiry 
is as follows: 

^'BoABD OF Medical Ezaminebs of the State of 
MoNTAifA, Plaintiff, v. Edwin S. EIelloqg, De- 
fendant. 
"State of Montana, 1 
*' County of Lewis and Clarke. / 

" S. C. Baldwin, being first duly sworn, deposes and says that 
between the first day of March, 1893, and the thirty-first day 
of March, 1893, at the city of Helena, in the county of Lewis 
and Clarke, and state of Montana, one Edwin S. Kellogg, late 
of the county of Lewis and Clarke, in the state of Montana^ 
being then and there a practicing physician and surgeon, and 
being then and there the holder of a certificate to practice medi- 
cine and surgery in the state of Montana, issued by the board 
of medical examiners of the state of Montana, was guilty of 
unprofessional, dishonorable, and immoral conduct in this^ 
to wit: 



428 State v. Kellogg. [March T., 1894 

'' 1. That apoD the fourth day of March, 1893, said Kellogg 
placed in the farnaoe of that certain building in the city of 
Helena, said county and state, known as the * Masonic Block,' 
situated at the comer of Broadway and Jackson streets, in the 
said city, in which block said Kellogg had an office as physi- 
cian, a i>ackage covering and containing a headless fioetus, about 
seven mouths old, with intent to destroy the same, and to con- 
ceal its birth. 

** 2. That at the coroner's inquest held at the courthouse in 
the city of Helena by Dr. T. H. Pleasants, the coroner of the 
said county of Lewis and Clarke, over the said foetus, the said 
Kellogg testified as a witness, after having been sworn, upon 
the eighth day of March, 1893, to testify to the truth, the 
whole truth, and nothing but the truth, substantially as fol- 
lows: That he had been called in to attend a woman who 
shortly afterwards suffered a miscarriage. That she was deliv- 
ered of a child, and that, while being delivered, the head of 
the infant became detached from the body; that he took the 
l>ody of the infant to liis office, wrapped it in a sheet of paper, 
and threw said body into the furnace of the Masonic Temple; 
that he had before thrown amputated members of the bodies 
of persons in said furnace. The party referred to as being the 
patient from whom the foetus was taken asked not to have her 
name made known, if possible to avoid it, and that he had 
been advised that he need not answer it unless he chose to do 
so. He declined to answer, not because he is afraid of incrim- 
inating himself, but to avoid the publicity of the lady's name in 
the papers. The foetus had been dead four or five days when 
taken away. Tlie head was in part detached. The foetus is three 
months and one week old. He is willing to disclose the name of 
the lady to-morrow, at 2 p. m., to the coroner, who will use his 
discretion in the matter. And that thereafter, upon the ninth 
day of March, 1893, said Kellogg testified, as such witness, 
still further: 'The person whose name you ask for has lefl the 
state of Montana, and is beyond and without the jurisdiction 
of any court of the state of Montana. Without the presence 
of that i)erson to explain and certify to her condition at the 
time the foetus was taken from her, my answer, under the 



14 Mont.] State t;. Kblloog. 429 

existing circumstanoesy would incriminate me, and be testimony 
against myself, and on that ground I refuse to answer.' '' 

The appellant duly appeared before the medical board to 
answer the charge and specifications contained in the complaint. 
Upon his appearance he filed a demurrer, the ground of which 
was that the complaint did not state facts which amounted to 
unprofessional, dishonorable, or immoral conduct This de- 
murrer was argued before the board, and was overruled. The 
boanl then proceeded to try the appellant upon the complaint. 
The result of the trial was that the appellant was found guilty, 
and it was adjudged that his license be revoked. 

In pursuance of the provisions of the Medical Law the appel- 
lant appealed from the board to the district court. In that 
court he reargued, and insisted upon his demurrer. The demur- 
rer was overruled by the district court. He was thereupon 
tried upon the complaint, and found guilty, and it was adjudged 
that his license be revoked. From that judgment appellant 
appeals to this court. 

T. J. Walsh, for Appellant. 

The complaint charges in substance that the defendant threw 
a headless foetus, about seven months old, into the furnace of 
the building in which was his office, with intent to destroy the 
same and conceal its birth; that at a coroner's inquest held upon 
such body he testified that it was three months and a week old; 
that he did not desire to give the name of the mother, not from 
fear of incriminating himself, but to avoid publicity, and that 
he was willing to give the name to the coroner next day; 
that the next day he appeared and informed the coroner that 
the lady had left the state, and that in her absence and without 
her testimony ooncerniug her condition, his answer would in- 
criminate himself and be testimony against him, and that he 
therefore refused to give it; that thereupon defendant was com- 
mitted for contempt; that he was released on habeas corpus, 
and never gave the name of the woman; that defendant failed 
to report the birth of the child in violation of section 2 of 
article V of chapter XIII of the ordinance of the city of 
Helena concerning notification of births within the said city. 
There is not a suggestion in the complaint that there was a 



n 



430 Statk v. Kbllogg. [March T., 1894 

word of nntrnth in any thing that the defendant said. He said 
the feet us was three months and a week old, when in fact it is 
alleged it was seven months, but there is no allegation that he 
falsely said so, or that he knew any better, or that it was not a 
mistake in judgment. The oourt held upon the habeas corpus 
procee<Hng8 that he had a perfect legal right to refuse to 
answer, and it is difficult to understand how his refusal to 
answer can be urged against him, that is, how his certificate 
can be annulled for doing what the law allowed him to do. 
For the constitutional privil^e cannot be made to read, ''No 
|>erson shall be compelled to testify against himself, but if be 
claim this privilege his right to practice his profession shall be 
taken away from him/' And yet this complaint must be sus- 
tained, if sustained at all, on the theory that claiming the 
privilege not to testify is a oonfession of crime. The law is 
otherwise. (Oreenleaf on Evidence, 450; State v. BaUey, 54 
Iowa, 414; Oame v. LUohJield, 2 Mich. 340; 8laU ▼. Jlfannan- 
san, 60 Mich. 15; Phdin v. Kenderline, 22 Pa. St 364^«3; 
Rose V. Bfakemorej Ryan & M. 382; Lhyd v. Pasnnghamf 16 
Yes. 64; 2 Phillips on Evidence, 949, 950; Bapalje on Wit- 
nesses, 267.) The claim of violation of the city ordinance is 
not insisted on. But if it were the complaint does not aver 
that the birth oocurrred within the city, nor that the child ever 
lived. The act was not intended to compel a record of mis- 
carriages. But the offense defined is simply mala prahibiia, 
and nothing is ''unprofessional'' unless it is either immoral or 
dishonorable. (State v. Medical Boards 32 Minn. 312.) The 
complaint further does no