^ UNIVERSITY RYI OF CALIFORNIA LOS ANGELES LAW LIBRARY FACULTY LIBRARY ' VT ./-," - -, -i Attorney At a/y KYEGATE, MONTANA OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF MONTANA TERRITORY FROM DECEMBER TERM, 1868, TO JANUARY TERM, 1873, INCLUSIVE. BY HENRY N. BLAKE VOLUME I. SAN FRANCISCO, CAL.: BANCROFT-WHITNEY COMPANY, PUBLISHERS. 1911 Entered, according to the act of Congress, in the year eighteen hundred and seventy-three BY HENRY N. BLAKE, In the office of the Librarian of Congress, at Washington. COPYKIGHT, 1911 BY BANCROFT- WHITNEY CO. JUDGES OF THK SUPKKMK COURT FROM THE ORGANIZATION OF THE TERRITORY AND DURING THE TIM OF THESE REPORTS. CHIEF JUSTICES : HON. HEZEKIAH L. HOSMER, " HENRY L. WARREN, " DECIUS S. WADE, ASSOCIATE JUSTICES: HON. LORENZO P. WILLISTON, " LYMAN E. MUNSON, " HIRAM KNOWLES, " GEORGE G. SYMES, " JOHN L. MURPHY, " FRANCIS G. SERV1S, APPOINTED : JUNE 30, 1864. JULY 18, 1868, vice HOSMER. MARCH 17, 1871, vice WARREN APPOINTED: JUNE 22, 1864. MARCH 11, 1865. JULY 18, 1868, vice WILLISTOS APRIL 5, 1869, vice MUNSON. JANUARY 27, 1871, vice SYMES SEPT. til, 1872, vice MURPHY. OFFICERS OF THE SUPREME COURT THE ORGANIZATION O} THE TERRITORY. CLERKS: A. M. TORBET, - J. ALLEN HOSMER, LUCIUS S. PECK, ISAAC R. ALDEN, Appointed MAY 17, 1865. AUGUST 6, 1866. JUNK 12, 1867. JANUARY 13. 1870. UNITED STATES MARSHALS: GEORGK M. PINNKY, Appointed FEUKUA IJY 20, 1865 NEIL HOWIE, - " MARCH 18, 1867. WILLIAM F. WHKELER, - - - DECEMBER 21. 1869, UNITED STATES ATTORNEYS: KDWAHI) I?. XE ALLEY, Appointed JUNK 22, 1S>4. MOSES VEALF.. - APRIL 20. 1867. ALEXANDER E. MAYHEW, JULY 11. 1868. HENRY X. BLAKE, - APRIL 22. 1869. rOHXKLTUS HEDGES. - MARCH 3. 1871. MKRRTTT C. I'AGK. ----- " MAY 17, 1872. REPORTER : IIKXRY X. BL\KK. ;ipp>infod J.\NM*ARY 9, Adopted at the January Term thereof, A. D. 1871. I. In all cases where an appeal is perfected, and the statement settled (if there be one) twenty days before the commencement of the next succeeding term of this court, the transcript of record shall be filed on or before the first day of such term. [I. If the transcript of the record is not filed within the time prescribed, the appeal may be dismissed, on motion, upon satis- factory evidence of such omission. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the respondent. 111. On such motion to dismiss the appeal, there shall be pre- sented the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment or order appealed from; the date of its rendition; the fact and date of the iiiing of the notice of appeal; the fact and date of filing the under- lakiug oil appeal; the fact and time of settlement of the statement, if there be one; and also that the appellant has received a duly certified transcript, or that such transcript has not been requested by appellant ; or, if requested, that appellant has not paid the fees therefor, if such payment have been demanded. [V. All transcripts of records hereafter sent to this court shall be on paper of uniform si/e, according to a sample to be furnished by the clerk of this court, with a blank margin one and a half inches wide, at the top, bottom and side of each page, and all pleadings, proceedings and evidence shall be chronologically arranged, and the pages of the transcript shall he numbered, and but one side of the leaves shall be written upon. V". Each transcript shall be prefaced with or have annexed an alphabetical index to its contents, specifying the page of each separate paper, order or proceeding, and of the testimony of each witness, aud shall have blank or ttv sheet covers. 6 RULES OF THE SUPKEME COUET. VI. The transcript shall be fastened together on the left side of the pages, so that the same may be secured and every part con- veniently read. VII. The transcript shall be written in a fair, legible hand, and each paper or order shall be separately inserted. VIII. The party filing the transcript may, if he so desire, have the same printed, but the expense of printing shall not be allowed or taxed as costs. IX. No transcript which fails to conform to the requirements of these rules shall be filed by the clerk. X. The transcript, on appeal from a final judgment, shall contain copies of the notice of appeal; the undertaking or undertakings executed by appellant on the appeal ; the pleadings on which are formed the issues tried in the cause ; the statement, if there be one ; and such other parts of the judgment roll as are necessary to pre- sent or explain the points relied on, and no more. On appeal from a judgment rendered on an appeal, or from an order, the transcript shall contain copies of the notice of appeal; the undertaking or undertakings filed by appellant; the judgment or order appealed from, and of the papers used on the hearing in the court. XI. The appellant shall be charged with the duty of having the transcript perfected in accordance with the statute and these rules : Provided. That if it shall appear to the satisfaction of the court tli at the appellant has filed his prcecipe in time with the clerk of the court below, directing the preparation of the transcript, and specifying what portions of the record the same shall contain, then, in case the transcript shall be imperfect and shall not conform to The requirements of the prcecipe, and sufficient reason for such non- conformity does not appear, the appeal shall not be dismissed, and on motion of the appellant, a rule shall be entered upon the clerk below to correct the transcript within such time as may be allowed by the court below. XII. For the purpose of correcting any error or defect in the transcript, either party may suggest the same in writing, and, upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record, as may be required. If the attorney or counsel of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion must be RULES OF THE SUPREME COURT. 7 accompanied by an affidavit, showing the existence of the. alleged error or defect. XIII. Proof of service of notice of appeal on the respondent may be made by affidavit, and in all cases proof of service of such notice or waiver thereof shall be filed in this court five days at least before the commencement of the term to which the appeal is taken. XIV. Exceptions to the transcript, statement, undertaking on appeal, notice of appeal, or to its service, or proof of service, or any technical objection to the record affecting the right of the appellant to be heard on the errors assigned, must be taken at least one day before the day on which the cause may be set down for hearing, and must be noted in writing and filed at least one day before the argu- ment, unless the appellant otherwise consent, but in all cases such objection must be presented to the court before the argument on the merits. XV. Upon the death or disability of a party, or transfer of hia interest in the suit, pending an appeal, such fact shall be suggested in writing to the court ; and if the cause of action survive or con- tinue, upon motion of the legal or personal representative of such party, or of any party to the record, an order shall be made substi- tuting such representative in the cause, and the cause shall proceed as in other cases. XVI. The calendar of each term of this court shall consist only of those causes in which the transcript shall have been filed in this court five days before the commencement of the term, unless by written consent of the parties : Provided, That all cases in which the appeal is perfected as provided in rule first, and the transcript is not filed five days before the first day of the term, may be placed on the calendar, on motion of the respondent, upon the filing of the transcript, during the first week of the term. XVII. Causes shall be placed on the calendar in the order in which the transcripts are filed, and, except when brought to hearing upon notice or agreement of the parties, shall be disposed of in the order in which they appear upon the calendar. XVIII. The appellant and respondent shall furnish to each other a copy of his points and authorities, at least one day before the commencement of the argument ; and, at or before the commence- ment of the argument, shall furnish to each of the justices a copy of the same, and shall file a copy of the same with the clerk ; or either party may file one copy thereof with the clerk, who shall RULES OF THE SUPREME COURT. 3ause the requisite copies to be made, and in case either party shall fail to furnish such copy to the opposite party, as required by this rule, he shall be deemed to waive his right to argue such cause orally, except by consent; and no brief of his points and authori- ties, not filed in accordance with this rule, will be considered by the court, except after at least one day's notice of the filing of the same to the opposite party, who shall have such time as may be allowed by the court, after the filing thereof, to file a reply thereto. XIX. When briefs or arguments are filed, one copy shall be delivered to the adverse party, one to each of the justices, and one to the reporter. XX. No more than two counsel will be heard upon a side, and not over one and a half hour on a side for argument will be allowed. unless permission be asked and allowed before the argument com- mences. XXI. The records and reports must, in all cases, show whether a decision was made by a full bench, and which of the judges, if either, dissented therefrom. XXII. When the court takes a case under advisement, it shall rile its opinion at the next term thereafter. No cause is decided until the opinion in writing is filed with the clerk. XXIII. In any case, if the court is satisfied from the record that vhe appeal was taken for delay, such damages shall be awarded as may, undei the circumstances, be proper, and as shall tend to pre- vent the taking of appeals for delay. XXIV. Appeals in criminal cases shall take precedence of all other business. XXV. When a judgment of the supreme court is rendered, such judgment and the opinion, when finally corrected, must be recorded. and a certified copy of the judgment, with proper instructions, must be forthwith remitted to the clerk of the district court in which the judgment appealed from was rendered, and a copy of the pinion shall be remitted, upon application of either party, and payment of the costs thereof, within ten days after the close of the ti-nn at which such opinion was filed. XXVI. In case any justice of this court, while holding a district court, shall refuse to allow an exception, or to certify to a statement, in accordance with facts, upon presentation to this court, or to any two justices thereof, in vacation, of a petition verified by the affi- davit of any person aggrieved therebv, or by the attorney of such RULES OF THE SUPREME COURT. 9 person, this court, or such justices thereof, shall, if suffici ,nt rtasor appear therefor, sign an order granting leave to suoa person to prove the facts in relation to such exception or statement. Such proof shall be made by deposition, taken after three days' notice to the opposite party, or his attorney, of the time and place of taking the same, which shall contain a copy of the order granting such leave, and within ten days after the taking of such depositions shall be concluded, the opposite party may, after like notice and in like manner, take depositions of witnesses in relation thereto. Such depositions shall be taken and certified before the same persons and in the same manner, in all respects, as is provided by law in the case of depositions taken within this territory. XX VII. All motions for rehearing shall be in writing, and filed within three days after the judgment is rendered or order made, and during the term at which the judgment or order is rendered or made. XXVIII. No transcript or paper filed in a cause shall be taken from the court room or clerk's office, except by written order of the court, or one of the justices. XXIX. The party filing the transcript shall be primarily liable for costs. In no civil case shall the clerk be required to remit the final papers until the costs accrued in this court are paid. Hii.lrx adopted at the August Term, A. D. 1871. i. A; or before filing the transcript in each case on appeal, the party ii 1 11114 lne same shall deposit with the clerk the sum of twenty- five dollars, to be applied on the payment of the costs in this court. II. In all cases at law in which the supreme court has original jurisdiction, the prawipe for a summons shall specify the rule day upon which the summons shall direct the defendant to appear; and on or IK- fore such day the declaration shall be filed; and at the rule ilav next succeeding, except upon an order or notice from u justice of this court, the defendant shall plead to the same. III. In cases commenced in this court, which may be tried before a justice of the supreme court while holding a district court in hid district,, the clerk, upon the application of either party, shall send and certify the case and papers to the court below, where, upon reasonable notice to the other, either party may bring the case tc 1 Mai. 2 ATTORNEYS AND COUNSELORS AT LAW, JLCBN8BD AND ADMITTED FROM THE ORGANIZATION OF THE TERRITORY TO THE JANUARY TERM, 1878. Arick, Rufus E Helena. Bagg, Charles S Deer Lodge City. Beattie, Alexander H Helena. Beem, Martin-t , Virginia City. Bissell, Gaylord G.t Virginia City. Blake, Henry N Virginia City. Borton, Lewis W.t Virginia City. Brown, James H.i Deer Lodge City. Brown, William L.+ Virginia City. Bruce, John P Virginia City. Bullard, Masseua Helena. Burdick, Henryf Helena. Burns, H.f Virginia City. Callaway, James E Virginia City. Carpenter, A. M. S . . Virginia City. Cavanaugh, James M.t Helena. Chadwick, Walter F Helena. Chiles, William H.t Virginia City. Chumasero, William . , Helena. Clagett, William H Deer Lodge City. Colemau, George S Bozeman. Comly, Harry R Helena. Cook, ./ erryf Virginia City. Corum, John W Helena. Cowan, David-f- Virginia City. Cowan, George F Radersburg. Cullen, William E Helena. Davis, Alexander)- Virginia City. Davis, Joseph J Bozeman. Deimliug, Francis C Virginia City. Desbeck, John t Helena. Dewey, W. W Virginia City. Dimsdale, Thomas J.* Virginia City. Dixon, William W Deer Lodge City. Duke, James K.t Virginia City. Edgertou, Sidney* Virginia City. Edwards, Thomas R Bozeman. Fleshmau, Larkin* Virginia City. George, A. G. P Radersburg. Deceased. t Removed from Territory. 12 ATTORNEYS AND COUNSELORS AT LAW. Harrison, M. B.+ Deer Lodge City. Hedges, Cornelius Helena. Hosmer, Hezekiah L.t Virginia City. Hosmer, J. Allen Virginia City. Johnston,.!. A Helena. Kirkwood, William F Radersburg. Lyman, L. B Helena. Lovell, William Y.+ Virginia City. Lowry, Thomas J Helena. Marshall, William I Virginia City. May, George* Helena. Mayhcw, Alexander E Missoula. McCarty, O. F.i Virginia City. McCormick, W. J Missoula. McCullough, J. L.t Virginia City. McMath, William L.* Virginia City. McMurtry, Louia Deer Lodge City. Mead, Christian Bannack. More, Elawson C.t Helena. MuiHy, Theophilus Virginia City. Napton. Thomas L Deer Lodge City. Nealley, Edward B.t Virginia City. Orr, Sample Helena. Page, Merritt C Radersburg. Pai-rott, R. B.* Helena. Pemberton, William Y.t...... ., Helena. Phelps, E. F.* Bannack. Pinney, George M.* Helena. Potter, John Hamilton. Potts, Benjamin F Virginia City. Rey burn, Lewis C Virginia City. Robertson, R. H.* Virginia City. Robinson, J. C Deer Lodge City. Rogers, John H Deer Lodge City. Russell, Thomas V.-f Virginia City. Sanders, Wilbur F Helena. Sharp, L. J Deer Lodge City. Sheffield, Edward* Nevada. Shober, John H Helena. Slater, John S.* Virginia City. Smith, Green Clay* Virginia City. Smith, H. P. A.* Helena. Snider, Andrew J\* Virginia City. Spratt, .Tames G.* Virginia City. Stafford, William M.* Virginia City. Stapletou, George W A rgenta. Stephens, William J Missoula. Stoddard, E. C.* Bagdad. Street, J. H. D Bozeman. Strickland, O. F.+ Virginia City. Symes, George G Helena. Thoroughman, Thomaat Virginia City. Deceased. f Kemoyed from Territory. ATTORNEYS AND COUNSELORS AT LAW. 18 Toole, Edwin W Helena. Toole, Joseph K Helena. Tufts, Jamest Virginia City . Turk, John C.+ Virginia City. Turner, Charles W Bozeman. Vivion, Robert P Bozeman. Warren, Henry L.f Virginia City. Weston, J. R Radersburg. Williams, Henry F Bozeman. Williams, J. J Helena. Williams, R. H Bozeman. Woolf oik, Alexander M. Helena. Word, Samuel Virginia City. 4 Rumored from Territory. PREFACE. THE Territory of Montana was organized by the act of Congress, approved May 26, 1864. The ninth section of this act vests the judicial power in a supreme court, dis- trict courts, probate courts and justices of the peace. The supreme court consists of a chief justice and two associate justices. The first term of the supreme court of Montana was held in Virginia City, the "seat of government" of the Terri- tory, and commenced on May 17, 1865. During the terms that were held from May, 1865, to December, 1868, the opinions of the court in the cases that were determined were rarely delivered in writing. Orders were generally made that the judgment of the court below should be affirmed or reversed. Written opinions were filed in every case that was decided from the December term, 1868, to the January term, 1873. The records of the court before the December term, 1868, are imperfect, and the pleadings, briefs and papers, in a majority of the causes that were heard before this term, cannot be found. For these reasons this volume contains a report of the cases which were argued and determined in the supreme court of the Ter- ritory from the December term, 1868, to the January term, 1873. The act of the legislature, that provides for the reporting of the decisions of the supreme court, was approved Janu- ary 4, 1872. The second section provides that "the report of such cases shall contain coiicise notes of the points 16 PUEFACE. decided, a statement of the facts taken from the record, when the same are not fully given in the opinion of the court, the names of the counsel, and the opinion of the court." In addition to the duty of reporting the "names of the counsel," an abstract of the briefs of the counsel has been prepared. In performing this labor the reporter regrets that he has been compelled to do an injustice to the attorneys by publishing a digest in lieu of their arguments. TABLE OF CASES REPORTED. PAOK. Ames, Murphy VB 276 A-nderson vs. O'Laughlin 81 Appollonio, Black vs 342 Armstrong, McMullen vs 486 Atcliison vs. Peterson 561 Aylesworth vs. Reece 200 Barkley, Parks vs 514 Basey, Gallagher vs 457 Bautz vs. Kuh worth 133 Black vs. Appollonio 342 Blume, Davis vs 463 Bohm vs. Dunphy 833 Boley, Griswold vs 545 Boucher vs. Mulverhill 806 Brown vs. Gaston & 8. 6. & 8. M. Co 57 Buffalo Robes, U. S. vs 489 Bullard vs. Gilette 509 Caldwell vs. Gans 570 Campbell vs. Metcalf 378 Campbell, Rankin vs 300 Carpenter vs. Rodgers 90 Carothers vs. Connolly 433 Carrhart vs. Montana M. L. & M. Co 245 Caruthers vs. Pemberton Ill Christnot vs. Montana Q. & S. M. Co 44 Coady vs. Reins 424 Collier vs. Field 612 Columbia M. Co. vs. Holter. . 296, 429 Comanche M. Co. vs. Rumler .... 201 Conner vs. McPhe* 73 Connolly, Carothers vs 433 KA0B, Cope VB. UpperM.M.&P. Co 58 Cornell vs. Latta 714 Creighton vs. Hershfield . 639 Creighton vs. Vanderlip 400 Cutter, McFarland VB 383 Dahler vs. Steele 206 Daily vs. Redfern 467 Davis vs. Blume 463 Davis vs. Germaine 210 Davis vs. Hendrie 499 Davis, Wilson vs 98, 183 Donnell vs. Humphreys 518 Drennan, Territory VB 41 Dunphy, Bohm vs 333 Dunphy, Kleinschmidt vs 118 Edwards, King vs 235 Ervin, Rader vs 632 Farwell, Sanders VB 599 Febes vs . Tiernan 179 Field, Collier vs 612 First N. B. vs. How 604 Fisk vs. Rodgers 252 Freed, Thorp vs 651 Gallagher vs . Basey 45? Gans, Caldwell vs 570 Garringer, Woolman VB 535 Gaston & 8. G. & 3. M. Co., Brown vs 57 Gaston & 8. O. & 8. M. Co., Lamb VB 64 Gerber vs. Stuart 172 Uermain*, Davis rm. 310 TABLE OF OASES REPORTED. FAGB. Oermaine, Higgins vs. 230 Germaine, Mason vs 268, 279 Gilbert, Territory ex rel. Largey vs. 371 Gilette, Bullard vs 509 Godbe vs. McCormick 105 Grant vs. Spencer 136 Griffith vs. Hershfield 66 Griswold vs. Boley 545 Hampton, Hutchinson vs 39 Harding, Orr vs 387 Harris vs. Shontz 212 Harvey vs. Whitlatch 718 Hendrie, Davis vs 499 Herbert vs . King 475 Hershfield, Creighton vs 639 Hershfield, Griffith vs 66 Hershfield, Pinney vs 367 Higgins vs. Germaine 230 Holter, Columbia M. Co. vs. . 296, 429 Holter, Taylor vs 688 Horn, Kinna vs 329, 597 Hornbuckle, Toombs vs 286 How, First N. B. vs 604 Hudson, Lee vs 84 Humphreys, Donnell vs 518 Hutchinson, Hampton vs 89 Isaacs vs . Me Andrew 437 Kamak, Loeb vs 152 Kelly, Simonton vs 868, 483 Kemp vs. McCormick 420 King vs . Edwards 235 King, Herbert vs 475 King, Langford vs 33 King vs. Sullivan 282 Kinna vs. Horn 329, 597 Kintzing, Lomnie vs 290 Kleinschmidt vs. Dunphy 118 Kleinschmidt vs. Morse 100 Kuh worth, Bautz vs 133 Lamb vs. Gaston & S. G. & S. M. Co., 64 Langford vs . King 33 Largey, McCormick vs 158 Latta, Cornell vs 714 Lee vs . Hudson 84 Lincoln vs . Rodgers 217 VAOB. Loeb vs. Kamak ................ 152 Lob vs. Schmith ............... 87 Lomme vs. Kintzing ............ 290 Lomme vs . Sweeney ............ 684 Lovelock, Nolan vs ............. 224 Marden vs. Wheelock .......... 49 Mason vs. Gennaiue ....... 263, 279 McAndrew, Isaacs vs ............ 437 McClin, Territory vs ............ 394 McCormick, Godbe vs ............ 105 McCormick, Kemp vs ........... 420 McCormick vs. Largey ..... ..... 158 McCormick, Travis vs ....... 148, 347 McDonald vs. Stokey ........... 388 McElroy, Territory vs ........... 80 McFarland vs. Cutter ........... 38." McGregor vs. Wells ............ 142 McMullen vs. Armstrong ........ 48M McPhee, Conner vs .............. J 7:i Metcalf, Campbell vs ............ 37S Miller, Stewart vs ............... 301 Ming vs . Truett ................ 322 Mochon vs. Sullivan ............ 470 Montana G. & S. M. Co., Christ- not vs ....................... 44 Montana M. L. & M. Co., Carr- hart vs ....................... 245 Morgan vs. Reynolds ............ 163 Morse, Kleinschmidt vs ......... 100 Mulverhill, Boucher vs .......... 806 Murphy vs . Ames .............. 276 Nelson vs . O'Neal .............. 284 Nolan vs. Lovelock ............ 224 Noteware vs . Sterns ............ 311 Nowlan, Story vs ............... 850 O'Laughlin, Anderson vs ........ 81 O'Neal, Nelson vs ............... 284 Orr vs . Harding ................ 887 Parks vs . Barkley .............. 514 Pemberton, Caruthers vs ........ Ill Peterson, Atchison vs ........... 561 Pinney vs. Hershfield ........... 367 Rader vs. Ervin Rankin vs. Campbell TABLE OF OASES BEPOBTED. 19 PAOB. Redfern, Dally VB 467 Reece, Ayles worth VB 200 Reins, Coady VB 424 Reins, Wormall VB 627 Reynolds, Morgan VB 168 Riale VB. Roush 474 Robertson vs. Smith 410 Rodgers, Carpenter VB 90 Rodgers, Fisk vs 252 Rodgers, Lincoln vs 217 Roush, Riale VB 474 Rumley, Comanche M. Co. VB 201 Sanders vs. Farwell 599 Schmith, Loeb vs 87 Shontz, Harris VB 2J2 Simonton vs. Kelly 363, 483 Smith, Robertson VB 410 Smith, Thomas vs 21 Spencer, Grant vs 136 Steele, Dahler vs 206 Sterns vs . Noteware 311 Stewart vs. Miller 301 Stewart, Taylor vs 816 Stokey, McDonald va 888 Story vs . Nowlan 350 Stuart. Gerber vs 172 Sulnvan, King vs 282 Sullivan, Mochon VB 470 Sweeaey, Lomme VB 584 PA0B. Taylor vs. Holier 888 Taylor vs. Stewart 816 Territory vs. Drennan 41 Territory ex rel. Largey YB. Gil- bert 871 Territory vs. McClin 894 Territory vs. McElroy 86 Territory vs. Whitcomb 359 Thomas vs . Smith 21 Thorp vs. Freed 661 Thorp vs. Woolman 168 Tiernan, Febes VB 179 Toombs va. Hornbuckle 286 Travis vs. McCormick 148, 347 Truett, Ming vs 322 United States vs. Buffalo Robes. . 489 Upper M. M. & P. Co., Cope vs. 53 Vanderlip, Creighton vs 400 Wells, McGregor vs 142 Wheelock, Marden vs 49 Whitcomb, Territory vs 359 Whitlatch, Harvey vs 718 Wilson vs. Davis 98, 183 Woolman vs. Garringer. 536 Woolman, Thorp vs 168 Wormall VB. Reins . . .637 CASES ARGUED AND DETERMINED ni THE SUPREME COURT AT THS DECEMBER TERM, 1868, HELD IN VIRGINIA CITY .Present: HON. HENRY L. WARREN, CHIEF JUSTIC*. HON. HIRAM KNOWLES, ASSOCIATE JUSTICE. THOMAS, appellant, . SMITH, Treasurer of Deer Lodge County, respondent. PRACTICE mandamus appeal from iu'der <>n referee,' x report. No appeal lies from an order of the district court setting aside the report of a referee upon an application for a writ of mandate. PRACTICE mandiuiiu* reference must be. ilttKriniited by court. The district court cannot refer an application for a writ of mandate, but must grant <>r deny the same before an appeal can be taken. VALIDITY of xtntiitr relatiny to county botuls. The act approved November 2^', 18(57, au(hori//mg county commissioners to call in all outstanding orders against tin' 1 treasury of their respective counties, and issue bonds in lieu thereof is valid. POWER <>f commissioners in -issuiny count n bonds. The county commissioueri of a county cannot require the holders of the evidences of its indebtedness to surrender the same. Th" an approverl N'ovembor !i2. 1^(!~, confers upon county commissioners the |io>ver fo i>sue homls in t he place of outstanding orders which have been voluntarily pre-irnt-'il l'"r! hai purposo. 22 THOMAS . SMITH. [Dec. T., STATUTE relating to payment of county warrants not repealed. The act approved November 19, 1867, entitled "An act defining the duties of county treas- urers, and the payment of county warrants," is not repealed by the act relating to county bonds, approved November 22, 1867. Dmr of county treasurer power of county commissioners. The treasurer must pay, upon county warrants, money in the treasury of the county which is not otherwise appropriated by law. An order forbidding the treasurer to pay such warrants, passed by the county commissioners, is void. Appeal from the District Court of the Second District, Deer Lodge County. THOMAS applied to the district court of the second district for a peremptory writ of mandate on April 18, 1868, to com- pel Smith, the treasurer of Deer Lodge county, to pay a certain warrant. After the answer and replication had been tiled the following order was made by the court : APRIL TERM, 1868 ; May 12, 1868. "W. W. Dixon, Esq., an attorney at law, is hereby appointed referee in the application of J. M. Thomas for a writ of mandamus against Addison Smith, treasurer of Deer Lodge county, to report both the facts and the law in the case ; to make his report in twenty days. "MayW, 1868. " L. P. WiLLiSTOisr. Judge" The referee made his report on May 30, 1868, in favor of Thomas. On February 22, 1868. the board of county commissioners of Deer Lodge county' passed the following order, which is referred to in the opinion of the court : " It is hereby further ordered by the board of county com- missioners that the treasurer shall not pay any moneys out of the county treasury, for the purpose of paying off any unpaid county warrants that may have been issued prior to the first day of February, 1868 ; neither shall he take in payment of taxes or licenses any warrant that may havn been issued previous to the date above named. " February 22, 1868. 'Gr. J. LUCAS, ' ''// n! rut ii n Board County Commissioners.^ J868.] THOMAS v. SMITH. 2 At the June term, 1868, the court, WILLISTON, J., set aside the report of the referee, and Thomas appealed. The facts are fully stated in the opinion. WORD & SPRATT arid L. MoMuRTRY, for appellant. Appellant presented his warrant to the treasurer of Deer Lodge county for payment on May 9, 1866, and April 17. 1868. On the last day the treasurer had moneys in his hands sufficient to pay appellant's warrant and refused to pay it. Appellant presented his warrant under section 8, page 518, act 1865, and registered it under sections 2 and 3 of the act of J867. page 59, approved November 19, 1867. The first question is, the proper construction of the act approved November 22, 1867, page 234, providing for the bonding of county warrants. Appellant contends that this act only authorizes the county commissioners to call in the outstanding indebtedness, and to fund or bond so much of said indebtedness as may be presented to the treasurer of the county for that purpose by the holders thereof. The holders of the warrants cannot be compelled to bond or fund them. The county commissioners cannot prohibit the treasurer from paying any warrants. This act is not repug- nant to the acts of February 9. 1865, and November ID. 1867, cited above. These acts relating to the same subject- matter must be construed together. Repeals by implication are not favored by law. Sedg. Stat, and Const. Law, 127 et seq. ; 5 Abb. N. Y. Dig. 93. ^ 'I'M. 200. 2()'l and 202. If these acts can subsist together the courts will uphold the prior law. Sedg. Stat. and Const. Law, 127 et seq.. 247; Merrill v. GorJiam. Cal. 41. The intention of the legislature is to be searched for in the words of the statute. Sedg. Stat. and Const. Law, 243 et fq. : : Abb. X. V. Dig. 79. j! 31. riie la\\ under which appellant: presented his warrant formed part of the contract between him and the county His right to receive payment became vested when he com- };\'v-(\ wiHi the law. The legislature cannot by any subse- 24 THOMAS r. SMITH. [Dec. T. quent act impair its obligation by requiring other conditions to be performed, which were not required by the law of the contract itself. Robinson v. Magee, 9 Cal. 81. The previous acts of the legislature, providing that appel 1 ant's warrant should be paid in the order of its presentation or registry, appropriated the county funds to that purpose. The county commissioners cannot change this order of payment. Laforge v. Magee, 6 Cal. 285. The act of November 22, 1867, authorizing the funding of county indebtedness, is unconstitutional and void. It delegates to the county commissioners legislative powers. 17 Mo. 530. The order of the county commissioners, forbidding the treasurer to pay warrants issued prior to February 1, 1868, is void. It is an exercise of legislative power. It repeals and annuls the acts of the legislature. No such power is conferred upon the commissioners by any statute. The act of November 22, 1867, and the orders of the county commissioners thereunder, impair the obligation of the con- tract between the county and the holders of warrants. Robinson v. Magee, 9 Cal. 81 ; Laforge v. Magee, 6 id. 285, 650 ; 17 Mo. 530. What is termed the policy of the government, with regard to any particular legislation, is generally a very uncertain thing. Sedg. Stat. and Const. Law, 308 ; Hodden v. The Collector, 5 Wall. 111. SHAEP & NAPTON and J. C. ROBINSON, for respondent. The decision of the court below in setting aside the report of the referee is correct. It is clearly settled that it is not necessary to the repeal of a law that it should be done in terms, nor that one law should be directly repugnant to tho other. 1 Kent's Com. 462 ; Plerpont v. Cranch, 10 Cal. 316 : Sacramento v. Bird. 15 id. 295 ; Appeal of N. B. & M. It. R. Co., 32 id. 515. The intention of the legislature, when it can be ascer- tained, must govern in the construction of statutes. Thai 18(58. ] THOMAS v. SMITH. 2o intention must be gathered from the act itself. Sedg. Stat. and Const. Law, 229-234, 293-298; Schofield v. While, 7 Oal. 400; Smith Stat. and Const. Law, 649; Knowles v. Ye.ates, 31 Cal. 86. Where there are two statutes of different dates upon the same subject, and full force and effect cannot be given to both, the latter operates as a repeal of, and destroys the force and effect of the former. Whenever a power is given by statute, every thing necessary to attain the end is implied. 1 Kent's Com. 524. The act of November 22, 1867, gives the commissioners the authority to call in all indebtedness. Webster defines authority to be legal power, or a right to command or to act. as the authority of a prince over subjects, etc. The inten- tion of the legislature in making the law of November 22, 1867. was to prescribe the only mode of payment. It not only gives the authority referred to, but further provides that all bonds shall draw interest and be paid in seven years. The creditors are compensated for the delay in enforcing their remedy. It cannot be that it was only intended to empower the commissioners to fund or not, at the pleasure ol' the scrip holder. If so, they would have been allowed to bond on the best terms they could. They must pay fifteen per cent per annum interest. Appellant's construc- tion would simply give commissioners the power to com- promise the county indebtedness and borrow money, which they can do under the acts of 1865, page 500, section 14. Section 8 of the acts of 1865, page 518, is in conflict with sections 3 and 6 of acts of 1867, page 234. There was no necessity for a repealing clause as the bond ing act was ineffectual until acted upon by the county com- missioners. The commissioners have ordered the bonding of the county wan-ants under the law. and declared that they will only pay by bonding, which renders the law effectual. The subject of this action is included in the war- rants thus ordered bonded. To sustain both acts, as contended for by appellant, would virtually render the last of no effect wluttevei'. A statute Vor.. T---4. 26 THOMAS v. SMITH. [Dec. T., should never be so construed as to render it a nullity Smith Stat. and Const. Law, 671, 672. Remedial statutes should be largely and liberally con- strued. Smith Stat. and Const. Law, 547, 709, 710. The legislature has the right to alter the remedy, if it does not thereby impair the right and make the remedy hardly Avorth pursuing. Smith v. Morse, 2 Cal. 549. The legisla- ture may fund the debt of a county. HunsacTcer v. Borden. 6 Cal. 288 ; Chapman v. Morris, 28 id. 394. The record shows that appellant's right never became vested. The legislature did not delegate legislative power to the county commissioners in leaving it discretionary with them to fund the county indebtedness. Blanding v. Burr, 13 Cal. 358 ; Chapman v. Morris, 28 id. 394. County commissioners understand the wants of their county better than the legislature. The action of the com- missioners was not legislative in its character, but simply ministerial. They complied strictly with the funding act. Upham v. Supervisors Suiter County. 8 Cal. 378 ; Emery v. San Francisco Gas Co., 28 id. 348. Any one interested could have compelled the commis- sioners to fund if they had refused. City of New York\. Furze, 3 Hill, 612. WARREN, C. J. This was an application on the affidavit of appellant to obtain a writ of peremptory mandamus out of the district court of the second judicial district, in and for the county of Deer Lodge, directed to the respondent, treasurer of said county, to compel the payment out of the county treasury to appellant of county warrant numbered 364. drawn by the county commissioners of that county on the treasurer for the sum of 8213.20. payable to C. E. Irvine or order, out of any moneys in the treasury of said county, and dated May 9. 1866. The affidavit alleges legal ownership of the warrant by appellant, its presentation on the 9th day of May, 1866, to the then treasurer for payment, and non-payment for 1868.J THOMAS v. SMITH. 27 want of funds, and avers that afterward money was received by the respondent as such treasurer, which was appro- priated by law to the payment of said warrant ; and that appellant, on April 17, 1868, presented same to respondent, who had previously as such treasurer received money appropriated by law to pay said warrant, for payment, and who then refused to pay same. >?ome matters of practice hereafter noticed make it neces- sary to detail the history of the case. In his amended answer respondent specially denies : 1. That he had at the time of answering, or had had since the commencement of the action, any money in his hands or custody appropriated by law to payment of the warrant ; and, 2. That he had at any time received any money appro- priated by law to payment of same. For further answer he sets up the act of the legislative assembly, entitled "An act to authorize the county commis- sioners of the several counties of the Territory of Montana TO fund Tin- debt of their respective counties." approved November 22, 1867, and two orders made under color of that act by the board of county commissioners of Deer Lodge county, which are set out in the answer, the first bearing .late February 1, 1868, and the other February 22. 1868. The first order recites that the commissioners, deeming it for the interest of Deer Lodge county that all the outstanding orders against the treasurer of said county be called in, do order that all outstanding orders against the treasurer of said county be called in, and that bonds, with coupons paj r - able semi-annual ly, be issued in lieu thereof, by virtue of, and in conformity with, the act of the legislative assembly of November 22, 1867 ; and further, that $3.000 be set apart from the ordinary revenue of the county for the year 1868. for the payment of the outstanding bonds against the treas- ury of said county and the interest thereon. The second order forbade the county treasurer to pay any money out of the treasury for the purpose of paying off any unpaid county warrants issued prior to February 1, 1868. or tr such warrants in payment of taxes or licenses. 38 THOMAS v. SMITH. [Dec. T., The answer avers that both these orders of the board were made prior to the presentation of the warrant in question to respondent for payment. To this answer respondent tiled a replication, and the cause was referred, by order of the court, to a referee ' ' to report both the facts and the law of the case,'' who after- ward tiled a report including finding of facts and conclu sions of law, and recommending that an order of court be made for a peremptory mandamus to respondent in accord- ance with the application. To this report of the referee respondent excepted, assigning errors, and moved to set the report aside, and for a new trial. Upon this motion the court rendered what purports to be a judgment, reviewing the conclusions of law reported, and concluding as follows : " We feel impelled in the brief time we have to investigate the question to dissent from the report of the referee. We, therefore, sustain the exceptions (except the one rejecting evidence), and set aside the report of the referee." To this order, or decision, appellant noted his exception. This is all the transcript shows, except the following stipulation of the parties under which the proceeding is brought before this court : "It is stipulated and agreed by and between the parties hereto as follows : "1. That the cause be taken by appeal to the supreme court of the Territory, upon the decision and order of the judge of said district court setting aside the report of the referee in this cause, and the order of said judge granting a new trial thereon. '2. That all errors and defects in the pleadings in said cause be and the same are hereby waived, and the court is hereby authorized and requested to order said appeal in accordance with these stipulations." We have thus detailed the proceedings in the cause, because, as an appellate court, we are met at the outset by a difficulty as to what questions are presented in this tran- script for the adjudication of this court. 1868.J THOMAS v. SMITH. 29 No appeal lies from the mere order or decision setting aside the report of the referee ; and, though recited in the stipulation, the transcript fails to show any further order granting or denying the application, granting or refusing a new trial, or any final judgment or order whatever from which an appeal would lie. This difficulty arises from the error of the court in ordering a reference of the cause, and subsequently in failing to either grant or deny the applica- tion. We will not stop, however, to discuss the validity of a reference of "issues" or "questions" of law, under our code of practice, without consent of the parties entered upon the record. In a proceeding for a mandamus our statute contemplates that questions of fact and of law shall respec- tively be determined in the manner pointed out questions of law being for the court. In this case the issues raised on the affidavit and answer are questions of law the only issue of fact joined being the denial by respondent that he had, prior to the commencement of the action, received money as treasurer appropriated by law to payment of the warrant, and this really involving a question of law. Although the court below did not take such final action as would bring these questions before this court on appeal, yet, regarding them as of interest, and in view of the intention of the parties, as indicated by their stipulation, we will proceed to con- sider them as presented by the pleadings, treating the report of the referee upon the issue of fact as a special finding of the court, and regarding the order setting it aside as an order denying the application of appellant on the facts as shown by the record. The respondent bases his refusal to pay the warrant, in substance, upon the orders of the board of county commis- sioners set out in the answer, and that the money in the treasury was not by law appropriated to such payment. ft' those orders of the board were made by competent authority, within the limitations of legislative power, they would, of course, furnish a legal justification of his refusal. To determine whether such is the case, we must first refer to the acts of the legislative assembly conferring powers 50 THOMAS v. SMITH. [Dec. T. r upon the commissioners, as it is not contended that they possess any legal powers, except such as may be rightfully conferred upon them by the legislature, in the exercise of its powers under the constitution and acts of congress. The act of November 22, 1867, is relied upon as confer- ring this power upon the board. The constitutionality of this statute is questioned by appellant, but, properly inter- preted, we regard it as upon a rightful subject of legislation, and within the scope of legislative powers. It is claimed, however, by respondent that, under this statute, the county commissioners possessed the power to require, by an order, that all holders of warrants, issued prior to the date of their first order, should surrender them for cancellation, and receive bonds in lieu thereof ; and that this act, upon the making of such order, in effect repealed all prior laws providing for payment of outstanding warrants out of the treasury, leaving such warrants as were not sur- rendered unprovided for. We do not so regard it. While we admit the power of the legislative assembly, either by direct laws or through the commissioners, to control the financial affairs of a county, subject only to well estab- lished limitations, we would be forced to deny the power claimed to require the surrender of evidences of county indebtedness by the holders on any terms or conditions, whether favorable or unfavorable to the latter. The county revenues might be appropriated by law to other purposes than payment of the outstanding indebtedness, leaving that unprovided for, and whatever violation of moral obligation or of public faith this might be, the creditor, unless in some case of vested right, would be without legal remedy. This subject we have discussed in another case and wili not pursue farther. We do not think the act in question intended a compul- sory change of the form of the county indebtedness. In construing a statute it is the duty of a court, where one of two constructions will render it inoperative, or even simply harsh, and another valid, to give it such construction aa will sustain it. 1868.] THOMAS v. SMITH. 31 We hold, then, that the statute of November 22, 1867, simply conferred upon the commissioners the power, which, without it, they did not possess, to issue bonds bear ing liberal interest, and substitute them for outstanding orders, and thus sustain the financial credit of the county. The exchange was not to be compulsory, but dependent on the will of the holders of warrants. In this light it is a wise and just measure ; and we fail to see, as is claimed by respondent, how such construction renders the statute nugatory. The question then recurs as to what were the rights of appellant, if declining to surrender his warrant under the order of the board. Unquestionably to have it paid, accord- ing to its terms, out of money in the county treasury not otherwise appropriated by law. The answer of respondent avers that, at the time of the presentation of the warrant to him, he had not in his hands money appropriated by law to its payment. The finding of the referee on this issue was, that " on the 17th day of April, 1868, when demand of pay- ment of plaintiff's warrant was made, by reason of further receipts and the funding of prior warrants, he had received more than sufficient money to pay plaintiff's warrant, sup- posing that it was entitled to be paid in its regular order, without regard to the funding law and the order of the com- missioners." The money, then, was in the treasury. Was it appro priated by law to the payment of the warrant? By an act of the legislative assembly, entitled ' ; An act defining the duties of county treasurers, and the payment of county warrants," approved November 19, 1867, it is pro- vided that county warrants " shall be paid in the order in which they are presented" to the county treasurer for pay- ment. It is urged by respondent that this law was repealed by implication by the act of November 22. It is a primary principle that statutes in par I materiel shall be so construed as that, if possible, all shall stand. The interpretation we have given the latter act removes all conflict between it and the former one, and gives effect to both. 32 THOMAS v. SMITH. [Dec. T., The act of November 22d permitted the commissioners to appropriate but one-fifth of the county revenue annually to payment of bonds, leaving the remainder to be applied in accordance with previous laws. The order of the commis- sioners, of February 1st, set apart $3,000 of the ordinary revenue of the county for 1868 for the payment of outstand- ing bonds, and it is to be presumed that amount constituted the one-fifth of the revenue of the county for that year per- mitted by law to be appropriated for that purpose ; if it was more it was unauthorized by the law. The remainder of the revenue, then, was subject to the disposition made by prior laws. The act relating to counties and county officers, approved February 9, 1865, in specifying the duty of the county treasurer, provides that "all moneys received by him for the use of the county shall be paid out by him only on the orders of the board of commissioners, according to law, except when specified provision for the payment thereof is or shall be otherwise made by law." Under this act, and that of November 19, 1867, it appearing that appellant's warrant was entitled to payment in the order of presentation, and that the money in the treasury, at the time of its pre- sentation to respondent for payment, was not set apart under the order of February 1st of the board of commis- sioners as part of the $3,000, or otherwise appropriated by law, it was the duty of respondent, notwithstanding the last order of the commissioners, to apply it to payment of the warrant. The judgment of the court below is reversed with costs, and it is ordered that a peremptory writ of mandate issue out of this court, directed to the treasurer of Deer Lodge county, commanding him to pay to appellant, holder of the county warrant hereinbefore described, the amount of said warrant, with interest on the same at the rate of ten per cent per annum from April 17, 1868, out of any money in the treasury not otherwise appropriated by law. KNOWLES, J., concurred. 1868.] LANGFORD v. KING. 33 Exceptions sustained, Peremptory writ of mandate granted. The respondent filed a motion for a rehearing, which was denied at the same term for the reasons contained in the forgoing opinion. LANGFORD, respondent, v. KING, Treasurer of Lewis and Clarke County, appellant. TERRITORIAL WARRANT how paid. A territorial warrant, duly issued, pre- sented for payment and " not paid for want of funds," in July, 1867, and subsequently sold by the owner, could not be paid by the Territory in money or taxes, at its option, in July, 1868. TERRITORIAL WARRANTS no contract for their payment. The statute in force in July, 1867, giving the holders of territorial warrant* the right to pay taxes with them, was not a contract that they should be so paid. VALIDITY of act relating to payment of tuxes in money. The act approved November 19, 1867, which deprives the holders of territorial warrants, not issued in their names, of the right of paying taxes with them, is constitu- tional. WHEN holder of territorial warrant has a vested right. The holder of a territorial warrant, who presented it in payment of taxes before the passage of the act approved November 19, 1867, acquired a vested right to pay taxes with it. TERRITORIAL contracts have no legal obligation. A citizen cannot sue the Territory and enforce its contracts. They have no legal obligation, but rest upon the good faith of the Territory. Appeal from tlie District Court of the Third District, Lewis and Clarke County. LANGFORD applied to the district court of the third dis trict on August 5, 1868, for a writ of mandate to require King, as county treasurer of Lewis and Clarke county, to accept a territorial warrant in payment of taxes due from Langford. The warrant was duly drawn and issued in favor of Green C. Smith, and presented for payment on July 17, 18(57. Smith sold the warrant for a valuable consideration VOL. 15. 34 LAKGFOKD v. KING. [Dec. T., to Langford, who tendered it, in part payment of his taxes, to King on July 11, 1868. King refused to receive the war- rant, because it was not issued in the name of Langford, according to the act approved November 19, 1867, " defining the duties of county treasurers, and the payment of county warrants." Langford then applied for the writ of mandate, which was issued in the alternative on August 15, 1868, by the court, MUNSON, J., who made the following order in chambers : ' ' This case having been submitted to me for a ruling, under stipulation that the same be taken to the supreme court for final decision, without giving the subject that full considera- tion its importance demands, and for the purpose of raising the question for the consideration of the supreme court, I do hereby make a ruling in favor of the plaintiff and against the defendant, and, therefore, adjudge that the defendant receive said warrant for said taxes due from the plaintiff, as in said complaint specified." The parties stipulated in writing that no peremptory writ of mandate should be issued until the final decision of the supreme court had been rendered. The statutes relating to the subject of the action, and further facts, appear in the opinion. J. H. SHOBEE, District Attorney, Third District, for appellant. The purpose and manner of issuing territorial warrants, as well as the mode, manner and order of payment of the same, are strictly within the control of the territorial legis- lature. The legislature has a right to provide means for defray- ing the expenses of the territorial government. It must necessarily provide laws for levying and collecting taxes. Hence follows the authority to prescribe in what the taxes shall be paid, money, warrants or both. The act approved November 19, 1867, does not impair the obligation of contracts. The contract made between the Territory, and the holder of the warrant tendered, was that ; 808,1 LANGFORD v. KING. 36 he should have $10 paid by the territorial treasurer out of any money in the treasury, not otherwise appropriated. This contract is not impaired by that act. He is required to pay his taxes in money when they become due, but his right tc receive the money on his warrant is not affected. One use to which the warrant might have been applied has been destroyed by the act. The appellant properly refused to receive the warrant tendered by respondent, as it was issued to Green C. Smith, and assigned by him to respondent. LAWRENCE & HEDGES, for respondent. Const. U. S., art. 1, 10. No State shall pass any bill of attainder, ex post facto law, or law impairing the obli- gation of contracts. If a State cannot do it, much less can a Territory. This law applies to all contracts between the State and individuals. 1 Kent's Com. 462. All effectual remedies affecting the interests and rights of owners, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor's rights, and ought not to be disturbed. All suspension by statute of remedies, or any part thereof existing when the contract was made, is more or less impairing its obligation, tion. 1 Kent's Com. 461-2. What is the contract contained in this warrant under the law existing at the time it was issued ? It is negotiable. The indorsee has all the remedies of original payee. Section 14, page 57, and section 1, page 59, of the act of 1867, do not apply to warrants issued prior to November 1, 1867, or they are unconstitutional. Tlie warrant is in the form authorized by law, and is receivable for full amount of taxes payable into territorial treasury. Acts 1865, pp. 408 and 422, 35 ; also, p. 528, 1 6. County treasurers are collectors of taxes and licenses due the Territory. Act 1865, p. 421. 34, 35; act 1867, pp. 45, 240. The holders of such warrants are deprived of all remedy. Act 1867. pp. 53. 57, 59. 36 LANGFOBD v. KING. [Dec. T., KNOWLES, J. This cause comes to this court on appeal from a judgment awarding the respondent a peremptory writ of mandamus, commanding the appellant to take in payment of the Territory's proportion of a license, terri- torial warrant No. 458, for $10, issued July 2, 1867, to Green C. Smith. On the 2d day of July, 1867, the following statutes of this Territory were in full force, viz. : Sections 2 and 5 of ' ' An act to provide for the expenses of Montana Terri- tory." They read as follows : " 2. That the treasurer shall pay, out of any funds in his hands applicable to such use, the amount stated as due in the auditor' s warrants, only in the order in which they are drawn according to priority of date ; provided that all warrants are receivable into the treasury in payment of any taxes, licenses or other dues due the Territory. " 5. That the warrants drawn by the auditor of this Territory on the treasurer shall be received by the sheriff or collector of the revenue in payment of taxes, fines and penalties, or other dues to the Territory, at par, and shall be received from such officer by the treasurer in settle- ment of revenue due from such sheriff or collector of the Territory." Also section 35 of "An act providing for the collection of the revenue." That part of it which refers to territorial warrants is as follows : "Auditors' warrants are receivable for the full amount of taxes payable into the territorial treasury." After the issuing of this warrant to Smith, and before the tendering of it to appellant by respondent in payment of the Territory' s proportion of a license, the following statute was enacted, viz. : " 1. That, from and after the passage of this act, all taxes and licenses due this Territory, or any county thereof, shall be paid in money at the time the same may become due ; provided that any person or persons who may have rendered services to the Territory, or any county thereof, and who hold warrants issued therefor in his or their 1868.] LANGFORD . KING. 37 names, shall have the privilege of paying his or their taxes or licenses with such warrants, in proportion of sums due the proper county or Territory." Section 7 of this act provides that "all acts and parts of acts conflicting with this act are hereby repealed " See Statutes of Fourth Legislative Assembly, p. 59. The first question presented to us is : Did the Territory contract with Smith that this warrant should be received by it in payment of taxes or licenses ? If we consider the war- rant itself, we have no difficulty in saying the Territory never made any such contract. The form of the warrant is in accordance with the provisions of law. See Statutes of First Legislative Assembly, 408. It is as follows : No. 458. TERRITORY OF MONTANA, MADISON COUNTY, | VIRGINIA CITY, July 2, 1867. ( The treasurer will pay to Green C. Smith or order ten dollars, out of any moneys in the Treasury not otherwise appropriated. Presented for payment. July 17, 1867. JNO. H. MING, Territorial Auditor. JNO. S. ROCKFELLOW, Territorial Treasurer. It is contended, however, that those statutes existing July 2, 1867. enter into and are a part of this contract. It is true that laws do enter into and form a part of contracts made during their existence, when parties ha^e left any thing to be supplied by law. But when parties have made and entered into contracts which are not illegal, the law never enters into them to vary or add to them, so as to make the contract different from what the parties have made it themselves. See 2 Pars, on Cont. '21. Laws give effect to the contracts parties them- selves have made. If those laws added to this contract so as to bind the Territory to receive this warrant in payment of taxes, then it also added to the obligations of the receiver of the warrant, and bound him to pay it over to the Terri- tory, on demand, for taxes due the Territory, for the obliga 38 LANGFORD v. KING. [Deo. T. tions of such contracts are mutual. We think no one, upon a careful examination of those provisions of the statute and this warrant, can come to the conclusion that the Territory has the power to pay it in money or in taxes, at its option. If not, then it was no part of this contract that this warrant should be received in payment of taxes. We might proceed at some length to analyze each one of those provisions of the statute, cited above, and show that they cannot have the effect claimed by respondent. We deem it sufficient, however, to say that they are general laws, which, for reasons of public policy, gave the holders of warrants the privilege of paying them over in liquidation of taxes. And as such they would form no part of this contract. See Sedg. on Stat. and Const. Law, 618, 633. But let it be granted that the Territory did contract with Green C. Smith that this warrant should be paid out of any moneys not otherwise appropriated, or that it might be paid over in liquidation of taxes. Is that law, repealing those provisions of the statute which gave this right of paying over this warrant in liquidation of taxes, void, as violating that provision of the Constitution of the United States pro- hibiting States from passing any law impairing the obliga- tions of contracts ? What is the obligation of a contract ? It is that which gives the parties thereto the legal power to enforce it. See 3 Pars, on Cont. 555, note s. Montana Territory is a government created, it is true, by a law of Congress. Yet that law gives it very extensive powers. The reason of the law, which declares that no government can be sued without its consent, applies to this territorial government as well as to any other government. We hold, therefore, that unless permitted by some law of this Territory, or of the general government, no citizen of this Territory can sue it. There is no law of this Terri- tory or act of Congress permitting it. There is, then, no legal power to enforce territorial contracts. In other words, there is no obligation to territorial contracts. They rest simply upon the good faith of the Territory. Hence, there was no legal obligation on the part of the Territory to take 1868. j HUTCHIXSO.N r. IIAMPTOX. 39 rhia warrant in payment of taxes ; and the law which took away this right of paying it over in liquidation of taxes, did not impair the obligation of the contract, because there was no legal obligation to this contract, whatever the moral obligation may have been. Had the warrant been presented in payment of taxes before the repeal of the law giving this right, the right would then have become a vested one, and a different question would have been presented to us. In support of these views, see HwnsaJcer \. Borden, 5 Cal. JS8 ; Myers v. English, 9 Cal. 341. In accordance with these views, we hold that the statute which provides that all taxes, licenses and dues payable to the Territory should be paid in money, unless the person owing the tax or license should hold a warrant, issued to himself, for services rendered the Territory by him, was not void as to this warrant. The appellant, as tax collector, was. therefore, bound to obey it, and to refuse to receive this warrant in payment of the Territory's proportion of a license. Hence the district court erred in awarding the respondent the peremptory writ of mandate. The judgment of the court below is, therefore, reversed, with costs, and the peremptory writ of mandate e contained in the opinion of the court. J. A. JOHNSTON, for appellant. Defendant had a right to show that he was possessing and using the water and mining claim, at the time of the assault committed upon Dalton, in mitigation of the offense. People v. Payne, 8 Gal. 341 ; People v. Coslello, 15 id. 350. W. J. STEPHENS, district attorney, second district, for respondent. No brief on file. KNOWLES, J. Michael Drennan, the above-named defend- ant, was indicted for the crime of assaulting, with intent to do great bodily injury, on Patrick Dalton, and was tried and convicted of the same. The only error complained of by the defendant is the refusal of the court to admit, on the trial, the evidence set forth in the following exceptions, to wit : "Be it remembered that on the trial of this cause, the defendant, Michael Drennan, introduced as a witness in his behalf one John Stoner, by whom he proposed to prove that the defendant was owner of a mining claim in Wash- ington gulch, in Deer Lodge county ; and that he was at work mining on the same at the time of the commission of the alleged assault ; and that he was using the natural water of said gulch for the purpose of working his said claim ; and that Peter Dalton, upon whom said assault was alleged to have been committed, without any right so to do. shut off the water of said gulch, out of and away from the same, so that this defendant was deprived of the use of the same, and thereby prevented from working on his said claim; which said testimony of John Stoner was pro- posed to the court by the defendant, to be corroborated by a number of competent witnesses. The attorneys for the prosecution objected ; which said objection was, by the court, sustained : to which said ruling of the court the 1808.] TERRITORY OF MONTANA v. DKENNAN. 43 counsel for the defendant then and there objected, and ask that this, their bill of exceptions, be signed and made a part of the record." The only grounds upon which such testimony would be admissible are : 1. That it was a defense to the charge in the indictment ; or, 2. That it was a part of the res gestce. Should it have been admitted as a defense? It is true that when a party is in the act of committing a forcible trespass upon the person of another, or property of which he is in possession, force may be used by the assailed sufficient to repel the trespass. But it does not appear, from the testimony offered, that Patrick Dalton was in the act of committing a trespass upon the property of the defendant, of which at the time he was in possession, and that, to repel this trespass, he was compelled to use the force he did. The evidence goes to show that Dalton had already shut off the water from the defendant's claim, and deprived him of the use of it, when he sought to redress his grievance by shoot- ing Dalton. It certainly does not appear that the defendant did this shooting in repelling a forcible trespass upon his property, of which he was in the actual possession, which Dalton was at the time in the act of committing. If the defendant had offered to prove such facts, they would cer- tainly have been admissible. The fact that the defendant, while he was in possession of, and working his mining claim, shot Daiton because he had shut off the supply of water in the gulch, which the defendant may have been entitled to, is surely no justification of the offense charged in the indict- 7tient. Were the facts set forth in the exception a part of the res gestcE ? What defense of the defendant do they explain or elucidate? There is none presented to us in the record. We have already seen that they are no defense. How do they present the principal act. namely, the shooting, in a favorable light ? It is not apparent to us. These facts might have been, perhaps, introduced by the prosecution, to show malice, and the motives which impelled the defendant to ommit the offense. "Rut t<> entitV- the defendant to insist 44 CHRISTNOT v. M. G. & S. M. Co. [Dec. T. upon the introduction of these facts as part of the res gestcs, they must be necessary to elucidate or explain some defense of the defendant. As such a necessity does not appear in the record, we are compelled to hold that the court below properly refused to admit the testimony. The judgment of the court below is, therefore, affirmed. Affirmed. WARREN, C. J., concurred. CHRISTNOT, respondent, v. MONTANA GOLD AND SILVER MINING Co., appellant. MECHANIC'S LIEN accounts appropriation of payments. A person who per- forms labor for another under a contract, and is entitled to a lien for a part of said labor, and can have no lien for the remainder, can charge therefor under two distinct accounts. If the debtor, at the time of the payment of any sum, fails to appropriate the same to either of these accounts, tb creditor can do so before he makes out and flies his lien. Appeal from the First District, Madison County. CHRISTNOT commenced this action against the defendant, a foreign corporation, to recover for services performed by him under a contract made with its managing agent in Montana, and have the same adjudged a lien upon the quartz mill of defendant. The defendant admitted that the amount sued for was due, but denied that plaintiff was entitled to a lien as a mechanic upon its property. The action was tried in the district court, WARREN, J., and plaintiff obtained a judgment in December, 1868. The other facts are stated in the opinion of the court. W. F. SANDERS and H. jST. BLAKE, for appellant. The respondent did not perform all the services upon the appellant's mill. The statement shows that some of his time was occupied in making sleds, ox frames, mining tubs, and cutting logs and working upon buildings not owned by appellant. The court below should have separated the items of respondent's account, and determined what amount should be a lien upon the mill, and what amount should be 1868.] CHRISTNOT v. M. G. & S. M. Co. 45 a lien upon other property of appellant. The amount that was not a lien should have been found by the court. The statute requires a mechanic to perform his labor upon the building, which he seeks to incumber with his lien. Acts 1865, 332, 1. Respondent's work upon sleds, ox- frames, tubs, etc., could not, under this statute, be a lien upon the mill or any buildings of appellant. Respondent's work upon buildings owned by his brother and father could not be a lien upon appellant's property. Respondent never made any legal appropriation of appel- lant's payments to him in discharging his claims for labor upon sleds, desks, tubs, etc. " Said appropriation was done by advice of his counsel at the time the lien was drawn up" Statement. Christnot should have made a specific appro- priation of the money at the time he received it from appel- lant, if it was due to him on distinct accounts. The doctrine of appropriation applies only when the accounts are dis- tinct in themselves, and are so regarded and treated by the parties. If the whole may be treated as a continuous con- tract, payments are generally applied to the earlier items <>f the account. 2 Pars, on Cont. 629-633. Appellant had no knowledge of any pretended appro- priation by respondent. Statement. Respondent could not appropriate the payments, as claimed, without the knowledge of appellant. 2 Pars, on Cont. 631. The requirements of the statute, securing the lien to mechanics, must be strictly complied with. Bottomly v. Rector. 2 Cal. 91, 3 Pars, on Cont, 276 ; Blytlie v. Poult- ney. 31 Cal. 234. Respondent must prove that he has a mechanic's lien upon appellant's mill. The contract for constant employ- ment, found by the court below, does not affect his right to the lien claimed. If it is impossible to ascertain what pro- portion of the judgment can become a lien upon appellant's property : or, if services for which respondent might have a lien are combined with other charges for which no lien is given, respondent loses the benefit of the statute. Edqar v. SW/V/rv. 17 Mo. -_>71. 46 CHRISTNOT . M. G. & S. M. Co. [Dec. r \\ W. M. STAFFORD and WORD & SPEATT, for respondent. Respondent worked as a mechanic, under a contract, for appellant. No act of appellant could remove his liability to respondent until there had been a breach of or refusal to comply with the contract on respondent's part. The statute securing a lien to mechanics is intended to afford the laborer an opportunity to secure payment for his ser- vices. The lien accrues where the liability attaches, whether the work has been done under contract or otherwise. Where a contract exists, the act of the employer, preventing the laborer from fulfilling his part of the contract, will not affect the rights of the laborer under the lien law. Respondent made tubs, etc., during the existence of appellant's contract to pay him five dollars per day until the mill was completed, and his right to a lien was not impaired thereby. The court has determined the amount that should be secured by a lien, and that the remainder has been paid. Respondent had the right to appropriate all payments made by appellant on his account. If neither party makes a specific application of the money, the law appropriates it. according to the justice and equity of the case. Payments are not applied to the earlier items of an account, if a dif- ferent intention can be gathered from the circumstances of the case. There are many exceptions to the rule that pay- ments made generally are presumed to have been made in discharge of the earlier items of an account. 2 Par?, on Cont. 631-633 ; Chitty on Cent, 645, 649, and notes. It is conceded that respondent appropriated the payments made to him by appellant before filing his lien and bringing this suit. The law fixes 710 time for the creditor to make the appropriation of the payments. Respondent could make it at any time, if the rights of third persons were not affected. Chitty on Cont. 645, n. 2. KNOWLES. J. The respondent Ohristnot brought an action in the court below to foreclose a mechanic's lien upon a quartz mill of the appellant, the Montana Gold and Silver Mining Company. The court gave the respondent judg- 1868. J CHRISTNOT a. M. G. & S. M. Co. 47 ment, and a decree for the sale of said mill property to satisfy the same. The appellant made a motion for a new trial, which the court denied ; from which order the appellant appealed to this court From the evidence set forth in the bill of exceptions, it appears that the respondent entered into a contract with appellant to perform mechanical labor on and about the said quartz mill of appellant, for $5 per day ; that this was less than the usual price, but was consented to by respondent on the promise of constant employment ; that he performed, under the orders of the agent of the appel- lant, work upon a house for the agent ; that at different times he worked at making sleds, ox frames, tubs and cut- ting logs for the appellant, etc. ; that respondent worked on the mill one hundred and ten days ; that appellant paid him certain amounts on his labor ; that at the time of mak- ing out his lien, he appropriated these payments, first, in liquidation of the account for labor not performed on the mill, and then in payment for the labor on the mill, so far as it would go. It is not denied there is still due respondent, on all the labor performed, the balance he claims. It is not contended that the appellant at any time appropriated these payments. The main question presented in this case is. had the respondent the right to appropriate the payments to him in liquidation of the labor performed by him not on the mill. It is contended by the appellant that the account between respondent and appellant was one, not different accounts ; and that the respondent had no right to select out certain items, and apply the money he received in payment of them. The evidence shows that the respondent was hired by appellant to perform labor in a quartz mill. If respond- ent performed labor, which cannot be treated as labor <>n the said quartz mill, then the respondent has two distinct accounts, not one. The one hundred and tori days' labc r were performed under an express contract for work on a quartz mill and its appurtenances. The balance of the work 48 CHRISTNOT v. M. G. & S. M. Co. [Dec. T., was not on this quartz mill, or its appurtenances ; and hence, was not performed under this contract. The com- pany was liable for this labor on an implied contract. It is not contended that the original contract was ever varied or waived. The respondent treated the work done by the orders of the agent of the appellant, on his house, as work performed for the company. What issues were presented to the court below we do not know, as the pleadings in the cause are not made a part of the transcript. From the evi- dence set forth in the bill of exceptions, and from the brief filed by the appellant, this court is warranted in the infer- ence that there was no issue presented to the court below upon the amount of indebtedness, but only as to the amount for which respondent was entitled to a lien upon the quartz mill. If there was such an issue presented, from the evi- dence set forth in the transcript, this court could not determine whether the court below had taken into consider- ation the amount of labor performed upon the building of the agent, in making up its findings of the amount of labor performed for appellant by respondent or not. Hence it will be seen there is not enough presented in the record to warrant us in interfering with the findings of the court below on this point. The respondent, having two distinct accounts, could, ai any time before he made out and filed his lien, as the appel- lant had not up to that time appropriated the payments made to respondent, appropriate them to the payment of either account. See Haynes v. Waite, 14 Cal. 446 ; Field et al. v. Holland et al.. 1 Am. Lead. Cas. 276. We are inclined to hold that where a party performs labor for another in a case where he would be entitled to a lien for one part of his labor, and not for the balance, he may properly charge for his labor under two different accounts. And if the debtor, at the time of payment of any sum to the creditor, fails to make an appropriation to one or the other of the accounts, the creditor may do so at any time before he files his lien. The respondent having appropriated the money paid to 1868.] MARDEN o. WHEELOOK. 49 him by appellant, first in payment for the labor not per- formed in the quartz mill, and then, as far as the balance would go, upon the labor on the said mill. And it appear- ing that the court below gave respondent judgment for $398.50 less than the value of the one hundred and ten days' labor performed in the said mill, we can find no error in the ruling of the court below. The order and judgment of the court below is affirmed with costs. Affirmed. WARREN, C. J., concurred. MARDEN, respondent, . WHEELOCK et al., appellants. PRACTICE issues of law waiver of. Issues of law should bo disposed 01 before issues of fact are tried ; but this right is waived by a party who goef to trial upon the facts, without insisting upon a demurrer, which has been filed in the action. GARNISHES when protected by stay of execution. If an action is pending between M. and W., and W. is served with garnishment as the debtor of M. in an attachment suit subsequently commenced, the court should proceed with the first action to final judgmen , and protect W., as garnishee, if necessary, by staying execution until the attachment suit is determined. PHACTICE intermediate proceedings reviewed. On an appeal from a judgment, this court can review the intermediate proceedings and afford relief. PRACTICE oral instructions not error. It is not error for a judge of the district court to give oral instructions. COSTS when presumed correct. It is a presumption that the costs entered by the clerk, in a judgment, have been properly ascertained and taxed. Appeal from IJie Third District, Lewis and Clarke County. MARDEN commenced this action in May, 1867, against the defendants upon two promissory notes made by them to plaintiff. After the answer and replication had been filed, the defendants filed an "additional answer" on June 13, 1868, and alleged that G. W. Morse had commenced a suit against Marden on that day, and garnished the defend- ants as the debtors of Marden. They asked the court to stay proceedings in the action against them until the attach- VOL. 1 7. 60 HARDEN . WHEELOCJV [Dec. T. rnent suit of Morse was disposed of. The court, MU.NSON, J., denied the application, and proceeded to the trial of the cause upon June 15, 1868. A demurrer, which had been filed on July 12, 1867, by plaintiff to the original answer of the defendants, was never argued nor passed upon. The jury returned a verdict for plaintiff for $3,250, upon which judgment was entered by the court. The defendants filed the following objections to the in- structions of the court : " Defendant's object to the instruc- tions of the court upon the ground the same were not law, and that they were given orally." The court overruled the defendants' motion for a ne\v trial, and defendants appealed. Before the argument of this cause on the appeal, respond- ent filed the affidavit of A. M. Woolfolk, stating that he was one of Marden's attorneys; that the suit of Morse v. Marden had been settled between the parties ; and that the same so appeared upon the records of the court in Lewis and Clarke county CHUM ASERO & CHADWICK, for appellants. No brief on file. WOOLFOLK & TOOLE, tor respondent. The respondent had a right to abandon his demurrer and go to trial upon the truth of the facts of the defendants' answer. No exception was saved upon this point by appellant, as required by law. Appellants do not show that they were injured by thr ruling of the court below in refusing a continuance on account of the garnishment in the case of Morse v. Maiden. Appellants saved nc exception upon this point. Prac. act. 1867, 188. The affidavit of A. M. Woolfolk, on file, shows that the case of Morse v. Marden has been settled, and the garnish- ment is inoperative. The bill of costs filed in the lower court is not embraced in the record. Appellants furnish no evidence to show that no bill of costs was filed. If there was error in this respect, 1868.] MARDEN v. WHEELOOK. 51 the remedy was by motion to retax the costs in the lower court. WARREN, C. J. The transcript of the record tiled in this cause does not show any statement, in compliance with the statute, to have been filed in the court below on the motion for a new trial, specifying the particulars in which the evi- dence is alleged to have been insufficient, or the particular errors in law alleged as occurring on the trial ; no excep- tions appear to have been taken and preserved in the record ; and the appellants have not annexed any state- ment on appeal to this court. No order seems to have been entered upon the motion for a new trial, and the appeal is from the judgment entered on the verdict of the jury below, generally. The appellants have tiled in this court, for the first time, an assignment or specification of errors, which, as an appellate court, we must consider in the light of the record furnished us. The first error alleged is in proceeding to trial of the cause without first disposing of respondent's demurrer to appellant's answer. Under our practice a party may demur and answer 01 reply at the same time ; and filing an answer or replication does not waive a demurrer previously filed, and issues of law should be disposed of before issues of fact are tried. A party, however, may unquestionably waive these rights, and does waive them by going to trial upon the facts with out insisting upon his demurrer, especially if the opposite party does not call it up. The latter party is not injured in such case ; and it is not for him to complain, upon appeal, as no injury has been or could be sustained by him in con- sequence. The next error assigned is in the action of the court below in refusing to stay proceedings in this suit, until the deter- mination of the attachment suit subsequently commenced and pending in the same court, in which the appellants wen- served with garnishment as debtors of respondent, in accord- 62 HARDEN v. WHBELOOK. [Dec. T. ance with the application for that purpose of appellants, filed as a supplemental answer in this cause. This is a question of practice which, perhaps, is not fully settled. It cannot be maintained that the garnishment of appel- lants, before answer and judgment against them, in any way affected the relations or rights of the parties to this suit, so far as the issues involved in it are concerned. All that the appellants could rightfully ask was that they be protected against double liability ; and, in fact, their own application was that such action might be taken by the court, by continuance of this cause or otherwise, as would protect them. This protection could be afforded in one of two ways : either by suspending proceedings in this cause until the determination of the attachment suit against respondent, or by proceeding in this cause to final judg- ment, in the mean time protecting appellants as garnishees, and staying execution, if necessary, to await the result of the attachment. We are of opinion that the latter is the proper and equi- table course, and that the court below committed no error in refusing the continuance applied for. This suit was first commenced, and both were pending in the same court. The court could and should protect the appellants ; and, so far as the record shows, did so. It does not appear that judgment was recovered in the attachment against respond- ent as defendant, or against appellants as garnishees, or that the attachment and garnishment remained pending at the time of rendition of the judgment in this cause. If such appeared to be the fact, and the court had failed to stay the execution under the judgment in this cause, the appel- lants would have sustained injury, and on appeal from the judgment, under our practice, this court could and would have reviewed the intermediate proceedings, and afforded appellants relief. Upon the record before us, appellants do not appear to have been injured by the action of the court in refusing to stay the proceedings, and, consequently, there is nothing to justify the interposition of this court. 1868.] COPE v. U. M. M. & P. Co. 6ft As to the third error specified, all the record shows upon the subject is an "objection" of the appellants to the instructions of the court below, "upon the ground the same was not law, and that they were given orally." The instruc- tions given are not preserved ; the fact that they were given orally is no error ; and the record does not show a request on the part of appellants that they should be reduced to writing by the court. A mere motion of a party filed in a cause, assuming that certain facts exist, cannot be regarded as a substitute for a bill of exceptions, or statement of facts agreed on by the parties, or certified by the court, as con- templated by our statute. The clerk has entered the costs in the judgment rendered, and the presumption is that they were properly ascertained and taxed. The memorandum furnished by the party of his items of costs need not necessarily form part of the transcript on appeal. The judgment of the court below is affirmed, with costs. Affirmed. KNOWLES, J., concurred. COPE, respondent, v. UPPER MISSOURI MINING AND PROS- PECTING Co., appellant. ATTACHMENT dissolution of. The defective statement of a cause of action in the pleadings is not a ground for dissolving the attachment. ATTACHMENT affidavit. An affidavit for an attachment, which sets forth that the amount is due "upon in part of both an express and implied contract," without specifying how much is due upon each contract, is sufficient ; but this affidavit is not a model of pleading. ATTACHMENT LAW REMEDIAL. The attachment law is a remedial statute and must be liberally construed. Appeal from the First District, Madison County. COPE commenced this action in February, 1868, to recover for services performed and goods sold and delivered. The complaint contained the following verification and affidavit of the respondent : 54 COPE v. U. M. M. & P. Co. [Dec. T., ''George F. Cope, plaintiff in the above suit, makes oath and says, the facts as stated in the foregoing complaint have been read to him, and that he knows of his own knowledge they are as stated therein true. Affiant says, on his said oath aforesaid, that said defendant is indebted to the plaintiff* in the sum of $4,253.30, over and above all legal set-offs and counter-claims upon (in part of both an express and implied contract), for the direct payment of money, and that such expressed and implied contract was made and are payable in this Territory, and that the payment of the same has not been secured by any mortgage, lien or pledge upon real or personal property ; that the defendant is a non-resident of the Territory, and a foreign corporation ; that the sum afore- said set out in this affidavit, and for which the attachment is asked, is an actual bona fide existing debt, due and owing from said defendant to the plaintiff ; and that this attach- ment is not sought, and the action is not prosecuted to hinder, delay or defraud any creditor or creditors of said defendant." An undertaking was filed by Cope, according to law, and the writ of attachment was then issued by the clerk of the court. The defendant appeared by its attorneys, and moved to dismiss the writ of attachment on account of the insuffi- ciency of the affidavit. The court, WARREN, J.. denied the motion, and defendant excepted. W. F. SANDERS and H. N. BLAKE, for appellant. The paper, termed the affidavit for the attachment, per- forms a double office, and also forms the verification of the. respondent's complaint. The verification of a complaint, and the affidavit for an attachment, are regarded by the statutes as distinct and separate. Acts 1867, 156, 121. affidavit for attachment ; Acts 1867, 144, 55, verification of complaint. The law does not regard with favor pleadings of a hybrid character, like those above specified. Andrtwx v. Kokelumvne Hill Co.. 1 Cal. 334. The affidavit should show the amount of the indebtedness upon a "contract, express or implied." It should show what is due under each contract. The respondent's :ifndu- 1866.] Co IMS 0. U. M. M. & P. Co. 55 vit states that the indebtedness is due in part upon both. Acts of 1867, 156, 121 ; Hawley v. Delmas, 4 Cal. 196. Uncertainty m the affidavit will vitiate it. Drake on Attach., 104. This statute must be construed strictly. Roberts v. Landecker, 9 Cal. 262. DAVIS & THOROUGHMAN, for respondent. No brief on 11 le. KNOWLES, J. This cause comes to this court on appeal from an order overruling a motion to dissolve an attachment proceeding. The first point relied upon by the appellant in support of his motion is, that the attachment proceeding is void, for the reason that in the affidavit, upon which the attachment proceeding is founded, the facts necessary for the verifica- tion of the complaint are set forth. It is contended that this alone, notwithstanding there may be sufficient set forth in the affidavit to sustain the attachment writ, is such a defect that the court should have dissolved the whole pro- ceeding. No attachment will be dissolved for surplusage in the affidavit. The facts verifying the complaint may properly be treated as surplusage, as far as the attachment proceeding is concerned. The fact that there may be no verification to the complaint, is not such a defect as to war- rant the dissolving the attachment proceeding. If the action should be dismissed, upon proper motion, for this defect, of course, the attachment proceeding, being auxiliary, would fall with it. But. because the cause of action is improperly or defectively stated in the complaint is no ground for dissolving an attachment. The second point relied upon by the appellant is, that this affidavit having been tiled to perform the double pur- pose of a verification to a complaint and of an affidavit, is a pleading of a hybrid character, and not favored in law. And the cast' of Andrews v. Mnkelumite Hill Co., 7 Cal. 334, is cited to support this view. In that case a demurrer and answer vvere united in the same pleading, and it was not decided that, for this reason, there \va-~ neither demurrer 66 COPE v. U. M. M. & P. Co. [Dec. T. ; nor answer in the action ; but the whole pleading was treated as an answer ; and we hold that, in this case, we would not be justified in saying there is no affidavit for an attachment. The third point presented by the appellant is, that the affidavit is fatally defective, because it is set forth therein that the defendant is indebted to the plaintiff in a certain amount, naming it, " upon, in part, of both an express and implied contract for the direct payment of money." It is contended that the affidavit should state how much is due upon the express, and how much upon the implied contract. It would have been, no doubt, better practice to have stated how much was due on each contract. It is not necessary, however, for a party seeking an attachment to set out in his affidavit therefor his cause of action with any great particularity. It is sufficient, if the statute be sub- stantially complied with. The case of Hawley v. Delmas, 4 Cal. 195, cited by the appellant, is not in point. That was a case where the grounds for the attachment were set forth in the affidavit, in the alternative. Alternative plead- ings have ever been considered bad. In this case the grounds were stated conjunctively. Drake on Attach- ments, 104, cited by appellant to sustain the view that the attachment is void for uncertainty, because the cause of action is stated in the affidavit as above, is not authority in this case. The case there cited is one decided in the State of Louisiana, and based upon a statute which required the party seeking the attachment to state how much was due. The affidavit alleged that the defendant was indebted to the plaintiff in a certain amount, a part then due and a part to become due. The court held, very properly, that, as the statute required the applicant to state how much was due. and, as they could not tell this from the affidavit, it was fatally defective. It will be seen by reference to that section of the attach- ment law, providing what must be set forth in the affidavit, to warrant the issuing the writ, that the second ground foi attachment does not require that it should be set forth in 1868.] BROWN a. G. & S. G. & S. M. Co. 57 the affidavit whether the debt is due upon an express or implied contract or not. It is set forth in the affidavit that the defendant is a non-resident of the Territory. There is enough to warrant the issuing of the attachment under this head. The statute has been substantially complied with. It is not true, as claimed by the appellant, that the attachment law should be strictly construed. Being a remedial statute, it should be liberally and beneficially expounded. There were other points presented in the bill of excep- tions, but, as they were not set forth in the brief of the appellant, they will be deemed waived. In conclusion, we may be permitted to say, that, while we hold this affidavit to be sufficient to sustain the attach- ment writ, we do not regard it as a model. It exhibits, on the part of the one who framed it, great carelessness, or a lamentable ignorance of the most common forms of judicial procedure. The order of the court below is affirmed, with costs. Affirmed. WARREN, C. J., concurred. BROWN, appellant, v. GASTON AND SIMPSON GOLD AND SILVER MINING COMPANY, respondent. SUMMONS proof of service affidavits. The service of a summons should be proved by the return of the officer, or the written acknowledgment of the party served. It is improper practice to establish this fact by the affidavit of persons who were absent when the service was made. PRACTICE default, how set aside. A default can be set aside without show- ing excusable neglect, if the summons has been defectively served. AGENT declaration of authority. The declaration of an agent of a corpora- tion, respecting his authority, is hearsay testimony. Appeal from the Third District, Lewis and Clarke County. BROWN commenced this action in December, 1867, for services in erecting a quartz mill for defendant, and to enforce his lien as a mechanic therefor. The sheriff sei ved VOL. 18 58 BROWN v. G. & S. G. & S. M. Co. [Dec. T., Che summons upon Rodman Carter and made his return, which is stated in the opinion of the court. The clerk of the district court entered the default of the defendant, and a judgment in favor of the plaintiff, and made a minute of these proceedings in the " minute book" of the court, which was approved and signed by MUNSON, J. On January 11, 1868, the defendant, by its attorney, moved to set aside the default and vacate the judgment. On January 30, 1868, the court, MUNSON, J., made the following order upon this motion : "In this case I am satisfied the judgment is bad, and cannot be held upon the pleadings and papers on file in the case. After argument counsel for plaintiff asks leave to file affidavits to cure defects and show that R. Carter, upon whom service was attempted to be made, was the acting agent of said company, with power to accept service. The plaintiff has leave to file said affidavits, and defendants have like leave to file counter affidavits. Said cause is con- tinued one week for such purpose, with stay of proceedings on said judgment for such time and until further order of this court in the premises." The plaintiff afterward filed the affidavits of Burdick. King and Cowan, and defendant filed none. Upon reading these affidavits, the court, MUNSON, J., on February 7. 1868, made an order as follows : "On reading and filing affidavits on behalf of plaintiff herein, under the order of this court of January 30. 1868. and the certificate of the clerk that no affidavits have been filed by the defendants under said order, and the time allowed in said order for filing affidavits herein having expired. Now, on motion of Williams & Burdick, said motion is overruled, and said judgment heretofore entered in the above action stands as the judgment of this court as rendered.'' On February 11, 1868, the court, Muisrsoisr, J., made the following order in this cause : "The January term of this court having, on the 4th day of February, adjourned for the term, and all causes and J868.] BROWN v. G. & S. Of. & S. M. Co. 59 motions not specially disposed of having been continued till the March term of said court, the order at chambers on the 7th inst. being premature and out of time, the same is hereby revoked and set aside, and said causes and motions therein are continued till said March term of said court for final order in the premises." On March 6, 1868, the court, MuxsoN', J., made the fol- lowing order on the motion of defendant to open the default, and set aside the judgment for defective service : ' I think the affidavits in the above-named cause, although they do not show all that has been required in similar cases in some States to be good service, yet I will hold them suf- ficient for that purpose, and let the parties have the benefit of the ruling. Motion allowed, default opened and judg- ment set aside, with leave to defendants to move to file answer on or before Monday, March 9, 1868." The answer of the defendant was filed on March 7, 1868, and alleged that defendant, on February 6, 1868, was adjudged a bankrupt in the district court of the United States, for the eastern district of Pennsylvania, under the provisions of the act of congress, entitled " An act to estab- lish a uniform system of bankruptcy throughout the United States,'' approved March 2, 1867. The plaintiff appealed from the order of the court, dated March 6. 1868. This cause, and that of Lamb against the same defendant, reported on page 04, were argued together. SHOBEK & LOWKY and H. N. BLAKE, for appellants. WILLIAMS & BURDICK filed a written argument. The court had no power to make the order of March 6, 1868, setting aside the judgment, which the court declared by the order itself to be regular in every respect, unless upon the defendants filing an affidavit of merits. Quhiti v. Oase, 2 Hilton, 467; Excise Commissioners v. Hollister, id. f88; Ellis v. Jones, 6 How. Pr. 296; Acts Montana, 1867, 147, 71 ; Macomber v. U. G. & S. G. & S. M. Co. tfl the summons, and an indorsement on the complaint of the appearance of Carter, as attorney in fact, not as attorney at law. There was no proof by affidavit of such acknowledg- ment as is required by Acts 1865, 50, sec. 34. Alderson v. Bell, 9 Cal. 320 ; Acts 1867, 140, 29. In order to render judgment or other judicial proceedings valid, it is indispensable that the court have jurisdiction of the person, subject-matter and process. Unless process be executed as the law requires, the court acquires no jurisdic- tion. Reynolds v. Orvis, 7 Cow. 269 ; Oallatain v. Oun- mngliam, 8 id. 361. In case of want of jurisdiction over the person or subject-matter, the judgment is a nullity. Norton v. Auchmoody, 7 Wend. 200 ; Norman v. Wells, 17 id. 145 ; People v. Rensselaer & Saratoga R. R. Co., 15 id. 121 ; 1 Scam. 488 ; 3 id. 107. In case of void judgment, no affidavit of merits is required. KNOWLES, J. This was an action against the above- named respondents, a corporation organized under the laws of the State of Pennsylvania to carry on the business of mining in this Territory, to foreclose a mechanic's lien. The sheriff who served the summons made the following return of service thereof: "I served the within summons by reading the same to Rodman Carter, and delivering to him a copy thereof; also delivered to him a copy of complaint. All done in Edger- ton county, M. T., December 9, 1867." On the 7th day of January, 1868, the appellant claimed of the clerk of the district court a default against the respondent, which was duly entered. On the same day, at the request of appellant, the clerk entered up a judg- ment against respondent for the amount claimed in the complaint, and an order of sale of the described premises. The defendant, within two days thereafter, filed his motion to have the judgment vacated and the default set aside, for the reason, among others, that the service of summons was lefective. The court held, on the hearing of this motion that th* 32 BROWN /?. G. & S. G. & S. M. Co. [Dec. T, proceedings were defective, but gave the appellant one week in which to file affidavits, showing that Rodman Carter was a general managing agent of the said corporation, the respondent. Affidavits were filed, which the court held were sufficient, and it was ordered that the judgment should stand as the judgment of the court. On the llth day of February the judge reversed this order, on the ground that it was made out of term time, and that on the adjournment of the court all causes and motions had been continued for the term. On the 6th day of March following the court rendered a decision, holding the service good, but, at the same time, setting aside the judgment and default, and giving the respondent time to file his answer. From this order the appellants appeal to this court. If there was a good service of summons upon respondent, and a default had been regularly entered, and a judgment thereon, there is no doubt that it was improper practice to allow the respondent, without any showing of excusable neglect or inadvertence, to have the judgment vacated and the default set aside, and leave to file an answer to the com- plaint. Does the record present such a case? No matter what the reasons which induced the court to sustain the motion may have been, still, if there were legal grounds presented to him which warranted his ruling, it is the dut}~ of this court to sustain it. It is not contended that the return of the sheriff shows sufficient service of summons to warrant the judgment. The appellant, however, sought to remedy this defect, by filing affidavits of third persons to show that Carter was a manag- ing agent. When an officer serves a summons the usual way, and \vc are inclined to sa} T the only way of proving that service is either by the return of the officer himself or the written acknowledgment of the party served. The attempt to amend service of summons by the affidavits of persons who did not make the service, is certainly doubtful practice, but when these parties do not pretend to have been present when service was made, or to know that the. sheriff did make serviYe on th* j particular individual desmb*--^. wy 3868.] BROWN v. G. & S. GK & S. M. Co. 6S are sure it is improper practice. Not one of the persons making affidavits pretend to know that the Carter they are deposing concerning is the one upon whom the sheriff made service. There is another point connected with these affi- davits which strikes us forcibly. One sets forth what Carter told him was the position in the company which he held, which is certainly hearsay testimony. Another deposes con- cerning the contents of a written power of attorney which he says Carter told him was sent him by telegraph. It is well, perhaps, he does not depose concerning the signatures to this power of attorney. The third affidavit sets forth certain transactions in which Carter was engaged as the agent of the company. This, however, so far as it is not hearsay, does not show that his agency pertained to all the affairs of the company. If it did not, it has been held that he was not what is denominated a general managing agent, and service upon him would not have been sufficient. Such affidavits, we are of the opinion, are insufficient to amend a return of a sheriff of service of summons if such practice be proper. Where the service of a summons is defective, it is not error for the court to sustain a motion to vacate a judgment and set aside a default, and allow the defendant to make answer to the merits of the complaint. In accordance ivith these views the order of the court below is affirmed, and the cause remanded for further pro- ceedings. Affirmed. WARREN. C. J., concurred. 64 LAMB v. G. & S. G. & S. M. Co. [Dec. T., LAMB, appellant, v. GASTON AND SIMPSON GOLD AND SIL- VER MINING COMPANY, respondent. ATTORNEY IN FACT authority for appearance. The attorney in fact of a cor- poration, who is not its general managing agent, cannot appear in an action against it without special authority. PRACTICE default how set aside. A default should not be set aside, if the service has been regular, without affidavits of excusable neglect or inad- vertence, and also of merits. CASE AFFIRMED. The case of Broicn v. Gaston and Simpson Gold and Silver Minim/ Company, ante, p. 57, affirmed. Appeal from the Third District, Lewis and Clarke County. THE facts in this case are substantially the same as those in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57. The pleadings, motions and orders of the court, MUNSON, J., are the same. This case was argued at the same time with that of Brown against same defendant, and the arguments are given in the report of that case. SHOBER & LOWRY and H. N. BLAKE, for appellant. WILLIAMS & BURDICK filed a written argument. CHUMASERO & CHADWICK, for respondent. KNOWLES, J. The facts presented in this case are in the main the same as those of Brown v. Gaston and Simpson Gold and Silver Mining Company. The only difference is the manner in which the respondent was brought into court. In this case R. Carter, who, it is claimed, was the managing agent of the respondent, a mining corporation, made a memorandum on the complaint, which it is claimed was a waiver of service of summons, in the following words : " I hereby waive service of summons in this action, and hereby appear as attorney in fact of said company. "HELENA, Nov. 25, 1867. "R. CARTER." The affidavits and brief filed in this case, and the proceed- ings subsequent to the signing of this memoranda, are the 1868. j LAMB v. G. & S. G. & S. M. Co. <56 same as ill the aforesaid case of Brown against this respond eiit. The court below, it would appear, held that this appearance was insufficient, unless it appeared that Carter had authority to appear in this cause for respondent. To establish this fact the appellants tiled affidavits to show that he was a general managing agent of the respondent. The affidavit of Burdick establishes the fact of the genuine- ness of Carter's signature to the memoranda. But as far as the authority of Carter to appear in the cause is concerned, he only recites what Carter told him. While the evidence of Carter would be sufficient to establish his agency, what he said is incompetent. It is hearsay testimony. The affi- davit of Cowan is mostly hearsay testimony. So for as it is not, it shows only that Carter acted for the company in settling his account. This would not be sufficient to warrant him in appearing in an action. The affidavit of King recites that he had seen a power of attorney to Carter from respondent, which had been sent him by telegraph. Waiving all objections to the proving of a power of attorney sent by telegraph, he does not state that there was in this any express power to appear in an action against the respondent or any one else. Nor does it show that he was a general managing agent. Carter himseli does not, in the memoranda he signed, describe himself as a managing agent, but only as an attorney in fact. An attorney in fact, unless he has express authority to appear in an action, cannot do so. The authority for an attorney in fact to appear in a suit must appear within the term of the grant of power to him, unless he is a general "managing agent of a corporation, and then perhaps it would be presumed. The managing agent of a corporation, however, to have this authority, must be one whose powers extend to the whole business of the company, and upon whom service of sum- mons could be made in accordance with the provisions of the statute. Believing that there is not sufficient evidence to establish the fact that Cartel- was a general managing agent of the Gaston and Simpson Gold and Silver Mining Com- pany ; and waiving all objections to the power of attorney VOL. L 9. 66 GRIFFITH v. HERSHFIELD. [Dec. T., which he received by telegraph, it not appearing thii their quartz mill, to secure the payment of the gold dust contract. The mill was situated in Jefferson county. The mortgage was acknowledged in Madison county on Novem- ber 8, 1866. before a notary public, and filed for record with the county recorder of Jefferson county on November 10, 1866. The mortgage was stamped with an internal revenue stamp of the United States of the value of two dollars. Hermann & Star answered on July 1, 1867, and Hersh- tield and Hanauer, on the same day, hied their petition to intervene in the action, and stated the following facts : That Hermann & Star, on November 8, 1866, executed to Hersh- tield and Hanauer a deed to the property described in the mortgage to Griffith and Thompson : that this deed was recorded in the county recorder's office in .Jefferson county, on November 14, 1 8(5(5: and thai it was executed for a val- uable consideration, to secure the pavment of money due 68 GRIFFITH t>. HERSHFIELD. [Dec. T., from Hermann & Star to Hershfield and Hanauer. They prayed to be made parties to the action, to contest the claim of Griffith and Thompson ; that their deed be declared a prior incumbrance to the plaintiffs' mortgage, and that the property be sold to satisfy their demand against Hermann & Star, being 16,940 and interest. The plaintiffs filed their answer to the petition of the intervenors, and the cause was tried in April, 1868, in the district court, MUNSON", J. On the trial the intervenors objected to the introduction of the mortgage from Hermann & Star to the plaintiffs, and also a certified copy of the same, which plaintiffs offered in evidence, on the ground that the mortgage was not legally stamped, and that the evidence that it had been recorded was insufficient. The objection was overruled, and the intervenors excepted. The jury returned a general verdict for the plaintiffs, and. among other special findings, that the value of the gold dust, mentioned in the instrument dated October 17, 1866, was $2,103.75. On motion of the counsel for the intervenors, the entry of judgment upon the verdict and findings of the jury was stayed, until they could be heard thereon. After the argu- ment of counsel the court rendered its decree in favor of plaintiffs, on May 18, 1868, and the intervenors appealed. The amount of the judgment was $3,993.75, with interest thereon from May 18, 1868, at the rate of two and one-half per cent per month. CHUMASERO & CHADWICK, for appellants. The mortgage should have been excluded, because it was not sufficiently stamped. The complaint showed that the gold dust was of the value of $2,770.60. The mortgage should have had upon it a stamp of $3. It actually had a stamp of only $2. Int. Rev. Laws and Regulations, Series 3, No. 10, May 10, 1867, p. 12. The mortgage was not made until the day before its exe- cution, on November 8, 1866, although it has the same date as the note. The note was not sufficiently stamped at the 1868.] GBIFFITH v. HEBSHFIELD. 69 time it was made. The law does not allow the stamps to be divided ; one of the instruments must be sufficiently stamped. If such a division is allowed, it can only be done when the instruments were executed simultaneously. A party must apply to the collector to stamp instruments insufficiently stamped. Int. Rev. Laws 1867, 158. No rights acquired prior to such re-starnping can be affected thereby. The mortgage, executed twenty-two days after the note was given, ought to have had the full amount of the stamp upon it. The mortgage could not be connected with the note, so as to avoid the consequences of the insuffi- cient stamping. A stamp once canceled cannot be used to give vitality to an instrument subsequently executed. The amount secured was uncertain ; but the complaint and testimony show that the parties to the instrument well knew the amount intended to be secured, $2,770.60. The jury found the value of the gold dust to be $2,103.75. The plaintiffs knew that the amount so secured was over $2,000, and this value never decreased. The mortgage was not entitled to be recorded. The mort- gage was not properly stamped, and did not show that the proper amount had been affixed to any instrument. Such an instrument could not be recorded under the Internal Revenue Law, 152 and 163. The mortgage, if afterward stamped, could not affect prior rights. Id., 158. The record was absolutely void, and could not be used in evi- dence. The recorder had no right to record the mortgage. An instrument placed on record, without authority of law, can- not be treated as notice to subsequent purchasers or incum- brancers. The court erred in allowing interest upon the judgment at the rate of two and one- half per cent per month. The law fixes the rate of interest on judgments at ten per cent per annum. Acts 1865, 535, 2. A j udgment carries such rate of interest as is legal at the date of the judgment, regardless of the rate recoverable on the contract. Verner 70 GRIFFITH v. HERSHFIELD. [Dec. T., v. JfttyJies, 6 Halst. 91 ; Byrd v. Gosquet, 1 Hemp. 261 ; Ecans v. White, id. 296. The decree is void. It was made in vacation, and should have been made before the close of the term at which the case was tried. The court had no right to order the judg- ment to be entered in vacation. Hogeboom v. Genet, Q Johns. 325 ; Sheppard v. Wilson, 1 Morris, 448 ; Goddard \. Coffin, Davies, 381. There was no order of the court, after the trial, reserving the cause for further consideration. The clerk should have made an entry of such order. Nothing of this kind was done. Acts 1867, 167, 178. \VORD & SPRATT and WOOLFOLK & TOOLE, for re- spondents. The jury find that respondents' mortgage was first re- corded in the proper county. It is, therefore, entitled to precedence over that of the interveriors. Acts 1865, 484, >< 24 and 25 ; 4 Kent's Com. 191 ; 4 Abb. Dig. 687, 23, 75. 688. Each mortgage was executed and received without notice of the other. The intervenors' mortgage was executed and recorded as an absolute deed. It does not operate as constructive notice of a mortgage, and is regarded as an unrecorded mortgage. 4 Abb. Dig. 686, 1 ; 688, 31, 32, 33 ; James v. Morey, -2 Cow. 246 ; Dey v. Dunham, 2 Johns. Ch. 190. Respondents' mortgage was made and executed to secure a certain amount of gold dust. The revenue laws apply only to mortgages securing a certain sum of money, while this mortgage was to secure an indefinite amount of gold dust as to value. The note and mortgage were both stamped, and. in law, they are regarded as one instrument. The stamps, amounting to $3. were more than sufficient to rover the value of the gold dust as found by the jury, r. S. Int. Rev. Laws; decision of Commissioner Rollins of September 4, 1868. The records, which are the best and only evidence, show that there was no adjournment of the term at which th' 1868.] GRIFFITH v. HEUSHFIELD. 71 decree was rendered. 1 Greenl. Ev., 513. If the decree was signed in vacation, the findings of the jury were in court and during the terra, and it is the duty of the supreme court to enter such judgment on the findings of the jury as is right. Love v. Shartzer, 31 Cal. 488. WARREN, 0. J. The chief question raised upon this record is the sufficiency of the revenue stamps affixed to the instruments executed to appellees by Hermann & Star, de- fendants below. The internal revenue act, in force at the time they were executed, imposed an ad valorem duty upon specified instruments in writing for payment of money, or upon "other written or printed evidence of an amount of money to be paid on demand, or at a time designated ; and, also, upon mortgages of real or personal property made as security for the payment of any "definite and certain sum of money." It also provides that it shall not be lawful to record any instrument required by law to be stamped, unless a stamp or stamps of the proper amount shall have been affixed, and that such record, if made, shall be void, and shall not be used as evidence. The instrument in question in this case is not for the pay- ment of money. It is "evidence" of an agreement to pay appellees a certain number of ounces of gold dust, on demand, and the mortgage was executed to secure the same. The former instrument was stamped to the amount of $1, and the latter to the amount of $2. The appellants contend that they were insufficiently stamped, and that the record of the mortgage, though made prior to that of the convey- ance or mortgage to them, was void, and that they were not thereby legally charged with notice of its existence. It is assigned that the court erred in admitting the instruments, and the certificate of record of the mortgage, in evidence upon the trial below. We are of opinion that the instruments in question are not embraced in the schedule embodied in the revenue act, as subject to the ad valorem duties thereby imposed upon similar instruments for the payment and securing of money, 72 GRIFFITH v. HEBSHFIELD. [Dec. T., and that they were valid, and that proof of the record of the mortgage was properly admitted. The contract or agree- ment of the parties was for the payment or delivery of certain property ; and the mortgage was executed to secure the performance of the agreement, and they cannot be regarded as being for the payment of money. Had the money value of the gold dust been expressed in the instrument, or could it have been ascertained from its terms, the case would have been different. It was the duty of the recorder, under the territorial law, to record the mortgage, and the record, when made, was notice to all. Under the act of congress he had no legal authority to determine the value of the property embraced in the mortgage, and the payment of which it was made to secure ; and no means were furnished him by which to arrive at the amount of duty to which the instrument was subject. Had congress designed to include such instruments in the provision relating to recording, power would have been conferred to ascertain by some means the value, in order to determine whether the amount of ad valorem duty paid, as denoted by the stamps, entitled it to record or not. Admitting, however, that while the instrument secured by the mortgage was only subject to duty as an agreement or contract, the mortgage was subject to the ad valorem duty, the amount to which it was subject would depend upon the value of the property secured by it at the time of the execu- tion of the mortgage, and not upon its subsequent value, or with the accrued interest. The agreement, or memorandum, and the mortgage, both bear date October 17, 1866, and, in their special finding, the jury found that to be the true date. There is no proof, and no presumption of law, that the value of the gold dust, at that time, exceeded the amount indicated by the stamps. If, however, as claimed by appellants, the mortgage was not executed until November 8, 1866, still the value of the gold at that time, as found by the jury, was $2,103.7o, and the two instruments constituting but one transaction, the amount of duty upon them denoted by the stamps was 1868.] CONNER v. McPnEE. 73 sufficient. The object of the act is to derive revenue ; and the amount of the stamps being sufficient, it is not material to which they were affixed. The record shows that after rendition of the verdict, the court, on appellants' motion, ordered the case to be reserved for further consideration ; and, after argument, entered judgment in conformity to the verdict. In this there was no error. The court below erred in allowing interest upon the judg- ment at a greater rate than ten per cent per annum ; and the judgment id hereby modified so as to conform to this opinion, and affirmed as modified. Modified. KNOWLES, J., concurred. This judgment was reversed at the August term, 1872. CONNER, appellants, v. McPnEE, respondent. PRACTICE nonsuit plaintiff's motion to set aside. A plaintiff can move to set aside a nonsuit, which has been entered with his consent, after it wai evident that he could not recover on account of alleged error in the rulings of the court. QCAKTZ-CLAm record number of feet. The record of a quartz-claim, which does not specify the number of feet claimed by the pre-emptor, is admis- sible in evidence in this case. The number of feet need not be specilit'd in the record of the claim. PRACTICE review matter* not in record. This court cannot review matters which are not presented in the record of the case. Appeal from the First District, Madison County. Tins action was commenced by Connor and O'Neal in September, 1865, in the district court. The complaint alleged that Conner, in April, 1804. located and staked claim numbered one, south-west from the discovery claim on the Ore Cache quartz lode in Summit district. Madison county ; that it comprised one hundred and t wen ty-five feet; that twenty-five feet was recorded by mistake as a VOL. I. 10. 74 CONNER v. MCPHEE. [Dec T M part of the discovery claim by James Miniss, who conveyed the same to Conner by deed recorded May 10, 1864 ; that Conner, on October 19, 1864, conveyed to O'Neal by deed one undivided half of said one hundred and twenty-five feet ; that Conner and O'Neal had peaceable possession of this property until November 9, 1864, and performed thereon the work required by law ; that defendant, McPhee, wrong- fully entered upon the same on November 9, 1864, and filed a pre-emption claim to one hundred feet of it ; and that McPhee was mining the ground. The defendant answered on December 4, 1865, and denied the material allegations of the complaint. He also set forth that claim numbered one, south-west from discovery claim on the Ore Cache lode, was located, pre-empted and recorded as only one hundred feet in length ; that Conner pretended to pre-empt this claim, but did not stake it and compty with the law in other respects ; that said claim was never worked and was vacant until McPhee located and pre-empted it on November 9, 1864 ; and that defendant worked and pos- sessed said claim until August 17, 1865, when he was re- strained by an order of court. The plaintiffs filed their replication and denied the new matter contained in the answer. The cause was tried in September, 1867, in the district court, HOSMER, J., to whose rulings upon the admission of certain evidence the plaintiffs excepted, and consented to the entry of a nonsuit. The plaintiffs then moved to set aside the nonsuit and for a new trial on account of the erroneous rulings of the court. This motion was denied and judgment then rendered against plaintiffs, who ap- pealed. The evidence referred to, which was contained in the exception considered by the court, appears in the opinion The other exceptions that were taken upon the trial were not passed upon and are not embodied in the report of the case. 1868.] CONNKIS r. McPiiEK. 76 WORD & SPBATT and DAVIS & THOROUGHMAN, for ap- pellants. The court erred in refusing to submit to the jury the issues framed by appellants relating to the circumstances under which the appellants and respondent acquired the rights they claimed. Parol evidence is always admissible to prove such facts. Stanley v. Green, 12 Cal. 162. The court also erred in submitting to the jury issues of law. The first issue submitted to the jury was " the number of feet contained in claim number one, south-west from discov- ery." After submitting the same as a question of fact, the court refused to allow appellants to introduce any testimony showing the number of feet staked and contained in said claim, because the law fixed the number of feet. If it was a question of law, the court erred in submitting it to the jury. Parol evidence is competent to prove the number of feet in the claim in controversy. 1 Greenl. Ev.. 288 and 301. The court erred in refusing to allow appellants to prove the staking of the claim. 1 Greenl. Ev., 94 ; Idaho Stats. o77. The court erred in refusing to allow appellants to prove that they had done the $100 worth of work on the claim within six months after it was recorded. This issue was submitted to the jury, and the court then rejected the testimony of appellants tending to prove that fact. The court erred in refusing to allow appellants to prove the written notices placed upon the stakes, and that they were plainly to be seen at the time respondent took possession of the claim. The record shows that the claim was recorded on May 10, 180-i. The answer shows t.har respondent took possession of the same on November 9, 1804, within less than six months from the time it was recorded, Under the laws of Idaho Territory, then in force, appellants had the whole six months to put on the claim the a mount of work required by the statute. The time thus allowed did not expire until on or alter "November 10, 18(5-1. The possession by respond- ents, before the expiration of the six months, forcibly as alleged, is a sufficient excuse for the failure of appellants to 76 CONNER v. McPHEE. [Dec T., perform the work required, if there was any such failure. Respondent is estopped in law from setting up any alleged failure as a defense. The court refused to allow appellants to show that they had complied with the statute and thereby forced them to sub- mit to a nonsuit. An appeal will lie from a nonsuit taken under the circumstances of this case. Natoma W. & M. Co. v. Qfarkin, 14 Gal. 549 ; Sweet v. Lee, 42 Eng. C. L. 240. W. F. SANDERS and W. M. STAFFORD, for respondent. No error lies from a voluntary nonsuit. Imley v. Beard, 6 Gal. 666, and cases cited ; Hilliard on New Trials, 74 and 497. The court below excluded nothing, but assumed to direct the order of appellants' proof. There was no error in this. The fact first required by the court was the fact on which appellants' claim hinged. A certain paper had been placed on the district records, where this claim was situate, by which Conner meant to pre-empt one hundred feet. The appellants then wanted to show that a copy of this same paper was recorded in Madison county records, and Connei then meant something else, i. e., two hundred feet. In otiier words, this paper got up to secure one hundred feet to Con- ner not by reason of any change in it, but by reason of c; ange in his mind secured something else, and more. Conner claims that he was misled into recording the dis- covery claim as a discovery claim. The discovery claim "was to be, and was, one hundred feet in length," accord- ing to the complaint. Claim number one south-west was also to be, and was one hundred feet in length, according to the complaint, location, agreement of Conner and Miniss, and the record. The south- west twenty-live feet of discov- ery, recorded in the name of Miniss by mistake, according to Conner, was deeded to Conner. Appellants wish to aban- don these facts, and substitute therefor intentions and hopes, and brush away records, customs and rights. It is difficult to tell whether this is an action of eject- ment, or an equitable proceeding to quiet title. It is both. 1868.] CONNER v. McPHEE. 71 Appellants' motion for a change of venue was properly denied. This is a question which is addressed to the discre- tion of the court. In this case the parties were attempting to escape the conviction of the court, on a question of law. The judge who tried the cause gave the appellants a fair bill of exceptions, which is all they could demand. In chancery causes the refusal of the court to submit issues to the jury is no ground for error. Acts 1865, 73, 154. Appellants' issues were wrongly framed. The chan- cellor could have tried the cause without any jury, and the rights of appellants were not affected by submitting to the jury material or immaterial issues. The court properly required appellants to lay a founda- tion for their oral proof by written muniments of title. Without this foundation the oral proof was incompetent. Appellants proved, by the record, that they owned claim number one south-west, and also twenty -five feet of dis- covery. Their record of this fact was notice to all parties that might be affected thereby. Appellants asked to prove that their record was false by showing that the record claim number one south-west, and twenty-five feet of discovery, was claim number one south-west, and nothing else. The court held appellants to introduce record proof which their verbal testimony would fit, not contradict. They refused to do this, and voluntarily dismissed their case, and then moved the court to set aside their deliberate acts. They should have submitted their case to the jury on their proof. How can this court say what the verdict would have been, or that appellants were injured at all. The record was the best evidence. Appellants claim it was not true, and that parol evidence is the best. Titles do not rest on such flimsy foundations. The order in which evidence may be introduced is a matter of discretion. Unless there has been a gross abuse of this discretion by the court below, the proceedings will not be revised. Hil- liard on New Trials, 300. 307. 331, and 573. The real question in this case is. whether the court was right in deciding that a proper record, justifying the hold- 78 CONNER v. McPnEE. [Dec. 1Y ing of twenty-five feet of discovery, and claim number one south-west, of one hundred feet, as one claim, was neces- sary in the case. Conner wished to swear it was in his mind all only one claim. Appellants wished to hold claim number one, by proving that they had performed work upon twenty- five feet of discovery, which they desired to attach to num- ber one. The court stopped them, until they could show a record in harmony with their proof. We do not claim that a person cannot locate less than two hundred feet as a claim. That which the records show a claim, cannot be changed in length or locality by any thing less than a re-location shown on the record. It was not decided, nor claimed in the court below, that the num- ber of feet must appear in the record. It is dear that these may be omitted. But if one is going to re-baptize two claims, he must do so by record. No one can, bv anv men- / ? / w tal action, take up the dividing line between a discovery claim and claim number one, and move it twenty-five feet over on the discovery claim, and thereby make it the dividing line. A record is the one essential thing to change a line. KNOWLES, J. The first question presented in this case is one of practice. Can the plaintiffs in an action move to set aside a nonsuit when they have consented to it. upon its becoming apparent, from the rulings of the court, that they could not recover, basing their motion upon alleged error in the rulings of the court, which induced them to consent to the nonsuit ? Such practice we hold proper. See Natoma Water and Mining Co. v. Glarlkin, 14 Cal. 544. A nonsuit in such cases is treated as and governed by the same rules as an involuntary nonsuit. The only ground of error assigned which we deem it material to examine, is the exclusion of the evidence offered by the appellants. They offered in evidence the records of Madison county, showing the record of Conner's location of the ground in L868.] CONXEB . McPiiEE. 79 dispute , a deed from Miriiss to Conner of twenty-live feet of the ground in dispute ; a deed from Conner to O'Neal of one-half of the ground in dispute ; and, lastly, they offered lo prove by the testimony of Conner the number of feet ^taked off by him for the claim number one, south-west from discovery on the Ore Cache lode, the size of the stakes, the notice written on them, and the amount of labor performed on said claims within six months after the location of the same. The record of location offered did not specify the number of feet claimed. The court refused to allow the appellants to prove these facts, until they should first lay the foundation therefor, by proving "that the claim in con- troversy was pre-empted, and appears on the record in due form as embracing the number of feet claimed for it by plaintiffs." This is the exact language of the bill of excep- tions, and would imply that the court held that the record of the location of a quartz claim should specify the number of feet claimed, and that the appellants, in this case, should h'rst introduce such a record before the}^ could introduce other evidence. This we hold error. The language of th* Idaho statute, in relation to the location and recording of quartz claims in force at the time of the location and record- ing of the claim in dispute by appellants, is as follows : k 'All claims shall be recorded in the county recorder's office within ten days from the time of posting notices thereon." What record must a locator of a quartz claim make to satisfy this law ? Courts generally give to such a statute the interpretation usually accorded to it by the people who use the terms therein employed. Recording a claim is a phrase used among the locators of mining claims. It is a law maxim of general application that contemporaneous exposi- tion of a statute has great strength in controlling its inter- pretation. By examining the records of quartz claims in the several counties of this Territory, which were once a part of Idaho, and the records of quartz claims of the several counties of Idaho, at the time this law came into force, and we will arrive at some conclusion as to what wa> u-eii--rall\ 80 CONNER v. McPnEE. [Dec. T., understood by the locators of quartz claims at that time, was a compliance with the law requiring the recording of quartz mining claims. An examination of these records, wt are confident, will show that it was not generally considered necessary to state in the record the number of feet claimed. This seems to be conceded by tlie attorneys for both parties. And it is contended by the attorneys for the respondent that the court did not rule that a record should show the number of feet claimed. If such was the case, we do not understand the bill of exceptions signed by the judge who tried the cause, or why the record of appellants' location was excluded. If the court had no objecions to Conner's testi- mony, and only directed that there should be first intro- duced the record of his location of the claim in dispute, and did not hold that this record should specify the number of feet claimed, the very record demanded had already been offered in evidence, and one of the objects of Conner's testi- mony was to establish the number of feet in claim number one, south-west from discovery in the Ore Cache lode, at the time this record was made. If the ruling of the court is not as we understand it, then the language used in the bill of exceptions, signed by the judge who made the ruling, is very unfortunate. We have been led to infer, however, from the arguments of counsel on both sides, that the bill of exceptions filed does not fully present all the difficulties experienced on the trial of this cause. Hence we have felt that it was difficult to render a decision which might not mislead the parties on a re-trial of the cause. We can, however, be governed only by the record presented to us. It is very defective, and, perhaps, on our own motion we ought to have sent it back to be perfected. We might follow at some length the arguments of the counsel for respondent, and show that notwithstanding the facts may have been as presented in their argument, still the court erred in excluding the testimony offered. But should we do so we might be. justly accused of present- ing as many immaterial matters, in our opinion, as there 1868.] ANDERSON v. O'LAUGHLIN. 81 are immaterial issues presented by the pleadings in this cause. In accordance with the views above expressed, the judg- ment of the court below is reversed, a new trial granted, and the cause remanded for further proceedings. Exceptions sustained. WARREN, C. J., concurred. ANDERSON, appellant, v. O'LAUGHLIN, respondent. PRACTICE statement exceptions new trial. An order of the district court denying a motion for a new trial will be sustained, if there is no statement specifying errors, or bill of exceptions. REPLEVIN return of property after verdict. A judgment for costs and the return of the property follow a general verdict for defendant in a replevin suit. PRACTICE motions under advisement. It is not error for the district court to take motions under advisement from one term to another. Appeal from the Second District, Deer Lodge County. ANDERSON brought this suit in May, 1867, in the justices' court of Deer Lodge county, NEWCOMER, J., to recover the possession of a horse of the value of $80. The cause was appealed and tried in the district court in July, 1867. The jury returned the following verdict : " We, the jury in the above cause, find for the defendant." Anderson tiled a motion for a new trial because the ver- dict was illegal in not specifying the property and giving its value, and finding that it should be returned. The de- fendant tiled a motion for the entry of judgment on the ver- dict. The court, WILLISTON, J., took both motions under advisement. At the following October term, the motion for a new trial was denied, and judgment was entered upon the verdict for the defendant. The other facts are given in the opinion. VOL. 1. 11 82 ANDERSON v. O'LAUGHLIN. [Dec. T. BROWN & McMuRTRY and WORD & SPRATT, for appellant The answer raises two issues ; first, the unlawful deten tion of the property ; second, the title of respondent to the property. The general verdict does not show on which of these issues the jury based their finding. This verdict will not authorize a presumption of law that the property was in the respondent and that he was entitled to its return. Under the answer, respondent might have had a verdict as to the unlawful detention, and the court had no right to sup- pose it was for any thing else. The verdict was erroneous in not finding that the respondent was entitled to a return of the property. The statute is imperative and requires the jury, not the judge, to find this fact. Acts 1865, 73, 150. The verdict was erroneous in not finding the value of the property. "The jury * * * sliall find the value," is the language of the statute. Acts 1865, 73, 150. The court did not find the value when judgment was entered. The court below had no right to submit all the issues to the jury, and then permit them to find one-half, and find the other half himself. The appellant had a right to have every issue raised by the pleadings tried by a jury. The statute points out the only three ways by which the court can try or find an issue of fact, and in this case the court usurped the powers of the jury. Acts 1865, 73, 152 and 153. The case was tried in July, 1867, and judgment was ren- dered at the October term, 1867. The statute then required the judgment to be entered within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument. The court made no such order. Acts 1865, 77, 173. This statute is imperative, and the judgment is null and void. L. J. SHARP, for respondent, The main issue in the pleadings is the title to the horse. A general verdict for defendant is a finding on the chief issues. People v. March, 6 Cal. 547 ; Kidd v. Laird. Iff id. 182. 1868.] ANDERSON o. O'LAUGHLIN. 88 In an action of replevin, a general verdict for defendant entitles him to a judgment for the return of the property. Waldman v. Broder, 10 Cal. 379 ; Nickerson v. California S. Co., id. 521 ; Hunt v. Robinson, 11 id. 277 ; Treat \. Lafarge, 15 id. 41. If there was any error in the verdict or judgment, appel- lant cannot complain of it. A judgment will not be reversed for an error which does not prejudice the rights of the par- ties. Kilburn v. Ritchie, 2 Cal. 148 ; People v. Moore, 8 id. 94 ; Kidd v. Laird, 15 id. 182. The words "may" and "shall" in the statute referred to by appellant are convertible terms. Cook v. Spears, 2 Cal. 412 ; Acts 1865, 73, 150, and 78, 176. WARREN, C. J. This was an action of replevin, tried, on appeal from a justices' court, in the district court of the second judicial district, in the county of Deer Lodge. No complaint or statement of the cause of action was filed, but no objection is raised to that omission. The respondent filed his answer to the allegations contained in the affidavit of appellant, for delivery of the propert}' claimed. The answer denies the ownership and right of possession alleged by appellant, and sets up title and right of posses- sion in respondent, and claims damages for the taking and detention of the property, the value of which is not denied. The property had been taken under this proceeding from the possession of respondent and delivered to appellant, and the answer claims return thereof. Upon trial of the issues the jury found a general verdict for the defendant, respondent in this cause. Appellant entered a motion for a new trial, and respond- ent moved for an order for return of the property replev- ined, and for judgment for his costs. Both motions were taken under advisement by the court, and, at the following term, an order was made overruling the motion for a new trial, and judgment was rendered on the verdict against appellant for costs and for return of the propeity. from which this appeal is taken. 84 LEE v. HUDSON. [Dec. T., So far as the order overruling the motion for a new trial is concerned, it is only necessary to say that no statement specifying errors, or bill of exceptions, was filed in the court below, and consequently the order must be sustained. We see no error on the face of the record before us of which appellant has a right to complain. He is not injured by the form of the verdict. The respondent might complain that the jury failed to find, in their verdict, the value of the property ; that he was entitled to a return thereof, and to assess his damages, but the appellant cannot. Upon a gen- eral verdict for defendant upon these issues under our stat- ute, as well as at common law, an order of return and judg- ment for costs followed, as a matter of course. The court did not err in taking the motions under ad- visement. The judgment and order of the court below is affirmed, with costs. Exceptions overruled. KNOWLES, J., concurred. LEE, respondent, v. HUDSON, appellant. PIJEADING complaint. The allegation of the release of a debt due the plain tiff is sufficiently set forth in the complaint in this case. Appeal from the Third District, Lewis and Clarke County. ON September 16, 1868, Lee filed his complaint in the justices' court of Lewis and Clarke county, A. J. Edwards, Esq., justice, and alleged : "That, on or about the 25th day of August, A. D. 1868, one James Allen was indebted unto the said plaintiff in the sum of $125 ; that the above-named defendant, on the day aforesaid, was indebted to the said Allen in a sum of money greater than that due from said Allen to this plaintiff ; that, at the special instance and request of said defendant, this plaintiff agreed to take the said defendant for the payment 1868.] LEE ?>. HUDSON. 86 of the said sum due from the said Allen to this plaintiff, and to accept of his promise to pay the said sum in satis- faction of said debt ; that this plaintiff did then and there so take and accept of the said defendant' s promise and lia- bility, and the said Allen then and there released said defendant from his liability to him the said Allen, to the extent and amount of this plaintiff's claim, to wit: the sum of $125, whereby the said defendant became liable to pay this plaintiff the said sum of $125 ; and on the 1st day of September, A. D. 1868, did pay this plaintiff upon said sum the sum of $75, leaving a balance due and unpaid from the said defendant to the said plaintiff, at the time of the com- mencement of this suit, and is now due and unpaid." The case was appealed to the district court, and tried in October, 1868. After the plaintiff closed his testimony, the < lefendant moved for a nonsuit, upon the following grounds : That plaintiff's complaint contained no allegation that the original debt, due from Allen to plaintiff, was ever canceled, or that Allen was released from his debt to plaintiff at the time of the transaction specified in the complaint. The court, KNOWLES, J., denied the motion, and defendant excepted. J. A. JOHNSTON, for appellant. CHUMASERO & CHADWICK, for respondent. No briefs on file in this case. WARREN, C. J. The release of the old debt, due from Allen to the plaintiff, is sufficiently alleged in the complaint The judgment is affirmed, with costs. Exceptions overruled. KNOWLES, J., concurred. 86 TERRITORY OF MONTANA v. MCELROY. [Dec. T., TERRITORY OF MONTANA, appellant, v. MCELROY, re- spondent. INDICTMENT officer taking illegal fees. An indictment against a party for taking illegal fees, as a justice of the peace, must allege that he was suob officer. Appeal from the Second District, Deer Lodge County. McELROY r was indicted in September, 1868, by the grand jury of Deer Lodge county. The indictment alleged "that James McElroy, an acting justice of the peace for Elk town- ship, in the county * * * while acting in that capacity as such officer in said township, * * * willfully did receive and take fees not allowed by law from * * * in the case of * * * then and there had and held before him to do and execute his duty as such officer therein, and then and there, at the time aforesaid, willfully and corruptly did ask and demand fees not allowed by law from * * * in the case of * * * as a condition precedent to the per- formance of his duties as such officer * * * ." The defendant moved to quash the indictment because it did not state facts sufficient to constitute a public offense. The court, KNOWLES, J., sustained the motion and the de- fendant was discharged. The Territory appealed. W. J. STEPHENS, District Attorney, Second District, for appellant. It is sufficient to state generally in the indictment that defendant is such officer without setting forth his appoint- ment. Proof that defendant has acted as such officer is sufficient, 2 Chit, Or. L. 259. There is no conflict between section 110 of the criminal practice act, making it criminal to officiate, and section 112, making it criminal for such officer to receive fees not allowed by law. He who usurps an office is in by his own wrong, and can- not defeat an action for taking illegal fees by proving that he is not such officer. kt No person can take advantage of his own wrong.'* 1868.] LOEB . SCHMITH. 87 SHARP & NAPTON, for respondent. The indictment is found under section 112 of the criminal practice act. The very essence of the offense is, that the defendant, being a duly elected and qualified officer, re- ceived illegal fees, etc. The indictment only shows that he was an "acting officer." 1 Whart. Am. Cr. L., 285, 1289 and 1292. It would be no defense under this indictment to prove that the defendant was not a lawfully authorized and quali- fied officer. Usurpation of the duties or functions of an officer is made an offense by section 110 of the criminal practice act. WARREN, C. J. This was an indictment under the statute against the respondent, as a justice of the peace, for willfully receiving fees not allowed by law. The indictment was de- tective in not alleging in the language of the statute that the defendant was sucli officer. This allegation might have been supported by proof that he acted as such. The order of the court below is affirmed. Exceptions overruled. K.NOWLES, J., concurred. LOEB, appellant, v. SCHMITH etal., respondents. PRACTICE default set aside. The setting aside of the default in this case WM not an abuse of the discretion of the court below. Appeal from the, Second District, Deer Lodge County. THIS was an action on a promissory note commenced by Loeb in the district court. The complaint was filed and summons was issued on July 2;~. 1807. The names of the parties on Ihe complaint wen' " Leon Loci) v. Jacob Smith & Co., and Joseph Holzbauer etal." Tlio summons con- tained a notification to "Jacob Smith A: C 1 o. and Joseph Holtzbauer. Henry Apple." Tin- sli.'riM' m:i'l- tin' follow. Sb LOEB v. SCHMITH. [Dee. T. ; ing return : ' ' Served the within by reading to Henry Apple, on 1st day of October, A. D. 1867, on Bear gulch, Territory and county within mentioned." Judgment by default was rendered at the October term, 1867, against "Jacob Smith & Co. and Jos. Holtsbor ct al." for $907. On September 10, 1868, a new complaint, for the same cause of action, was filed by Loeb against eight defendants, who were separately named, and included " Henry Appel." This complaint alleged that the defendants were partners at the time the note was made, under the firm and style of "Jacob Schmith & Co." The summons, which contained the names of these defendants, including "Henry Appel," was issued on the same day. The sheriff's return showed that personal service had been made upon "Henry Apple," on September 12, 1868, by reading the summons, and deliver- ing a true copy of the same and a certified copy of the com- plaint. On September 23, 1868, judgment by default was rendered in the district court for $1,427.57, against all the defendants, and also "against the separate property of the said defendant, Henry Apple." On the same day the de- fendant, "Apple," filed a demurrer to the complaint, and also a motion to set aside the judgment against him. On October 2, 1868, the affidavit of K. H. Williams, Esq., the attorney of "Eppel," was filed in support of this motion, and stated the following facts : That he wrote the demurrer in good faith, and forwarded it to be filed from Beartown (so-called) ; that he made a special agreement with the express agent (no United States mail being then established between Deer Lodge City and Beartown) to carry through and deliver the letter containing the demurrer ; that three days of the statutory time to answer were yet to expire when the letter was expressed ; that only one day is neces- sary to carry mail matter from Beartown, where the sum mons was served, to Deer Lodge City ; and that through the delay of the express agent, and without any fault of " Eppel," the letter was not delivered until one day after the time for answering had expired. That Appel had never been a member of the firm described 1868.] LOEB t>. SCHMITH. 89 in the complaint ; that judgment had been obtained at the October term, 1867, on the note sued upon ; that said judg- ment was still valid, and no new cause of action had accrued ; and that affiant had written to Eppel to be in court at 10 A. M. of October 2, 1868, and placed the letter post-paid in the U. S. post-office of Deer Lodge City four days ago, but had received no answer, and, therefore, affiant made this affidavit. No other affidavits were filed. The note was as follows : " 604.50. One day hafter dayt we promise to pay to L. Loeb, or bearer, the sum of six hundred and four dollars 50c., for value received, whit interest from date at 5# per each month. BEAK TOWN, June 30, 1866. Mr. Loeb will stamp this JACOB SCHMITH Co., If stamps are had. JOSEPH HOLZBAUER. JACOB SCHMITH Co., , Internal Revenue , . JOSEPH HOLZBAUER." 1 * canceled. The court, KNOWLES, J., set aside the judgment on Octo- ber 8, 1868, and allowed the defendants till 2 o'clock p. M. to answer, on the payment of all costs. The plaintiff excepted. ROBINSON & STEPHENS, for appellant. The court abused its discretion in setting aside the default. The affidavit on which the order was based was insufficient, and made by an improper party ; and there was no answer with the affidavit. Bailey v. Taafe, 29 Cal. 422. Apple should have made the affidavit instead of Williams, his attor- ney. Apple used no diligence to appear within the statutory time. The sending of a frivolous demurrer by express, instead of an answer to parties, not known to the record, is not diligence. The affidavit must show that the default was the result of mistake, surprise, inadvertence or excusable neglect. Prac. Act 1867, 146, 68 ; Harlan v. Smith, 6 Cal. 173 ; People v. 0' Connett, 23 id. 281. Every fact necessary to be shown to authorize the court tn VOL. 1. 12. 90 CARPENTER v. RODGERS. [Dec. T. ; set aside the default must be shown by the affidavit of a person, who could testify upon the trial of the cause to the facts. Williams' knowledge is derived from the statements of others, and is not competent proof by affidavit to estab- lish the connection of Apple with " Schmith & Co." Wil- liams' affidavit is inconsistent. It shows that Apple was not a party to the note sued upon, and that a former judg- ment against Apple is in force, without any new cause of action accruing. There should have been an answer with the affidavit, as the complaint was verified, and there was nothing from Apple under oath to indicate that he had a defense. See authorities cited above. R. H. WILLIAMS, for respondent. No brief on file. WARREN, C. J. This is an appeal from an order of the second judicial district court setting aside a judgment entered in vacation by default, against Henry Eppel or Apple, one of the defendants below, with leave to answer, ipon payment of costs. The setting aside of the default rested in the discretion of the court below upon the facts disclosed in the affidavit, and we see no such abuse of that discretion as calls for the interposition of this court. The order is affirmed and the cause remanded. Exceptions overruled. KNOWLES, J., concurred. CARPENTER, respondent, v. RODGERS, Territorial Auditor, appellant. STATUTORY ct NSTRTTCTION retroactive effect. Section 6 of the act of con- gress amending the organic act of this Territory, approved March 2, 1867 did not have a retroactive effect and give full force to a law from the date of its first enactment, which had been annulled by congress and re-enacted by a subsequent legislature of Montana. 1868. j CAKPKNTKK t\ RODGERS. 91 STATUTORY CONSTRUCTION* meaning of itaid section. In passing said section 8, congress gave to subsequent territorial legislatures the right to re-enact certain laws that had been annulled by congress. STATUTORY CONSTRUCTION historical facts referred to. This court can refer to the history of the Territory to ascertain the proper construction of a statute which is ambiguous. STATUTORY CONSTRUCTION rejtuynunt proviso void. A proviso which is incon- sistent with any reasonable intention of the assembly which passed it, and repugnant to the body of the act, is void. Appeal from the First District. Madison County. IN January, 1868, Carpenter filed his affidavit, and ap- plied for a peremptory writ of mandate. After a hearing at chambers, the court, HOSMER, J., issued the writ in accord- ance with the application, and Rodgers appealed. The facts appear in the opinion. W. M. STAFFORD, district attorney, first district, and DAVIS & TIIOROUGHMAN, for appellants. (No brief on file.) WORD & SPRATT, for respondent. The first legislature created the office of superintendent of public instruction. Acts 1865, 433. The law fixing the salary was passed by the second legislature on April 10, 1866. Acts 1866, 17. This last act was recognized as the law of this Territory, until its repeal by the amended or- ganic act of March 2, 1867. The legislature, elected under the provisions of the sixth section of this act. assembled on the first Monday of No- vember. 1867. By an act approved December 24, 1867, this legislature re-enacted the law of April 10, 1866. Acts 1867, 2f>5, 6. The only difference between them is a slight in- crease of salary. The respondent was in office at the time of the passage of this act. An equitable construction of these statutes would award him his salary. The Territory has received the benefit of his labors, and h<> should be paid therfor. This is a controversy between the Territory and on*- of its citi/ens. A court will never presume that it w:i~ *"h' intention of the lecrislntmv to T>erv>' lf rfit<> ri fraud 92 CARPENTER v. RODGERS. [Dec. T.. by receiving respondent's labor, and declare that the law giving him his salary had no application to his case. Smith's Stat. and Const. Law, 694, 695. The last proviso of the sixth section of the act of congress of March 2, 1867, is repugnant to, and repeals all parts of the section in conflict with it. Does this section make all the laws passed in 1866 void ? Does it suspend them until the election of the legislature provided for ? The first part of this section makes the laws void, but the proviso repeals this part. Sedg. Stat. and Const. Law, title "Proviso;" Smith's Com., 578, 579. We contend that the laws of the two legislatures of Mon- tana, in 1866, were not repealed by this act of congress. They were only suspended until an election of the legisla- ture should take place, as provided for in the act. That election took place before the commencement of this suit. The act of April 10, 1866, was then in full force, fixing respondent's salary. Respondent is entitled to recover under this act, even if this court should be of the opinion that the act of December 24, 1867, is not applicable. KNOWLES, J. This cause comes to this court on appeal from a judgment of the district court of the first judicial district of this Territory awarding the respondent, A. M. S. Carpenter, a peremptory writ of mandamus against the appellant, Wm. H. Rodgers, as territorial auditor, com- manding him to issue to respondent territorial warrants for the sum of $253.33, for salary as superintendent of public instruction for the Territory. The facts presented in the record are as follows : Carpen- ter was appointed by the acting governor for this Territory superintendent of public instruction, and confirmed by the legislative council on the 4th day of March, 1867. He en- tered upon and performed the duties of that office from that time until January 4, 1868. The law providing for the office of superintendent of public instruction was enacted by the first legislative assembly. No salary was provided for such officer until a law was enacted fixing the same by the 1868.] CARPENTER v. RODGERS. 93 second legislative assembly. On the 2d day of March, 1867, two days before the appointment of Carpenter to said office, congress amended the organic act of this Territory. The construction of section 6 of this amendment is the only difficulty presented to the court in deciding this case. It is contended by the respondent in the first place that the act of the fourth legislative assembly, entitled "An act to define the duties of territorial superintendent of public instruction," was a re-enactment of the law of the second legislative assembly upon the same subject, which rendered this act of the second legislative assembly valid. The portion of the section under consideration which it is claimed had this force and effect reads as follows : "And be it further enacted, That all acts passed at the two sessions of the so-called legislative assembly of the Territory of Montana, held in eighteen hundred arid sixty- six, are hereby disapproved and declared null and void, except such acts as the legislative assembly herein author- ized to be elected shall, by special act in each case, re- enact." Let it be granted that the act of the fourth legislative as- sembly, entitled "An act to define the duties of territorial superintendent of public instruction," was a re-enactment of the statute upon the same subject by the second legisla- tive assembly. Does this section have the force claimed for it ? It is certain that the fourth legislative assembly did not expect that their act upon this subject was to have any re- troactive effect, for the last section of their act reads as fol- lows : ' ' This act to take effect and be in force from and after its passage." We cannot think that congress intended to say that the acts of the legislative assembly of eighteen hundred and sixty-six, which the fourth legislative assembly should by special act in each case re-enact should be valid and go into effect from the date of the first enactment. The more rea- sonable view of what congress did intend to do is this : Congress no doubt entertained the opinion that should it 94 CARPENTER v. RODGEBS. [Dec. T.. disapprove of and declare null and void the laws of tlie leg- islative assemblies of 1866, in an amendment to the organic act of the Territory, without giving power to any subse- quent legislature to re-enact them, it would amount to a pro- hibition upon their re-enactment. Hence congress intended to give the privilege to any subsequent legislative assembly to re-enact them. To give this section any other construc- tion would make it inconsistent with any reasonable inten- tion on the part of congress. It had been decided by some of the courts of this Territory that the legislative powers thereof had lapsed, and that all the laws of the second and third legislative assemblies were void. In part to remedy the evils which it was found by this decision the people of this Territory were liable to suffer, this amendment to the organic act was passed. At least the part of section 6 of this amendment under discussion does not declare that a re-enactment of an act passed by the legislative assemblies of 1866, by the legisla- tive 'assembly authorized by the amendment, would make it valid. It declares that such acts of said legislative assem- blies as the legislative assembles authorized by it shall specially in each case re-enact, it does not disapprove of and declare null and void. This construction, however, leaves all those acts which might be specially re-enacted, in each case, just where they were before the amendment to the organic act. And if upon a mature consideration by the courts it should be decided that such acts were valid, our statute books would present the anomaly of having two sets of statutes, identical, and purporting, as in this case, to go into force at different times. Or take the other con- struction, that upon the special re-enactment of these statutes, they should be made valid and be in force from their passage in 1866. Xo matter if this re-enactment should be years hence. We Avould still have the same unprece- dented condition of affairs of two statutes, identical, and each going into effect at different periods. Should any of these be criminal enactments, for years they might be con idered null and void. All at once upon their re-enactment 1868.] CARPENTER c. ROUGERS. 95 they would be considered valid and in force from the time of their first enactment. Is it reasonable to suppose that congress intended to leave the door open to any such state of affairs? If so, then instead of removing the evils by which the people of this Territory were beset, it has multi- plied them and failed to satisfy the necessity for any such amendment and done violence to the very object of its pas- sage. Take the other construction. If congress intended to leave the door open to test the validity of all laws which the legislative assembly it had authorized should in each case specially re-enact, it must have seen that it was leaving the door open for a vast amount of litigation instead of dissipating it and multiplying the opportunities for fraud and sharp practice upon the people of the Territory by designing men in subsequent legislative assemblies. If it should be found that such acts were valid, then all that would be necessary to bring them into force again would be to have them re-enacted. They would take effect from their first passage. And as in the former case, laws that had long been considered void, would come into force to affect the rights of property and liberties of the citizen. It will be seen from the first proviso in this section that congress supposed the door had been left open only to test the valid- ity of the laws of 1866, where vested rights had accrued. Yet if the construction we have just considered be correct, then the opportunity is presented to test the validity of all laws re-enacted, whether there were any vested rights in- volved or not. We think there is ambiguity enough in this, section to allow us to go outside of the wording of the stat- ute to tind the intention of congress. AVlien this is done, then 1 is no doubt but that the construction we have given to this portion of this section is the correct one. The last proviso in this section is more difficult of construction than any other portion of it. It provides "That no legislation or pretended legislation in said Territory, since the adjourn- ment of the first legislative assembly, shall be deemed valid until the election of the legislative assembly herein provided for shall take place/' 96 CARPENTER . RODGERS. [Dec. T., It almost appears in this that congress, no matter what may have been the actual intention, does say that when the legislative assembly provided for should take place that all legislation and pretended legislation in said Territory since the first legislative assembly should be deemed valid. Every legislative act ought to be so construed, if possible, as to make it consistent with itself. To give such a construction to this proviso as the one above, however, would make con- gress say in the first part of this section that all acts of the two legislative assemblies of 1866 were null and void, but that the legislative assembly authorized might have the lib- erty, by a special act in each case, to re-enact them. And in the latter part of it, that upon the election of the legisla- tive assembly provided for, not only all the legislation of these two assemblies, but of any other legislative assemblies or pretended legislative assemblies since the first legislative assembly, should be deemed valid, which would do away with any necessity of their re-enactment. Surely there is ambiguity enough presented here to permit a court to look at the extraneous facts to find the proper construction of this statute. It is, we believe, a part of the history of this Territory, that about the time this amendment to our organic act was passed, the governor of this Territory had convened an extra session of the legislative assembly. The only solu- tion of this remarkable proviso is, that congress intended to annul the laws of this assembly until the election of the legislative assembly authorized should take place. Had that legislative assembly continued its labors, we would, no doubt, be forced to the construction that, upon the election of the legislative assembly provided for, all its acts would be deemed valid, if this is the proper construction of this proviso. Perhaps, however, it is too broad in its terms to receive any construction which would confine its application to one legislative assembly. There is one thing to be observed in this proviso. It is not in the usual form of one. The usual effect of a proviso is to limit, in some enumerated particulars, the general effect 1868.] CARPENTER . RODGERS. 97 of the purview of an act. This, however, if it has the force and effect claimed for it by the respondents, would repeal the purview of this section, and leave it no functions to per- form whatever. In fact, this proviso giving it the construc- tion claimed for it. is totally repugnant to the whole purview of the section, and makes the act, instead of an annulling act, one enacting that upon the happening of a certain event which the amendment to the organic act, of which this sec- tion is a part, provides, shall take place not only all legis- lation, but all pretended legislation in this Territory since the first legislative assembly shall be deemed valid. Some authority has been cited to the effect that, when a proviso is repugnant to the purview of a statute, the proviso should stand, and be deemed a repeal of the purview. KENT says : "A saving clause in a statute is to be rejected when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act incon- sistent and destructive of itself." See 1 Kent, 522. Again, in discussing the rule that had been laid dcwn in relation to a proviso, he says: "But it maybe remarked upon this case of Fitzgibbon, that a proviso repugnant to the purview of the statute renders it equally nugatory and void as a repugnant saving clause. And it is difficult to see why the act should be destroyed by the one and not by the other ; or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be equally rejected." See 1 Kent's Com. 523. It is difficult to see why a proviso which makes an act inconsistent with any reasonable intention on the part of the legislative body which enacted it, and makes it incon- sistent with itself, and is totally repugnant to the body of the act, and destroys its effect altogether, should stand. After a mature consideration we are impelled to the con- clusion that it should not; and, as the effect claimed for this proviso is as above stated, we are compelled to hold if that is its proper construction it is void. In accordance with the views above expressed, it is VOL. 1 13 98 WILSON v. DAVIS. [Dec. T-, ordered that the judgment of the court below be reversed, and that a peremptory writ of mandate be denied. Writ of mandate denied. WARREN, G. J., concurred. The legislature, by an act approved January 12, 1872. appropriated $241.12, in payment of Carpenter's claim for services as territorial superintendent of public instruction. WILSON, respondent, 0. DAVIS et al., appellants. RECEIVER no appeal from his appointment. No appeal lies from an order of the district court for the appointment of a receiver. JURISDICTION CONFERRED BY LAW. An agreement of parties cannot confer upon this court jurisdiction, which is not given bj law. Appeal from the First District, Oallatin county. THIS case came before the court at the August term, 1870, and the facts are contained in the report on page . In October, 1867, Wilson brought this action in the first dis- trict in Gallatin county. After a hearing at chambers, the court, HOSMER, J., appointed a receiver to take charge of the property in controversy, and issued an order restraining some of the defendants from interfering with the same. The other facts appear in the opinion. Upon the hearing on appeal, the appellants filed the affidavit of T. Thoroughman, Esq., one of their attorneys, who testified as follows: That the attorneys of respondent, at the time appellants took their exceptions in this cause, orally waived all notices and other legal formalities on appeal. The arguments of counsel upon the merits of the cause are omitted. DAVIS & THOROUGHMAisr and WOOLFOLK & TOOLE, for appellants. The affidavit of Thoroughman, on file in this case, shows that all notices and other legal formalities were waived at 1868.] WILSON -o. DAVI>. 99 the time of the exceptions. No counter affidavit has oeen filed, and respondent is concluded by the said affidavit. This appeal is as perfect as if all the requirements of the statute had been complied with. If this court believes that such a stipulation was made, as shown by said affidavit, respondent cannot now deny the same without proof, and thereby practice a fraud and deceit upon appellants. Appel- lants have no remedy for such an injury, as the time within which such notices must be given has long since elapsed. We hold that a sense of justice, binding in the mind of all courts, would declare that such agreements are binding and must be faithfully kept. The record shows that appellants at the time excepted to the action of the court below in appointing a receiver, and refusing to dissolve an injunction restraining some of the appellants ; and that appellants then filed their bond of appeal upon both questions, and thereby took them to the supreme court. W. F. SANDERS and WORD & SPRATT, for respondent. This appeal should be dismissed. The case is governed by the practice act of the first legislature. No appeal bond has been filed as required by law. Acts 1865, 97, 263. No notice of the appeal was ever filed or served upon the respondent. The service of the notice may be a legal formality, which may be waived, the filing of the notice is not a legal formality. It is the appeal itself. This court has no jurisdiction without such notice being filed, and no jurisdiction can be conferred by the consent or agreement of parties. That which the statute requires is not a " for- mality "" simply. Acts 1868, 95, 252 ; Bonds v. HicJcman, 29 Cal. 400; Wake man \. Cole man. 28 id. 58; Hildreth v. Gioitidon, 10 id. 490 ; Franklin \ . llciner, 8 id. 340. The transcript must show that the notice of appeal was filed; that service of the same was waived, if it was not served; and that an undertaking was filed within the time prescribed by law. See authorities cited above. No appeal is nllowrd by law from an order of court 100 KLEINSCHMIDT v. MORSE. [Dec. T., appointing a receiver, until after final judgment. Acts 1865, 95, 251. The appellants took exceptions to the order appointing a receiver made on November 9, 1867. The injunction was not granted until December following. No exception was taken to this order, and no appeal was taken therefrom. Appellants cannot appeal from one intermediate order and ask the court to review other orders of the court below. WARREN, C. J. This purports to be an appeal from an order made in this court at chambers by Hon. H. L. HOSMER, judge of the first judicial district court at Madison county, on the motion of the respondent appointing a receiver. The appointment of a receiver is an interlocutory pro- ceeding, and from such an order no appeal lies. The record shows no motion to dissolve the injunction, and no order refusing to dissolve it, and no final judgment or order from which an appeal could be taken. The bill of exceptions filed with the transcript, and the original bond filed in this court, show that it was intended to appeal from the order of the court appointing the receiver. No notice of appeal appears to have been filed or given, but an affidavit accompanies the record that all legal formalities were orally waived by respondent on the appeal. No agreement of parties can confer upon the court a jurisdiction which is not given by law. The appeal is dismissed, with costs. Appeal dismissed. KNOWLES, J., concurred. KLEINSCHMIDT, appellant, v. MORSE, respondent. PRACTICE appearance waiver of summons. A party appears generally In an action and waives a summons, if he comes into court, without limiting his object in so doing. PRACTICE appenrance sif/ning stipulation. The signing of a certain stipu- lation in this case was a general appearance. 1868 ] KLEINSCHMIDT . MORSE. 101 Appeal from the Third District, Lewis and Clarice County. IN December, 1867, Klernschmidt commenced this action upon certain drafts in the district court. In February, 1868, an amended complaint was filed and an alias sum- mons was issued, which was returned by the officer as per- sonally served. On March 2, 1868, the defendant appeared specially, and moved to quash the alias summons, and the return of service indorsed upon it. This motion was sus- tained by the court on March 9, 1868. In December, 1867, Kleinschmidt obtained a writ of at- tachment, and defendant filed a plea in abatement of the same on March 12, 1868. It commenced as follows : "And now comes Benajah Morse, * * * defendant, and files this his plea." * * * This was verified by the defend- ant. Afterward, but upon the same day, a stipulation of the parties was filed, which is contained in the opinion. Judgment was then rendered for plaintiff' for $16,880. On June 3, 1868, the defendant filed a motion to vacate this judgment. The court, MUNSON, J., sustained the motion, and plaintiff excepted. The other facts appear in the opinion. WOOLFOLK & TOOLE, for appellant, The court, instead of quashing the alias summons, should have continued the case, and given the proper time to plead. The court had no authority to set aside a final judgment, on motion, at a term of court, after such judgment was ren- dered, when the records show that there was personal, but insufficient service. Wilson v. Cleaveland, 30 Cal. 192; Suydam v. Pitcher. 4 id. 280 ; Castro v. Richardson, 25 id. 49 ; Willson v. McEnoy. 25 id. 169 ; Lattimer v. Ryan, 20 id. 628 : Shaw v. McGref/or, 8 id. 521. The pica in abatement, filed in open court, was a waiver of service. A party may appear in person, or by attorney, without service of summons. Acts 1867, 138, 22; Suy- dam v. Pitcher, 4 Cal. 280 ; Adams v. Gilbert, 9 Wend. 499 ; Sterne v. Bentley, 3 How. Pr. 331 ; Hunter v. Lester, 18 id. 347. 102 KLEINSCHMIDT -c. MOKSE. [Dec. T., After respondent appeared and filed his stipulation, with- drawing all pleas and defenses, the court exercised its ju- dicial discretion in rendering a judgment. This can only be reversed on appeal, or set aside on motion and proper showing of merits at proper time. The authority of an attorney of record is always presumed, when he appears as such, and lie may suffer or confess judgment for his client. Foster \. Wood, 30 How. Pr. 285 ; Denton v. Noyes, 6 Johns. 301 ; Blodgct v. Conklm, 9 How. 444. Other rights have intervened and attached upon this judgment. If respondent had made proper showing of merits at the proper time, the court should have ordered the judgment to stand, subject to those rights, and respond- ent should have been permitted to answer and defend. Stern*- \. Bentletj. :j How. Pr. 331 ; Hallett v. Rigliters, 13 id. 43. This court should make such order in the premises as should have been made in the court below. While it de- volved on respondent to show a meritorious defense, in order to set aside the judgment, appellant shows, by affi- davits hied, that there is no such defense. CHI M.YSERO & CHADWICK and G. MAY, for respondent. (Xo brief on file.) KXOWLKS. J. This cause comes to this court on appeal from an order of the court below, vacating and declaring null and void a judgment of that court. It appears that at the time of filing the complaint in this action a summons was issued. This was quashed by order of court for a defective service. Afterward the plaintiff filed an amended complaint, and had an alias summons issued. The plaintiff', in the mean time, had filed his affi- davit for a writ of attachment, to issue against the property of respondent. The respondent appeared in the action, and tiled his plea in abatement. The court sustained the plea, and quashed the attachment proceeding. The counsel for 1868.] KLEINSCHMIDT v. MORSE. 108 the respondent then gave the appellant the following stipu- lation, to wit : Theodore H. Kleinschmidt, plaintiff, agt. Benajah Morse, surviving partner of V the late firm of E. and B. Morse, de- { fendant. In the Territorial District Court, Third Judicial Dis- trict, Lewis and Clarke County, M. T. : The undersigned attorneys for the above-named defend- ant hereby consent and agree to withdraw all pleas and defenses in the above cause, and will interpose no objections To the taking of judgment in said cause. Witness our hands this 12th day of March, A. D. 1868. WILLIAM CHUMASERO, Attest : GEORGE MAY. .1. H. SHOBER. This stipulation was filed in the action, and counsel for appellant moved for judgment, which was duly entered at the next term. Afterward the counsel for respondent moved to set this judgment aside, and to declare the same null and void, for the reasons set forth in the following motion : 'And now comes the defendant by his attorneys, William (Jhumasero and George May, and moves the court to annul and vacate the judgment entered at the last term of this court, in behalf of plaintiff against defendant, for reasons, i . That the inspection of the records in said case shows an order quashing the summons and return in said case ; 2. That the inspection of the records shows that there was no service of summons upon defendant, other than the one quashed, and therefore defendant could not be in default, and therefore that said judgment was improperly entered ; 3 That the stipulation on file in this case, signed by the attorneys, did not authorize and justify the judgment entered in said case." WILLIAM CHUMASERO, GEORGE MAY, Attorneys for Defendant. 104 KLEINSCHMIDT v. MORSE. [Dec. T. The court sustained this motion, and vacated the judg- ment entered for the appellant. This was done at a term subsequent to the one at which the judgment was entered. We have been thus particular in setting forth the facts, that it may be seen upon what the court below based its action. The twenty-second section of the civil practice act of this Territory provides as follows : " That, after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not ; and such appearance, answer or demurrer shall be deemed a waiver of summons." The first question presented to the court is, did the de- fendant appear generally in the action ? If he did, he waived any summons to appear. What is a general appear- ance in an action ? A party coming into court in an action without limiting the object for which he comes in. The signing of such a stipulation as the one filed in this cause by defendant's attorney, has ever been considered a general appearance in a cause. The respondent then, as to this action, was in court, and if he had failed to file a plea to the merits of the cause, the appellant was entitled to judg- ment if he claimed it. He asked for judgment, and the court properly awarded it. We feel impelled to say one thing further in this cause. How was that stipulation considered by the attorneys for the appellant, and how did the attorneys for respondent have reason to suppose that the attorneys for the appellant regarded it \ That it was an agreement by the defendant, Benajah Morse, that the plaintiff might have judgment for the amount he claimed. To give it any other effect would be to violate what was the manifest intention of the parties who gave it, the understanding of its effect by the parties who received it, and to recognize and encourage a system of sharp practice not to be tolerated in any dignified and upright court. The order of the court below is, therefore, reversed and the cause remanded. Exceptions sustained. WARREN, C. J., concurred. 1868.] GODBE V. McCoBMiOK. 106 GODBE, respondent, v. McCoRMiCK, appellant. VHNUB application for change. The act of the legislature, regulating the place of trial in certain cases, approved December 6, 1867, gives a party the right to apply for a change of the venue of his case before the trial actu- ally begins, although such application has been made and denied at the same term before the passage of this act. STATUTORY CONSTRUCTION venue act jurisdiction. This act, approved De- cember 6, 1867, affects the mode of procedure, but does not divest the dis- trict courts of the common-law jurisdiction conferred upon them by the organic act of this Territory. IDEM validity of the venue statute. This act, approved December 6, 1867, is upon a rightful subject of legislation and valid. VNUE when changed discretion of court. The application for the change of the venue in this action was not addressed to the discretion of the court below. The statute is imperative and the application should have been granted upon the payment of the costs. VENUE effect of denying application. If a court erroneously denies a motion to change the place of trial, the subsequent proceedings in the case are void. Appeal from tTie First District, Madison County. Tins action was brought by Godbe in October, 1866, in the county of Edgerton (now Lewis and Clarke), to recover the amount due on a contract executed May 31, 1866, by Godbe and McCormick. The place of trial was afterwai d changed to the county of Madison. On December 2, 1867, during a term of the district court, the defendant filed a motion for a change of the venue of the action. The motion was overruled. On December 6, 1867, an act was passed by the legislature of the Territory, which contained the fol- lowing clauses: "That when an affidavit is made by any party to said action or proceeding, or by his or their attor- ney, that the party making the application, and on whose behalf the affidavit is made, cannot have a fair and impar tial trial in said action by reason of the bias or prejudice of the judge before whom said action is then pending, such judge shall, and it is hereby made his duty to immediately order said action to be transferred to some other county in paid Territory, outside of his judicial district, on payment of the costs that have accrued in said cause in said court, up to the time of making such application." "This act VOL. I. 14. 106 GrODBE v. McCoEMioK. [Dec. T., shall apply to all actions now pending or that may here- after be brought in the Territory of Montana, and shall be in force from and after its passage." On December 7, 1867, the defendant made the same mo- tion for a change of venue which had been filed on Decem- ber 2, 1867, and accompanied it with an affidavit that he could not have a fair and impartial trial by reason of the bias and prejudice of Hon. H. L. HOSMER, the judge before whom the action was then pending. The plaintiff then filed a motion to strike this application from the files. The court, HOSMEB, J., sustained the motion and defendant excepted. The cause was then tried by a jury, who rendered a ver- dict for plaintiff for $9,744. During the trial the defendant saved other exceptions which were not reviewed by the court, and are therefore omitted, together with the argu- ments of counsel thereon. CHUMASERO & CHAD WICK and DAVIS & THOROUGHMAN, for appellant. The court erred in overruling the motion of appellant to change the venue in said action, made after the passage of the act of the legislature, regulating proceedings in civil causes, approved December 6, 1867, and before the repeal thereof. Acts 1867, 68 ; Smith v. Judge, 17 Cal. 547 ; 5 N. Y. Dig. 84, 85 and 94 ; Sedgw. Stat. and Const. L. 5, 6, 10, 11, 13, 34, 183, 184, 187 and 204 ; Acts 1865, 24, 21 ; Organic Act, 6 ; Fletcher v. PecJc, 6 C ranch, 87. W. F. SAISTDERS, for respondent. The motion for a change of venue was made too late. It was the second motion for the same purpose at the same term. Defendant had once made this motion and saved his exception to the ruling thereon. The second motion was improper. The act of the legislature, approved December 6, 1867, is void. It deprives the district court of its common-law juris- diction and seeks to make the judge a ministerial, not a judicial officer. The interference of the legislature in pend- 1868.] GODBE t>. McOoKMiCK. 107 ing cases is a vicious practice. This act remained in force seventeen days. The motion was filed after the case was set for trial. After parties announce themselves ready for trial, the motion is too late. The statute is a wrongful inter- ference with judicial discretion. Organic Act, 9 ; 2 Tom- linson Law, D. 298. If appellant made this affidavit in every district, respond- ent would be remediless, although Organic Act gives him a remedy. The act was not upon a rightful subject of legis- lation. WARREN, C. J. The record in this case is somewhat voluminous, but it is unnecessary to notice all the errors assigned. The appellant has preserved in the record his exception to the order of the court below, striking from the tiles the application for a change of the venue of the cause made by appellant on December 7, 1867. The grounds upon which respondent's motion to strike this application from the files was based, were : 1. That a former motion for the same purpose had been filed and over ruled ; and. 2. That the latter application was not made until the cause had been set for trial. It is to be presumed that these were the reasons which controlled the court in sustaining the motion of respondent. The latter application was made by appellant under the provisions of an act of the territorial legislative assembly, which was approved on December 6, 1867. The fonnei motion for change of the venue was made under the law previously in force, and was addressed to the discretion of the court, and no error is assigned in overruling it. The appellant was entitled to the benefit of the change in the law, made on December 6th, subsequent to the order overruling his first motion. The fact that the application was not made until the cause had been set for trial did not justify disregard of the law, which does not designate the time during the progress of :u\ action or proceeding at which the application should b 108 GODBE v. McCoRMicK. [Dec. T.. made ; and, consequently, it might properly be made at any time before the trial actually commenced. This brings us to a consideration of the question raised by respondent, as to the validity of the act of December 6, 1867. It is argued that this act was void, for the reason assumed that it attempted to divest the district court of jurisdiction of a case at common law, over which it had jurisdiction, by virtue of the organic act of this Territory. By the organic act the judicial power of the Territory is vested in certain courts, and it is ordained, that the juris- diction of the several courts thereby established "shall be limited by law," provided, that the "district courts respect- ively shall possess chancery as well as common-law juris- diction." The legislative power is vested in the governor and legislative assembly, and the legislative power extends to "all rightful subjects of legislation, consistent with the Constitution of the United States" and the provisions of ' the organic act.' ' The questions involved here are whether the act of the legislative assembly of December 6th, in terms or in sub- stance, divested the district courts of the common law jurisdiction they possessed by virtue of the act of congress : and, secondly, whether the subject embraced was one of rightful legislation within the scope of the legislative power. So far as the first question is concerned, we do not regard the act of the legislature as affecting the jurisdiction of the district court. It lays down a rule of procedure, in certain cases, for the observance of the courts in the exercise of their jurisdiction, of the same character as the laws regu- lating continuances, appeals, new trials, and the entire sub ject of remedies and of practice. In the respect that it is mandatory upon the courts, it differs from our idea of wise legislation, and the fact that the law was so soon repealed would seem to indicate that the legislature itself became convinced that in such cases a sound discretion should bo left to the courts ; but, with the wisdom and policy of legis- lation, the courts have nothing to do. Refusal to recognize 1868.] GODBE c. McCoKMicK. 10ft and obey a law upon the ground of judicial disapproval of its policy, would be at once to place courts above the law, instead of remaining its ministers and expounders. That courts should iirmly maintain their legitimate powers against legislative aggression, as is ably urged by the attorney of the appellee, we believe. A division of the powers of government among three co ordinate departments, as in the federal constitution, the several State constitutions, and in our own organic act, is most wise and salutary, and that each branch should be restricted within its particular sphere of action, is a truism, but to determine the precise boundary between the several departments is sometimes attended with great difficulty. The mere fact that a law requires the performance by a court of a particular act, upon a given state of fact, is not a sufficient test by which to determine its invalidity, and in many instances the legislature may deprive the court of discretion in the exercise of its jurisdiction. To find limi- tations upon the legislative power we must look to the constitution and acts of congress, and, looking to these, we are unable to find any provision that was violated by the act of December 6th, or to say that it was not upon a sub- ject of rightful legislation. It is also insisted that the court properly struck respondent's application from the files, for v ,he reason that the costs which had accrued in the cause p.:*vious to the application were not paid or tendered by "I- appellant. This was not one of the grounds assigned oy respondent in his motion, and is untenable. The order Changing the place of trial should have been made upon Condition of payment of the costs. We are of opinion that the court below erred in striking the appellant's application from the files. The appeal is from the final judgment ren- dered in the case, but, regarding this error as material, and affecting the judgment, we do not think it proper to discuss the subsequent questions involved in this record. We may say that we are unable to discover in the record evidences of the bias or partiality alleged in appellant's affidavit, but the statute, being imperative, should have been obeyed, and 110 CTODBE c. McCoKMiCK. [Dec. T., 1868.] the proceedings subsequent to December 7th, in the cause, were unwarranted by the law. We cannot forbear remark ing, in conclusion, that much of the difficulty arising in this case sprang from the loose and ambiguous pleading on the part of the appellant. Under our system of practice, the tendency is toward indefinite ness in the formation of issues of fact, and the rules of pleading as established can- not be too strictly enforced. The judgment is set aside and the cause remanded to the court below. Exception sustained. ARGUED AND DETERMINED SUPREME COURT AUGUST TERM, 1869, HELD IN VIRGINIA CITY, Present : HON. HENRY L. WARREN, CHIEF JUSTIOB. HON. HIRAM KNOWLES, ) HON. GEORGE G. SYMES, ) J01 CARUTHERS et a]., appellants, t>. PEMBERTON et al.. re- spondents. PLEADING reply required if answer prays for relief. An answer which con- tains new matter in avoidance needs no reply under the statutes of this Territory, unless it states facts that entitle the defendant to affirmative relief. WATER-RIGHTS cajMcit;/ of ilitch. The measure of the plaintiffs' right tt: water in controversy in this case is the number of inches that their ditch would convey from the point of diversion without running over its banks PRACTICE ir/icn jada/in nt is not n'rinrrd. This court will not review a judjr ment when it appears from the whole record that justice has been done. PRACTICE new trial iu'tcly-dincovered i-vidfnct: affidavits. A new trial will not be granted on the mMinnl of newly-discovere-d evidence, if the affida- vits do not liow \v!i;if ililiirenei' \vas usi'd to obtain it, nnd the i^vidence *t 112 CARUTHERS v. PEMBERTON. [Aug. T., Appeal from the Second District, Deer Lodge County. THIS action was commenced in the district court in November, 1868, by Caruthers and others against Pember- ton and others. The plaintiffs owned a water-ditch, known as the De Long ditch, which diverted the waters of Gold creek in Deer Lodge county prior to September 1, 1868. The defendants, who then did business in said county under the name and style of the Pioneer Ditch Company, owned a ditch, known as the Pioneer ditch, which diverted the waters of Gold creek about two miles above the head of the De Long ditch. The plaintiffs claimed that they were enti- tled by prior appropriation to the use of two hundred and fifty inches of water in the De Long ditch ; and that the defendants, about September 1, 1868, wrongfully diverted the same and prevented it from flowing in their ditch. The prayer of the complaint was for a perpetual injunction restraining the defendants from diverting the water, and $3,000 damages. The answer alleged that the capacity of the De Long ditch to convey water was no more than one hundred inches according to miners' measurement ; and that plaintiffs had always enjoyed the use of that amount since the construction of their ditch. No replication was filed by the plaintiffs. The case was tried at the November term, 1868, and the jury returned a general verdict for defendants and also special findings. The court, KNOWLES, J., denied the plaintiffs' motion for a new trial and they appealed. The other facts appear in the opinion. J. C. ROBINSON, for appellants. No replication is required under our statute. The court below erred in instructing the jury "that it was confessed by the plaintiffs in the pleadings that the appellants had had at all times as much as one hundred inches of water." Acts 1867, 141, 38 ; 144, 50, 65 ; Bridges v. Paige, 13 Cal. 640 ; Piercy v. Sabin, 10 id. 22 ; Her old v. Smith, 34 id. 122: Voorhies, N. Y. Code, 153. 1869.] CAIIUTIIERS v. PEMBEKTON. 113 The jury should have passed upon any portion of the one hundred inches of appellants' water that was diverted by respondents. The court erred in giving the other instruc- tions and admitting certain testimony. Norwood v. Kenfield, 30 Cal. 400 ; Lolly v. Wise, 28 id. 540. The showing of newly-discovered evidence is sufficient to entitle the appellants to a new trial- The evidence was insufficient to support the findings and verdict of the jury. Smith v. Atherton, 34 Cal. 506 ; Hill v. Smith, 82 id. 167 ; Franklin v. Dorland, 28 id. 175. CLAGETT & DIXON, for respondents. The affidavits for new trial do not show surprise or dili- gence. They do not come within the statute. Prac. Act, 193 and 194. The evidence which they contain is cumu- lative. This is no ground for a new trial. 1 Gr. & W. New Trials, 486 ; 3 id. 1016, 1048. The statement shows the weight of evidence is in favor of respondents. A new trial will not be granted, if there is a conflict of evidence, or any evidence to support the ver- dict. 1 Gr. & W. New Trials, 380 ; Kile v. Tubbs, 32 Cal. 333 ; 3 Gr. & W. New Trials, 1239. The instructions are correct, and are more favorable to appellants than respondents. The special findings covered all the issues. Evidence was properly admitted to show that part of the water in plaintiffs' ditch came from Pioneer gulch, and that the lower portion of their ditch was larger than the upper. The instructions did riot mislead the jury or prejudice the plaintiffs. A new trial will not be granted if the complain- ing party could not be injured by the instructions ; nor if justice has been done. Tompkins v. Malwney, 32 Cal. 231 ; 1 Gr. & W. New Trials, 301 ; 3 id. 862, 867, 868. SYMES, J. This was an action brought by plaintiff's for damages for the diversion of water by the defendants, which the plaintiffs claimed by prior appropriation for mining purposes, tried at November term of the district court, 1868. Verdict and judgment for defendants. VOL. L 15. 114 CARUTHERS c. PEMBERTON. [Aug. T. T The complaint alleges in substance that plaintiffs on and prior to September 1, 1868, owned and possessed a water- ditch, of the capacity of two hundred and fifty inches, miners' measurement, in Deer Lodge county, Montana Ter- ritory. It being an artificial water-ditch for diverting the waters of Gold creek, and known as the De Long ditch, and claimed by prior appropriation, waters of said creek, con- veyed by said ditch to amount of two hundred and fif\y inches. That on 1st of September, 1868, defendants wrong- fully and unlawfully diverted the waters of said Gold creek and prevented same from flowing down plaintiffs' ditch, thereby damaging plaintiffs $3,000. for which they sue. Defendants' answer admits plaintiffs' possession of said ditch ; denies that ditch was of the capacity of two hun- dred and fifty inches, and alleges that at the time of appro- priation ditch would convey one hundred inches and no more, and denies the diversion of any water belonging to plaintiffs. Answer further alleges that in August, 1866. defendants and those under whom they claim appropriated all the waters of said Gold creek then unappropriated, and constructed a ditch to convey same to Pioneer gulch, which ditch was of the capacity to convey six hundred inches, more or less, and known as Pioneer ditch, and takes the waters of said Gold creek about two miles above the head of said De Long ditch ; that when Pioneer ditch was con- structed De Long ditch would convey one hundred inches of water from said Gold creek and no more ; that defend- ants were entitled to all the waters of said creek except on<- hundred inches, and had always allowed one hundred inches to flow down said De Long ditch without diversion. This case came up on order overruling motion for new trial, and errors and exceptions stated in the statement for same as follows : 1. On the trial defendants ask plaintiffs' witness, if he did not in fall of 1866, when mining in Pike's Peak gulch, convey water from Pioneer gulch to where he was mining '. which was objected to by plaintiffs as irrelevant, overruled and exceptions. 2. Plaintiffs' witness. Cook, testified that tlie 1 809. j ( ~j ART TII KKS /*. PEM BEIITON . 115 capacity of plaintiffs' ditch was about one hundred and fifty inches. He thought so from amount of water flowing in Sharp and Williams & Co.'s bed-rock flume and amount they were compelled to use. On cross-examination, defend- ants asked witness if part of water in flume did not come out of Pioneer gulch? Objected to by plaintiffs as irrelevant. Overruled, and witness answered, it did. 3. Defendants asked their witness if part of the water which came through De Long ditch in 1866 to mines came from Pioneer gulch \ Objected to by plaintiffs as irrelevant. Overruled, and wit- ness answered, it did. If plaintiffs' witnesses formed the judgment of the capacity of plaintiffs' ditch by the amount of water flowing into a flume some distance below head of ditch or into some mine, it was certainly relevant for de- f endants to cross examine plaintiffs' witnesses, or show by their own witnesses, that portion of the water in the flume or flowing into the mines came into flume, mines or De Long ditch, below where said ditch took the water from said Gold creek. It might weaken their judgment or show that they knew nothing of the amount of water said ditch took from said Gold creek. Plaintiffs excepted to the court instructing the jury that plaintiffs admitted in their pleading that defendants had always permitted one hundred inches of water to flow down said Gold creek to said De Long ditch, because alleged in answer and no replication being filed by plaintiffs. The court erred in this instruction. Section 38. Civil Code, provides that the only pleadings on the part of the plaintiff shall be complaint, demurrer or replication to defendant's answer, and on the part of defendant shall be demurrer to complaint, or replication or answer to the complaint. Section 50 pro- "ides that where the answer contains new matter plaintiff may demur or move to strike out sham and irrelevant an- swers, or such part thereof as may be irrelevant, immate- rial, etc. Section 65 provides that any material allegation 'f the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true, and that the statement of matters in avoidance 116 CARUTHERS v. PEMBERTON. [Aug. T., shall, on the trial, be deemed controverted by the adverse party. Distinct sections of the Code prescribe what the complaint shall contain ; also the answer. But unlike most codes of the different States, there is in ours no section ex- cept those referred to which treats of a replication or form which we can deduce when it is necessary or what it should contain. Section 38 prescribes there shall be such a plead- ing as a replication, but no section states when it shall be necessary. Section 50 states that when answer contains new matter plaintiif may demur, move to strike, etc., but does not say he may reply. Section 65 states that material allegations in complaint or cross-complaint, not contro- verted, shall be taken as true. And that matter in avoid- ance in the answer shall be deemed controverted, thereby it seems to us saying that new matter in avoidance may not be controverted by a reply. In referring to the New York code we find the provisions as to the answer similar to ours> but a distinct section provides that a reply shall be neces- sary when the answer sets up new matter containing a coun- ter-claim, and the decisions allow a reply only when matter is in the answer which entitles the defendant to affirmative relief against the plaintiff, or facts which would be suffi- cient to constitute a cause of action against the plaintiff. Van Plead, 616, 620, and cases there cited. The California code, before amendment, was the same as ours, and al- though the decisions on this question are not at present within reach of the court, it seems a reply was held neces- sary only when the new matter in the answer entitled the defendants to affirmative relief. The answer in this case con- tained no new matter constituting a counter-claim, or enti- tling the defendants to affirmative relief, and no replication was necessary. But, on examination of the statement of evidence, it seems to preponderate in favor of the conclu- sion that the defendants always did allow one hundred inches to flow down to the De Long ditch ; and the special findings of the jury show they so conclude. The plaintiffs' rights, therefore, were not prejudiced by this instruction. Plaintiffs also rely on exceptions taken to the refusal of 1869.] CARUTHERS ?). PEMBKBTON. 117 instructions offered by them, giving instructions offered by defendants, instructions given by court and special finding, submitted by the court to the jury. That evidence is insufficient to support verdict, newly-discovered evidence entitling defendants to new trial, and order overruling mo- tion for same. Several instructions were asked by plaintiffs and refused ; some asked by defendants and given, and several given by the court. Upon examining the instructions it is not seen how the jury were misled, or plaintiffs prejudiced by the ruling of the court, except it be in giving the second instruc- tion given by court at request of the defendants, which instructs the jury that the measure of plaintiffs' right to water was the number of inches the De Long ditch would carry through to the place where it is to be used, at the time of defendants' appropriation in the fall of 1866. The meas- ure of plaintiffs' right would be the amount of water the said ditch would convey from said Gold creek without run- ning over its banks, and not the number of inches it might convey to the place to be used, some miles, perhaps, dis- tant. In running some distance to mines, much watei might be lost by evaporation and seepage, depending on season of the year and state of the weather ; and the amount of water appropriated could only be estimated by measuring it according to miners' measurement, near the head of the ditch, when it was full, or conveying all it had capacity to. But, as the jury specially find, from the evi- dence, that the ditch was only of the capacity to convey one hundred inches to a claim near by ; and, further, that the plaintiffs appropriated but one hundred inches of water of said creek, and the evidence favors the findings, the jury were not misled by this instruction. Courts will not dis- turb a verdict where there is evidence to support it, or reverse a judgment when, from the whole record, justice appears to have been done. The affidavits of newly-dis- covered evidence do not show what diligence, or that any, was used to obtain it, and the evidence shown is cumulative. Exceptio n s o rerr u led. 118 KLEINSCHMIDT v. DUNPHY. [Aug. T. KLEINSCHMLDT et al.. respondents, v. DUNPHY, appellant. PAROL EVIDENCE OB 1 WRITING NOT IN EXISTENCE. Parol evidence of a writing, the existence of which is denied by one of the parties to the action, is ad- missible, if the court is satisfied that the facts constituting a foundation therefor have been proved. DECLAKATIONS or ONE PAKTY MADE ix ABSENCE OF ANOTHER. The declara- tions of parties concerning a mortgage executed by them to one of the defendants, and made in the absence of this defendant, are admissible, if evidence has been introduced tending to show collusion between the parties respecting the instrument. DISTRICT COURTS not federal courts. The district courts of this Territory, created by congress, are not federal courts contemplated by the constitu- tion. STATUTE AUTHORIZING VERDICT BY THREE-FOURTHS OF JURY VOID. The act of the legislature of Montana which provides that the verdict of three- fourths of the jurors shall have the same effect "as if agreed upon by the whole of the jurors," approved January 15, 18G9, is unconstitutional and void in actions at common law, iu which the value at controversy exceeds S^O TRIAL BY JURY. A trial by jury is a trial by a tribunal of twelve men, acting only with unanimity. JURY TRIALS IN EQUITY CAUSES. The constitution does not secure the right ol trial by jury in causes of equity jurisdiction, and the legislature of this Territory possesses the power to determine the number of jurors that can render a verdict iu the trial of issues of fact arising in such causes. Appeal from the Third District, Lewis and Clarke County. Ix April, 1868, Kleinschmidt commenced this action in behalf of himself and other judgment creditors of B. Morse, surviving partner of the late linn of E. & B. Morse, against said B. Morse and Dunphy, in the district court in Gallatm county. The complaint alleged that Kleinschmidt recov- ered a judgment against said Morse, as said partner, on March 12. 1868. for si 6.957.50 ; that an execution was issued upon said judgment, and returned by the sheriff on April 2. 1868, wholly unsatisfied ; that said judgment had not been paidj that said E. & B. Morse, on October 31, 1867, executed to Dunphy a mortgage upon their real and per- sonal property, to secure the payment of $30,000 : that tlu- property was \vorth $70,000: that the Morses, at the time the mortgage was executed, were indebted to their creditors in the sum of $39.000 : that the mortgage was made with the intent to hinder, delay and defraud their creditors by 1869.] KLEIN SCUM IDT c. DUNPHY. 119 the Morses, who continued in the possession of the prop erty several months after the execution of the mortgage ; that the indebtedness described in the mortgage was ficti- tious, and that the Morses and Dunphy had so stated to divers persons ; that the Morses, in October, 1867, owed Dunphy about 6,000, which was to be paid in Helena in flour, under an agreement of the parties ; that Dunphy, by means of this mortgage and fictitious indebtedness, had prevented plaintiff, and other judgment creditors of the Morses, from collecting their demands ; that Dunphy had forbidden the sheriff to levy upon said property, and the sheriff had returned unsatisfied the executions of creditors of the Morses to the amount of $35,000 ; that B. Morse, in conjunction with Dunphy, was disposing of the mortgaged property, and had realized over 30,000 ; that B. Morse and the firm of E. & B. Morse, and Dunphy, had nothing, ex- cept this property; and that plaintiff's judgment would remain unpaid if this mortgaged property was not applied to its payment. The complaint prayed that the mortgage be adjudged fraudulent; that a receiver be appointed; that defendants be enjoined from disposing of the mortgaged property, and that plaintiff have judgment against Dunphy for the re- mainder due upon his judgment against the Morses. On June 8, 186S, an amended complaint was filed, which contained the following additional allegations : That B. Morse, partner as aforesaid, on January 3, 1868, executed an assignment to Dunphy of the mortgaged property, and authorized him to dispose thereof, and that this assignment was fraudulent. On June 22. 1868, Diuiphy answered, and denied that the judgment in favor of Kleinschmidt. and against the Morses, was legally obtained. He alleged that the Morses made the mortgage on October 31, 1867, in good faith, to secure their indebtedness to him; that this indebtedness, with interest, was $30,0'o, and that he had received on account of the mortgage about $16,000. The material allegations of tin,- complaint were denied. 120 KLEINSCHMIDT v. DUNPHY. [Aug. T , The answer of B. Morse, which was substantially the same as that of Dunphy, was tiled on June 22, 1868. The replication denying the new matter, set forth in the answers of Morse and Dunphy, was filed on the same day. On June 23, 1868, C. E. Duer was made a party plaintiff upon his petition, which set forth that he was a judgment creditor of B Morse, as surviving partner, in the sum of $15,410.05. The complaint contained the same allegations as that of Kleinschmidt, and admitted a payment on the judgment of $250.98. Dunphy' s answer to this complaint, and Duer's reply to the same, stated no new matter. The appearance of B. Morse was withdrawn on June 27, 1868. The parties changed the place of trial to Lewis and Clarke county by agreement, and the case was tried by a jury in March, 1869. During the trial Kleinschmidt testified as follows : "I had a conversation with Elkanah Morse, one of the firm of E. & B. Morse, in latter part of October, 1867 ; Elk. Morse showed me an agreement between E. M. Dunphy and E. & B. Morse, in which Dunphy agreed to cancel a certain mort- gage made by him, whenever E. & B. Morse wanted Dunphy to do so ; the paper was signed E. M. Dunphy ; I recog- nized the handwriting as Dunphy' s ; I think the amount of the mortgage was stated, but don't recollect; I think the body of the instrument was in the handwriting of Elkanah Morse." Dunphy denied that any such agreement was ever exe- cuted, and excepted to the ruling of the court, KNOWLES, J., in allowing the testimony to be introduced. Kleinschmidt also testified that E. Morse told him he had executed a mortgage on all his property to Dunphy ; that he did not intend that Hamilton and Herron should make any thing out of him, but the mortgage was not intended to affect his other creditors ; that the agreement he showed him would protect him against Dunphy ; that he had pur- chased $6,000 or $7,000 worth of goods from Dunphy, which lie was to pay in flour ; that he would keep the mort- gage and agreement in his possession and be safe ; that his 18(59.] KLEINSCHMIDT v. DUNPHY. 121 property was worth $45,000 ; that all of his indebtedness would be paid ; and that the suit of Hamilton and Herron would probably go against him, and he would not put the mortgage on record unless in case of emergency. Dunphy objected to the introduction of these declara- tions of E. Morse, made in the foregoing conversation in his absence. The objection was overruled, and defendant excepted. Other witnesses testified regarding the declarations of E. Morse or B. Morse, concerning the mortgage in contro- versy, its amount, the manner of its payment, and the amount of the indebtedness due from the Morses to Dun- phy on account of the mortgage, all of which were made in the absence of Dunphy. The defendant objected to the introduction of this testimony, and excepted to the ruling of the court in admitting it. The court submitted to the jury twenty-one issues of fact, and instructed them that three-fourths of their number could hnd a verdict. The jury returned the findings upon these issues, in most of which nine jurors concurred and three dissented. The defendant objected to the entry of the verdict, because it was found by nine jurors. This objec- tion was overruled, and defendant excepted. On April 2, 1869, the court, KNOWLES, J., signed a decree in favor of plaintift' for $35,737, and $7,149 costs, in accord- ance with the findings. The motion of defendant for a new trial was denied, and defendant appealed. Elkanah Morse, of the firm of E. & B. Morse, died on December 4, 1.867. The judgment in favor of Kleinschmidt against Morse, which is referred to in the pleadings, was the subject of an appeal to this court in December, 1868 ; ante, p. 100. CnUMASEKO & ClIADWICK, SlIOBKR & LOWRY, WORD & SPRATT and W. F. SANDERS, for appellant. No lawful verdict was found by the jury, as twelve juror? did not agree in finding it. IT. S (Y>nst., Amend. 5 and 7; Organic Act, 6 ; 1 Story's Eq., (50, 72, 70 ; 3 Bl. Com. 431 ; VOL. I. 16. 122 KLEIXSCIIMIDT c. DrxriiY. [Aug. T., 432; Sedgw. Stat. and Const. Law, 545, 546; 10 Bacon's Abr. 306, 315 ; 9 id. 564 ; 2 Bouv. Law Diet. 622 ; id. 113, 584 : 3 Greenl. Ev., 260, 264 ; 2 Sto. Const., 1763 ; Smith v. Polled; 2 Cal. 94 ; Whit, N. Y. Prac. 391 ; 2 Lead. Cr. Cas. 327 ; Kruger v. Hudson R. R. R. Co., 12 X. Y. Ap. 198. Oral evidence cannot be substituted for any written instru- ment, the existence of which is in dispute, and the produc- tion of which is material to the issues between the parties or the credit of the witnesses. 1 Greenl. Ev., 88 ; 1 Phil. Ev., 475; 2 Phil. Ev., 422. The respondent was enabled, by this improper testimony, to establish a false foundation for introducing evidence of the declarations of E. & B. Morse. There was no evidence that Dunphy or B. Morse ever had this instrument, Dunphy \vas the only party defending this suit, and the statutory rule, to produce papers, does not apply. Acts 1867. 220. 422. Dunphy and B. Morse swear that no such instru- ment was ever executed. There was no evidence that Dun phy ever had any control over said instrument. How could Dunphy produce an instrument which he did not possess or control, and the existence of which he had denied under oath? DAVI:? cV THOROUGHMAN and WOOLFOLK & TOOLE, for respondent. Kleinschmidt could testify as to the contents of the writ- ing executed by Dunphy to E. & B. Morse, after notice to produce the original had been served, and after B. Morse had been interrogated concerning its execution. Every means to obtain the original had been exhausted, and parol evidence of its contents was proper. 1 Greenl. Ev., 82 to 91 : Prac. Act 1867, 380. 421, 422 ; Gordon v. Searing, 8 Cal. 49 ; Ho. yd en v. Palmer, 2 Hill, 205. The declarations of the Morses were not proved until evi- denc'- had been introduced showing collusion between them and Dunphy to defraud creditors, and that the Morses remained in the possession of the mortgaged property and exercised arts of ownership over it. after they claimed lu 1869.] KLKIXSCIIMIDT e. DUNPHY. 12h have delivered it to Dunphy. The question as to the foun- dation for the admission of this evidence was for the discre- tion of the chancellor below. In this case that discretion was properly exercised. 2 Phil. Ev. 177, 602; Adams v. Davidson, 6 Seld. 309 ; Laudccker \ . Houyhtaling, 7 Cal. 392 ; Ellis v. Janes, 10 id. 456 ; Visher \. Webster, 8 id. 113; Swartz v. Hazlett, id. 128; Seligman v . Kalkman, id. 213. The verdict of nine jurors was lawful. Acts 1869, 66, X 1 15. Appellant took no valid exception to the charge of the <'ourt, directing that nine jurors should return a verdict. Exceptions to the whole charge, without pointing out the specific part excepted to, will not be regarded by this court if an}' portion of the charge is correct. Acts 1867, 188. 189 ; Hicks v. Coleman, 25 Cal. 146 ; More v. Del Vatte. 28 id. 174 ; Jones v. Osgood, 2 Seld. 234 ; Hunt v. Maybec, 3 id. 266. All the authorities are clear that a jury trial may be waived. Appellants had no right to gamble for a verdict, and then object to receiving it, after it had been given. The sixth and seventh amendments to the constitution, re- lating to trial, by jury, do not affect State or territorial courts. Organic Act, 6, 13 ; 2 Sto. Const. 575 to 579 ; Ex parte Smith, 10 Wend. 449 ; Murphy v. People, 2 Cow. 815 ; Livingston v. Mayor, 8 Wend. 102 ; Sedgw. Stat. and Const. Law, 543 ; Am. Ins. Co. v. Carter, 1 Pet. 546. This is a bill in equity. Equity causes are not embraced in the provisions of the constitution, relative to trial by jury. It is expressly limited to '" suits at common law," where the amount in controversy exceeds $20. 2 Sto. Const. 577 to 583; Rathbiuiv. Rathbun. 3 How. Pr. 139; Leev. Tillot * on, 24 Wend. 337 ; Cahoon v. Levy, 5 Cal. 294. Equit} will render judgment against a fraudulent vendee in favor of a creditor, when the fraudulent vendee has con- verted the property and thereby defeated the creditor's claim. Equity, having obtained jurisdiction for discovery, will retain it for relief. $wfnfr>l'f7 r. Roqcrs. 23 Cal. 233 ; 124 KLEIXSCHMIDT v. DUNPHY. [Aug. T., Goodwin v. Hammond, 13 Cal. 168 ; Edw. Receivers, 415 ; King v. Baldwin, 17 Johns. 384. WARREN, C. J. This was an action brought by respond- ents, as judgment creditors of the partnership firm of E. & B. Morse, to set aside a mortgage executed by said firm to defendant Dunphy, as fraudulent, and to subject th<- property conveyed thereby, in the hands of Dunphy, to payment of their respective judgments. The cause was tried at the March term, 1869, of the dis- trict court, in and for Lewis and Clarke county, befor<- KNOWLES, J., and a jury. The court submitted to the j un- certain issues or questions of fact, and directed written find- ings thereon. The jury returned their written findings upon the ques- tions of fact, signed by their foreman, and by three of th" jurors as dissenting therefrom. The appellants filed objec- tions to entry of the findings of the jury, which was over- ruled, and the findings were entered and approved by the court ; and, on the same day, appellant Dunphy filed notice of a motion for a new trial, on the grounds of insufficiency of the evidence ; of errors in law occurring at the trial ; of newly-discovered evidence, and of error in the entry of the findings of nine of the jurors, and filed affidavits in support of his motion. On April 2, 1869, the court entered a decree in accordance with the facts found by the jury, and, after- ward, on hearing of the motion for a new trial, overruled the same. Defendant Dunphy appeals from the decree and from the order overruling the motion for a new trial, and assigns several causes of error. So far as the' order overruling the motion for a new trial is concerned, it is only necessary to say, that when* evidence is conflicting, the jury are to determine the facts, and their verdict will not be disturbed, unless clearly unsupported oy evid'Mire before them ; no error in law occurring at the trial is specified, other than will be considered in discussing errors assigned in statement on the appeal, and the affidavits 1869.J K.LEINSOHM1DT V. DUNPIIY. 125 filed, disclosing newly-discovered evidence, show that evi dence to have been of a cumulative character ; and, hence, we hold the court below did not err in overruling the motion. The statement on appeal assigns nine specifications of error, but, on the hearing in this court, appellant, in his brief and argument, relies upon but three, which we will consider in order. The first error assigned is in permitting parol evidence to be given of a writing alleged to have been executed by defendant Dunphy, the existence of which was controverted by appellants. The question of the existence of facts constituting a foun- dation for the admission of secondary evidence, was one for the determination of the court under the rules of evidence, and, while the evidence was conflicting, the record seems to sustain the action of the court in permitting parol evidence of the contents of the paper to go to the jury. The second error assigned is in admission of the declara- tions of defendants below, E. Morse and B. Morse, respect, ively, concerning the conveyance executed by them to defendant Dunphy, made in the absence of Dunphy. The record shows that, before these statements of the Morses were admitted, evidence had been introduced tend- ing to show complicity and collusion between Dunphy and the Morses, in respect to the conveyance in question, which was sufficient to make competent the admissions of one as against the others. The next error assigned is in allowing the findings of but three-fourths of the jury, three dissenting therefrom, to be received and entered, and in entering the decree upon such findings. By stipulation, the following causes, to wit : Brayv. Batch- elder, Sni/der v. Tier nan, and Siegel et al. v. Jones & Lott, are submitted, subject to the determination of this question, which is one of a most interesting and Important character The act of the legislative assembly of the Territory, a proved December 215, 1867, known as the civil practice ao^- enacts that "there shall be in this Territory but one form 126 KLEINSCHMIDT v. DUNPHY. [Aug. T. of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs'" (section 1), and that u an issue of fact shall be tried by a jury, unless a jury trial is waived or a reference be ordered, as provided in this act.'' (See section 155.) Section 15 of the act approved January 15, 1869, provides that "in all civil cases, if three-fourths of the jurors agree upon a verdict, it shall stand and have the same force and '-ffect as if agreed upon by the whole of the jurors." It is claimed, in all the cases under consideration in which the question is involved, that the last-mentioned act is in contravention of article VII of the amendments to the con stitution of the United States, and, therefore, void. We will first consider the question generally, and then apply the principle involved to the several cases submitted. The article of the constitution in question reads that "in suits at common law, where the value at controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined by any court of the United States than according to the rules J O of the common law. v "We are led in the first instance to consider the nature and extent of this restriction. We believe it is admitted, and. at all events, it is too well settled to admit of question, that this article belongs to that class of limitations upon the exercise of power which were imposed by the constitution upon the federal government, and which have no applica- tion to the State governments in the exercise of these pow- ers which were ' reserved to the States respective!}-, or to the people." The restriction is general, and applies to all the depart- ments of the general government alike, especially to the legislative and judicial branches, to whom are assigned the functions of enacting and of construing the laws, so that neither can the congress by law, nor the national courts by their rules or in their practice, deny to a citizen the right thereby secured. The several States, by their constitutions, may otherwise 1869.] KLEKN SCHMIDT r. ULMTIV. 327 provide, although the principle is one of such ancient origin. and held by ourselves in common \vitli the nation, from whom our jurisprudence is mainly derived, in such high estimation that, with but few exceptions, it is incorporated in the constitutions of the different States of the Union in its original form, and in many of them has been extended beyond the terms of the federal constitution and applied to trials of causes in equity, as well as at common law, and regardless of the amount in controversy. In its application to the federal government the right of trial by jury in civil cases has been held to apply only to the class of causes specified in this article, that is, causes at common law, as distinguished from causes of equity and of admiralty jurisdiction, and this construction is well settled by the courts. It remains then to determine how fur this provision affects the powers of our territorial governments, and to this end we must consider its source, nature and extent. The con- dition of a Territory of the United States is somewhat anomalous. The extent of the powers of its local govern- ment and the rights of its inhabitants have furnished occa- sion not only for profound legal argument, but for great political dissension. The power of congress to legislate upon the local or domestic affairs of the people inhabiting a Territory has been strenuously denied, but at this time seems to be authoritatively established. Whether this power be derived, as claimed by some, from the constitutional right to make * ; all needful rules and regulations respecting tin- Territory or other property belonging to the United States." or be necessarily deducible. as contended by other>. from the power to acquire and hold territory, ir is unnece^ sury now to inquire. In the exercise of this general power congress passed the act establishing and creating a temporary government for this Territory. This act distributes the powers of the local government among three departments, and ordains that thn legislative? power "shall extend to all rightful su'oj". legislation consistent with the constitution of 13t KLEINSCHMIDT v. DUNPHY. [Aug. T., States and the provisions of this act;" and provides that the judicial power shall be vested in certain courts, the juris- diction of which shall be limited by law, provided that the supreme and district courts respectively shall possess chan- cery as well as common-law jurisdiction. The act also provides that "the constitution and all the laws of the United States which are not locally inapplicable shall have the same force and effect within the Territory as elsewhere within the United States," and clothes the district courts created by it with the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested by law in the district and circuit courts of the United States. Can the legislature or the courts thus established by law or in their practice deny the right of trial by jury in suits at common law in which the value at controversy exceeds twenty dollars ? The argument of the respondent in this case has been that, while the territorial district courts, in addition to their local jurisdiction under the territorial laws and their chancery and common-law powers, are also vested with federal juris- diction, they yet are not national or federal courts, as estab- lished and contemplated by the constitution, and hence that the constitutional restriction we are considering does not apply to trials of causes in such courts. On the other hand, it is urged by the appellant that the organic act performs the functions of a State constitution, and that under its express terms all the general provisions of the federal constitution apply to the territorial govern- ment. It is certainly true that the territorial district courts are not federal courts, as contemplated by the constitution. They are created by congressional enactment in the exercise of the power to govern territory of the United States, and must necessarily be restricted in their powers and jurisdic- tion to the limit of the power which created them. What that limit is we will consider hereafter. It will be, perhaps, a digression to discuss the nature and 1869.] KLEINSCHMIDT v. DUNPHY. 129 extent of the powers vested in the district courts by the organic act, but, as a subject which has attracted general interest and germane to the question before us, we will briefly refer to it. The district court sits in two distinct capacities, as a local tribunal, and also exercising the jurisdiction of a federal v*urt. Is a local tribunal, its practice and course of procedure, pnwided its common law and chancery jurisdiction be not impaired, may be ivgulated by the local laws, which, how- ever, must not infringe any principle of the constitution or any act of congress applicable to it, and we take occasion, although the question is not raised in the record of any of the causes now under consideration, to suggest to the legis- lative assembly, as well as to the legal profession of the Ter- ritory, whether the civil practice act now in force, or the construction heretofore placed upon it, in so far as it per- mits legal and equitable claims or defenses to be united, be not erroneous. The supreme court of the United States, in Thompson v. Railroad Companies, 6 Wall. Rep., hold that "the constitution of the United States and the acts of congress recognize and establish the distinction between law and equity. The remedies in the courts of the United States are, at common law and in equity, as distinguished and defined in that country from which we derive our knowledge of these principles." "And, although the forms of proceed- ings and practice in the State courts shall have been adopted in the circuit courts of the United States, yet, the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit." If it be true, as held, that the constitution and the acts of congress recognize and establish the distinction between law and equity, can the legislative assembly of the Terri- tory, under the organic act, abolish that distinction in the territorial district courts, even while sitting as local tribu- nals? As federal courts, the district courts are understood to be governed, in all cases at common Jaw. by the local VOL. 1 17. 130 KLEINSCHMIDT -c. DUNPHY. [Aug. T., rules of decision and of practice, where the constitution or statutes of the United States do not otherwise provide ; while in causes in equity the proceedings must conform to the rules governing causes in equity, notwithstanding the legis- lative assembly have, by statute, abolished the distinction between forms of proceeding at law and in equity, and have established but one form and course of proceeding in all civil actions. But to return : The right of jury trial, secured by the article of the con stitution under consideration, referring not only to trials in the national courts established by the constitution, and the territorial district courts, at least while in the exercise merely of their local jurisdiction, not being embraced under its provisions, it is urged that the court below did not err in receiving the findings and rendering the decree in the prin- cipal cause now under consideration. This proposition assumes that the cause is one at common law, and for the present we will so assume. This position could only be maintained by holding that, while the constitutional restric- tion applied to the federal judiciary, it did not extend to the legislative power intended to be restricted. We have already stated that it was designed to restrict all the depart- ments of the federal government, legislative as well as judicial. If, then, it is restrictive upon congress as well as upon the federal courts, can congress, in the exercise of its power to govern a Territory, create a local legislature or local courts, and delegate to either a power which it does not itself possess, to deny the right in question ? We think clearly it cannot. Even without the provision in the organic act, that the constitution and laws not locally inapplicable shall have the same force and effect in the Territory as elsewhere with- in the United States, the conclusion would be the same. Congress has no power, either directly or by a delegation of power to another body of its own creation, to deny to a citizen of a territory the right to a trial by jury in a suit at common law, where the value at controversy exceeds $20. It is further contended, however, that inasmuch as the a<-; 1869.] K.LKIXSCIIMIDT o. DUXPHY. 131 :jf the legislative assembly requires the same number of jurors as the common law, it is not an infraction of thn constitution. This position is not tenable. "Trial by jury," as the words are used in the constitu- tion, had, at the time of its adoption, a fixed legal signifi- cation, and from time immemorial has meant a trial by a tribunal of twelve men, acting only upon a unanimous determination. The origin of this mode of trial is lost in the dimness of the past, but from the earliest period down to the time of the adoption of the constitution, unanimity of twelve jurors alone has constituted a legal verdict. If the legislative assembly could dispense with one attribute or essential of a verdict, it could as well destroy the other, or repeal the right altogether. It can do neither ; and, hence, the act in question is, in so far as it applies to actions at common law in which the value at controversy exceeds $20, unconstitutional and void. The causes before mentioned of Bray v. BatcJielder, Sny- der v. Tiernan, and Siegel et al. v. Jones & Lott, are all common law causes, and embraced within the foregoing principle, and the judgments in them must be reversed, and the causes remanded for new trial. The cause at bar (Klelnschmidt v. Diinpliy et al.}. how- ever, is clearly one of chancery jurisdiction, and it remains no\v to consider the statute in reference to trials of causes in equity. The right of jury trial is not secured by the constitution in causes of equity jurisdiction, and in the absence of statu- tory enactment, federal or territorial, it does not exist. In such cases the chancellor might, according to the established rules of chancery practice, call a jury to his aid. to deter- mine questions of fact arising upon the hearing. Such ver- dict, however, would be merely advisory, and addressed solely to the conscience of the chancellor, who might wholly disregard it. '.Ve have seen that the civil practice act has provided the >;im>' manner of disposing of issues of fact in all civil cases, 132 KLEINSCHMIDT v. DUNPHY. [Aug. T., whether in law or in equity. It follows, from what we have said, that the legislative assembly has the same power as congress, within the limitations of the grant of power to it contained in the acts of congress and the constitution. Could congress confer the right of trial by jury of issues of fact in causes in equity in the federal courts? and could congress by law dispense, in such causes, with the requisites of a common-law jury, either in respect to number or unanimity ? We think it could. We find nothing in the constitution preventing the exercise of such power. Hence, we conclude that the legislative assembly also possesses the power, under the organic act, as being a subject of rightful legislation, and contravening no provision of the constitution or of the acts of congress. This power they have exercised, and it is the province of the judiciary to construe, and not to make laws, and, in construing, to give effect to them so far as it may be done. We conclude, then, that the act in question, so far as it relates to trial of issues of fact in causes in equity, is constitutional and valid. The other errors assigned in the statement on appeal in this case were not urged in the briefs or arguments in this court, and we will only notice the refusal of the court to give the instructions asked by both parties. The court submitted to the jury only specific questions of fact, and gave all the instructions necessary in regard to the questions submitted, as no general verdict was required. On examination of the whole record we find no error sufficient to warrant a new trial. The decree of the court below is affirmed, with costs. KNOWLES, J., and SYMES, J., concurred. Exceptions overruled. This cause was taken by appeal to the supreme court of the United States, and the decree of the district court was reversed. 11 Wall. 610. 1869. J BAUTZ v. KUHWOBTH. 138 BAUTZ et al., appellants, v. KUH WORTH, respondent. AGREEMENT FOB BUYING LAND how rescinded purcha&e-monty. Neither the vendor nor vendee can rescind a written agreement for the purchase of laud, if the buildings thereon, which were not the chief inducement to such purchase, are destroyed by tire, without any fault of the vendor. The vendee cannot recover the portion of the purchase-money which he paid the vendor on thia agreement before the nre occurred. Appeal from the Third District, Lewis and Clarke County. BAUTZ AND HORSKEY commenced this action to recover $1,000, money had and received on an agreement. The court, WARREN, J., sustained Kuhworth's demurrer to the complaint and rendered j udgment for defendant. The plain- tiffs appealed. The facts appear in the opinion. CHUMASERO & CHADWICK, for appellants. The complaint states facts sufficient to constitute a cause of action, and the court erred in sustaining the demurrer thereto. Milliard on Vendors, 73 et aeq. / Sto. on Sales, 423, 424, 448 ; 1 Sto. Eq., g 101, 102 ; Bouv. L. D. 465. SHOBER & LOWRY, for respondent. Appellants by the contract had the privilege of paying &5,oOO May 3, 1869, and take the deed, or refusing to pay said sum and let the $1,000 go as stipulated damages. The appellants chose the latter and cannot recover what they have paid for the privilege of doing what they have done in the premises. The court below properly sustained the de- murrer. Dak in \. Williams, 11 Wend. 07; Lester v. Jew- ell, 1 Kern. 453; 2 Pars, on Cont. 232, 233; Guzley v. Price, 16 Johns. 267. KNOWLES, J. The complaint in this cause presents the following tacts as constituting plaintiffs' cause of action : Appellants made an agreement with respondent on the .Mil day of April. 1800, for the purchase of a certain lot. 134 BAUTZ c. KUHWORTH. [Aug. T., together with the appurtenances thereto belonging, situate in the town of Helena. In accordance with that agreement appellants paid re- spondent $1,000, and executed and delivered to J. H. Shober to be held as an escrow two promissory notes secured by a mortgage upon the premises for the sum of $6, 500. Respond- ent made and executed a deed to said premises to appellants and delivered the same to the said Shober to be held as in escrow. The whole agreement was to be consummated on the 3d day of May, 1869. At that time appellants were to pay respondent $5,500 in addition to the $1,000 already paid. The deed was to be delivered to them, the mortgage and notes to be delivered to respondent. If the appellants tailed to comply with their portion of the agreement the}" were to forfeit to respondent the $1,000 already paid, as liquidated damages. That appellants were to hold posses- sion of the premises from the said 5th day of April until the said 3d day of May. Appellants were on the said 3d day of May willing and ready to pay the respondent the sum of $5,500, and in all respects to comply with the terms of their agreement. The buildings on said premises were worth the sum of $6,500. Respondent was unable to comply with his portion of the agreement, for the reason that on the 28th day of April these buildings were destroyed by fire, and respondent was unable to deliver the premises as they were on the day of agreement. Appellants claim judgment for the $1,000 paid respondent. The respondent filed a general demurrer to the complaint, setting- forth that it did not state facts sufficient to con- stitute a cause of action. The court sustained the demur- rer. The appellants appeal to this court, assigning as error this ruling of the court below. The question presented in this case is, could the appel- lants, when it became impossible for the respondent, with- out any fault of his, to deliver the premises with all tlu- buildings thereon, as they were at the time of the agree- ment to them on the 5th day of May, rescind the agreement ? There is no nllegation that the respondent could not con- L869.J BAUTZ c. Kun WORTH. 130 vey to them a good and valid title to the lot. There is none that the buildings were the chief inducement to the agree ment, and a prayer that the contract be rescinded for that reason. The appellants seem to have considered that the destruction of these buildings entitled them to rescind the contract. If the buildings had been damaged without the fault of respondent, to the extent of 85, so that he could not have delivered the premises to appellants in the same condition they were at the date of the agreement, in principle the same reasons would exist for rescinding the agreement as exists in this case. If any other rule prevailed, the right to rescind an agreement would depend upon the amount of damages done the premises bargained for, and it would devolve upon the court to decide when a sufficient amount of damages had been done, premises bargained for, to war- rant a contracting party to rescind the agreement. We have been unable to find any authority, and do not believe that any exists, to the effect that where an appurtenance to real estate, which was not the chief inducement to the pur- chase of the same, has been damaged, or even destroyed, without any fault of the vendor, so that he could not deliver the premises on the day they were to be delivered to the vendee in the same condition they were on the day the agreement was made, the vendee would have the right to rescind the agreement altogether. Believing that such is not the law, we find no error in the ruling of the court below. It is true, if the premises were respondent' s at the time of the fire, the loss of the buildings would be his, and the appellants might have their value deducted from the amount the}* were to pay him for the premises ; or, if the buildings were the chief inducement for the purchase of the premises, perhaps a court of equity would, for this reason, order the agreement rescinded and canceled. But to allow a vendee to rescind an agreement for the purchase of real estate, for a damage to an appurtenance thereto, without any fault of the vendor, which could be eomprii- 136 GRANT V. SPENCER. [Aug. T., sated for in money, would be going farther than we think we would be warranted. For the same reason we see no reason why the vendor might not rescind the agreement. He is without fault, and the obligations of an agreement are mutual ; hence, if one could rescind, why not the other. Yet who doubts that the vendees in this case might have maintained an action for a specific performance of this agreement, had they performed, or offered to perform, their part of the agreement, and could have had the value of the building deducted from the amount to be paid for the premises. These being the views of the court in this case, the judg- ment of the court below is affirmed. Exceptions overruled. GBANT, respondent, v. SPENCER et al., appellants. STATUTORY CONSTRUCTION act relating to grounds for refusing new trial i.s- directory. Section 196 of the civil practice act, requiring the court to state in writing the grounds on which a new trial is refused, is directory. The failure of the court to state such grounds in this case did not injure the appellants. PROMISSORY NOTE notice of non-payment not waived by presence of indorser. The presence of one of the iudorsers of a note, when the holder presents it to the maker at maturity for payment, does not waive a regular n.otice of its non-payment to the indorsers. Appeal from the First District, Madison County. ON April 28, 1868, Grant commenced this action in the district court against three defendants, on the following instrument : "$700 Gold. VIRGINIA CITY, M. T., October 1, 1867. On the 1st day of March, 1868, for value received, 1 promise to pay Spencer, Harrison & Co., or order, the sum of $700 in good gold dust or United States currency, at cur 1869.] GRANT . SPENCER. 137 rent rates, with interest from date until paid, at the rate of five (5) per cent per month. J. B. CHAPIN." [Stamp.] Indorsements : " We hereby transfer the within note to J. M. Grant, Vir- ginia City, M. T., December 7, 1867. SPENCER, HARRISON & CO." The payments indorsed thereon amounted to $392.50. A jury trial was waived and the case was tried by the court, HOSMER, J., in June, 1868, and judgment was ren- dered for plaintiff for $698, which was to bear interest at the rate of 5 per cent per month until paid. The defend- ant' s motion for a new trial was not heard until May, 1869, when the court, WARREN, J., overruled the same, without stating in writing the grounds therefor, and defendants appealed. The statute of Montana, relating to indorsers on promis- sory notes, is as follows : " Indorsers of * * * promissory notes shall be con- tingently liable only, until after they shall have been notified of the presentation and non-payment thereof, at maturity, by the person or persons primarily liable for their payment." " In order to make the contingent liability of any indorser of any * * * promissory note absolute, it shall be neces- sary for the holders of the paper to cause it to be presented at the place where, by its terms, it is payable, if any place of payment be therein or thereon specified, and if no place of payment be specified, then to the person himself who is prima- rily liable for the payment ; and, if payment thereof, on such presentation at maturity, be neglected or refused, to cans* 1 a written or printed, or partly writtenand partly printed, notice of such presentation, demand and non-payment, briefly de- scribing the * * * note, to be served immediately there- after upon the indorser, unless the same shall be protested in the usual manner by a notary public ; in which case the official certificate of protest of such officer, made on the day VOL. I. 18. 138 GBANT t>. SPENOEK. [Aug. T.. of protest inclosed in letter form, and deposited, post-paid, in the post-office, directed to such indorser at his usual place of residence, will charge him in the same manner." During the argument of the case, the respondent remitted all interest on the judgment, in excess of ten per centum per annum. The other facts are stated in the opinion. H. N. BLAKE, for appellants. The court should have stated in writing the grounds on which the new trial was refused. Civ. Pr. Act, 1867, 196. The statement shows the following facts : That no false representations were made to respondent by appellants concerning the note ; that respondent neglected to collect the same from the maker, because he was obtaining five per cent per month interest ; that respondent bought the note on his own judgment, and that the note was not protested until two months after maturity. The pleadings of the parties treat the instrument sued on as a negotiable promissory note. Complaint and answer. The appellants were indorsers upon the note and entitled to notice of the presentation and non-payment thereof at maturity by the maker. Acts 1865, 343, 5, 6. The instrument sued on possesses all the elements of a negotiable promissory note. The amount to be paid on the note is fixed in it, and also by the statute. 1 Pars, on Notes & Bills, 30, ch. 3 ; Acts 1865, 338, 1. The rate of interest on the judgment should be ten pef centum per annum. GriffitJi v. He rsJt field* ante, 66. DAVIS & THOROUGHMAN, for respondent. No brief on file. SYMK&, J. This was an action on a promissory note- holder against indorsers tried at the Madison countv dis- O ^ trict court in June. 1868. before the court, and judg- ment given for plaintiff for amount due on note. Motion for new trial overruled, and case brought up on statement for new trial and order overruling same. 1869.] GRANT c. SPJSNC.KK. 130 The complaint alleges that one Chapin. on the 1st of October, 1867, executed to the defendants his promissory note, due the 1st of March, 1868, for $700 in gold, with interest at five per cent per month until paid. That on the 7th of October, 1867, defendants indorsed said note to plaintiff; that plaintiff presented said note when due to said Chapin, and he paid $207.50 on same, but failed to pay more at that time, and that defendants had notice thereof; that on the 9th and 29th days of March, plaintiff called on said Chapin and demanded payment of said note, and on the 9th Chapin paid 8100, and on the 29th, 85, but has since failed to pay balance due : that plaintiff protested note, and gave notice to defendants. The answer admits indorsement of note ; denies payment vvas refused, and states that when plaintiff presented note. Ohapin asked plaintiff how much money he needed, and plaintiff said $200 would do him, and Chapin paid him $207.50 ; that on the 9th of April plaintiff called again, and received $100 ; and, on the 29th, called with defendant Spencer, and demanded payment, and received $85 ; den}' notice of refusal to pay, arid allege that they asked plain- tiff several times if he had collected note, and he replied that he did not want the money, and it was drawing five per cent a month ; deny owing plaintiff any sum, and ask judg- ment for costs. The evidence in statement for new trial shows that note was indorsed by defendants ; that when note became due, defendant Spencer went with and introduced plaintiff to maker of note, to demand payment of same, which he did ; 'jiat Chapin did not refuse to pay note, but asked plaintiff uow much money he wanted : plaintiff replied $200 would do him, and Chapin paid him 8207.50; that on the 9th of April, '68, he called again and received $100 all he de- manded and that on tin- 29th he called with defendant Spencer, and demanded payment; Chapin replied he was a little hard up, and asked plaintiff how much money would do him then : plaintiff" said $85 would answer, but he must have balance soon : Chapin paid him $85. Twc 140 GRANT v. SPENCER. [Aug. T., witnesses testified that plaintiff said he did not want to draw money on note, for it was drawing five per cent a month, and he considered Chapin good as the bank. Note was not protested until two months after due, and three payments had been made on same, and no notice given of non-payment, except two months after due. Plaintiff tes- tified and did not contradict foregoing statement of evidence as to protest, notice, etc. The errors assigned on denying motion for new trial are, 1. That the court erred in not stating grounds for refusing new trial in writing ; 2. In finding, from the facts, that plaintiff was entitled to recover, and that defendants were liable as indorsers ; 3. In finding that plaintiff was entitled to five per cent per month on judgment. Section 196, Civil Code, which provides that the court or judge shall state in writing the grounds upon which a new trial is granted or refused, is directory, and it is not seen how the appellants were prejudiced by the grounds not being specially stated in writing. This case was tried by the court, and the question is, does the evidence or facts con- tained in the statement for new trial support the findings ol court, that the plaintiff was entitled to recover against the defendants the amount due on the note as indorsers thereof. It was admitted that the writing in this case is a negotiable promissory note. To hold an indorser the note must be presented to maker at maturity and payment demanded, and if neglected or refused, notice given within reasonable time to indorser. The note in this case was presented at maturity by the holder, in the presence of one of the indor- sers, to the maker for payment, who did not refuse to pay, but asked holder how much money he wanted ; he said $200 would do him, and maker paid him 8207.50. Some time after holder again presented note for payment and re- ceived $100 on same, and again (on 29th of ^April) presented note in presence of indorser and received $85 on same, the amount he said would do him at the time, but he must have balance in short time. There was no protest or notice under two months after note became due to indorser that payment 1869.] GRANT v. SPENCER. 143 had been refused, or that holder looked to indorsers for payment ; but proof that holder told indorsers and others, after presentment and receiving $207.50, that he did not want to collect the money as it was drawing five per cent a month and maker was good as bank. Then if there was no regular notice, was the presence of the indorser, when demand was made, constructive notice, or such knowledge as would excuse notice, or any waiver of same ? We think not. " Knowledge in fact is no excuse for regular notice." 1 Pars, on Bills & Notes, 521. And where the drawer of a bill undertook to present it after maturity, although attempts had been made by indorser to procure payment, it was held no waiver of notice. Pars, on Bills & Notes, 521. The expres- sion in a conversation that note would be paid was held not sufficient to prove waiver of notice, or promise to pay or see it paid. 17 Pick. 332. There is in the statement no evidence to prove that there was notice or protest under two months, or that there was any waiver or promise to pay by indors- ers ; and the court erred in finding the defendants respon- sible as indorsers and in overruling motion for new trial. Whether verbal notice is good under our statute may be questionable, but the point is not raised in this case. The third error assigned is the finding that plaintiff was entitled to five per cent per month interest on judgment. It has been decided in this court (but I believe since the rendition of this judgment) that a judgment could draw but ten per cent. But plaintiff appeared in this court and remitted all over ten per cent, which would have prevented defendants from being prejudiced thereby. Judgment reversed and new trial ordered. Exceptions sustained. 142 MCGREGOR v. WELLS, FARGO & Co. [Aug. T. MeG-REGOR, Assignee, respondent v. WELLS, FARGO & Co. , appellants. SHERIFF'S RETURN eannot be quashed by a motion. The sheriff's return on an execution caiinot be quashed by a motion and evidence of its illegality or falsehood. SHERIFF'S RETURN remedy of injured party. The party, who is injured by a sheriff's return upon an execution, can maintain an action for damages against the officer. SHERIFF'S RETURN ANNULLED BY conn- payment of execution. The court can annul the sheriff's return upon an execution, which shows that he has applied one execution in payment of another in his hands. EXECUTION ISSUED FOR ASSIGNEE OF JUDGMENT collection of. The court c;wi direct an execution to be issued in favor of the assignee of a judgment, OT. motion and proof of its assignment, but it cannot order the officer to co". lect an execution in a particular manner. Appeal from the Third District, Lewis and Clarke County. ,\. M. CLARKSON recovered a judgment for $5,000 against Wells, Fargo & Co.. in the district court in and for Lewis and Clarke county, in July, 1868. In December, 1867, Wells, Fargo & Co. brought an action in the same court against Clarkson, Norman & Drake, partners, and doing business under the style of Drake, Clarkson & Co., to recover a partnership debt. At the trial in October, 1868, the plaintiffs dismissed the case as to Norman and Drake, and recovered judgment against Clarkson for $2,673. 3d. On December 14, 1868, an execution was issued in favor of Clarkson, against Wells, Fargo & Co., and placed in the hands of the sheriff. On the same day, an execution was issued in favor of Wells, Fargo & Co., against Clarkson, and placed in the hands of tin- sheriff. On the iirst execu- tion, the officer made the following return : "Having an execution in my hands bearing even date herewith, in favor of Wells, Fargo fe Co., against John M. Clarkson, on a judgment in the district court of the third judicial district of the Territory of Montana, in and for Lewis and Clarke county, i'or the sum of $2,673.38, dated October 20, I868\ the amount of their execution, and the 1869. J MCGREGOR 0. WKLLS, FARGO & Co. 143 interest thereon, amounting to $2,544.50, is applied as an offset to the execution first above mentioned, and this exe- cution is returned satisfied, and the proceeds applied as aforesaid W. K. ROBERTS, Sheriff: 1 December 14, 1868. The officer made a return of the same character upon the execution in favor of Wells, Fargo & Co. On motion of McGregor, the assignee of one-half of the judgment in favor of Clarkson, the court, KTSTOWLES, J., canceled the return of the sheriff on the first execution, and ordered that an execution should be issued in favor of McGregor, and placed in tho hands of the sheriff; and that the sheriff " execute said process of execution by using all lawful means to collect the balance due of said judgment, with the whole amount of the costs now due in said cause, and pay the same over to the said A. McGregor, in the manner provided by law." To this order, Wells, Fargo & Co. excepted. The opinion contains the other facts. WOOLFOLK & TOOLE, for appellants. The judgment assigned to McGregor was subject to all offsets existing at the time of, or before notice of the assign- ment. Civ. Pr. Act, 5 ; McCabe v. Grey, 20 Cal. 515. The filing of the assignment with the clerk of the district court was not constructive notice under the laws of Montana. Call v. Hastings, 3 Cal. 179 ; Acts 1865, 433, 23, 24, 25 ; 2 Bouv. L. D., tit, "to record." It was no part of the records. The execution upon Clarkson' s judgment was the proper httbj<;t of set-off to the execution of Wells. Fargo & Co., against him, unless McGregor could show that appellants had actual notice of the assignment of Clarkson to him, prior to the date of their judgment against Clarkson. If no execution had been issued, it would have been the duty of the court to set off the executions against each other upon motion. Pnrl<>r \. /,/AYY////. -22 ('a!. 430; 5 Al>b. Diu\ Ifi, 144 MCGREGOR #. WELLS. FARGO & Co. [Aug. T., 186, et seq.; Chamberlin v. Day, 3 Cow. 353 ; Utica Ins. Co. v. Power, 3 Paige, 365. The court refused to consider evidence showing that appellants had no notice of the assignment to McGregor, and ordered an execution in favor of McGregor to be issued, and thereby deprived appellants of their offset. The assignee should have applied to the court to be sub- stituted in the action, which was not done. Civ. Prac. Act, 16. No indorsement was made on the execution in favor of Clarkson, that it had been assigned to McGregor. The sheriff had a right to set off one execution against the other Waterman on Set-offs, 412, 413, 414. The sheriff's return on the executions satisfies both judg- ments. The order of the court opens up one judgment, and leaves the other satisfied. If respondent has any remedy, it is against the officer. The return could not be set aside by motion and affidavits. The remedy was by bill in equity. Egery v. Buchanan, 5 Cal. 53. There was no error in the clerk issuing the execution in the name of Clarkson instead of respondent. He could not do otherwise without an order of court. Civ. Prac. Act, 16. CHUMASERO & CHAD WICK, for respondent. Respondent took one-half of the judgment assigned to him, without any right of set-off of the judgment subse- quently recovered by appellants against Clarkson. Porter v. Leach, 13 Mete. 482 ; Makepeace v. Coates, 8 Mass. 451 ; Waterman on Set-off, 391 ; Baker v. Hoag, 6 How. Pr. 201 ; 5 Abb. Dig. 16, 188, 189, 202, 208 ; 10 U. S. Dig. 391, 13. The question of notice does not arise in this case, as the appellants did not suffer on account of no actual notice being given. Graves v. Woodbury, 4 Hill, 559. The appellants had legal constructive notice of the assign- ment to respondent. Civ. Prac. Act. 204, 205, 206. SYMES, J. This was an appeal from an order made by the court below, annulling and setting aside the return of 1869.] MCGREGOR v. WELLS, FARGO & Co. 146 the sheriff to an execution in the case, and ordering an exe- cution to issue in favor of the assignee of the judgment. Plaintiff, Clarkson, recovered a judgment for $5,000 against defendants, Wells, Fargo & Co., on the 18th day of July, 1 868, and, on the same day, said plaintiff assigned one-half of said judgment to Archibald McGregor, by an assignment in writing, and filed same with the clerk of the court. And on the 14th of December, 1868, an execution was issued on said judgment for balance due thereon $2,517.03, and interest and delivered to the sheriff for collection. On the 15th of February, 1869, the sheriff made a return on said execution to the effect that, having an execution in his hands in favor of defendants, Wells, Fargo & Co., and against the plaintiff in said aforementioned execution, on a judgment in the same court for $2,673.38, that he applied the amount due on said first execution as a set-off on the last-mentioned execution, and returned the same satisfied. Afterward the said McGregor moved the court to annul and set aside the return of the sheriff to the execution, and to order an execution to issue in favor of him, for so much of the judgment as had been assigned to him (the balance being paid). The court sustained the motion, to which defendants excepted. The only question presented is, did the court below err in sustaining the motion to quash the return of the sheriff to the execution, and directing an alias execution to issue in favor of the assignee of the judgment. This depends, first, whether sufficient appeared on the face of the judg- ment roll, and the execution returned to the court, to jus- tify the court in quashing and annulling the return ; and, second, whether the assignment of the judgment, from Clarkson to McGregor, justified the court in directing an execution to issue in favor of the assignee. The court could not quash or annul thp return of the execution, on motion, on evidence aliunne of irregularity, falsehood or illegality in the conduct of the sheriff. This can only be reached by action against the sheriff for a false return, and damages resulting tnerefrom. VOL. L m 146 MCGREGOR v. WELLS, FARGO & Co. [Aug. T.. The transcript on appeal contains the judgment in favor of Clarkson against Wells, Fargo & Co., the assignment to McGregor, the execution and return of the sheriff, and the order of court and exception to same. The judgment and execution are regular and formal ; and there being no stat- ute in this Territory authorizing the sheriff to set off one execution in his hands in favor of another, or to apply one execution in payment of another ; and the return on its face showing the sheriff had done this, the court committed no error in annulling and setting aside the return. A court has full power over its own process for the enforcement of its orders and judgments. The written assignment appears to transfer the one-half interest in the judgment from Clarkson to McGregor. No point is made that it is insufficient for that purpose. Sec- tion 16 of our Civil Code provides, that in case of a trans- fer of interest in an action, it may be continued in the name of the original party, or the court may allow the per- son to whom the transfer is made to be substituted. This authorized the court to allow or direct an execution to issue in favor of the assignee McGregor, upon motion und proof of the assignment of the judgment ; and there was no error in the court sustaining that part of the motion. The counsel for appellants attach to the transcript herein the record of a suit in which judgment was rendered in favor of Wells, Fargo & Co., against plaintiff Clarkson and others ; and their bill of exceptions shows that they offered, in defending 1he motion, to prove by affidavits that the indebtedness, on which their judgment was rendered, was purchased before they had any notice of the assignment from Clarkson to McGregor ; and they file a long brief, and cite numerous authorities, to show that the assignment to McGregor was subject to all set-offs and equities existing at the time of, or before notice of, assignment, and that the sheriff had the legal power to set off the executions. It is immaterial in this case, whether or not the facts assumed, or positions taken by appellants, are correct ; they could not be inquired into, on the motion to annul the return for 1869.] McGRKGou r. \VELLS, FAKGO & Co. 147 errors and irregularities appearing on the face of the papers. The record of the case accompanying the transcript shows that the judgment in the case on which the sheriff set off the execution was not against Clarkson individually, but against him and other persons, so that the court could not have set off the judgments on motion, but it could only be done by suit in equity, showing insolvency of Clarkson, etc. The doctrine that a sheriff, under the common law, without any statute authorizing it, cannot set off executions, is too well settled to need discussion. Many questions were raised and argued which would affect the rights of the parties in ;i suit in equity, but have no bearing on a motion to annul return of sheriff on face of papers. The court, in directing an execution to issue, ordered the sheriff to proceed and make the money, levy on property of the defendants, sell the same, and pay the money to assignees. The presumption is that officers will do their duty, and proceed according to law ; and it was erroneous to order particularly that the sheriff should proceed to col- lect the execution, and the manner in which he should do so, but not such as will reverse the order. The order of the court below is affirmed. Exceptions overruled. This cause was taken by appeal to the supreme court of the United States, and the appeal was dismissed at the De- cember terra, 1871. 13 Wall. (U. S.) 188. CASES ARGUED AND DETERMINED IN TH K SUPREME COURT AX TH K JANUARY TERM, 1870, HELD IN VIRGINIA CITY. Present : How. HENRY L. WARREN, CHIEF JUSTICE. How. HIRAM KNOWLE8, ASSOCIATE JUSTIO*. TRAVIS et al., respondents, v. McCoRMioK, appellant. MORTGAGEE LOSES LIEN ON PERSONAL PROPERTY AFTER DEBT MATURES. A mortgagee of personal property loses his lien thereon, as against a purchaser in good faith from the mortgagor in possession, after the maturity of the mortgage debt, although the mortgage is good and valid for one year after it is recorded. LACHES OF MORTGAGEE INVALIDATES HIS LIEN. In this case, the unexplained failure of the mortgagees to take possession of property, or foreclose their mortgage, two months after the maturity of their debt, was laches, and invalidated their lien, as against a purchaser in good faith. DUTY OF MORTGAGEES. The mortgagees of personal property should take imme- diate possession of the same after the maturity of their debt, or endeavor so to do with sufficient diligence. Appeal from the Third District. Lewis and Clarke County. IN August, 1869, W. S. and C. M. Travis commenced this action to obtain the possession of a "red roan " horse. The court, SYMES, J., sustained the plaintiff's demurrer to the answer, and defendant appealed. 1870.] TRAVIS v. McCoKMiCK. 149 The pleadings and facts appear in the opinion. The statute of the Territory, concerning chattel mortgages, which is referred to in the opinion, is as follows : " SECTION 1. No mortgage on goods, chattels or personal property shall be valid as against the rights and interest of any third person, unless possession of such personal prop- erty shall be delivered to remain with the mortgagee, or the said mortgage acknowledged and recorded as hereinafter directed." "SEC. 3. Any mortgage of goods, chattels or personal property so acknowledged shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the same is made, acknowledged or recorded, and shall thereupon, if bona fide, be good and valid from the time it is so recorded, for a space of time not exceeding one year, notwithstanding the property mort- gaged or conveyed by deed of trust may be left in posses- sion of the mortgagor. Provided, that such conveyance shall provide for the property so to remain with the mort- gagor." CHUMASERO & CHADWTCK, for appellant. The demurrer should have been overruled. The mortgage was fraudulent as to the appellant in this, that the time for the taking of possession of the mortgaged property had long elapsed, at the time of the purchase thereof by appellant, and that his title thereto had thereby become perfect. Acts J865, 339, 3 ; Hilliard on Sales, 126 ; Acts 1865, 494, 15 ; Reed v. JEames, 19 111. 594 ; Constant v. Matteson, 22 id. f>46 ; Cass v. Perkins, 23 id. 382 ; Funk v. Staats, 24 id. fi!}I.J ; Wooley v. Fry, 30 id. 58. \V. F. SANDERS and J. J. WILLIAMS, for respondents. A mortgage imports prima facie that vendor may keep possession till breach of condition, and his continued pos- session is no badge of fraud, arid raises no presumption thereof. Hilliard on Sales, 126 ; Fletcher v. Willard, 14 Pick. 464. 150 TRAVIS G. MoCoKMicK. [Jan. T.. Tlie necessity of a record or delivery to tlie mortgagee is a creature of the statute. At common law, neither is required to render the mortgage valid against bona fide purchasers or attacking creditors. 1 Pars, on Cont. 570. This mortgage is valid under the statute. Acts 1865, 339, g 1. The answer does not attack the acknowledgment or record of the mortgage. In these respects the answer is defective, and the demurrer was properly sustained. The mortgage provides for the property to remain with the mort- gagor, and is good for one year. The act does not say that the mortgage shall be good for such length of time as it provides that the property may remain with the mortgagor. Acts 1865, 339, 3. The rest of the act has nothing to do with the validity of mortgages. What does the statute require? Section 1, not 3, tells what mortgages are invalid. The delivery was not had in this case. The complaint brings the respond- ents under the other alternative, which is not attacked by the answer. Non-delivery after May 1, 1869, is the ground of the defense. Wherefore, the answer is bad. Voorhies' Code, 537, note a; 7 Abb. N. Y. Dig. 123, 11, 12. WARREN", C. J. The complaint in this cause alleges that W. S. Hamilton and T. P. Ames executed their promissory note in favor of plaintiffs below, bearing date December 31, 1868. and payable May 1. 1869 : and that, for the purpose of securing payment of the same, William Hamilton. T. P. Ames and J. A. Amos executed a chattel mortgage of the same date, which was duly acknowledged, and was filed for ivcord and recorded in the recorder's office of Lewis and Clarke county, on January 1. 1869. That the defendant below about April 25, 1869, obtained possession of the mortgaged property, and that tlie plaintiffs, on July 20, 1869. and before commencement of this suit, demanded of him possession of the same, which was refused. The answer admits the execution of the note and mort- gage, as set forth in the complaint, and avers that by the terms of the mortgage it \vas provided tit at the property 1870.] TKAVIS . McCouMiCK. Ifil should remain in the possession of the mortgagors until the maturity of the note ; that the mortgagors were permitted by the mortgagees, the plaintiffs below, to remain, and did in fact remain in possession of the property long after maturity of the note, and until July 1, 1869, at which date the defendant below in good faith purchased the mort- gaged property of the mortgagors for a valuable considera- tion. To this answer the plaintiffs demurred for insufficiency, which demurrer was sustained by the court below, and thereupon judgment was entered for plaintiffs, from which judgment the defendant appeals. The demurrer admits the facts stated in the answer, and the only question raised relates to the construction to be given to the act of the legislative assembly concerning chat- tel mortgages, approved December 31, 1864. The appel- lees claim that the mortgage in question having been exe- cuted, acknowledged and recorded in compliance with that act, and providing by its terms that the possession of the property might remain with the mortgagors, under the act in question, was valid as against third persons for the period of one year from the time of record, without reference to the time of maturity of the mortgage debt, or to the pro- vision contained in the instrument in regard to possession of the property. This is not the proper construction of the act. Thf parties themselves fixed the period by the terms of the mortgage, during which the mortgagors might retain possession of the mortgaged property, and it became the duty of the mortgagees to take immediate possession of the property, or endeavor so to do, at the expiration of the period limited, with all due promptitude and diligence. By a failure in so doing they lost their lien as against a pur- chaser in good faith from the mortgagors in possession. \Vhat constitutes sufficient diligence is a mixed question of la\v and fact, and must depend upon the particular cir- cumstances of each case, but in this instance the unex- plained fail nre of the mortgagees to take possession of thu property or to foreclose their mortgage for two months after 152 LOEB v. KAMAK. [Jan. T., maturity of their debt, as averred in the answer, we hold to be such laches, amounting to fraud, as to invalidate their lien as against the appellant. The court below erred in sustaining the demurrer to the answer, and in rendering judgment for the plaintiffs below. The judgmenc is reversed and the cause remanded. Exceptions sustained. KNOWLES, J., concurred. At the trial of this action in December, 1869, the plain- tiffs obtained judgment and the defendant appealed to this court. See p. 347. LOEB et al., appellants, v. KAMAK et al., respondents amount of damages in complaint not material. The amount of damages claimed in a complaint is not a material averment under the civil practice act of this Territory. The plaintiff can recover the damages he proves. DAMAGES profits on resale of goods too remote. The profits which might have been made by the resale of goods are too remote to sustain an action for specific damages. Appeal from Third District, Lewis and Glarke County. LOEB and another brought this action to recover $3,000 as damages, and obtained a verdict for $700. The plaintiffs then moved for a judgment for $3,000 non obstante veredicto. The motion was overruled by the court, SYMES, J., and the plaintiffs appealed. The opinion contains the facts. CHUM VSERO & CHAD WICK, for appellants. The complaint alleged fraud on the part of respondents, and damages in the sum of $3,000. The answer denied fraud, but did not deny the allegations of the complaint as to the damages. On the issue of fraud, the jury found for 1870.] LOEB v. KAMAK. 163 ths appellants and assessed their damages at $700. No evi- dence on behalf of appellants or respondents as to amount of damages was introduced. After the rendition of the ver- dict and before the entry of judgment, the appellants moved for judgment for $3,000, non obstante veredicto, on the fol- lowing ground : That, as the issue of fraud was for the appellants, and there was no denial in the answer of the amount of damages, the assessment of the same for less than the amount averred, or at all, was surplusage, and the court should have entered judgment for $3,000. Civ. Prac. Act, 65, 66 ; Toulumne R. R. Co. v. Patterson, 18 Cal. 415 ; Patterson v. Ely, 19 id. 29 ; Dimick v. Campbell, 31 id. 240. LAWRENCE & HEDGES, for respondents. No brief on file. KNOWLES, J. The facts presented in the record of this case are as follows : The appellants purchased of the respond- ents a certain stock of goods. The appellants allege, in their complaint, that the respondents made false and fraudulent representations as to what said stock of goods consisted of, in this : That they represented that there was in said stock three hundred and fifty beaver cloth suits of clothing, and that the said stock of goods, in fact, contained but fifty- nine of said beaver cloth suits ; that appellants, relying upon these representations of respondents, purchased said stock of goods ; that respondents have failed to deliver said whole number of beaver suits ; that appellants have been deprived of said goods, and of the profits which they might have made by the re-sale of the same, whereby appellants have been damaged in the sum of S3, 000. The complaint makes out a case for damages for false and fraudulent rep- resentations, as to the contents of a stock of goods. The respondents, in their answer, deny the false and fraudulent representations, but fail to deny the amount of damages claimed by appellants in their complaint. VOL. I. 20. 154 LOEB t). KAMAK. [Jan. T., The cause was tried by a jury, who returned a verdict for appellants, and assessed their damages at $700. The attorneys for the appellants moved for a judgment for the sum of $3,000, in accordance with the uncontroverted allegation in the complaint, claiming damages in that sum. It is contended, by the appellants, that the only issues presented in the case were, whether the respondents had made these false and fraudulent representations, and the appellants purchased the goods upon such representa- tions ; that the amount of damages was admitted by the record, and, hence, not a subject for the consideration of a jury ; that the allegation claiming the amount of damages was a material averment in the complaint, and that, by the provisions of our practice act, every material allegation not specifically controverted by the answer must, for the pur- poses of the action, be taken as true. This presents to us the question for our consideration in this case. If this is a material averment within the mean- ing of the practice act, in the complaint, then undoubtedly the position taken by the appellants is correct. If it is not a material averment within the meaning of that act, then they are wrong, and no error was committed by the court below. At common law every material allegation in the declara- tion, not put in issue by the plea for the purposes of the action, was taken as true. The failure, however, to plead to the declaration did not, in that practice, admit the correctness of the amount of damages claimed. The ad damnum clause of a common-law declaration, in which the amount of damages was specified, was consid- ered only a formal allegation, and the objection for an} r defect in it could be taken only by a special demurrer. The amount of damages which the plaintiff could recover de- pended upon the proof adduced upon the trial. A party could not recover more damages than he claimed, but no matter how much was claimed, he could not recover more than the proof showed he was entitled to. The court conld assess the damages or call upon a jury to assess them. 1870.] LOEB c. KAMAK. IfiE Has this been changed by the Code ? Has the Code made the <:Z dciinnuin clause of a declaration a material averment ? Is it necessary to state, as one of the facts constituting a cause of action, the amount of damages sustained. If so, then under the Code, should the complaint fail to set forth the amount of damages sustained, a general demurrer to the complaint that it did not state facts sufficient to constitute a cause of action would be sustained. Such practice, how- ever, we hold, would not be correct. If a complaint sets forth facts, showing that a party has been injured, the law presumes that he has been damaged to some extent. If he does not specify the amount of damages sustained, he will be entitled to nominal damages. A party need not allege what the law implies. If the amount of damages or the debt claimed was a material averment, then an answer tra- versing this allegation would raise a material issue. Yet it has been held repeatedly, since 'the adoption of the Code, that such a traverse raised no material issue. The Code, in prescribing the requisites of a complaint, gives as the third : "A demand of the relief the plaintiff claims ; if the recov- ery of money or damages be demanded, the amount thereof shall be specified." This clause the authors of our Code intended as a substi- tute for the ad dammim and concluding clause of a common- law declaration, and the prayer for relief in a bill in equity. The allegation of damages, in the complaint in this cause, is substantially the ad damnum clause of common-law declaration. True, there is a demand for relief in another clause. The crowding into a complaint unnecessary allega- tions, however, will not make them material. To give any other construction to this averment, in the pleading under consideration, would render certain portions of our Code meaningless. Section inn of the Code provides, that upon failure to answer ''in an action arising vpon Contract for the direct payment of money or damages only." the clerk may enter judgment for the amount claimed in the summons. In actions not upon contract, for the recovery of damages 156 LOEB v. KAMAK. [Jan. T.. in whole or in part, the court may order the damages assessed by a jury. The plaintiff (no answer being filed at the expiration of the time prescribed by law for defendant to file his answer) is entitled to a default. A default admits every material allegation in a complaint, as effectually as the failure to traverse any material specific allegation in the complaint, by the answer, admits that allegation. If the damages claimed is a material averment in the complaint, then a default admits its truth ; and why is a court given authority to have the damages assessed by a jury? The admission, if one, is of record, and more binding than the verdict of a jury. The only answer that we can conceive to this is, that the framers of our Code did not consider the averment of damages sustained in a complaint a material averment, but only the moneyed relief for the wrongs averred. The case of Patterson v. Ely, 19 Cal. 28, cited by the counsel for appellants, is not in point. That was an action of ejectment, and for rents and profits for the prem- ises during the period the defendant occupied them. The plaintiff alleged the value of rents and profits, as it was necessary for him to do. The law would not presume that the rents and profits were of any value, unless they were alleged. The defendant failed to deny the value of the rents and profits, and admitted the truth of the allegation, as much as if in an action to recover the value of goods, wares and merchandise, the plaintiff should have alleged the value of the goods, and the defendant, should he fail to deny the value, would admit the value alleged. The allegation of damages in the complaint cannot be construed into an allegation of the value of the beaver suits not fur- nished, and, as we view this action, it was not necessary to allege the value of the beaver suits. Their value could be proven, to show the damages sustained by the false and fraudulent representations ; neither is this allegation of any force, if it can be construed as an allegation for specific damages for the profits the plaintiff might have gained by 1870.] LOEB v. KAMAK. 167 the re-sale af said goods. Such a ground for specific dam- ages is too remote. For the foregoing reasons, the judgment of the court below is affirmed. Exceptions overruled. WARREN, C. J., concurred. CASES ABGUED AND DETERMINED IN THE SUPREME COURT AT THE TERM, 1870, HELD IN VIRGINIA OITT Present : HON. HENRY L. WARREN, CHIEF JUSTIOB. HON. HIRAM KNOWLES, HON. GEORGE G. SYMES, r JusTICBS - McOoRMiCK, respondent, v. LARGEY et al., appellants. PARTNERSHIP no accounting necessary if profits are not denied. In an action to recover a certain sum as the share of the profits of a partnership transac- tion, a reference or accounting is not necessary, if the answer does not deny that such profits were made. DEPOSITION when certificate is insufficient. The certificate of a deposition which does not state that the witness was sworn before giving his evidence, ov that it was read to. or corrected by, the witness, is insufficient. DEPOSITION TAKEN BY NOTARY prrnLir OF A STATK. A deposition, which has been taken by a notary public in any State, cannot be read in evidence in the courts of this Territory. PRACTICE presumption in favor of rulinri of court below. If the transcript does not contain the certificate of a deposition, this court will presume in favor of the court below that such certificate is insufficient, althoiigh the clerk says in a note in the transcript, " Here follows the proper certificate.' 1 DEPOSITION narrative, form. A deposition, which is taken in the narrative form, is legal. 1870.] McCOK.MICK V. L.UiUEY. Appeal from the Ililrd District, Lewis and Clarke County. THIS action was tried in the district court in Lewis and Clarke county, in April, 1870, and the jury returned a ver- dict for McCorrnick for $5,843.75, on which the court en- tered judgment. During the trial the defendants offered in evidence the depositions of S. B. Rice and L. S. Wild. The plaintiff moved to suppress the portions of the same that were taken in narrative form. The defendants also offered in evidence the deposition of S. A. Willey. The plaintiff moved to suppress this deposition, because it was taken by a notary public in the State of Vermont, on Feb- ruary 18, 1869. The court, KNOWLES, J., sustained both motions, and defendants excepted. The other facts are stated in the opinion. WORD & SPRATT, for appellants. The pleadings do not support the judgment. It is a rule in chancery, not affected by our Code, that no relief can be granted for matters not charged in the complaint, although they may be apparent from some parts of the pleadings and evidence. The only issue submitted to the jury was this: Whether or not a partnership existed between tin- parties? When they found this issue their power ceased. Their finding for the sum of $5,843.75 was outside of this issue and pleadings, and absolutely void. 8 Abb. Dig. 368 ; Ktlsey v. Western, 2 Comst. 506 ; Bailey v. Ryder, Seld. 363. The court erred in not disregarding that portion of the verdict which found for plaintiff for 85,843.75. It should have ordered an account to be taken of the partnership dealings between the plaintiff and defendant, Largey, iu accordance with the prayer of the complaint and practice in courts of equity. The court erred in suppressing the depositions of Willey, Rice and Wil.l, and thereby excluding material evidence for appellants' defense. Carpenter v. Morris, 'JO Cal. 437 ; Merle \. MaltJiews, 26 id. 467; Janson v. Brooks. 29 id. 214 ; 1 Greenl. Ev.. 320, 390. 160 McCoRMiCK 0. LARGER. [Aug. T., Appellants' counsel also cited the following authorities in reply to those relied on by respondent : Civil Prac. Act, 322 to 326 ; Harper v. Minor, 27 Gal. 107 ; Lucas v. San Francisco, 28 id. 591 ; Solomon v. Reese, 34 id. 28 ; Cowing v. Rodgers, 34 id. 648 ; Putnam v. Samplin, 36 id. 151 ; Sharp v. Daugherty, 33 id. 505. CHUMASERO & CHADWICK and WOOLFOLK & TOOLE, for respondent. The respondent's right to one-half of the profits was de- nied in the answer, but the amount of the profits is not denied ; it is therefore admitted. No accounting was neces- sary under the pleadings. When the jury found that the respondent was entitled to one-half of the profits, the court was authorized to enter j udgment. There was no motion for a new trial in the court below, and no exceptions were taken to the findings, which are there- fore conclusive. This court cannot go beyond the judgment roll and the decree must stand, if the findings support it. Duff v. Fisher, 15 Gal. 378 ; James v. Williams, 31 id. 211 ; Lucas v. San Francisco, 28 id. 591 ; 2 Danls. Ch. Pr. 1330, 1365 ; 1 Barb. Ch. Pr. 446, 465. No finding as to the amount due respondent was neces- sary to sustain the judgment. No issue being made thereon by the answer, the fact is immaterial and cannot be assigned as error. Swift v. Muygridge, 8 Cal. 445 ; Fox v. Fox, 25 id. 587. The suppression of the depositions was not error. The so-called depositions of Rice and Wild were simply affida- vits, and could not be read as evidence upon the trial. The deposition of Willey was not taken according to the statute. Civ. Pr. Act, 404, 405 ; Acts 1869, 66, 17. SYMES, J. This was an action brought by plaintiff against the defendant, for one-half the profits arising from the ful- filling of a contract for supplying forage to the government. The complaint alleged that defendant Largey entered into a contract with N. S. Constable, United States quartermaster, 1870.] McCoRMicK v. LABGEV. 101 to deliver several thousand pounds of oats and hay to the military posts of forts Shaw and Ellis ; that plaintiff became jointly interested with him in said contract, and that the profits arising from said contract were $11,687.40, and de- manded judgment for half that amount. Largey, only, appeared and answered, and denied that plaintiff was jointly interested with him in the contract, and admitted that he had agreed, on condition that plaintiff would procure and execute the necessary bond to the United States quartermaster, for the faithful performance of the contract, and devote time and attention to buying grain, and furnish some of the money to purchase same, he might become jointly interested with him, and alleged that plain tiff did not furnish the bond or perform said conditions, and denied his right to any interest in the profits. The case was tried at the March term, 1869, and a verdict found for plaintiff for the sum of 85,843.75, and the jury specially found that plaintiff and defendant Largey entered into a copartnership to fulfill the contract Largey had made to supply the government with forage, and that said plain- tiff and defendant Largey sublet said contract to defendants, Kirkendale arid Me Ado w, to be by them performed. The errors assigned are: 1. That the court erred in not disregarding that portion of the verdict which found $5,843,75 for plaintiff, and ordering an account to be taken of the partnership dealings. 2. That the court erred in sup pressing depositions offered in evidence by defendants. The amount of profits alleged by plaintiff to have resulted from the joint or copartnership transaction was not denied in the answer. The only issue raised by the pleadings was, whether or not plaintiff and defendant Largey were jointly interested in the contract, and plaintiff entitled to one-half the profits arising therefrom. The jury found specially for the plaintiff on this issue, and found, further, in accordance with allegations of complaint, that as partners, they sublet the contract ; and. in the general verdict, found for the plainiiff half the amount alleged in the complaint to have arisen from the joint transaction. The plaintiff did not ask VOL. I. 21. 162 McCoRMiCK v. LARGEY. [Aug. T., for an accounting, but alleged a single transaction to have taken place between him and defendant ; that the same was entirely closed ; that the profits arising therefrom amounted to $11,687.50, and ask judgment for $5,848.75, his share under the partnership. Sections 182 and 183 of the Civil Code provides when a reference may be ordered, but in no case is it mandatory that there shall be a reference. There was no occasion for a reference in this case ; there were no partnership or other accounts to be examined ; there was no dispute as to the amount of profits arising from the fulfilling of the contract. The jury, after finding specially that the parties were jointly interested, found, in their general ver diet for the plaintiff, half the amount admitted to have arisen from the joint transaction which had been closed. The court could have rendered judgment for said amount on the special findings of the jury, and pleadings, without the genera] verdict, the amount not being denied in the answer. Fox v. Fox, 25 Cal. 587. The certificate attached to the deposition of S. A. Willey is not sufficient ; it does not state that the witness was sworn be- fore giving his evidence, nor that it was read to the witness or corrected by him, and the deposition was taken out of this Ter- ritory in the State of Vermont, by a notary public, which officer could not take depositions out of this Territory to be used therein ; and, if empowered, there is no certificate attached that he was a notary public, duly commissioned arid qualified to act as such. Civil Code, 404, 405, 408. In the bill of exceptions, excepting to the suppressing of the depositions of Rice & Wild, there is no certificate of the officer attached. The clerk puts a note in the transcript, say- ing ;i here follows the proper certificate." but the court, from this, cannot say that there was a proper certificate, and will presume, in favor of the court below, that there was not, The bill of exceptions, to suppressing the depositions, states that they were objected to because taken in the narra- tive form, and that the court sustained this objection. \Ve ire acquainted with no rule of law which prevents deposi- 1870.] MORGAN v. REYNOLDS. 163 tions being taken in the narrative form. A witness stating all lie may know of the matters in issue in a case, in answer to one question, would be as legal as if he told it in answer to many, and better than to allow numerous ques- tions, which, although legal, may tend to inform the witness the answers sought. The court erred in giving this as a reason for suppressing the depositions, but the error does not affect the judgment from any thing seen in the transcript. Exceptions overruled. MORGAN etal., respondents, v. HKYXOLDS, appellant. REPLEVIN measure of damages interest, lu au action iu the nature of re- plevin, to recover certain mules and harness, a party is entitled to the property, and the value of its use, from the time he was deprived of it to the day of trial. Legal interest on their value, during the period of deten- tion, is not the measure of damages. IlKpiiEViN excessive damages. In this case the amount of damages was not excessive. Appeal from the Third District, Lewis and Clarke County. Ox December 4, 1869, Morgan and Embody commenced this action to recover the possession of two mules and har- ness, or the value thereof, and "85 for each day the same were detained," and 8100 further damages. In April. 1870, the jury rendered a verdict for plaintiffs for the delivery of the property valued at 8-00, and also 8204 damages. Rey- nolds obtained possession of the property on November 30. 1869. Defendant moved for a new trial upon three grounds : misconduct, of the jury, excessive damages, and insuffi- ciency of the evidence to justify the verdict. The motion was overruled by the court, SYMKS, J.. and defendant ap- pealed. The other facts appear in the opinion. >SMITII & CULLKN, for appellant. Ln an action, either on contract or tort, damages can only he assessed up to the linn- of the commencement of the suit, 164 MORGAN v. REYNOLDS. [Aug. T M and if the jury assess damages up to the time of the trial of the case it is error. Powers v. Ware, 4 Pick. 107 ; Pierce v. Woodward, 6 id. 207 ; Leffingwell v. Elliott, 10 id. 204. Damages arising subsequent to the commencement of the suit could only be recovered therein by filing a supple- mental complaint, Civ. Prac. Act, 67. When the judg- ment rendered is for a larger sum than that claimed in the complaint, it is sufficient ground for a new trial. Hilliard on New Trials, 433, 5. An application for a new trial, on the ground of excessive damage, is most favorably considered in a case for a tort done to property, when there is a definite basis for the calculation of damages. Hilliard on New Trials, 436, 14, 16. The measure of damages in an action for the recovery of specific personal property, is the value of the property between the taking of the same and the commencement of the action, together with damages for its detention, which damage is the legal interest on the value of the property. Sedgw. on Dam. 582 ; Nicker son v. Chatterton, 7 Cal. 568 ; Seaver v. King, 9 id. 562 ; Morris on Replev. 193. LAWRENCE & HEDGES, for respondents. No affidavit accompanies the record on appeal of any mis- conduct of the jury. Civ. Prac. Act, 194 ; Br anger v. Chevalier, 9 Cal. 362. The evidence shows that the property was detained one hundred and thirty days ; that possession was obtained by fraud, and held by violence ; and that the use of the same to respondents was worth $4 and $5 per day. In this action the judgment may be for more than the value of the property, if it be within the ad damnum of the complaint. The value of the property is only one predicate of the recovery. CogMll v. Boring, 15 Cal. 218. Proof of damages in an action sounding in tort may extend to all facts which occur and grow out of the injury up to the day of the verdict. 2 Greeril. Ev. , 260, 268, 268a, C35a. Exemplary damages may be assessed. Sedgw. on Dam. . 1 870.] MORGAN v. REYNOLDS. 165 515 to 540. The judgment determines the time of the deten- tion, and the damages sustained. Civ. Prac. Act, 177; Edgar McCulcJien, 9 Mo. 768. KNOWLES, J. This is an action of claim and delivery of personal property. The plaintiffs brought suit to recover the possession of two mules and harness, which they allege the defendant wrongfully and fraudulently obtained posses- sion of, and unlawfully detains the same from plaintiffs' possession, and for damages for the unlawful taking and detention thereof. The case was decided in the court below, for plaintiffs. Defendant moved for a new trial, which was overruled by the court, from which ruling the defendant appeals to this court. There are only two assignments of error discussed in the brief of appellants, and these are the only ones I think it necessary to consider. The h'rst one is, that the jury com- mitted an error in estimating the amount of damages awarded the plaintiffs, the value of the use of the mules and harness, from the date at which the defendant obtained possession of them to the day of the trial of the cause. I do not think this was error. The plaintiffs were entitled to the value of the use of these mules and harness. It is true that, in actions in the nature of trover, the value of the article converted, together with legal interest thereon from the time of conversion, is the true measure of damages. In trover the plaintiff geeks to recover a moneyed judgment, and it would be proper to allow him only the value of the use of that money which the law declares to be legal inter- est. This is, however, an action in the nature of replevin. The plaintiffs seek to recover, primarily, the speciiic property detained, and it would seem to me to be but just that he should recover the value of the use of the property so de- tained as compensation, (fivcnlfaf. in his work on Evi- dence, vol. 2, p. 270, says: They (that is damages) should be precisely commensurate with the injury, neither more nor less, and this, whether it be to his person or estate." To be sure, these damages must always lie the natural 166 MORGAN v. REYNOLDS. [Aug. T., and proximate consequence of the wrongful act com- plained of. What more proximate consequence of the wrongful de- tention of these mules can there be, than that the plaintiff was deprived of the use of them ? It is the immediate and natural consequence of the detention. The defendant claims that legal interest, on the value of mules and harness, is all that the plaintiffs are entitled to recover. This would be an unjust rule When money is sought it is proper enough. It does not wear out with use, or grow old ; while animals of burden do both, and thus by use their value is being constantly diminished. The rule that applies to an action for money should not then apply in this case. I find in Sedgwick on the Measure of Damages (pp. 528. 529) that in Maryland and Texas damages for the value of the hire of slaves were awarded in similar actions to this. And also in note second, same authority, that in the case of Sutler v. MeJirling, 15 111. 488, the rule was laid down that in actions of replevin the value of the use of the property is the true measure of damages and not the value of the property alone. I am aware that a different rule from this was expressed in Dorsey v. Manlove, 14 Cal. 553. This point, however, was not really presented to that court in that case for decision. The real question was, whether the damages proved by the plaintiff were not too remote, and upon that point it can unquestionably be sustained. Then- is one other consideration to be considered in that case, namely, that really the action was more in the nature of trover than replevin, for it appears that the defendant had sold the horses in controversy. In trover the rule therein declared is undoubtedly correct. It was not only proper that the plaintiffs should recover the value of the use of the mules, but that they should recover it up to the time of trial . In actions for the recovery of money the plaintiff always recovers as damages the legal interest on the money up to the time of trial. In trover it is almost a universal rule that the plaintiff recovers interest from the time of conversion 1870.] MORGAN -G. REYNOLDS. 167 up to the time of trial. See Sedgwick on Measure of Dam- ages, 517, 518 and notes. The case of Dorsey v. Manlove, cited above, lays down the rule for the measure of damages as follows : "The value of the horses sold by the defendant together with legal interest up to the time of trial." In Greenleaf on Evidence, vol. 2, section 268, in treating gen- erally of trespass, it is said : "'And it is further to be ob- served that proof of actual damages may extend to all facts which occur and grow out of the injury, even unto the day of the verdict." If in actions of this character the rule is as above, I cannot see why any different rule should be made in replevin. In the Texas case, cited in Sedgwick on Measure of Damages, referred to above, I find the follow- ing : " Damages for the hire should be computed from the rime of the demand to the rendition of judgment." This was an action for the recovery of a slave and for his wrong- ful detention. I do not think there can be much doubt of this rule. The second error assigned I shall notice is, that the dam- ages were excessive. The evidence shows that the defend- ant wrongfully got possession of the mules. From the time of the getting possession until the time of trial there were more than one hundred days. The defendant had posses- sion of the mules all this time. The only positive evidence as to the value of the use of the mules, fixed it at from $4 to 85 per da}-. The jury assessed the damages at $204. They must have estimated the value of the use of the mules at less than two dollars per day. In the case of Dorsey v. Manlove, referred to above, much is said in relation to punitive or exemplary damages. Without stopping to discuss whether they would be al- lowed in such a case as this. I may say if the}' were the, damages assessed by the jury, are very moderate, as there were many aggravating circumstances connected with the obtaining possession of the property in dispute and thf persistent detention of the same. The judgment of the court below is affirmed. Exceptions overruled 168 THORP v. WOOLMAN. [Aug. T. THOBP, respondent, . WOOLMA:N> appellant. STATUTORY CONSTRUCTION statute regulating irrigation award of commis- sioners void. The powers conferred on commissioners to apportion water under the fourth section of the act " to protect and regulate the irrigation of laud in Montana Territory," approved January 12, 1865, are judicial, and cannot be granted by the legislative assembly. The award of such commis- sioners is void. STATUTORY CONSTRUCTION statute regulating irrigation doctrine of appropri- ation. The act regulating irrigation in this Territory recognizes the doc- trine of the appropriation of water for irrigation, but limits the right and quantity to certain persons. RIGHT OF FIRST IXJCATOR OF LAND. Law and equity give the first locator of land and claimant of water a sufficient quantity of water to irrigate hu laud. Appeal from the Third District, Lewis and Clarice County. Iisr this action, Thorp and Woolman filed their agreed statement of facts in the district court for Lewis and Clarke county, on March 14, 1870. The attorneys of the parties also filed a stipulation "that the above agreed statement is made with reference to the settled customs and usages of Montana Territory, of which we desire that the court shall take judicial notice." On June 10, 1870, the court, SYMES, J., signed a decree in favor of Thorp, and Woolman ap- pealed. Section 4 of the act approved January 12, 1865, which is referred to by counsel and the court, is as follows : SEC. 4. That in case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the near- est justice of the peace shall appoint three commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water, upon certain alternate weekly jdays, to different localities, as they may in their judgment think best for the interest of all parties concerned, and with a due regard to the legal rights of all.'' The opinion contains the other facts. 1870.] THOEP v. WOOLMAN. 169 SHOBEB & LOWRY, for appellant. Appellant relies upon the statute of the Territory. Acts 1865, 367, 368, 369. WOOLFOLK & TOOLE, for respondent. The courts of the Territory, like those of California, hold that rights to water are determined by priority of appropri- ation, lias the statute referred to by appellant changed this rule? In controversies between minors and ranchmen, this doctrine of priority prevails and should be of general application. The appellant's interpretation of this statute makes prior appropriation of no avail. The whole of the statute must be construed together, and custom and usage must be considered to ascertain the intention of the legisla- ture. Sedgw. Stat. Law, 231 to 239 ; JacJcson v. Gumaer, 2 Cow. 567; M^ Keen v. Delancy, 5 Cr. 22; Cullerton v. Mead, 22 Cal. 95. Sections 1 and 4 must be construed together. Can all the ranchmen upon a stream insist that the water thereof shall be divided among all of them, without regard to the time of their settlement? The water granted by section 1 of the statute would be taken by others, and the first locator would not have water to the "full extent of the soil." There is nothing in section 4 which provides that priority shall not prevail, or that the water shall be equally divided. The commissioners are to apportion the water in a "just and equitable proportion," and with a due regard to ''legal rights.'' The object of this statute was to save litigation with regard to water rights, and the commissioners are made a new tribunal to settle controversies. The organic act vests judicial power in certain officers. This statute vests it in commissioners. Being dearly in violation of the organic, act. it is void. Organic Act, 9 : People \, Collins, 10 \\Vnd. 5(j; French v. Tvsrftcmnl'Kr. 24 Cal. 518 : Jturson v. C!ow!c8) 25 id. 5:55 ; Reed\. Omnibus R. R. Co., 33 id. 212. The court should act as a legislator if the statute is ambiguous. Sedgw. Statutory Law, 294. VOL. 1 22. THORP -c. WOOL M AN. [Aug. T. , If a statute, which confers a new right and remedy, is void, the right and remedy fall with the statute. Staff 1 v. Poulterer. 16 Cal. 515. and cases cited ; Almy v. Harris. 6 Johns 175. KNOWLES. J. This cause was presented to the court below on an agreed statement of facts. It appears, from this, that the respondent and appellant each owned a ranch on Prickly Pear creek. That of the appellant's was higher up the creek than that of respondent's. The respondent first located his ranch, and, at the same time, claimed three hundred inches of water in this creek for the purposes of irrigating his land. In 1869, owing to a drouth, this was all the water there was in this creek, and this much was necessary to irrigate the land of respondent. The appel- lant then applied to the nearest magistrate, in accordance with the provisions of "An act to protect and regulate the irrigation of land in Montana Territory," approved Jan- uary, 1865, for the appointment of three commissioners to ipportion what water there was in the creek between him ind respondent. This commission met, and awarded one- half of the water to appellant, leaving the respondent the other half. The respondent asks a decree against the appellant for three hundred inches of water. The case may be said to be an action to quiet title, presented to the court upon these facts. The court below gave judgment to the respondent for three hundred inches of water. From this judgment the appellant appeals to this court. The first question presented is this award of the commis sion. The powers given this commission by the act under which they conducted their proceedings are clearly judicial. They are empowered by it to apportion the waters in a just and equitable proportion. This required them to determine what was just and equitable between these parties. In the next place the apportionment was to be made with a due regard to the legal rights of all. This required of them tc determine what these legal rights were. The organic act cf J870.] THORP v. WOOLM AX 171 this Territory, which is its fundamental law, limits the powers of legislation, vests judicial power in a supreme ;-ourt, district courts, probate courts, and in justices of the peace. No tribunal which does not belong to one of these classes is legal. As this commission cannot claim to belong to either one of these, it was a tribunal exercising judicial authority without legal warrant, and its acts are void. The appellant gained no rights whatever by virtue of this award. It is not necessary for the court to determine, in this case, whether or not the doctrine of appropriation applies to ranchmen as well as to miners, concerning water rights, for the statement of facts shows that the ranch of appellant was above that of the respondent, and that, at the time this dispute arose, three hundred inches of water was flowing down the creek by appellant's ranch, which clearly indi- ates that the water had not been taken out of the creek above it. As a riparian proprietor the respondent would be entitled to have the waters of the creek flow down its uncustomed and natural channel undiminished in quantity, and, below appellant's ranch, could divert the same for purposes of irrigation as against him. The counsel for appellant, in their brief, say they claim their rights by virtue <>!' the above statute. There are many reasons for holding that this very statute recognizes or establishes the doctrine "f appropriation of water for irrigation, limiting, however, the right to appropriate to persons owning land upon the banks of the stream from which the same is taken, and also limiting the quantity of water he can appropriate to what is necessary to irrigate his land. The permission given by that act to take water out of its natural channel for purposes of irrigation, where it damages land holders lelow the point where the water is diverted, is incompatible with the common-law doctrine in the case of riparian pro- prietors. Section 4 of the act T do nor think, in any way, mili- tates against this view. Any tribunal, governed by the * / established principles of law. making an apportionment of water in accordance with what is just and equitable, would 172 GERBER v. STUART. [Aug. T.. be compelled to hold that the one who first located the land, and claimed the water, was entitled to sufficient to irrigate his land ; for equity declares that he who is first in time is first in right. In this case the respondent was first in time, and, giving the construction to the statute indicated above, under it he would, undoubtedly, be entitled to the water in dispute. For these reasons the judgment of the court below is affirmed, with costs. Exceptions overruled. GERBER, respondent, v. STUART et al., appellants. MAKER OF PROMISSORY NOTE proof of agency intention of parties. In an action against a person who signed a promissory note, " Jas. Stuart, Gen. Mang. & Supt. St. L. & M. M. Co.," the defendant's personal liability will not be presumed; and he can introduce evidence showing that he made the note for the mining company, of which he was the agent, and that it was the intention of all the parties that the company should pay the note, and that he was not to be held liable thereon. PAROL CONTRACT name of principal. The name of the principal need not appear in the body of a parol contract. Appeal from tlie Third District, Lewis and Clarke County. ON June 25, 1869, Gerber commenced this action against Saunders and Stuart, upon a promissory note. Stuart filed a separate answer on July 12, 18G9. On motion of the plaintiff, the court, WARREN, J., struck out parts of this answer. On July 16, 1869, Stuart filed his amended answer. On motion of the plaintiff, the court ordered parts of the same to be struck out. On July 19, 1869, Stuart filed his second amended answer. The plaintiff then moved to strike this answer from the files, and assigned among other rea- sons therefor, that the answer was sham and irrelevant and no defense. The court sustained the motion and rendered judgment for plaintiff for $5,481, and Stuart appealed. The pleadings are contained in the opinion. 1870.] GERBER v. STUART. 173 WOOLFOLK & TOOLE, for appellants. The court erred in striking out the first and second answers of Stuart. An agent is not liable personally in contracts not under seal, where the name of the principal and fact of agency are disclosed, however informally it may be ex- pressed. If the principal's name does not appear, it may be proved that the part} r dealing with the agent knew the principal. Sayre v. Nichols, 7 Cal. 542 ; Brockway v. Allen, 17 Wend. 40; Story's Agency, 160 a; 2 Am. Lead. Gas. 380; Story's Prom. Notes, 69. Where the signature of the party indicates that he w*> signing for another, although it be the apparent obligati of the agent, parol evidence is admissible under modern authorities to establish the liability of the principal and release the agent. Brannan v. Mesick, 10 Cal. 95 ; Rich- ardson v. Scott River W. & M. Co., 22 id. 150 ; Ang. & A Corp., 296. An agent of a corporation sued on a note can show by evidence that the credit was given to the corporation and not himself. 2 Am. Lead. Cas. 632. An agent having authority to bind his principal, and executing this authority, is not personally liable. The facts set up in the answer render the corporation liable to respond- ent, and consequently release the agent. Ang. & A. Corp., 296. Whenever a state of facts would maintain an action in equity, the same facts can be pleaded as a defense under our practice. If Stuart is not permitted to prove the facts set up in his first and second answers, the express agree- ment of the parties is violated. The court erred in striking out the third answer. Stuart had a right to prove that certain words changing his lia- bility were omitted from the note by mistake. Hathaway v. Timely, 23 Cal. 121; Stacy v. Abbott, I Law Times, 84. SHOBER & LOWRY, for respondent. Where a promissory note is signed by two persons in tht samr in a liner, one of them cannot set up a defense that he 174 GERBER . STUART. [-Aug. T. 3 was only surety. It' a note is signed by a person with the words ' k agent or superintendent ' ' added, these words are merely a description of the person, who is personally liable. Story's Ag., loo to 159; Stackpole v. Arnold, 11 Mass 29 ; Benlz v. Stanton, 10 Wend. 271. No person is considered an agent of another unless he stipulates for his principal by name, and states his agency in the instrument he signs. Story's Prom. Notes, 65, 74. The maker of a promissory note is bound by the contract he signs. Aud v. Magrnder, 10 Gal. 289 ; Krutzer v.Mill, iS , 23. No action could be maintained on this note against on persons except Saunders and Stuart, and Stuart is es:opped from setting up a liability in any other person. The note sued upon is a joint and several contract. There,' is no ambiguity upon the face of the note. The posi- tion of appellants, if correct, would permit oral testimony to vary the terms of a written contract. Hemmenway v. Stone, 1 Mass. 58 ; 1 Pars, on Cont. 11 ; 1 Greenl. Ev., 275. The third answer was properly stricken from the files. It was filed without leave of court, notice or meritorious showing. Civ. Prac. Act, 68. Tli is appeal was taken for delay. Respondent claims damages therefor under the statute. Civ. Prac. Act, 329 ; RicJcetson v. Compton, 23 Cal. 649 ; NicTcerson v. Califor- nia 8. Co., 10 id. 520. SYMES, J. This was an action on a promissory note by plaintiff, assignee, against the defendants, makers. The cause was tried before the third judicial district court, for Lewis and Clarke county, at the July term, 1869, and judg- ment rendered on the pleadings after the separate amended answer of James Stuart was stricken from the files, and appeal taken from the judgment roll. The question presented is, whether the new matter set up in the answer and amended answer, which was stricken from the files, if proved, would constitute a legal defense. The complaint declared on the note in the usual form, sotting out a copy as follows, to wit : 1870.] GERBER v. STUART. 176 "$4,300. " PHILLIPPSBURG, DEER LODGE COUNTY. ) MONTANA TERRITORY, August, 31, 1868. f "Thirty days after date, for value received, I promise tc pay Donald Chrisholm or order, at Phillippsburg, the sum of forty- three hundred dollars, with interest at the rate of five per cent per month until paid. "COLE SANDERS. j $2.80 U. 8. stamp ) duly canceled, f "JAMES STUART, " Gen. Manag. and Supt. St. Lo. da M. M. Co" Indorsed : Donald Chrisholm, November 4, 1868. And alleged that on the 4th of November, 1868, said Donald Chrisholm transferred and delivered said note, duly indorsed, to plaintiff, who was o ivner and holder thereof ; that no part had been paid except the sum of $784, and demanded judgment for $5,484 and costs. The separate and amended answer of defendant Stuart contains a general denial, and sets up that at the time of the execution of the note he was "general manager and super intendent of the St. Louis and Montana Mining Company," a corporation created by the laws of the State of Missouri ; that he executed said note in his said capacity of "general manager and superintendent of the St. Louis and Montana Mining Company;'' that it was expressly agreed between the said Donald Chrisholm and this defendant, at the time of the execution of said note, that defendant was not to be personally responsible thereon ; that he executed the note simply as agent for said mining company ; that the intent and design of defendant in signing said note, as "general manager and superintendent of the St. Louis and Montana Mining Company," was to bind the said company, as princ : pal in said note, jointly with said Sanders, but in no way to bind himself ; and that such intent and design was ex- pressed at the time of the execution of the said note to said Chrisholm, who accepted said note, so signed, with full knowl- edge of such intent and design ; that the object of defend- ant, in signing said note, was to cam out said intention of 176 GrKRBEU V. STUART. [^Ug. T., the parties, and to bind Ins said principal, and that defendant, knowing that it was necessary to put his signature to said note, should indicate that he signed the same, in his capacity as manager and superintendent for said St. Louis and Mon- tana Mining Company, in order to bind the said principal, by inadvertence and mistake omitted the word "as" before the words " manager and superintendent ; " also, the word " for " after the word " superintendent," which was the way he in- tended it to be. Further, that if defendant is not allowed to show his mistake it will operate as a fraud, and violate the intent and design of all parties to the note ; that he had no personal interest in the consideration for which said note was given ; that it was given for mining property purchased from said Chrisholm, and the design was to benefit said mining company by acquiring an interest for them in the mining ground jointly with said Sanders; that defendant, as manager and superintendent of said company, had often exercised similar authority for the benefit of said company, which had been ratified by them, and had full authority to bind said company by said signature ; and that plaintiff knew of the aforesaid agreement between Chrisholm and defendant, and holds the note subject to all the rights and equities of defendant. Does the allegation of the answer set up a legal defense on the part of defendant Stuart, to the notes, and, if so, will the law allow him to show it, or will it conclusively presume an absolute liability from the face of the note, and not allow defendant to prove any other? This depends on whether the addition to the defendant Stuart's name of "general manager and superintendent of the St. Louis and Montana Mining Company," shall be taken conclusively as descriptio person, or whether he will be allowed to explain the addition, and to show aliunde, that it was intended by the parties to express that he acted as agent, and that the consideration moved to his principal under circumstan- ces which releases the agent from personal liability. While there appears, on examination of the authorities, especially the older ones, that the addition to a signature of ''agent,' 1 1870.J GERBER v. STUART. 177 "president," "superintendent," arid similar words, have been held to be mere descriptions of the person, and not of the capacity in which the party acted ; the modern rule seems to be that if from the whole instrument it appears that the parties intended to act for and bind his principal, the principal and not the agent will be bound ; and that where the addition or description is so inartincially ex- pressed as to leave it in doubt, or ambiguous, from the face of the instrument, evidence aliunde will be admitted to explain and show the actual intention of the parties. Par- sons, after citing numerous cases, some of which appear contradictory, says, that the recent cases and the best rea- sons for determining in each instance, and with whatever technical inaccuracy the signature is made, whether a party is a principal or an agent, is from the facts and the evidence to show the intention of the parties to the contract. 1 Pars, on Cont. 54, 57 ; 1 Pars, on Bills, 167 and note ; Story on Prom. Notes, 70. We find that in the difficult cases decided the instructions of the court are the foundation of the decis- ions, showing that where it was doubtful the cases have been submitted to juries. Sayer v. Nichols, 7 Gal. 535 ; 5 Cush. 158. In sealed instruments the name of the principal must appear in the body of them ; but this is not required of parol contracts. Perhaps the weight of authority is that where a party signs his name to a contract with only the addition of "agent," "manager," etc., that he will be held personally liable if he does not disclose the name of his principal, although the case in 7 California and some others lean to the contrary ; this case does not come within that principle. The party sued on in this action does not sign his name merely with the addition of "agent, manager, or superintendent," without disclosing the name of any other person, but signs his name and adds " Manager and Super- intendent of the St. Louis and Montana Mining Company," disclosing the full name of a known mining corporation. We are not called upon to decide whether the note herein presents a prima facie case against defendant, but whether VOL. 1 23. 178 GERBER v. STUART. [Aug. T. T on its face it shows such a conclusive personal liability against defendant as will estop him from setting up in hie answer and proving the real situation, knowledge and inten- tion of the parties at the time of the execution. Story, in his work on Agency, says that it is often difficult to deter- mine from the face of an instrument whether or not an agent is personally liable, and that it is impossible to reconcile all the cases. He cites one case as follows : "I promise to pay," etc., and is signed "AB" for "C D" (the principal), and says in this case it was held the agent was not per- sonally liable ; and adds in a note to cases cited, that the liability in many cases depends on the state of facts shown to exist at the time the contract was made, and sometimes to whom the credit was given. Story on Agency, (Redfi eld' s ed.), 346, 351. Testing this case by these principles, we think the court below erred in striking out that portion of the amended answer which alleged that the payee in the note knew at the time of its execution that he acted as agent of the mining company ; that it was the intention of all parties that the mining corporation, and not the agent, should be liable thereon ; that the payee gave the credit to the princi- pal and not to defendant ; and that the contract was made for the benefit and the consideration moved to the principal, said mining company. And the note being transferred to plaintiff after it had become due, this defense is good against him. If two persons sign a note as principals without any thing on the face to show that one intended to sign as surety, still it may be shown aliunde, as between the payees, that one intended to become liable only collaterally as surety ; and if the word "surety " is added to the signature it will be presumed prima facie from the face. 2 Smith's Lead. Gas. 380. Then will it be contended that where a party signs a contract with the addition of ' ' Manager and Superintendent of the St. Louis and Montana Mining Com- pany," that the law will not only prima facie hold him liable personally from the face of the contract, but will con- 1870.] FEBES v. TIERNAN. 179 clusively presume him absolutely liable and not allow him to set up and prove the real facts and intention of the par- ties at the time the contract was executed. We think it would be in opposition to the established principles of our modern commercial law. Judgment reversed and cause remanded. Exceptions sustained. FEBES et al., appellants, . TIERNAN et al., respondents. TRESPASS PRESUMED TO BE MADE WITH FORCE. The law implies that an un- authorized entry, upon the premises of another, is made with force, and no evidence of such force is required. PLEADING trespass allegation of force. Actual force is not necessary to constitute a trespass upon land, and it is not necessary to allege, in actions in the nature of trespass, that the injury was forcible. GENERAL, VERDICT special findings. A general verdict should not be set aside, unless the special finding is undoubtedly inconsistent with it . Appeal from the First District, Madison County. FEBES, and others, commenced this action in July, 1870, in the district court, to enjoin Tiernan and another from injuring their water ditsh, and recover $2,500 damages for injuring said ditch, and diverting the water therefrom. The jury returned a general verdict for $200 for plaintiffs and certain special findings. The defendants filed a motion in arrest of judgment on the verdict, because the jury did not find the defendants guilty of trespass, or the use of any force in committing any acts against the property of plain- tiffs, and the special findings were in conflict with the gen- eral verdict. On August 2, 1870, the court, WARREN, J., sustained the motion, and entered judgment for defendants. Plaintiffs appealed. WORD & SPRATT, for appellants. There was no conflict between the general and special findings of the jury. Every material fart was found for 180 FEBES v. TIERNAN. [Aug. T , the appellants. The finding that there was no force should have been disregarded by the court. This issue was not submitted to the jury, and was more a conclusion of law than of fact. 1 Chit. PL 205 ; 1 Bouv. L. D. 635 ; McDer- mott v. Higby, 23 Gal. 489. The law presumes that every material issue, not submit- ted to the jury in the special findings, was found in the general verdict. McDermott v. Higby, 23 Cal. 489. The court erred in assuming to determine the issues with- out the intervention of a j ury, and thereby abused its dis- cretion, and deprived parties of their right to a trial by jury. The judgment of the court is not consistent with the verdict and findings of the jury. H. N. BLAKE, for respondents. This is, substantially, an action of trespass. An injunc- tion is asked for in aid of the action. Brennan v. Gaston, 17 Cal. 373. Special findings control the general verdict when they are inconsistent. Civ. Prac. Act, 175. The appellants must prove that the respondents committed the injuries complained of with force. 2 Greenl. Ev., 613, 621, 623. The jury finds that no force was used by respondents. Appellants, having failed to prove the gist of their action, cannot recover for injuries resulting there- from. Pico v. Colimas, 32 Cal. 580. The respondents have not committed any acts that will entitle appellants to a perpetual injunction. Civ. Prac. Act, 112 ; Sherman v. ClarJc, 4 Nev. 142, 148 ; Verdict and Findings. If the court below did not abuse its discretion in refusing to grant the injunction, this court will not reverse the judg- ment. Slade v. Sullivan, 17 Cal. 106 ; Hicks v. Michael, 16 id. 117. KNOWLES, J. This is an action for damages sustained by appellants, on account of the wrongful entry of respond- ents upon their water ditch, and the tearing down of its banks, and the destroying of a dam attached thereto, and 1870.] FEBES v. TIERNAN. 181 the diverting of its waters. It is in the nature of a com mon-law action of trespass. The jury rendered a general verdict for appellants. There were special issues presented to the jury, the second one of which is as follows : "Did the defendants, or either of them, forcibly injure the ditch or dam in controversy, and divert the waters therefrom, as alleged in the complaint, and if either one of them, which one of them ? " To this the jury returned this answer : "We do not find evidence of forcible injury by either of the defendants." The counsel for the respondents moved to set the general verdict aside as inconsistent with this special finding of the jury, and for judgment for respondents. The court sus- tained this motion, and judgment was entered accordingly. This ruling of the court is assigned as error. Actual force is not necessary to constitute a trespass upon land. 2 Hilliard on Torts, 76. In every trespass quart clausum fregit force is implied. 1 Chit. PL 126. The unauthorized entry upon the premises of another is a tres- pass. When such a state of facts is established, the law implies that the entry was done with force, and it is not necessary to offer any further evidence upon that point. The jury found no evidence of forcible injury, yet, if they found the respondent had done the acts complained of, the law implied that they were done with force. It was always necessary, at common-law actions, to be particular in deter- mining whether the injury was the immediate and direct result of the wrongful act complained of, or whether it resulted because or by reason of this act, for this distinction determined whether the action should be trespass or action on the case. One class of injuries was said to be forcible, and the other consequential. At common law the issue whether the injury was forcible or not was not a matter of substance, but only entertained to determine whether the action should be trespass or case. The allegation that an injury was done m et armis has been, tor a long time, 182 FEBES v. TIERNAN. [Aug. T. treated only as a formal allegation, and the absence of it only a ground for special demurrer. 1 Chit. PL 663, 664. A pleading, in which it was omitted, was aided by ver- dict. Chit. PL 126, note t. Under our code system of practice, it is not necessary to allege that the injury was forcible. Van Santv. PL 290. Hence, it is not necessary to prove it. A general verdict should not be set aside unless the special finding clearly controverts it, and is undoubtedly inconsistent with it. In this case the answer of the jury is what might be termed a negative pregnant. It does not say that the defendants, or either of them, did not do the acts complained of, but only that they do not find any evi- dence that they did them with force. Admitting that it was necessary that they should be done with force, no evidence was required to prove it. The law would imply it. It may be proper to remark that there are reasons for supposing that the jury were misled by this issue presented them. If it had been told them that if the defendants cut the dam and tore down the banks of appellants' ditch without authority, the law implied that the acts were done forcibly, I apprehend there would have been no difficulty. It can hardly be supposed that a jury were so stupid as to find that the respondents did not commit the acts complained of, and yet find a general verdict against them. The only solution of this difficulty, I think, is, that the jury did find that respondents did commit the acts complained of, which the law would have implied were done forcibly, but that the}* did not find them accompanied manu forli, that is, with such force as in forcible entry and unlawful detainer. For these reasons I think the judgment of the court below should be reversed, and a judgment entered for appellants, in accordance with the general verdict. Exceptions sustained. 1870.] WILSON v. DAVIS. li WILSON, respondent, . DAVIS et al., appellants. PRACTICE findings of referee not reviewed without testimony. This court will uot review the findings of a referee, if the testimony on which they are based is not made a part of the transcript. PARTNERSHIP partner has lien on joint property. A partner, who contributes on account of the partnership business any sum in excess of his proportion over his copartner, has a lien upon the joint property for the sum so con- tributed. INTEREST compound interest not allowed in equity. Courts of equity will not allow compound interest, if the contract therefor and the original con- tract were made at the same time and before any interest was due, and a written agreement to pay such interest shall not be enforced. INTEREST compound interest, at common law. The old common-law rule, which did not allow compound interest, has not been overruled in the United States. INTEREST territorial statute, regulates simple interest. The statute of this Terri- tory, which establishes the rates of interest, relates to simple interest, and does not authorize contracts for compound interest. INTEREST a contract for payment of compound interest not enforced. A party who agrees to sell real and personal property upon the payment of a note, which stipulates that the interest shall be compounded monthly, if it is not paid, is required to convey the property on the payment of the principal of the note, and simple interest upon the same. PARTNERSHIP rights of partners after dissolution sale of property. The member of a partnership, who dissolves it by refusing to continue its busi- ness, cannot compel his partner to carry out one article of the copartner- ship, which stipulates that the excess of funds which either contributes, shall be paid out of the net earnings of the partnership property; and a court of equity can order the property to be sold to pay such excess. PlJSADiNa attorney's fees not recoverable under general prayer. A reasonable attorney's fee will not be awarded to a party under a general prayer for a certain sum as damages and expenses in protecting "rights, remedies and equities." It should be specifically demanded. PRACTICE jurisdiction this court examines nothing except, decree of court below. This court can only determine whether or not the decree of the court below should be affirmed, and cannot now consider the effect of the undertaking on appeal upon the order of the court below, for the sale of property. Appeal from the Third District, Lewis and ClarJct County. THIS case was before this court at the December term, 1868, and is reported, ante, p. 98. On Xovember 4, 1868, Wilson filed an amended and sup plemental complaint against Davis, W. L. Perkins and W. 184 WILSON v. DAVIS. [Aug. T. A. Fredericks, which contained the following material alle- gations : That Davis and Fredericks, on January 30, 1867, owned the property in Gallatin county, Montana, known as the Madison mills ; that Davis sold and delivered his inter- est therein, for two certain contracts, which were as follows : "GALLATIN CITY, January 30, 1867. "Twelve months from date, for value received, I promise to pay A. J. Davis, or order, five hundred and thirty-three and one-half ounces of bankable gold dust, or its value in treasury notes of the United States, together with five per cent interest from the first day of January, 1867, per month, said interest to be paid monthly, and if not paid at the end of each month, to bear interest the same as the principal. It is agreed that should ninety days' interest accumulate without being paid, then this note falls due. "W. A. FREDERICKS." I$4.50 stamp.] "GALLATIN CITY, January 30, 1867. "For value received, I promise to pay A. J. Davis, or order, seven hundred and thirty-nine sacks of 100 pounds each of No. 1, thribble X flour, manufactured at the Madi- son mills, in this place, payable as fast as the mill can make the same, the payment to be completed on or before the first day of June next, and if not paid at maturity, I agree to pay any damages that said Davis may sustain thereby. " W. A. FREDERICKS." L$3 J26 stamp.] The complaint further alleged that Davis was to make a good deed of one-half of the property to Fredericks, as soon as said contracts were executed ; that Fredericks, afterward, executed to said Perkins a deed of trust of the entire property, to secure the payment to Davis of said gold dust and flour ; that Fredericks, on February 1, 1867, sold to Wilson one-half of said property for $9,000, and the payment of one-half of the interest payable to Davis on said gold dust contract ; that Wilson had had possession of the property from that date, until the appointment of a 1370. J WILSON v. DAVIS. 185 receiver in this action ; that Fredericks then agreed that Wilson should have the net earnings of the mill, until he was repaid all amounts advanced by him over what Fred- ericks advanced ; that Wilson so advanced $3,000 more than Fredericks to run the mill, and $8,000 in gold dust, flour and money for Fredericks to Davis, besides said $9,000, for all of which he was entitled to a lien on Fredericks' half of the property ; that Davis had received on said contracts $2o,000, which fully satisfied them ; that Davis knew that Wilson had an interest in the property, and refused to receive from Wilson, on May 20, 1867, the sum due from Fredericks to Davis, which Wilson then tendered ; that Davis and Fredericks conspired together to prevent Wilson from obtaining a deed to his half of the property ; that Wilson was ready to pay any sum that was due from Fred- ericks to Davis ; that Davis had revoked a power of attor- ney to Perkins, to execute a deed to Fredericks, and that Fredericks had executed to Davis a deed of his interest in the property ; and that Davis had a deed to the property from the sheriff of Gallatin county, and that said deeds were fraudulent. The complaint prayed for an accounting between Wilson and Davis, and that Davis and Fredericks be compelled to execute a deed of one-half of the property to Wilson ; that an accounting be had between Wilson and Fredericks, and that Wilson have a lien on Fredericks' half of the property for the amount found due to him ; that the trust deed to Perkins, the deed from Fredericks to Davis, and the sheriff's deed to Davis, be adjudged null and void ; and that Wilson have quiet possession of his half of the property. On March 8, 1869, Davis and Perkins tiled their answer to this complaint, and admitted the following facts : That on January 30, 1867, Davis and Fredericks owned the prop- erty, and that Fredericks made the two contracts for flour and gold dust ; that Fredericks made the trust deed to Perkins ; that Davis agreed to make a deed of his half of the property when the flour and gold dust were delivered : that Davis also agreed that Fredericks, on giving thirty VOL. 1 24 186 WILSON v. DAVIS. [Aug. T. days' notice, could satisfy the contracts before maturity ; and that Davis had executed to Perkins a power of attor- ney to make a deed of the property to Fredericks, on pay- ment of the contracts. The answer denied that Davis ever sold or delivered the property to Fredericks ; that the contracts for flour and gold dust had ever been satisfied ; that Wilson became the joint owner of the property with Fredericks ; that the agreement of Wilson and Fredericks affected the interests of Davis in the property ; that Wilson ever tendered the sum due from Fredericks to Davis ; that Davis and Fred- ericks ever conspired together to wrong Wilson ; and that Wilson and Fredericks ever had possession of the property. The answer alleged that Perkins entered into the posses- sion of the property under the trust deed from Davis ; that on December 3, 1867, Davis recovered a judgment against Fredericks, upon his confession in writing, on the flour con- tract, for $7,368, and also a judgment on the gold dust con- tract for $16,502 ; that executions were issued on said judg- ments, under which the sheriff of Gallatin county sold the property, and delivered to Davis a deed thereof, on July 1. 1868; that Wilson had full knowledge of the rights of Davis before he contracted with Fredericks for an interest in the property ; that Fredericks owed Davis $17,382, besides $6,500 damages ; and that Wilson had wrongful possession of the property, and had appropriated the pro- ceeds, $14,700, and personal property valued at $5,000. The answer prayed that the property be restored to de- fendants. On April 15, 1869, Fredericks filed his separate answer, which was substantially the same as that of Davis and Per- kins, and alleged that Wilson agreed to pay him for one- half of the property $9,000, and one-half of the debt, as well as interest, due from Fredericks to Davis ; and that, by mistake, the agreement relating to the payment of one- half of said debt was omitted in the writings. On March 25, 1869, the court, by agreement of the parties appointed Cornelius Hedges, Esq., a referee, to make an 1870.] WILSON a. DAVIS. 187 accounting between Wilson and Fredericks. On June 29. 1869, the court, by agreement of the parties, appointed Henry N. Blake a referee, to report the amount and value of the flour received by Davis from Fredericks or Wilson, or both, on the flour contract ; and the sum that would be a reasonable attorney's fee in this cause, for foreclosing and collecting the sum due on the trust deed of Davis. On March 26, 1869, the parties agreed, in open court, that all questions of fact should be decided by the court. On April 27, 1869, Hedges, referee, reported that Wilson had paid Fredericks $9, 000 as purchase-money for one-half of the Madison mills ; and that Fredericks owed Wilson $14,858.16, for the payment of which Wilson was entitled to receive the net earnings of the property. The court, WARREN, J., confirmed this report. On July 5, 1869, Blake, referee, reported that Davis had received on the flour contract, over the amount credited thereon (125 sacks), 650 sacks of XXX flour, worth $6,460 ; and that a reasonable attorney's fee for collecting the amount due Davis on the trust deed was $1,500. The court, WARREN, J., confirmed this report. On July 29, 1869, the court, WARREN, J., rendered judg- ment, and signed a decree in favor of Wilson, and defend- ants appealed. The opinion contains the other facts. WOOLFOLK & TOOLE, for appellants. The court failed to find on material issues in the plead- ings. Wilson asks no relief from the contract he has set out, but demands a specific performance from Davis. The alleged tender by Wilson to Davis was not made after giving thirty days' notice, according to the agreement between Davis and Fredericks, and was void. The court does not find that there was collusion between Davis and Fredericks to defraud Wilson. A fraudulent set- tlement between Davis and Fredericks as to Wilson is not sufficient proof of fraud. The settlement must have been with intent to defraud Wilson. 188 WILSON t>. DAVIS. [Aug. T. Material allegations of the complaint, which are denied by the answer and not found by the court, are equivalent to a finding for the defendant. Wilson cannot be subro- gated to the rights and equities of Davis. Davis cannot be compelled to give up a good contract to one who acquires an interest in the property with a full knowledge of all the facts. Davis can let his demand run until barred by the statute of limitations. Davis does not seek to foreclose, and asks no affirmative relief. There could be no accounting between Wilson and Davis on account of contracts between Davis and Freder- icks, in which, there was no privity between Wilson and Davis. The decree of the court relieves Wilson in the absence of any prayer for relief, and in the face of his prayer for a specific performance of the contract, and against the plain terms of the contract. The advances made by Wilson to Davis and otherwise, by express agreement, were to become a lien on the prop- erty, and were not payable until they were made from the earnings of the mill. Wilson could acquire no rights in the property that were not subject to those of Davis. The court erred in not allowing Davis interest upon interest, according to the contract, which Wilson brings this suit to compel Davis to perform. This amounts to $6,424. Wil- son cannot pray for relief from one part of an agreement and demand a specific performance of the other part. The court cannot compel a party to sell property for a consid- eration against his will. A third party can make no such plea after purchasing with a knowledge of the contract. Specific performance on one side requires it on the other. Wilson must receive what Fredericks owes him from the net earnings of the mill and in no other way. He made this contract and must stand upon it. There is no finding that the net earnings of the property would not liquidate Wilson's demand. The court erred in ordering a sale of the property and the payment of the proceeds to Wilson. This works an 1870.] WILSON t>. DAVIS. 189 Injustice to Fredericks, who loses his property, the net earn ings of which should pay his debt to Wilson. It is an unauthorized violation of the spirit and terms of the con- tract. Wilson could not have the interest of Fredericks sold to satisfy a partnership debt in this way, for each partner has an interest in the proceeds. Civil Prac. Act, 264, etseq. The appeal in this case stayed the sale of the property. It was in the custody of the law. Wilson, purchasing with full knowledge of the facts, cannot obtain relief from a con- tract as usurious, as he does not plead the same. Ohio & M. R. R. Co. v. Kasson, 37 N. Y. 218 ; Connecticut v. Jack- son, I Johns. Ch. 14 ; Kellogg v. Hickock, 1 Wend. 521 ; Sands v. Church, 2 Seld. 347 ; De Wolf v. Johnson, 10 Wheat. 392 ; Merrills v. Low, 9 Cow. 65 ; Beach v. Fulton Bank, 3 Wend. 573 ; Green v. Comlland, 10 Cal. 317. The court should have allowed Davis an attorney's fee. The referee reported the amount. Respondent cannot show a case where the plaintiff, in an action to compel the specific performance of a contract to convey real estate, is relieved for any cause from part of the purchase-money and yet obtained a decree of title. Courts of equity do not make a contract for parties and enforce it against their will. No insolvency is charged against Fredericks, and there is no necessity for interfering between Davis and Fredericks. It is not charged that Wilson is not amply secured, and the contracts cannot be carried out according to the intention of the parties. W. P. SANDKBS, WORD & SPBATT and GK MAY, for re- spondent. No brief on file. KNOWLES, J. Although exceptions were taken to the findings of the reports of the referees in this case, the tes- timony upon which they based their findings is not made a part of the record in this court. Hence we cannot review them ; and they must stand as true. No exceptions appear 190 WILSON v. DAVIS. [Aug. T. in the record to the findings of fact by the court below, These also then must stand as true. There are no specifica tions in the record of errors committed in rendering the decree by the court below. This, however, was not objected to by counsel for respondent ; and waiving this objection the only points we can consider are those which appellants have presented in their brief, and which appear on the face of the records. It appears from the findings of the court below, and the referees in this cause, that Davis contracted to sell Freder- icks an undivided one-half of the Madison mills, together with the land upon which the same was situated, and all the appurtenances thereto attached, together with some per- sonal property. That to secure the contract price for said property Fredericks executed and delivered to Davis his two promissory notes, one for flour and the other for gold dust, and to secure the payment of these executed and delivered to Perkins his deed of trust for the benefit of Davis on the said mill property. Subsequent to this Fredericks contracted to sell, and did sell to Wilson an undivided one -half of said property ; and in pursuance with said contract Wilson and Fredericks en- tered into the joint possession of said property. Fredericks after this sale to Wilson confessed two judg- ments on the aforesaid promissory notes, in Meagher county, in favor of Davis. The court below set these two judgments aside as a fraud upon the rights of Wilson. All title that Davis may have acquired to said property by virtue of a sale thereof under these judgments failed in consequence of the annulling the said judgments. The deed from Fredericks and wife to Davis the court also declared fraudulent and void. Appellants make no point upon these rulings in their brief. And if they did, there cannot be any doubt from the report of the referee, Blake, that sufficient does appear to have fully warranted the court in so setting the smaller of said judgments aside for that cause, and that defendant, Davis, was not in the least dam- aged by the setting aside of the other, as this court has held 1870.] WILSON v. DAVIS. 191 that judgments bear only ten per cent interest ; and as any rights Davis acquired to said property by a sale thereunder was in subordination to Wilson's rights. Davis knew of Fredericks' sale to Wilson ; and hence as to his rights, the sale by Fredericks to him (Davis) was a fraud. It was an attempt by Fredericks to convey what he had parted with. All that is left for this court to consider then, is the rights of the several parties to this action under the contract of sale from Davis to Fredericks, the deed of trust to Perkins, and the contract of sale by Fredericks to Wilson. Considerable is said in the brief of appellants in regard to the right of Wilson to be subrogated to the rights of Davis. The decree entered by the court below does not purport to do this. It allows Wilson to pay off the incumbrance against the joint property of Fredericks and Wilson. This is no novel right, but one which the law clearly guarantees. It also decrees that the amount paid by Wilson in ex- cess of that paid by Fredericks shall be a lien upon their joint property. It would appear from the contract between Fredericks and Wilson, which is a part of this record, that these parties had been clearly partners, and that this property was partnership property. The law gives to each partner a lien upon the joint effects of the partnership for any excess over his partner which he has contributed to their joint busi- ness, and to preserve their joint property. It decreed that upon the payment to Davis of the amount for which he con- tracted to sell said property to Fredericks, together witli five per cent interest per month thereon, without any interest upon interest, Davis should make a conveyance to Freder- icks. Wilson having by law a lien upon whatever interest Fredericks had in said property, could properly demand of Davis a conveyance to Fredericks of an undivided one- half of said property, upon his receiving what lie was legally entitled to under the contract to sell the same. This brings us to the consideration of the question of how much Davis was entitled to receive of Fredericks, or his grantee, before he could be compelled to make a deed to said property. The note given by Fredericks, payable in 192 WILSON v. DAVIS. [Aug. T., gold dust or its equivalent in United States treasury notes, to secure the payment of part of the purchase-money for said property, stipulated that the principal should bear live per cent interest per month, payable monthly ; and that, if this interest should not be paid when it fell due, then this interest should bear the same rate of interest as the princi- pal. The court below refused to allow this interest upon interest. This is assigned as error in appellant' s brief. It seems to be a well-settled principle, in courts of equity, not to allow interest upon interest where the contract to pay the same was made at the time of the original contract, and before any interest had become due, where the payee seeks to enforce such a contract, although a stipulation to that effect would not vitiate the original contract. SellecJc v. French, Am. Lead. Cases, 534. If Davis, then, would not be entitled to demand of Fred- ericks interest upon interest, if he sought to collect the same and to enforce his lien upon said property, there is no reason for requiring Fredericks or Wilson to pay hhr more than he could recover, before they could demand of Davis a cancellation of the deed of trust at least. It is claimed, however, that it would be inequitable to compel Davis to convey his property for less than he had agreed to. That a court of equity might think it inequita- ble to compel Fredericks to pay compound interest, if Davis sought to collect the same, and, upon application, might relieve Fredericks of this contract as oppressive and unconscionable, but that they cannot say to Fredericks you need not pay what you agreed to, and, to Davis, you must convey your property for less than you agreed. In law, what did Fredericks agree to pay Davis for this property, and what did Davis agree to convey it for ? Interest upon interest was not allowed at common law, although awarded by a special contract to that effect. Pars, on Bills & Notes, vol. 2, p. 391 ; Rensselaer Glass Factory v. Reid et al., 5 Cow. 609. It was considered a violation of the laws of God, and contrary to good conscience ; although an English statute 1870.] WILSON v. DAVIS. 193 was enacted, prohibiting all interest above a certain amount. This left it to parties to agree to any interest less than that amount. It was thought better, perhaps, that a small interest should be collected legally, than that a large interest should be collected illegally and by evasive means. This statute, however, was never construed by the English courts as allowing compound interest in any amount. The current of English authorities are adverse to allowing compound interest. The only modification which this English statute of Henry the VIII, before referred to, made then in the common law, was to allow simple interest, when agreed to bj the parties, for any amount, not to exceed ten per centum per annum. Thus stood the common law, I think, when this government became independent. The legislative assembly of this Territory have enacted, "That the com- mon law of England, so far as the same is applicable and of a general nature, and not in conflict with special enact- ments of this Territory, shall be the law and the rule of decision, and shall be considered as of full force, until repealed by legislative authority." See Laws of Montana Territory for 1861, p. 356. This rule of the common law is certainly applicable, and of a general nature. If we turn to the American rule, in relation to this question, I think we must arrive at the same conclusion. In this country the right to collect interest has been made legal by usage and the decisions of the courts. Pars, on Bills & Notes, vol. 2, p. 392. And I may add, in some States by statute. Only such interest should be allowed, then, as is warranted by usage and legal adjudi- cations, or by statute. I think I am safe in saying, that no universal custom exists throughout the United States to allow compound interest. Many of the States have enacted special statutes, prohibiting it. Hare and Wallace, in their notes to the case of Selleck v. French, Am. Lead Cases, r>33, say, that the better opinion is, that at law compound interest should be allowed. Parsons on Bills & Notes, vol. 2, p. 424, says, that, in the VOL. 1 25. 194 WILSON 0. DAVIS. [Aug. T., present state of the authorities, it can hardly be supposed that a bargain for compound interest would be enforced. In the case of Cox v. Smith et aL, 1 Nev. 169, the court says that it could find but two cases where courts of law had allowed compound interest, and one of these was after- ward overruled. That in New York and Massachusetts the current of authorities are all against it. It will be seen by these authorities that there is a conflict of opinion upon this subject in the United States. Which- ever way the preponderance of authority may be, the means afforded me for the investigation of the subject will not warrant me in saying. I am sure, however, that the current of American authorities have not been so general as to warrant any one in saying that the old common-law rule has been set aside, and an American common law es- tablished upon this subject. It is conceded, everywhere, that the rule in equity courts is adverse to the allowing of such interest. This is an action in equity. Whatever may have been the reasons that induced equity courts to refuse to allow compound interest, they have declared that such interest is illegal ; or, in other words, courts of equity have held fast to the common-law rule upon this subject, and in nowise have changed it ; and we must hold that such is the law, unless it has been changed by the statutes of this Territory. The third section of the act upon interest, in this Terri- tory, reads as follows: "The parties to any bond, bill, promissory note or other instrument of writing, may stipu - late therein for a greater or higher rate of interest than ten per cent per annum, and any such stipulation contained in any such instrument of writing may be enforced in any court of law or equity of competent jurisdiction in this Territory/' This evidently contemplates simple interest. If the stat- ute had said, parties to written instruments should not stipu- late for any higher or greater rate of interest than ten p<->r cent per annum, the same question as to compound interest would be left open. Compound interest is interest upon interest. The rate of interest which the law mav allow 1870.] WILSON v. DAVIS. 196 does not affect this question. In the case of Thu Rensselaer Glass Factory v. Reid, 5 Cow. 609, Senator Spencer says : "That in New York the statute on interest is negative, pro- hibitory of interest being taken above a certain rate." It does not, in terms, prohibit compound interest ; yet, both the courts of law and equity have held, in that State, that, though this statute authorized parties to agree to any rate less than that prohibited, it did not authorize agreements on compound interest. The case of Cox v. Smith et al. y 1 Nev. 169, holds that a statute of Nevada, similar to this one, does not warrant compound interest. And, as before remarked, the statutes of England are only prohibitory of certain interest above a certain rate, and left it to parties to agree to a less rate of interest, and, in terms, did not prohibit compound interest; yet, the current of English authorities is adverse to allowing any thing but sim- ple interest, when, as in this case, the contract was made at the time of the original contract. The term, rate per cent, whether used at common law or in statutes, so far as I have been able to learn, signifies so much per cent on the princi- pal. That term, used in this statute, must be so construed. II is tnen determined that compound interest is not war- ranted by law. Parties who make contracts are presumed to know the law, and that they make their contracts in direct reference to it, Davis and Fredericks it must be con- sidered, then, knew the law did not allow compound inter- est, arid that the agreement made therefor was not war- ranted by law, and would not be enforced. Davis, then, in contemplation of law, did not contract to sell his one-half of said property for any more than the amount specified in said notes, together with simple interest on the gold dust note. There was nothing then inequitable in compelling him to convey this property for the full amount of said notes, together with simple interest on the gold dust note, as per agreement therefor. I do not think it was necessary for \Vilson to set forth that this transaction was tainted with compound interest, and ask relief there 196 WILSON v. DAVIS. [Aug. T., from in this action. The same principle is not involved as in usury. For the taking of usury, the statute generally appends some penalty. The statute which creates this pen- alty must be set up before the penalty can be exacted. Here, however, the question was presented to the court : How much was Davis legally entitled to recover ? It appeared upon the face of the note that it contained a contract for compound interest. It certainly could not have been necessary for plaintiff to point out this fact to the court. It certainly could not be presumed that a court could not observe this fact without it was specifically pointed out to it by an allegation in the pleadings. It is a well-known rule in pleadings that a party may allege facts which show that he is not entitled to re- cover. Had Davis been paid all that he was entitled to, and had he brought a suit for the compound interest agreed to be paid, and the complaint expressed this, it would not have been necessary for Fredericks to have filed an answer, set- ting up that it was compound interest. A general demurrer to the complaint would have raised the issue, whether he was legally entitled to recover it, set- ting forth that the complaint did not state facts sufficient to constitute a cause of action. The defect would be one of such a nature, that even a failure to demur would not waive it. It could be raised at any time, for it would show upon its face that there was no legal consideration to support the agreement to pay it. In this case, the part of the contract which stipulates for compound interest is capable of being separated from the rest of the contract, and as to this the court was warranted in saying there was no legal consideration to support it. There is one thing to be noticed in this action. Davis does not ask to be relieved from the contract to convey, if he cannot receive compound interest, but stands upon his con- tract, and asks for the complete fulfillment of it before he conveys. The case might present a different phase, if Davis should have asked to be relieved of the contract, and had tendered what he had received thereon. There is nothing 1870.] WILSON a. DAVIS. 197 in the point that Davis did not receive proper notice of Wil son's intention to pay off said notes. Long before the plead- ings were tiled, upon which the case was finally tried, the record shows that these notes had become due. The notice required by the contract, between Davis and Fredericks, was to be given before the notes became due. Appellants complain because Perkins was not allowed to retain posses- sion of the property. This might have been a joint cause of complaint, on the part of both Davis and Perkins, before the final adjudication in this matter, and the decree of the court, giving Davis all his legal rights. When the court had provided for the payment of the debt to Davis, and the cancellation of the deed of trust, it could not provide any thing in relation to the restoration of the possession of said property by Perkins, in accordance with the terms of said deed of trust. The decree of the court, ordering the sale of the property in controversy, before Davis was paid the full amount the court found due against him, was perhaps a little irregular as to Davis, yet, the irregularity is not one that should occa- sion a reversal of the decree. The decree in no instance orders Davis to convey the interest held in his name until he received the full amount due him, and the sale of the property could in no manner affect his rights. It made no difference with Davis from what legal source he was paid the amount due him. The court might have reasonably inferred that the small amount it had found due Davis would surely be paid out of the sale of this property, upon which he had the deed of trust, and that it was not necessary that the cause should remain longer in litigation. As it treated the answer of Davis as a cross bill, the sale of the undivided one-half of said property for that purpose was certainly proper. As between Fredericks and Wilson it was proper that this property should be sold. The appellants complain that by the articles of partnership between Fredericks and Wilson, the excess of funds either contributed to the firm was to be paid by the com- pany out of the net earnings of the mill. From the find- 198 WILSON v. DAVIS. [Aug. T., iiigs of the court it would appear that, in pursuance of the articles of copartnership, Fredericks and Wilson conducted, for some time at least, the business for which the partner- ship was formed. There was no issue presented in the pleadings that required the court to find whether or when this partnership had been terminated, if at all. It would seem that the plaintiff in his pleadings regards the partner ship terminated, and Fredericks alleges in his answer that it was never formed. Taking the findings of the referee, Hedges, and those of the court, in connection with the articles of copartnership, \vhich are a part of the record made so by Fredericks, there cannot be much doubt but that for a time the partnership did exist. The court may, however, have properly consid- ered that the partnership had been terminated before the commencement of this action. There was no time specified for the duration of the partner- ship. Either party could terminate it by giving proper no- tice, or the termination might be inferred from the conduct of the parties. Story on Part. 272. There was enough in the conduct of Fredericks to justify the court in taking the view that the partnership had been dissolved. When the partnership was dissolved the stipu- lation above referred to was annulled. Fredericks, while refusing longer to continue the partnership, cannot demand of Wilson to carry out the stipulations of the articles which made the copartnership. When the partnership was dis- solved no company, in accordance with this stipulation, was left to pay Wilson for his advances out of the net earnings of the said mill. As far as Fredericks and Wilson are con- cerned, the court undoubtedly treated this as an action to wind up the affairs of the partnership which had already been dissolved, and to give each his due rights in the part nership assets. This could be done only by a sale of the property belonging to the firm, which is the usual practice of courts of equity in such cases. Appellants also claim that Davis should have been allowed a reasonable attorney's fee in collecting what the court 1870.] WILSOW 0. DAVIS. 199 found due him. The only allegation in defendant Davis' answer, or cross-bill, which would warrant the court in awarding the same, is the one after he had alleged the amount due him on the notes for the sale of said property, which is as follows: "Besides the sum of six thousand five hundred dollars damages, and expenses incurred in attending to and protecting the rights, remedies and equities of said Davis in and about the premises which said Freder- icks stipulated and agreed to pay and refund to said Davis, before said Davis was required to make a deed to said prop- erty. " 1 u the first place this allegation is not specific enough to warrant the court in awarding any damages or any remu- n< -ration for expenses. It would be necessary for the an- swer to show wherein Davis had been damaged, and also what expenses and costs he had incurred in protecting his rights. It is not enough for a man to say he has incurred costs and expenses in protecting rights. What the law re- quires of a party is to show for what he had incurred these expenses and costs. The terms "rights," "remedies" and "equities'' have no such determined meaning in a pleading as goods, wares, merchandise and chattels. In the next place the replication to this answer does pur- port to put in issue this allegation, and although the denial maybe said to be defective, perhaps, no objection was taken to it, however. Hence, if the court failed to find upon this issue, it will be supposed that Davis failed to establish it. This court cannot now consider whether or not the order of sale of the court was stayed by the bond filed. What this court is required here to determine is, whether or not the decree of the court below should be affirmed. Decree of the court below is affirmed. Exceptions overruled. 200 AYLESWORTH x>. REEOE. [Aug. T. ; AYLESWORTH, respondent, v. REECE et al., appellants. CASH AFFIRMED RELATING TO JURY LAW. The case of Kleinschmidt v. Dunphy, ante, p. 118, deciding that three-fourths of a jury cannot find a verdict ir common-law actions, where the value at controversy exceeds $20, affirmed. Appeal from the First District, Madison County. THIS action was tried by a jury in the district court, in May, 1869, and nine of the jur} 7 " returned a verdict for plain- tiff, for $800. Three jurymen dissented. The court, WAR- KEN, J., entered judgment on the verdict, and defendants appealed. The decision upon one exception renders unnecessary a statement of the facts. H. N. BLAKE, for appellants. WORD & SPRATT, for respondent. SYMES, J. This was an action for damage for breach of contract, plaintiff alleging that defendants, in consideration that he would build an arastra for crushing quartz, agreed to deliver to him one hundred tons of good gold bearing quartz ; that he built the arastra, but defendants failed to deliver the quartz. Defendants denied the allegations of the complaint. The case was tried before a jury at the May term of the Madison county district court, and a verdict found for the plaintiff for $800, which verdict was signed by nine jurymen only. Judgment was rendered on the verdict, and the defendants excepted to the verdict and judgment, for the reason that it was not the verdict of twelve men but of nine. The question presented is, whether the judgment is erro- neous, being rendered on a verdict of nine jurymen, and no consent of parties that the ease should be tried by less than twelve. This court has decided in the case of Klein- Schmidt et al. v. Dunphy et al., that so much of the law 1870.] COMANCHE MINING Co. . RUMLEY, 201 of 1869, passed by the legislative assembly, as provides that three-fourths of a jury may find a verdict in common-law actions, is unconstitutional and void. The judgment must be reversed, and cause remanded for new trial. Judgment reversed. COMANOHE MINING COMPANY, respondent, . RUMLET et al., appellants. PRACTICE judgment entered at succeeding term. Judgment can be entered on a verdict at a term of the court succeeding that in which it was found by the jury, if the clerk has failed to enter the same. PRACTICE judgment court can amend. The court can amend a judgment at a term succeeding that in which it was entered, by inserting the names of the defendants that were specified in the verdict. PRACTICE judgment against defendants individually. Judgment can be en- tered against defendants individually, who are named and described in the complaint as a certain company, although they are not members of it, if the jury finds that they are liable individually. Appeal from the Second District, Deer Lodge County. TEN persons, who described themselves individually and as doing business under the style of the Comanche Mining Company, commenced this action on February 25, 1868, against "C. Rumley, Louis Bugher, Peter Rea, II. Comly and other parties unknown to these plaintiffs, who are doing mining business under the firm name and style of the Rumley and Bugher Mining Company," in the district court for Deer Lodge county. On October 8, 1868, Peter H. Rea and Harry R. Comly hied an answer. Rumley and Bugher also answered on the same day. The cause was tried in May, 1869, and the jury returned the following verdict, which was filed by the clerk of the court on May 26, 1869. " John Edwards, Daniel Brown, Duncan Cameron, George Caulderwood, Benjamin Franklin, Nathaniel Heil, H. P VOL. I. 26. 202 COMANCHE MINING Co. v. RUMLEY. [Aug. T., Drennin, Homer Cogswell, Emanuel Brown, Jolin Gerber, who are doing a mining business under the firm name and style of the Comanche Mining Company, plaintiffs, v. C. Rumley, Louis BugTier, Peter Rea and H. Comly. We, the jury, find for the plaintiffs and against the defendants for the possession of claims Nos. one (1), two (2), three (3), four (4) and five (5) west from discovery, together with discovery claim and claim No. one (1), east from discovery, on the Comanche Extension Lode, as de- scribed in plaintiff's complaint, and assess their damage at one ($1) dollar." The jury also returned their findings upon fourteen issues, which were submitted by the court, and found that the Rumley and Bugher Mining Company was composed of C. Rumley and L. Bugher. At the next term of the court, in September, 1869, the following judgment was entered on the verdict : "TERRITORY OF MONTANA, ) DEER LODGE COUNTY. ( "In the Second Judicial District Court : ''COMANCHE MINING COMPANY o. RUMLEY AND BUGHEB MINING COMPANY. "This cause having been tried before KNOWLES, J., and a jury, as to certain issues of law and fact, having been argued, and a verdict of the jury having been returned in favor of said plaintiffs. " Wherefore, it is adjudged that the said Comanche Min- ing Company, plaintiffs herein, recover of the defendants, the Rumley and Bugher Mining Company, the possession of (description of the property), and, further, that the plaintiffs recover of the defendants the sum of 81 damages for the withholding thereof, and also $1,381.05 costs of this suit, amounting, in whole, to $1,382.05. "H. KNOWLES, Judge." At the next term of the court, in December, 1869, the plaintiffs moved to amend the foregoing judgment, by 1870.] COMANCHE MINING Co. v. RUMLEY. 203 inserting the names of the plaintiffs and defendants, and charging the amount of the costs. The motion was sus- tained by the court, KNOWLES, J., and the judgment was entered on December 24, 1869, for Edwards and the other plaintiffs, naming all of them, and against C. Rumiey, Louis Bugher, Peter Rea and H. Comly, for the possession of the property in controversy and $1,289.05. At the trial of the cause, the attorneys stipulated in writ- ing that all the instructions of the court should be deemed duly excepted to. The defendants Rea and Comly appealed from the judg- ment and amended judgment. WOOLFOLK & TOOLE, for appellants. The defendant is sued as a company. The appellants take issue and deny that the company is composed of Rea, Comly, Rnmley and Bugher. The jury find that Rumiey and Bugher composed the company. No judgment could be rendered except against the company. The court, with- out notice to, or the appearance of, Rea and Comly, rendered judgment against them. The court lost jurisdiction of the defendants, and cause, after the May and September terms had adjourned. The judgment in December, 1869, is not an amendment as to appellants. The original decree included all the members of the company, against whom the action was brought. If the respondents were dissatisfied with the original decree, this court should have corrected it. 1 Estee's PL 30. 57. No judgment was entered within the time prescribed by law. Leniston v. Swan, 33 Cal. 483 ; Wallace v. Eldredge, 27 id. 495 ; Bell v. Thompson, 19 id. 708 ; Swain v. Naglee, 19 id. 127; Br anger v. Chevalier, 9 id. 351; Morrison Dapman, 3 id. 255. The court erred in its instructions. MAYHEW & MCMURTRY, for respondents. The court had jurisdiction over the cause, and all defend- ants appearing in the record at any subsequent terms, after 204 COM ANOHE MINING Co. v. RUMLEY. [Aug. T v the May and September terms of court. If the judgment was defective as to parties, the court had authority to order the judgment amended, and cure defects or omissions. Swain v. Naglee, 19 Gal. 127; Lemston v. Swan, 33 id. 480 ; Browner v. Dams, 15 id. 9. A court can amend a judgment as to parties, amounts of money, etc., when the record discloses what the actual judgment should be. Close v. Gillispie, 3 Johns. 526 : Mechanics'' Bank v. Minithorn, 19 id. 245 ; Lee v. Curtis, 17 id. 85. SYMES, J. This was an action for the recovery of certain quartz lodes and damages for detention. The cause was tried at the May term of the Deer Lodge district court, and a verdict found for the plaintiff, for possession of the prop- erty claimed, and one dollar damages. No judgment was rendered at said May term on the verdict. At the follow- ing September term a judgment was rendered against two of the defendants, Rumley and Bugher ; and at the follow- ing December term, 1869, the judgment was amended by the court and rendered against all the defendants, Rumley, Bugher, Rea and Comly. The case comes up on appeal from the judgment roll, there being no statement, and the real question to consider is, did the court err in rendering judgment on the verdict at the next term, and in amending or changing the judgment and rendering it against the other two defendants at the next following term. The suit was against four defendants, naming them per- sonally, and describing them as the Rumley and Bugher Mining Company. The verdict named all the plaintiffs in- dividually, and all the defendants individually, and found against them all for the possession of the quartz claim and one dollar damages. The clerk neglected his duty as pre- scribed by the 197th section of the Civil Code, and did not, witliin twenty-four hours, enter judgment on the verdict. The authorities are plain to the effect, that the court can. after the term has expired, correct an error appearing on the judgment-roll or from the face of the papers, when it is a 1870.] COMANCHE MINING Co. v RUMLEY. 205 clerical error, or one arising from neglect of an officer of the court. In Close v. Gillispie, 3 Johns. 527, the court say there can be no doubt that an amendment was proper, when judgment had been entered on a warrant of attorney, and the attorney had neglected to sign the plea, and his name was not inserted in the roll ; and cite a case where an amend- ment, nunc pro tune, was allowed after lapse of several terms, where the clerk who taxed the costs had neglected to sign the roll ; also refer to an English case, where the court allowed amendments, rendered necessary by neglect of at- torneys, saying that attorneys were officers of the court. In the case of Tfie President and Directors of Mechanics 1 Bank v. MinitJiorn, 19 Johns. 245, the court say they have no doubt of their power to set aside a satisfaction of a judgment, and allow another computation of the amount due and amendment of the judgment, when it appeared that the mistake was one of the clerk of the court, and the amendment was ordered. The cases of Swain v. Neglee, 19 Gal. 127, and Lemston v. Swan and others, 33 id. 485, are to the same effect. In the latter case the decree did not mention who was liable for the deficiency, so the clerk could not, on the coming in of the sheriff's report on foreclosure sale, enter up judgment for the deficiency ; and the court allowed the amendment by inserting the name of the party liable for the deficiency after the term when judgment was rendered. Under these authorities it is clear that the court below had the power to render judgment at the next term on the verdict, when the clerk had neglected to do so ; and to there- after amend the judgment by inserting the names of all the defendants named in the verdict of the jury. Appellants contend that the court erred in rendering judg- ment at any time against Rea and Comly, because all the defendants were sued as a company, and the jury, by a special finding, found that Rea and Comly were not mem- bers of the company. But the defendants were all sued by name for ouster of possession and trespass to property ; the additional allegation that they were a company, and de- 206 DAHLER v. STEELE. [Aug T.> scribing them as such, cannot affect the verdict or judgment when the jury found them all individually guilty of the acts complained, in the general verdict, although some of them were found not to be members of the company. Appellants further except to the ruling of the court, in refusing some instructions offered by defendants. All the law applicable to the case seems to be contained in the instructions given by the court on its own motion, and at request of plaintiffs. Those refused are in effect a repetition of others given, or are based on the theory that defendants could obtain affirmative relief in the action. The judgment below is affirmed. Exceptions overruled. DAHLER, appellant, v. STEELE, respondent. REPLEVIN property returned if action is dismissed. A judgment for costs and the return of property is properly rendered against a party who dismisses his action for the recovery of the possession of the property, after he has obtained the same by means of the process of the court in the action. DISMISSAL OF ACTION a final judgment. The dismissal of an action is, in effect, a final judgment against the plaintiff, although he has the right to bring a new action for the same subject-matter. Appealfrom the Third District, Lewis and Clarke County. DAHLER commenced this action on February 1, 1870, in the district court, against Steele, who was then the sheriff of Lewis and Clarke county, to recover the possession of certain personal property valued at $4,750, and also $500 damages for its wrongful detention. The affidavit and o < undertaking required by law were filed, to enable the offi- cer to take the property from Steele. After the defendant had demurred to the complaint, the plaintiff issued the fol- lowing order to the clerk of the court: "The clerk will please dismiss the above cause at the costs of the plaintiff." After the court had taken the matter of dismissal undei advisement, the plaintiff filed the following motion : 1870.] DAHLER v. STEELE. 201 "Now comes the above plaintiff by his attorneys. Wool- folk & Toole, and moves the court to order the same dis- missed." The court, SYMES, J., then ordered the cause to be dis- missed at the plaintiff's costs, and that the property in con- troversy be returned to the defendant by the plaintiff. The defendant excepted to the order requiring the return of the property. WOOLFOLK & TOOLE, for appellant. The appellant had a right to dismiss his suit at any time, oefore trial, on paying costs, there being no counter-claim. The court had no power or jurisdiction, after the precipe for dismissal had been filed with the clerk, to retain appellant in court against his will, and adjudicate upon his rights. Civil Prac. Act, 148 ; Hancock D. Co. v. Bradford, 13 Cal. 637 ; Brown v. Harter, 18 id. 77 ; Reed v. Calderwood, 22 id. 463 ; Dimick v. Deringer, 32 id. 488. The court erred in making the order for the return of the property, upon a dismissal of his suit by appellant. This should be determined in an action upon the replevin bond Civil Prac. Act, 102 ; Mills v. Gleason, 21 Cal. 274. CHUMASEBO & CHADWICK, for respondent. The complaint does not state facts sufficient to constitute a cause of action. It should allege a right of possession, and the facts which entitle the appellant to the possession. It should allege the ownership of appellant, or his special property, if he has such. Pattison v. Adams, 7 Hill. 126. A party cannot commence an action of replevin, and, after having thereby obtained possession of the property, discontinue his action, without placing the defendant in statu quo ; and, in said case, the defendant is entitled to a return of the property. Wilson v. WJieeler, 6 How. Pr. 50 ; Morris on Replevin, 114; Voorhies' Code. 390, note g ; \ Whit. Pr. 248. The whole proceedings in this case were radically defect- ive from the commencement, and a fraudulent advantage 208 DAHLER v. STEELE. [Aug. T. y has been acquired under color of law. The court below properly decided that this advantage could not be retained. KNOWLTCS, J. The appellant, Dahler, brought an action to recover the possession of certain personal property from the defendant, Steele. There is nothing in the record which shows that Dahler ever obtained possession of this property. The cause, however, was argued by counsel as though this was the fact, and, as every presumption of this court must be in favor of the ruling of the court below, it will be con- sidered that such was the case. The appellant must pre- sent record enough to clearly show error. If such was not the case, it devolved upon him to show it. The appellant, after he had acquired possession of this property by means of the process of the court, moved the court to dismiss the action at his costs. This was granted, and, on application of the attorneys for respondent, an order was entered that the appellant return this property to the respondent. The ruling of the court below, in awarding this order to respond- ent, is assigned as error. The means afforded the plaintiff by the Code of obtaining possession of personal property pending an action therefor, is as much an auxiliary remedy as arrest, attachment or injunction. When the original remedy fails, the auxiliary remedy involved in aid thereof becomes extinct. It is true a party may dismiss a cause upon the payment of costs. The necessary result, however, of this must follow. All remedies invoked in aid of it must go with it. It is the object of courts when a cause is dismissed, as far as they can, to put the defendant in the same condition he was before suit. Hence, his costs are awarded him. If he has been arrested, he is released. If an injunction has been awarded, it is dissolved, and he permitted to perform the acts, from the doing of which he was restrained. See Dowling et al. v. Palack et al.. 18 Cal. 625. If an attach- ment has issued, the defendant is entitled to a return upon making a demand of the officer. Drake on Attach., 285. 381-388. 1870.] DAHLER v. STEELE. 209 Undoubtedly, the only reason why the defendant is not awarded a judgment, for the return of his property in at- tachment cases, is, because the officer is not a party to the action. It would seem that, in an action to recover the posses- sion of personal property, something more than costs ought tr be awarded. The plaintiff has obtained the possession 3f the defendant's property, by means of a remedy which, by the dismissal of the original action, becomes extinct. He is a party to the action, and if the rule is to be followed that the defendant is in such cases to be put in as good a condition as lie was before the suit, if within the power of the court, I cannot see why a return of the property should not be awarded. If the court can prevent it, a plaintiff ought not, in such a way, to be permitted to recover any advantage. The dismissal of this action was in effect a final judgment against the plaintiff therein. As between the parties there- to, as far as it is concerned, it stands as though all the issues offered in the complaint had been found for the defendant, although it may not affect their right to bring a new action, involving the same subject-matter. See Ltese v. Sherwood, 21 Cal. 151, and Dowling et al. v. P alack et al., 18 id. 625. If this cause had been tried and all the issues found for the defendant, there would be no doubt but that the defend- ant would be entitled to a judgment for a return of the property. Yet, as we have seen, this was the very effect, as far as this action was concerned, of the dismissal on the part of the plaintiff. In all such cases, I think, the judg- ment of the court ought to be, that the defendant have judgment for costs, and for a return of the property, if asked. The judgment of the court below is therefore affirmed, with costs. Exceptions overruled. Vol. 1-27. 210 DAVIS 0. GEKMAINE. [Aug.T. r DAVIS, appellant, v. GERMAINE, respondent. AGREEMENT objections not regarded without a statement. This court will not regard objections that a verdict is against law and evidence, if there is no settled statement. PRACTICE objection not considered without an exception. This court will not consider an objection that oral instructions were given to the jury contrary to the statute, if no exception was properly taken at the time. AGREEMENT waiver of condition. An agreement cannot be rescinded by the failure of a party to perform a condition which has been waived. Appeal from the Third District, Lewis and Clarke County. DAVIS filed his amended complaint in the district court, on October 13, 1869, and demanded judgment against Ger- maine for $5,000, and interest for money loaned and ad- vanced under a contract. The complaint alleged that the times, when this money was to be loaned and advanced under the written contract, were changed and altered at the special request of defendant. The defendant answered in March, 1870, and denied that the times referred to in the contract were altered at his request, and alleged that, under the contract, the money sued for was not due until eighteen months after June 9, 1869. The cause was tried in March, 1870, and the jury returned a verdict for the defendant. The court, SYMES, J., gave written and oral instructions to the jury. At the sixth ses- sion of the legislative assembly, which was concluded on January 7, 1870, a law was passed which required instruc- tions in the trial of any cause to be in writing. No attorney called the attention of the court to this law, and no excep- tion was taken to the action of the court in charging the jury orally. The plaintiff' s motion for a new trial was refused by the court, SYMES, J., and plaintiff appealed. CHUMASEIIO & CHADWICK. for appellant. The court erred in giving 1 he oral and written instructions to the jury. 2 Pars, on Cont. 184-186 1870.] DAVIS v. GERMAINE. 211 The oral instructions were so given in violation of the statutes of the Territory. The verdict is contrary to law and evidence. WOOLFOLK & TOOLE, for respondent. Appellant is limited to the grounds set forth in the motion for a new trial. McCloud v. O> Neall, 16 Cal. 392 ; Pierce v. Jackson, 21 id. 636. The written instructions are not assigned as error in that motion. The alleged error of the court, in charging the jury orally, was not saved by exception. More v. Del Valle, 28 Cal. 174. Unless so saved, it is not available on motion for anew trial. Letter v. Putney, 7 CaL 423; People v. Alt Fong, 12 id. 345 ; McCartney v. Fitz Henry, 16 id. 184 : Hicks v. Coleman, 25 id. 146. It is questionable if the statute requires the instructions to be in writing. The oral charge was correct. 2 Pars, on Cont. 672, 673 ; California v. McCauley, 15 Cal. 429. If erroneous, the appellant could not be injured by it. 3 Estee's PL 740. WARREN, C. J. The grounds of the motion for a new trial in this cause were, 1. Insufficiency of the evidence to justify the verdict, and that it is against law. There is n<> statement settled as required by law, and hence we cannot consider the objection. 2. That the court instructed the jury orally. If this be a fact, it has not been properly pre- served by exception taken at the time, and is not presented in the record. 3. That the said oral instruction is erroneous, and misled the jury. The complaint sets out a written agreement between the parties, and avers a subsequent modification of its terms, made at the instance of defendant, and alleges the perform- ance of the contract on his part, and failure on the pai't of defendant. The answer, in effect, admits the execution of the agreement and its subsequent alteration, but denies, simply, that such alteration was made at defendant's re- quest ; avers performance by himself, and failure on the 212 HARRIS v. SHONTZ. [Aug. T., part of plaintiff to perform the agreement. The contract being an entire one, the only issue presented was, as to the compliance of the respective parties with the terms of their agreement as finally made and acted on ; and the court for failure of defendant to comply with the condition properly instructed the jury, in substance, that, if the plaintiff waived the terms of the agreement in the particu- lar mentioned, he could not afterward rescind the contract for failure of defendant to comply with the condition waived. 4. That the instructions given at the request of defendant are erroneous. We see no error, in the instructions given, sufficient to disturb the verdict. The judgment is affirmed. Exceptions overruled. KNOWLES, J., dissented. HARRIS, respondent, #. SHONTZ et al., appellants. ACTION FOB DIVERSION OF WATER practice judgment on verdict on the ma- terial issue. In an action to recover damages for the diversion of water and obtain a decree of title and perpetual injunction, the verdict of the jury that plaintiff is entitled to the water is a finding on the material issue, and entitles him to a judgment for costs and the relief sought. DAMAGES injunction. In this case a perpetual injunction was properly de- creed, although the jury did not assess any damages. PLEADING insufficient denial. A denial that defendants "wrongfully and illegally" diverted certain water, is an admission of the act of diversion. Appeal from the First District, Madison County. THIS action was commenced in May, 1869, against Shontz and three other parties, to recover judgment for $500 dam- ages for the diversion of water claimed by him in Wash- ington gulch, Madison county ; that defendants be perpet- ually enjoined from diverting the same, and for general equitable relief. The defendants answered, and prayed for a dissolution of the temporary restraining order, and that defendants be adjudged the owners of, and entitled to, the use of the water. The cause was tried in November, 1869, by a jury, that 1870.] HARRIS v. SHONTZ. 218 returned the following verdict: "We, the jurors, do find the plaintiff entitled to one hundred and fifty inches of the water in Washington gulch." The defendants objected to the entry of the verdict, and the court, WARREN, J., over ruled the objection. The defendants then moved for judgment on the verdict, because the finding of the jury was upon an immaterial issue and insufficient, and no damages were assessed for plaintiff. The defendants also moved to tax the costs of the action against plaintiff, because he had not recovered any damages. The court, WARREN, J., overruled both motions, and defendants excepted. WORD & SPRATT, for appellants. This is an action of trespass. The respondent should prove, and the jury should find, that the property was in the possession of respondent at the time of the alleged injury rightfully as against appellants and that the injury was committed by appellants by force. 2 Greenl. Ev., 613; 3 Phil. Ev. 497-501; Brennan v. Gaston, 17 Cal. 373 ; Pico v. Colimas, 32 id. 580. The verdict does not reach any material matters put in issue in this case. It is no verdict. The finding is upon an immaterial issue, and should be disregarded. Benedict v. Bray, 2 Cal. 251 ; Truebody v. Jacobson, id. 285 ; Woodson v. McVune, 17 id. 304 ; 12 Wend. 475. The court below went beyond the verdict, and corrected it, in its judgment, by granting a perpetual injunction, and finding that respondent had a prior right to the water in controversy. The finding of the jury is a proposition of law, to be arrived at from the existence of certain facts. The jury found none of these facts, and there was nothing to authorize the judgment rendered. Itoss v. Austill, 2 Cal. 183. No special issues were submitted to the jury, and no gen- eral verdict was rendered. The right of trial by jury waa denied appellants. The court usurped their province, and rendered judgment without a verdict. 214 HARRIS v. SHONTZ. [Aug. T. : The court below should have rendered judgment in favor of appellants for costs. Civ. Prac. Act, 470, 473. The decisions cited by respondent regarding the admis- sion, in the answer, of the material allegations of the com- plaint, do not apply to this case. The court below did not so think, and it ordered a jury to try the issues. The answer contains sufficient denials. A verified answer, which contains a distinct denial of any fact material to plaintiff's recovery, cannot be treated as a nullity. Appellants have sufficiently denied all material allegations that were prop- erly pleaded by respondent. Ghirardelli v. McDermott, 22 Cal. 539 ; Hill v. Smitli, 27 id. 476 ; Siter v. Jewett, 33 id. 92. Respondent should have tested the sufficiency of the denials by a motion for judgment upon the pleadings, or to strike out the answer. Gay v. Winter, 34 Cal. 153. Re- spondent submitted no such motion, but filed a replication. The case was submitted to a jury, who rendered a verdict upon an immaterial issue, if it can be called an issue. H. IN". BLAKE, for respondent. Appellants' answer consists of conjunctive denials. They are insufficient, and admit the material allegations of the respondent's complaint. Woodworth v. Knowlton, 22 Cal. 168 ; Fish v. Redington, 31 id. 194, and cases cited ; Fitch v. Bunch,, 30 id. 211. The only points in controversy appear to be the capacity of respondent's ditch, and the right to the water in Wash- ington creek. Upon these issues the jury rendered a ver- dict in favor of respondent. The court must ascertain the intention of the jury from the verdict, and carry the same into effect by its judgment thereon and the admissions in the pleadings. Truebody v. Jacobson, 2 Cal. 284 ; McLaugTi- Hn v. Kelly, 22 id. 222 ; Brunett v. WMtesides, 15 id. 37 ; Treat v. Laforge. id. 41. The court below rendered a proper judgment in this case by making the temporary injunction perpetual. McLaugh- lin v. Kelly, 22 Cal. 222 ;' Button v. Reed. 25 id. 491 ; Ameri- can, Co. v. Bradford, 27 id. 364. 1870.] HARRIS . SHONTZ. 21ft A complaint for an injunction is good, without any prayer for damages. It is an equitable remedy to prevent future injuries. Damages are given to compensate a party for past injuries. Civ. Prac. Act, 112 ; Toulumne Water Co. v. Chapman, 8 Cal. 392 ; Sherman v. Clark, 4 Nev. 138. This was a special proceeding in the nature of an action and respondent was entitled to costs. Civ. Prac. Act, g 470, 472 ; Marius v. Bicknell, 10 Cal. 222. SYMES, J. This was an action for damages for the diver- sion of water, and asking fora decree of title and perpetual injunction. Plaintiff alleged that he was the owner of cer- tain mining ground and a water ditch, which conveyed two hundred inches of water to the same ; that he had a prior right to the water ; that defendants wrongfully diverted the said water to plaintiff's damage $500; that defendants threatened to continue the diversion, which would cause great and irreparable injury to plaintiff, and were unable to respond in damages. Defendants answered and denied the ownership of the ditch, and prior rights to the use of the water ; denied that plaintiff had sustained damage in any sum : denied that diversion would cause irreparable injury. Further an- swered and set up title in the water by right of appropria- tion arid agreement of defendants. The case was tried at the November term, 1869, and the following verdict found for the plaintiff, viz.: "We, the jurors, do find the plaintiff entitled to one hundred and fifty inches of the water in Washington gulch." The court on this verdict rendered judgment for costs against the de- fendants, and decreed the title to one hundred and fifty inches of water in the plaintiff, and perpetually enjoined th^ defendants from interfering therewith. The defendants exempted to the entry of judgment and decree on the verdict, moved for a new trial, which motion was overruled, and appealed to this court. Does the verdict or finding of the jury in this case sup- port the judgment and decree ? The jury find for the plain- tiff upon the material issue of title to the water. There is 216 ' HARRIS v. SIIONTZ. [Aug. T., no denial that defendants did divert, continue to divert, and threatened to continue to divert the water. The paragraph of the answer purporting to deny the diversion is as fol- lows, to wit : "Denies that the said defendants and their servants and employees did on said 1st day of April, 1869, and ever since said date, have continued, wrongfully and illegally, to divert the water of said Washington creek by means of a certain ditch owned and possessed by defendants." Denying that they diverted it wrongfully and illegally is pregnant with the admission that they did in fact commit the act of diversion. The allegations of irreparable injury and insolvency were not necessary to be found by the jury. The plaintiff set up title to water, and asks that title be de- creed to him ; and alleged that defendants diverted and threatened to divert the same. The trespass complained of, the diversion of the water, the continuing and threatened continuance thereof, not being denied, the admissions in the pleading and the finding of the jury will support the judg- ment and decree. The title to the water being found in the plaintiff, and the defendants' admission that they threatened to continue to divert it, entitled the plaintiff to a decree of title and injunction. The defendants objected to the judgment for costs being entered because the plaintiff did not recover $50 or more damages. The gist of the action appears to be the title, or prior right to the use of the water ; the diversion is admitted by defendants, but they deny the title to the water ; upon this issue alone the cause was tried, and the plaintiff's re- covery of the water entitles him to costs. Order of the court overruling motion for new trial is affirmed. Exceptions overruled. 1870.] LINCOLN a. RODGEES. 317 LINCOLN et al., appellants, . RODGERS et al., respondents PRACTICE new trial not granted if verdict has any support. A new trial will iiot be granted if there is some testimony to support the verdict, although there is a preponderance of evidence against it. MINING CLAIMS damages by custom free tailings. The first locators of min- ing ground have no right, by custom or otherwise, to allow tailings to run free in the gulch, and render valueless the mining claims of subsequent locators below them. MINING CLAIMS no remedy for necessary injuries in working by first locators. The first locators of mining ground can work it with reasonable care and diligence, and the necessary injuries resulting to subsequent locators would be damtmm absque injuria. MINING CLAIMS boundaries of ground for tailings custom free tailings. The boundaries of ground for the deposit of tailings must be distinctly defined by persons locating it, so that subsequent locators may know what ground is vacant. The custom of free tailings conflicts with this rule, and the defining of such boundaries would be useless. Appeal from the Second District^ Deer Lodge County. THIS action was commenced by Lincoln and another in the district court, in April, 1869, to recover $3,000 damages, and enjoin defendants from washing down on plaintiffs' mining claims, tailings, gravel and sand. The cause was tried at the September term, 1869, by a jury that rendered a general verdict for defendants, and, also, ten special findings. The court, KNOWLES, J., refused the motion for a new trial, and plaintiffs appealed. The facts are stated in the opinion. CLAGETT & DIXON, for appellants. The evidence was insufficient to justify the verdict and special findings. The deposit of tailings, by respondents, the injury to appellants' ground, and the amount of dam- ages sustained by appellants, were proved and not disputed. The testimony did not show any custom to allow tailings to run free down the gulch. Civil Prac. Act, 193 ; Minturn v. .Burr, 20 Cal. 48 ; LyU v. RoU'ms^ id. 440; Carpenter v. Gardiner, 29 id. 100 ; 1 Gra, & ^Y. on New Trials, 367 ; 3 id. 1204, 1207: Esmond v. Cheir, 15 id. 137. VOL. L 28. LINCOLN . RODGERS. [Aug. T., The court erred in refusing to give instructions asked for by appellants. The respondents having assisted in and consented to the organization of Lincoln district, and the enactment of its laws, and having availed themselves of such laws and located their ground anew under these laws, which gave them more ground than they could hold before, thereby accepted and were bound by these laws. The respondents were confined, by their new location, to three hundred feet of ground for dump, if they chose to locate it. Respond- ents could not, while locating under and claiming the benefit of these new laws, claim other and different rights under a former location and previous laws. Appellants hold that no mining law or custom can author- ize a trespass on the property of another, especially where such trespass might lead to the entire destruction of the property. Such a custom would be in conflict with the laws of the Territory, and void. Esmond v. Chew, 15 Cal. 137. WOOLFOLK & TOOLE, and MAYHEW & McMuRTRY, for respondents. The evidence was conflicting, and the jury determined its weight, Kile v. Tubbs, 32 Cal. 333. The respondents were using the ground as a dump when appellants located it. They so located, with full notice of respondents' rights. It was the custom of the miners to let such tailings, as the water of the gulch would carry, run free down the gulch. This custom was in force when appellants located their ground. The position that respondents were only entitled to three hundred feet for dump, is immaterial, as the custom was as above stated. Respondents were run ning their tailings upon and through appellants' ground when appellants pre-empted it. Such use was necessary and beneficial to respondents, who should be protected ir the advantage of their prior location. Logan v. Driscoll. 19 Cal. 623. The instructions of the court were correct. The jury did 1870.1 LINCOLN c. ROUGKKS. 21li not find a single issue for appellants;, and it devolved on them to make out their case. Under our statute, the miners of a district make such laws as they deem expedient, and such laws have full force, it' not in conflict with the law of the Territory. Acts 1865, 1 69, 634. The appellants were not entitled to any damages, and >howed no right to recover them. The respondents' mining ground would be rendered useless, without permitting their tailings to run in accordance with the custom of the district. 3 YMES, J. This was an action brought by plaintiffs, alleg- ing that they were and had been for two years the owners of certain mining ground in Lincoln district, Carpenter's gulch, Deer Lodge county, Montana, to wit: Six claims next below discovery ; that said mining ground had been located for the purpose of mining the same by bed rock Humes ; that they had been continually working and mining the same when practicable since location, and had con- structed a bed rock flume and a reservoir for harboring the water. Further, that defendants have been for more than a year mining on ground in said gulch, six hundred or eight hundred feet above the plaintiffs, and have been using the water of said gulch through a flume ; that in 1868 and 1869, while plaintiffs were in possession of their ground and flume, and waters of gulch, defendants wrongfully and un- lawfully washed and run large quantities of rock, tailings, gravel and sediment on to the plaintiffs' ground and in and upon their reservoir, and covered up and obstructed their reservoir : that plaintiffs had been prevented from mining Their ground and had sustained damage to the amount of sH(H>. and demanded judgment and an injunction. Defendants answered, denying the allegations of the plaintiffs' complaint, and alleged that they had located their mining ground above prior to plaintiffs' location, and that plaintiffs took their mining ground subject to defendants' prior right to let their tailings, etc., run down the natural channel of the o-iiloh. And alleged that there was a cus- 220 LINCOLN v. RODGERS. [Aug. T., torn in the district where said mining ground was situate, that gave those above in the gulch the right to let their tail ings run down the natural channel of the gulch without cribbing the same ; and that plaintiffs located their mining ground subject to this mining custom. The cause was tried at the September term of the Deer Lodge county district court, judgment rendered for defend- ants, motion for new trial overruled, and case appealed from order overruling motion for new trial. The facts of the case quite fully appear in statement on motion for new trial and special findings submitted to the jury. We are asked to reverse the judgment and grant a new trial, first, because the verdict is contrary to law and the evidence ; and second, because the court erred in giving and refusing certain instructions. The jury, in addition to their general verdict for defend- ants, found, in their special verdict, that defendants located and owned their mining ground above in the gulch prior to plaintiffs' location below and adjoining ; that defendants owned three hundred feet of the ground next below the upper line of number one, claimed by plaintiffs, for the purpose of depositing their tailings thereon, and were actually using the same for such purpose when plaintiffs located it with their other ground below ; that it was the custom and usage of miners in the mining district where plaintiffs' mining ground was situate, to let so much of the tailings and sediment, as the natural waters of the gulch would carry, flow free, at the time plaintiffs located their mining ground ; and that the alleged damage accrued by reason of defendants letting their tailings and sediment so to run free. There were other special findings immaterial to the main issues. The court below states, in reasons for overruling motion for new trial, that it thinks the weight of evidence was con- trary to some of the special findings ; but that there was some evidence on both sides, as appears in the statement, and therefore the verdict cannot be set aside. We think this the correct doctrine ; that although the preponderance 1870.] LINCOLN v. RODGEBS. 221 of evidence may have been in favor of the plaintiffs on the two main issues, viz. : Whether defendants owned three hundred feet below the upper line of claim number one, for, in miner's parlance, dump ; and whether there was a cus- tom to let tailings run free ; still, as there was some consid- erable evidence on both sides, the judgment cannot be re- versed for that reason. This brings us to the consideration and necessary decis- ion of a question, which, after twenty years of mining liti- gation in California, has never been fairly met and decided, viz. : how far a mining custom to let tailings run free down a gulch without any let or hindrance (such as was found by the jury to exist in this case), can interfere with and destroy the mining operations and ground of persons locating for mining purposes in the same gulch below and after such custom or regulation has been established. It plainly appears that, if defendants' tailings are allowed to run free, in accordance with said custom, it will entirely destroy plaintiff's mining ground, and render his mining operations valueless. Will the law allow such a custom to take away and destroy the property rights of plaintiffs, acquired as aforesaid, and will defendants' prior location be a good defense under the maxim qui prior est in tempore potior est injure? The case of Esmond et al. v. CJiew et al., 15 Cal. 137, is a case in point on question of first in time, first in right, and establishes the doctrine that a person locating ground on the bed of a stream, or in a gulch, prior to one locating ground below, does not acquire the right, by such prior location, to go on to and construct a tail race on subsequently located ground below, and cannot, as matter of strict legal right, therefore, allow tailings and sediment to run free, to the destruction of the mining property of junior locators below. Where the useful working of the claim above, with reasonable care and diligence, will necessarily work some injury to the claim below, it would be damnum absque injuria ; but this would be a question for the jury under the instructions of the court, and cannot avail defendants 222 LINCOLN v. RODGEKS. [Aug. T., in this case, as it appears that what they justify would entirely destroy the mining property of plaintiffs, and make it impossible for them to work their claims. But this case does not reach the question, how far a local mining custom could authorize a destruction of mining operations below. But the court say that, if the damage was justified by a local custom or regulation, its existence should have been alleged and proved ; perhaps intimating that such a custom would justify such damage. The other case cited (Logan v. Dri'scott}, where the plaintiff owned mining ground below, and defendants located above, after plaintiff, it was held that the maxim first in time, first in right, applied to this case, and defendant was enjoined from allowing tail- ings to run down to the damage of plaintiff, defendant being junior locator. The court below instructed the jury in accordance witli the above cited decisions, so far as applicable ; but also gave instruction to the effect that, if the defendants proved a custom allowing tailings to run free, that would be a good defense or justification for any damage resulting to plaintiffs' mining operations below ; and the case was tried, and judg- ment rendered on this theory. We think this theory cannot be maintained in accordance with strict legal principle. To support this doctrine of free tailings by custom, would be to allow a few miners or flume companies to go into the head of a mining gulch and prevent, perhaps, miles of valuable mining ground below them from being taken up and developed : because no one could tell, if the} 7 located below, how soon their ground would be entirely covered up and destroyed, under this custom of free tailings. Such a mining custom would be in contravention of the leading principle that customs must not be inconsistent with the full and rapid development of all the mining resources of the country : for the miners of a district might as well take possession of a large gulch, and establish a regulation that each claim should be five thousand feet up and down the gulch, in size, as to put a few flumes in at the head of a gulch, and. under tht j contended for custom of free tailings, 1870.] LINCOLN v. KODGERS. 223 uot allow them to be cribbed, and thereby prevent rich mining ground, for miles below, from ever being worked or developed. We are not, by tliis decision, restricting any of those mining rights which may be acquired by prior location, o.' as appurtenant to mining ground, nor contravening the doctrine, that the miners may establish such customs and regulations, not inconsistent with the laws of congress and the Territory, as to them may seem just and necessary ; but only that the doctrine of free tailings cannot be, abstractly, and without restriction, maintained. Where persons locate ground for the purpose of constructing a flume, they can locate any number of feet, not in violation of the mining regulations of the district, and if there are no regulations not exceeding a reasonable amount for the deposit of tail- ings, or dump, but the boundaries of the same must be marked in accordance with the regulations of the district ; or, if there are more, by fixing the boundaries by such physical marks as will advertise the precise ground claimed for mining and dump ; so that those wishing to locate there- after may know what is vacant. English v. Johnson, 17 Cal. 117. And there are other appurtenant rights acquired and necessarily attaching to the claim, delined by the min- ing law, and the peculiar circumstances surrounding such case. To allow the custom of free tailings to govern with- out restriction, would be in opposition to this principle, that parties locating are bound to mark the boundaries of their claims, which shall be notice of the extent of the mining ground and rights acquired to subsequent locators, for all the first locators would have to do, would be to pass the mining custom of "free tailings;"' then defining bound- aries by physical marks would be useless, because if any one located below, they could run their tailings on to, and render their ground valueless, and this custom unrestricted would prevent junior locators from cribbing or stopping the tailings from above in any way. There was evidence in the case to show that if the tailings were not allowed to run free, the defendant's mining opera- i24 NOLAN v. LOVELOCK. [Aug. T., tions would be rendered useless, and would be destroyed ; but the jury found the defendants owned three hundred feet of the ground claimed by plaintiff's, below their own mining ground, for deposit of tailings. The evidence and peculiar circumstances of the case might justify defendants in the reasonable prosecution of their mining operations, under prior location, in working some necessary injury to plaintiffs, which would be damnum absque injuria. But a mining custom which would allow the total destruction of a junior locator's mining operations, in a gulch below prior locators, on ground which was vacant, cannot be maintained under any statute or common mining law with which we are ac- quainted. Therefore, the court erred in instructing the jury that the defendants could justify the destruction of plaintiffs' mining operations, by proving a custom or regulation to let tailings run free. Judgment is reversed and cause remanded for a new trial. Exceptions sustained. NOLAN, respondent, v. LOVELOCK et al., appellants. MINING PARTNERSHIP authority of partners in mining to hire laborers. The law presumes that every member of a mining firm has authority to hire laborers and make the firm liable for their wages, if they are necessarily employed in working upon the joint property, and no evidence of such authority is required. MINING PARTNERSHIP liability for wages of laborers, with notice. Laborers that are hired by one member of a mining firm cannot recover their wages from the firm, if they had notice of an express agreement that such a con- tract must be ratified by all the members. PLEADING complaint on mechanics' lien must state, a contract. The complaint of a party, who claims to have a lien upon mining ground, for labor per- formed, must state facts that constitute a contract, but it is not necessary to name the contract. MECHANICS' LIEN not lost bj/ excessive claim. A laborer does not lose his lien for the amount actually due, by claiming a lieu for a sum in excess of that to which he is entitled, unless there is fraud connected with the transaction. 1870.] NOLAN v. LOVELOCK. 225 Appeal from the Third District, Meagher County. IN April, 1870, Nolan commenced this action against Lovelock, J. R. Weston and J. A. Harding, in the district court in Meagher county. The defendants demurred to the complaint, because there was a defect and misjoinder of parties defendant ; the complaint did not state facts suffi- cient to constitute a cause of action, and the complaint was ambiguous. The demurrer was overruled by the court, SYMES, J., and defendants excepted. The cause was tried in May, 1870, by the court, SYMES, J. It appeared from the evidence that the defendants owned mining ground in Confederate gulch, Meagher county, in the following undivided proportions: Lovelock, ^V; Wes- ton, -j 3 ^ ; and Harding, T W Lovelock hired Nolan to run a whim upon the mining ground, and agreed to pay him for his services and the use of his mule, 7.50 per day. Wes- ton sometimes paid him for his services, and gave him on January 6, 1870, the following instrument: "Due from Lovelock, Weston & Co. to date, to John Nolan, $444.50." The defendant also owed other sums to Nolan on different accounts. Neither Harding nor AVatson ever spoke to Nolan about his contract. None of the defendants had any author- ity from the others to hire laborers, or bind them by his contracts, and each defendant was to pay his proportion of the expenses. The plaintiff iiled his account in the county recorder's office, in Meagher county, to secure a lien on the mining ground for his services, and claimed that the defendants owed him S544.90. The court rendered judgment for plaintiff for $544.90, and that he was entitled to a lien on the mining ground to secure the payment of $445.90 thereof. The court, SYMKS, J.. overruled the defendants' motion for a new trial, and defendants appealed. CHUMASERO & CHADWICK, for appellants. The demurrer was well taken. The complaint would not support an action for the enforcement of the lien, unless it VOL. I. 29. 220 NOLAX c. LOVELOCK. [Aug. T., Contained an averment that the labor was done under a con- tract, and the lien was filed for personal property, and, therefore, could not be enforced. Houck on Liens, 55-132. It was error to admit evidence of a contract, when there was none in the complaint. The appellants, according to the evidence, were not gov- erned in the management of the premises in question (being mining ground) by the law governing commercial copart- nerships, but were tenants in common, uniting in a general system of management. There was no joint indebtedness, as found by the court. Rockwell on Span, and Mexican Law, 5, 574, et seq. ; Skillman v. Lachman, 23 Cal. 199. The evidence showed that respondent was seeking to enforce a lien for a much larger amount than he was enti- tled to. He, therefore, lost his right to a lien for any por- tion of the amount claimed. Houck on Liens, 210. S. ORE and SHOBER & LOWRY, for respondent. The complaint is sufficient, under the laws of Montana, to support a laborer' s lien. Acts 1865, 334 ; Acts 1867, 80. The evidence of the contract was properly admitted. Farron v. Sherwood, 17 N. Y. 227. The evidence shows that appellants were mining partners, and liable as such to respondent for the labor he performed on the mining ground owned by appellants jointly, and the drain to said ground. Skillman v. Lachman, 23 Cal. 199 ; Duryea v. Burt, 28 id. 569 ; Dougherty v. Creary, 30 id. 290. The parties owning a mining claim as tenants in common, and engaged in working it, are partners. It is not neces- sary that there should be an express stipulation between the partners to show the profits and losses, as that is an incident to the prosecution of their joint business. Sto. on Part., 18-25-82 ; Coll. on Part., 18 ; 3 Kent's Com. 24, 25. KNOWLES, J, This is an action to foreclose a lien upon certain mining ground owned by appellants, for work and 1870.] NOLAN v. LOVELOCK. 227 labor done thereon. The respondent, in the court below, obtained judgment against the appellants for $554.90, and a decree for the sale of this mining ground upon which a portion of the work had been performed to satisfy $445.90 of this amount. The appellants, in the court below, moved for a new trial, which was denied. From this judgment they appealed to this court, assigning as error the points which will now be considered. The evidence shows that the appellants owned certain mining ground in Confederate gulch as tenants in common ; that they worked it together, and that the gold taken there- from went first to pay the expenses of working it, and the residue, if any, was to be divided among them in propor- tion to the interest of each in the mining ground. This made them mining copartners. Duryeav. Burt et al., 28 Cal. 569. One of the partners, Lovelock, employed respondent to work on the mining ground in mining. He performed work that amounted to $445.90, for which he was not paid. The question arises whether Lovelock had authority to bind his copartners in contracting a debt for working in their mine. One partner in a mining copartnership has authority, by implication of law, to bind his copartners in creating a debt for the purposes of working their mine, if it appears that such work was useful or necessary for that object. Yale on Mining Claims & Water Rights, 224, and cases there cited. There is no doubt but that the labor performed by respond- ent was useful in working their mine, and that appellants received the benefit of it. Perhaps, in some cases, one partner might limit his liability even for necessaries, by giving notice to the person performing such work, in due time, that he would not be liable therefor. Where, however, a firm is composed of more than two persons, if a majority agree upon any undertaking in working mining ground, it would be doubtful whether any one of the partners could limit his liability for necessaries, as a majority of the firm, in such cases, ought to control. Dauglierty v. Creary, 30 Pnl. '?nn. 228 NOLAN v. LOVELOCK. [Aug. T., In this case there were three copartners, one of whom hired respondent, and another of whom settled with him and gave him a memoranda, stating how much the firm was indebted to him. This would go to show that, at least, one had contracted with respondent, and the other had ratified it. The appellants all testified that neither one of the firm had authority to bind the others, and also considerable con- cerning the interest of each in the mining ground. It might be that some of this evidence was introduced to show that the copartners had limited their liability, but I do not think it was sufficient to warrant the court in finding any such notice. I am, however, inclined to think that appellants introduced this evidence to show that appellants were tenants in common of the mine, and, hence, were mining copartners, under the impression that it devolved upon the respondent to show some express authority, from each copartner, to authorize any member of the firm to bind the rest. The rule, however, is different. It devolves upon the firm to show that they had an express agreement with each other, that one should not contract for what was useful or necessary without the express consent of the others, and that the party contracting with any member of the firm had notice of this agreement. Without this the law gives authority to each member of a mining copartnership to bind the rest for what is useful and necessary in their undertaking. No such agreement as this was proved in this case. There is nothing in the point insisted upon by appellants' counsel, that the complaint does not state facts sufficient to warrant the court in decreeing respondent a lien on the mining ground, because the complaint does not say that the respondent labored upon this mining ground under an ex- press or an implied contract. The facts set forth in the com- plaint show that the respondent performed the work under an implied contract. This is sufficient. It is not necessary for a party to state the name of the contract he sues under When lie states the facts amounting to a contract the law names it. 1870.] NOLAN v. LOVELOCK. 229 It is claimed by appellants that, because respondent claimed a lien for a larger amount than he was entitled to, he lost his lien. A person seeking to foreclose such a lien appeals to the equity powers vested in a court. No court of equity ought, in the absence of an express and positive statute, to hold that a person claiming a lien for more than he was entitled lost his lien, unless it clearly appeared that there was some fraud connected therewith. The respondent is, therefore, entitled to a judgment against the appellants for $445.90, and a lien for that sum on the mining ground upon which he performed the work. The court below gave the respondent a further judgment for $93, for work done on a bed-rock flume. In the state- ment on the motion for a new trial, the contract under which this work was done is set out in full. It is not a joint con- tract. These appellants and other parties became bound, individually, each in a certain sum, and neither one, in any way, became bound for the other. There is no evidence that this copartnership ever became, in any way, bound for this debt. If any of the individual members of the firm owe this amount, or portions of it, the respondent must recover it of them individually. He cannot recover it in this action. The judgment of the court is, therefore, modified. Re- spondent should have judgment for $445.90, and a decree for the sale of the mining ground specified in the notice of lien. Judgment modified. 260 HIGGINS . GEBMAINE. [Aug. T., HIGKHNS et al., appellants, v. GERMAINE, respondent. PMADING complaint averment of express promise. Under the civil prac- tice act, a complaint should not set forth a promise which is implied from the facts alleged, but an express promise must be averred and proved. PLEADING* answer denial of implied and express allegations. The denials of the answer must controvert the express allegations of the complaint, and those that are necessarily implied from them. PLEADING denial of indebtedness issue. In an action on an account for goods sold and delivered, a denial of the indebtedness raises no material issue. Appeal from the Third District, Lewis and Clarice County. HIGGINS and Hagadorn commenced this action in Febru- ary, 1870, to recover from Germaine $1,8^7.15, on an account for goods sold and delivered. The defendant demurred to the complaint, on the grounds that the complaint did not aver a promise to pay the amount demanded, or that this amount was the reasonable value of the property alleged to have been sold, or that this amount was the contract price there- for. The demurrer was overruled, and the defendant filed the following answer, which is referred to in the opinion of the court : ' Now comes the defendant, G. Jules Germaine, and for answer to the complaint of the plaintiffs, denies that, on the 2d day of February, 1870, or at any other time, he was or that he now is indebted to said plaintiffs in the sum of $1,847.15, or any other sum, on account for goods, wares and merchandise, consisting of groceries, provisions and other articles, sold and delivered to this defendant. Denies plaintiffs' rights to recover in this action, and avers ihat the only indebtedness existing or owing from the de- fendant to said plaintiffs, accrued on an account for gold dust, the amount of which is much less in value than the claim made by said plaintiffs in their complaint. That the goods, wares and merchandise claimed by said plaintiffs to have been sold and delivered to this defendant, by the terms of such sale and purchase, were to have been paid for in HIGGINS v. GEKMAINK. 231 gold dust. That he made no other contract, and had no other transactions with said plaintiffs, by which he became indebted to them in any manner whatever. Wherefore, he asks judgment for his costs and disburse- ments in this action." The cause was tried in April, 1870, by the court, SYMES, .1 . After the testimony had been concluded, the defendant tiled his motion for a nonsuit upon the following grounds : ' 1. The evidence does not show that the goods sold were ;it any particular price agreed on, or any promise to pay any particular sum or price therefor, or that any sum of irold dust was found due. 2. The evidence does not show that defendant promised to pay the sum claimed, or any other particular sum. 3. The evidence shows that there was a special agreement <>r contract for the goods claimed to be sold, which was pay- able in gold dust, and that said gold dust was, by the terms of said contract, to be valued at $>22 per ounce, which con- tract is not averred in the complaint." The court sustained the motion, and plaintiffs appealed. GHUMASERO & CHADWICK, for appellants. Respondent's denial of the indebtedness claimed to be ihie in the complaint is not a sufficient denial under our statute. Civil Prac. Act, 41 ; Curtis v. Richards, 9 Gal. #J ; Wells v. McPike, 21 id. 215. The evidence sustains the averments of the complaint of ihe indebtedness due from respondent to appellants, and ro nclusively disproves the averment in the answer, that the u-oods were sold and delivered, to be paid for in gold dust. All that is required in a complaint is a statement of the facts constituting the cause of action, in ordinary and con- cise language ; and, if money be demanded, the amount ur Code, as well as under the common-law system of plead- ings, the denials of the answer should not only controvert the express allegations of the complaint, but also those necessarily implied therefrom. Yan Santv. Plead. 422, 423. It was necessary, then, that the defendant should contro- vert all or some of the allegations above specified. The first denial is simply a denial of indebtedness. This, it has been frequently held, raises no material issue whatever. The other allegations of the answer do not directly controvert any of the allegations of the complaint, but set forth that the goods were purchased for gold dust. This, of course, inferentially denies that the goods were sold for so much money. It is very difficult to class such an answer as this. It is not a specific denial of the allegations of the complaint, nor does it confess and avoid them, for if it is true, all the allegations of the complaint are not. The allegation in 1870.] KING v. EDWARDS. 236 relation to the contract being for gold dust, is set forth in the answer, as though it was new matter constituting a defense. The new matter constituting a defense provided for in the Code is, I think, the setting up of such defenses as cover- ture, infancy, payment, failure of consideration, recoup- ment and such classes of defenses, amounting to a full or partial defense to the action. This defense sought to be set up in this action is not embraced within any of these classes. It is one that undoubtedly could have been introduced under n specific denial, denying that the defendant ever contracted to pay the plaintiffs the sum named in their complaint, or any other sum of money, for said goods, wares and mer- chandise. At the trial, the answer was treated as though it was such a denial as this. Whether a court should consider such an answer a nullity, without any objection on the part of the plaintiff, I am not prepared to say. Giving it all the force claimed for it, the only issue raised by it is, as to whether the goods were sold for money or gold dust. All the evidence in the case is positive upon the point that it was for money. The court should, then, have found this tact, which would have decided the cause for the plaintiffs. The judgment of the court below is therefore reversed, and the cause remanded. Exceptions sustained. KING et al., appellants, v. EDWARDS et al.. respondents. MINING CUSTOMS effect on common law. The rules and customs of miners hi a particular district are laws, and constitute the American common law on mining for precious metals. MINING CUSTOMS location of mining around. The rules and customs, which point out the manner of locating mining ground, are conditions precedent, which must be substantially complied with. YtraiNG CUSTOMS forfeiture presumed when miners fail to work their claim*. The rules and customs of miners, that require locators to do a certain amount of work upon their claims, are conditions subsequent ; and the law presumes that such locators forfeit their rights to possess and mine th* same by a failure to comply therewith, although no penalty is specified in such rules and t-ustoms. 236 KING . EDWARDS. [Aug. T. MINING CUSTOMS re-location of forfeited mining claims. Mining claims, which are forfeited, can be re-located by any person who complies with the rules and customs of the district in which they are situated. MINING CUSTOMS construction of mining rules by courts. Courts must con- strue mining rules and customs and require the owners of mining ground to develop and work it, if consistent with law. MINING CUSTOMS rules of a district not varied by those of another. The rules and customs of the miners of one district cannot be introduced to vary those of another district. MINING CUSTOMS mining laws presumed to be in force. It is presumed that the written laws of a mining district are in force, and any custom that conflicts with them must be clearly proved. MINING DISTRICTS CHANGED vested rights. The extent of a mining district may be changed by those who created it, if vested rights are not thereby interfered with. MINING RULES representation of mining ground by labor and a bed-rock flume. All mining rules and customs must be reasonable. Those which compel persons to perform labor in the district to represent their mining ground, which cannot be profitably worked without running a bed-rock flume to it from another district, are unreasonable. Appeal from the Third District, Meagher County. IN May, 1869, King and Gillett filed their complaint against Edwards and ten others, including John Doe and Richard Roe, in the district court in Meagher county. The cause was tried by a jury in November, 1869, before SYMES, J., and a verdict was returned for defendants. The facts are stated in the opinion. WOOLFOLK & TOOLE, for appellants. There was no evidence that appellants had abandoned the ground in controversy. The laws of German district, even if in force, make no provision for a forfeiture, but were designed to make representation easy instead of difficult. McGarity v. Byington, 12 Cal. 426 ; Colman v. Clements. 23 id. 248 ; Bell v. Bed Rock T. & M. Co., 36 id. 217. No witness swore that the laws were in force. The record shows that there had been a dispute for three years past, as to what laws were in force. Acts Montana. 1865, 169, 634. Tile questions of abandonment and forfeiture, under the laws of German district, were the only issues raised by the pleadings. The record shows that appellants introduced evidence, that a custom had grown up in German district. 1870.] KING -o. EDWARDS. 237 permitting representation of ground by work outside of the district, as in cases of flumes or drain ditches. The respond- ents sought to prove that there had been no such custom, as there had been no such case before in the district. Not one of respondents' witnesses asserted that there was any cus- tom in the district, making a forfeiture, when ground was represented in the manner that appellants represented their ground. ISTot one of respondents' witnesses testified to any fact creating a custom, but simply gave their own opinion as to what was or was not the custom. Such evidence could not establish a custom or disprove one. 2 Greenl. Ev., 250, 252 ; I Black. Com. 76, 77. The court erred in admitting the resolutions offered as the laws of German district. English v. Johnson, 17 Oal. 107. The court erred in refusing to allow certain questions to be put to the witnesses, Kane and Woods. It was compe- tent to ask them, on cross-examination, if there was any custom in German district which would prevent representa- tion by bed-rock flume in the district below. 1 Greenl. Ev., ^ 446, et seq. ; 3 Estee' s PL 450, 49 ; Jackson v. Feather River Water Co., 14 Cal. 23. If there was no custom which prevented such mode of representation and subjected the ground to forfeiture, it could not be forfeited. The ques- tions were asked to show that there was no such custom. The court erred in refusing to permit appellants to show in rebuttal the boundaries of German district at the time of the adoption of the laws. Appellants' witnesses never denned these boundaries. It was clearly competent to show that, at the time of the adoption of these laws, German dis- trict embraced appellants' bed-rock flume, and that respond- ents were seeking to apply old laws or customs to a new district with smaller dimensions than the one first created- CHUMASERO & CHADWIOK, for respondents. This action is to recover the possession of a mining claim, and is governed by the law applicable to actions of eject- ment. The appellants must recover upon the strength of 238 KING 0. EDWARDS. [Aug. T., their own title. The respondents set up as special defenses, abandonment and forfeiture. The question of abandonment was one entirely for the jury, and, as there was evidence tending to prove the same, the court cannot disturb the verdict. Depuy v. Williams. 26 Cal. 309 ; Roberts v. Unger, 30 id. 676. The defense of forfeiture of appellants' right to th j premises in dispute was clearly established. The evidence showed that they were in the German district ; that the miners of that district had adopted certain rules long before appellants claimed this ground ; that these rules required ;i certain amount of work to be done in the district to hold mining ground, and that appellants had failed to perform it. Whether the laws were in force, or whether the appellants had complied with these laws, or whether the ground had been forfeited under the laws as shown by the evidence and the law as given by the court, were questions entirely for the jury to pass upon, and their verdict cannot be dis- turbed by this court. Packer v. Heaton, 9 Cal. 568; St. John v. Kidd, 26 id. 263 ; Depuy v. Williams, 26 id. 309 : Morton v. Solambo C. M. Co., id. 532. No exceptions to the instructions of the court were taken by either party. The appellants only claimed a possessory right to the ground in dispute, having no title from the gov- ernment. That right could only be preserved by a com- pliance with the local mining laws, and, in case of non- compliance therewith, a forfeiture would arise. Warring v. Crow, 11 Cal. 366 ; Gluckauf v. Reed, 22 id. 468 ; St. John v. Kidcl. 26 id. 263. If there were no local rules in the district, the ground could only be held by an actual and continuous posses- sion. Appellants fail to make out any case for a new trial upon the ground of newly-discovered evidence. They show no diligence, and the newly- discovered evidence is cumulative Gra. & W. New Trials, 473-485. All questions as to customs or usages in force in the dis- trict were properly left to the jury. They were questions 1870.] KING v. EDWARDS. 239 of fact for them to determine, and their verdict cannot be set aside, if it was supported by the evidence. KNOWLES, J. This is an action of ejectment brought by the appellants to recover possession from the respondents of certain mining ground, situated in German district, Con- federate gulch, Meagher county. The appellants claim title from those who first located the same. The respondents claim that appellants forfeited the ground and set up title in themselves. The law which requires work to be done on mining ground in German district does not provide that a failure to comply therewith shall work a forfeiture of the ground. The first question presented for us to answer is, whether it is necessary for this law to so provide in order to have this effect, The mining customs of any particular mining district have the force and effect of laws, or, in other words, are laws. The local courts in each one of the States and Territories, where placer mining is prosecuted to any extent, have so recognized them, and finally, congress, by an act in July, 1866. recognized these rules and customs as law. The title to mineral lands is vested in the United States. Any citizen of the United States, or any person who has declared his intention to become such, may, by complying with tin- local rules and customs of any district, become vested with the right to possess and mine any specific por- tion of mining ground. The customs which point out the manner of locating mining ground are conditions precedent. A substantial compliance with them is necessary. The right to possess and mine any mining claim is derived from the United States by virtue of this compliance. The United States is divested of this right as effectually as if these rules and customs were acts of congress, for they now are the American common law on mining for precious metals. The regulations of miners which require that so much work must be performed upon each claim are conditions subsequent. The locator of a mining claim takes subject 240 KING v. EDWARDS. [Aug. T., to this condition. So long as tie complies with it, the right to possess and mine the same remains with him. Whenever a condition subsequent is attached to any right or title vested in a party by virtue of law, it is not necessary that the law should provide that a failure to comply therewith works a forfeiture of the right. Even when a condition subsequent is expressed in a deed, it is not necessary that it be specified that a failure to comply with it entitles the grantor to enter and take possession of the tenements. It is implied that he has this right. 4 Kent's Com. 140. It is true that, where a mine is forfeited, it becomes for- feited to the United States, of whom the locator derived title. Formerly only the grantor, or his heirs, could pro ceed for forfeiture ; but under the law, as it now stands, an assignee of the rights of the grantor can proceed to declare a forfeiture. 4 Kent's Com. 138, 139. When mining ground is forfeited by any one, it again becomes unappropriated mineral land of the United States. Any one who relocates it, in accordance with the mining rules and customs of the district in which the same is situated, has the rights of the government, and may pro- ceed to declare a forfeiture, or may set up the defense of forfeiture in an action against him. From the statement in this case, it would seem that it is conceded that both parties claim by virtue of the local rules and customs of the district where the ground is situated. At all events, as far as the statement goes, they both stand upon the same footing. It is doubtful whether any person could acquire and possess a mining claim, without comply- ing with the local rules and customs upon that subject since the act of congress of July, 1866, upon the subject of mining. I think I may safely say that this rule in relation to the forfeiture of mining claims is substantially the same as entertained by miners generally themselves. It is not often that a mining law declares that a failure to comply with the one, in relation to working and developing mining ground. 1870.] KING x. KDWABDS. 241 works a forfeiture. Yet it is generally considered among miners, that such a failure will have this effect. The Spanish edicts upon mining in Mexico, which is the source from which we derived our mining rules and cus- toms, established that all right to mining ground had at- tached thereto the condition of development. A failure to perform so much work on any mine worked a forfeiture. There a proceeding, in its nature judicial, was always insti- tuted, however, to declare a forfeiture and an adjudicatior made before the ground was subject to relocation. This, however, in our country, is not necessary. The policy of the government of the United States has been to throw open its mines to its citizens, and to encourage the extraction of as much precious metals therefrom as possible. And ob- serving that miners, by their customs, have attached as a condition to the right to possess and mine any mining ground, that of working the same, they have recognized them. The condition of development should be attached to every mine ; and courts should, as far as consistent with legal principles, maintain the construction of mining cus loins which accomplish this end. The decisions in California, which generally deserve great weight upon the subject of mining, are far from being satis- factory upon this one subject forfeiture of mining ground. Undoubtedly, mining customs should be construed strictly against forfeiture, as laid down in Colcman v. Clements, 23 Gal. 248. But, where a custom is plain, there is no room for construction, and a court must take it as it reads, and give it its legal effect. The case of McGarrity v. Byington et al., 12 Cal. 426, and that of Bell v. Bed Rock T. & M. Co. certainly lay down a different rule from that expressed here, while St. John v. Kidd, 26 Cal. 263, lays down the same rule. It is to be observed that the case of St. John v. Kidd does not purport to overrule that of McGarrity v. Byington et al. Nor does the case of Bell v. The Bed Roc7c T. & M. Co. purport to overrule that of St. John v. Kidd. The conclusion that we must come to from this is, that this point has never been fully considered by the VOL. L 31. 242 KING v. EDWARDS. [Aug. T., California courts. No reasoning is given in support of the rule, in either case, and no authorities ; and, hence, it is impossible to tell how they arrived at their conclusions. The rule we have expressed we believe is in accordance with the established principles of law, and comports with the understanding miners have of their own customs, and is consonant with the policy of the general government. The point made by appellants' counsel, that, because there was a dispute as to what the customs in German district were, therefore the jury were not warranted in finding a forfeiture, is not well taken. The record shows that there was considerable evidence as to what were the customs of German district. This issue and the one as to what customs were in force in the district, was properly left to the jury, and this court must presume that they found the one requir- ing work to be done in the district, in order to represent a mining claim in force. The objection to the questions asked Kane, as "to whether he knew of any custom within German district which will prevent the representation of ground in said district, by work on a bed-rock flume, commenced in the district below, and as to whether he knew of any custom which had grown up within the limits of this district, whereby parties were prohibited from representing mining ground in one district, by a bed-rock flume started in another, where the bed-rock flume is to drain and work all mining ground belonging to the party above the head of the bed-rock flume," were properly sustained. The written laws of the district, which presumptively were in force, required work in the district to represent ground therein. If any other custom had grown up in that district, allowing parties to represent ground by work outside of the district, it devolved upon the appellants to show it, as this would be considered an amendment to, or modification of, the former custom. It maybe further remarked, in relation to these questions, that, from all that appears, they are not proper cross-exami- nation. All that appears from the record, in the examination of tht-> witness in chief, is. that the witness did not know of 1870.] KINO v. EDWARDS. 248 any custom in German district allowing ground to be repre- sented by work outside of the district, and that he was familiar with the customs of that district. There was not sufficient evidence to warrant the court holding that the jury would be justified in finding that German district had been abandoned or merged in a gene- ral district for Confederate gulch, called Confederate district. Hence, the objections to the third question asked by appel- lants of Kane, and the one asked O' Brian, in relation to the customs of Confederate gulch, were properly sustained. When there are customs upon any one subject in a district, the parties must be limited to those. The customs of an outside district could not be introduced to vary them. The appellants' counsel asked Grubb, one of the defend- ants' witnesses, the following question : " If a man has a bed- rock flume in a gulch with which he designs to mine sev- eral pieces of mining ground in the same gulch, that lie separate from each other in different districts, do you know of any custom in German district that requires a separate flume for each piece of ground to represent the same ?" The first point that may be noticed in relation to this question is, that if answered in the affirmative it would show a custom in German district in relation to what would be representation in another district, and if answered in the affirmative, surely the appellants would not have been bene- fited, as it was not pretended that they had two bed-rock Humes. If the witness had answered in the negative, I am still unable to perceive what benefit the appellants would have derived. The written laws of the district had been introduced in evidence, and these provided for work in the district to represent mining ground therein, and as before remarked, these laws were presumptively in force, and it devolved upon appellants to show a positive custom allow- ing them to represent their ground by work outside of the district. The mere fact that there was no direct mining rule prohibiting ground from being represented in this way amounted to nothing. The point they were required to establish was, that there was a positive custom sanctioning 244 KING . EDWAKDS. [Aug. T., this kind of representation. A court should not reverse a case unless it appears clearly that the appellant was either actually or presumptively damaged by the error com- plained of. The written customs introduced by respondents were properly received. Sufficient evidence concerning them had been introduced to raise a presumption that they were laws of the district. It is not claimed that they had possession of the other laws of the district and refused to introduce them. It was left to the jury to determine whether they were the laws of the district or not. If they found that they were prima facie, they were in force. The court refused to allow the appellants to introduce evidence to the effect that at the time the laws of German district were established German district was much larger than at present, and embraced where appellants' bed-rock Hume is situated. It will be observed that appellants do not seek by this question to determine the size of the district at the time the mining ground was located by the grantors of appellants, but the size of the district at the time laws were passed. Undoubtedly those who have created a mining district may change its extent so that they do not interfere with vested rights. If these claims were located by those under whom appellants claim subsequent to the change in the size of the district, appellants could not complain, and from all that appears from the record this may have been the case. In conclusion, I may say that where it appears that mining ground could not be worked profitably without going out- side the district to run a bed-rock flume or drain race to it, a custom which would require work to be done in the dis- trict to represent it, might be considered unreasonable. All mining customs must be reasonable. In this case, however, 1 gather from the whole record that the appellants had mining ground in the district below called Baker district. That the primary object of this bed-rock flume was to work this ground. I do not think any mining custom is unrea- 1870.] CARRHAET t>. MONTANA MINERAL, ETC., Co. 246 sonable which requires work to be performed directly in reference to ground in the district in which it is in force. For these reasons the judgment of the court below is affirmed. Exceptions overruled. CARRHART, administrator, respondent, v. MONTANA MIN- ERAL LAND AND MINING COMPANY, appellant. DESCENT OF QUARTZ LOBES. The statutes of this Territory, which regulate the descent and distribution of real property, are applicable to quartz lodes. ADMINISTRATOR CANNOT MAINTAIN REAL ACTIONS. An administrator cannot maintain an action of ejectment for the possession of realty, or trespass for damages to the same. Appeal from tJie Second District, JBeaverTiead County. THIS action was tried by KNOWLES, J. The facts are stated in the opinion. The fourth ground of the demurrer to the amended complaint was as follows : " Complaint shows that there is an administrator of the estate of George Carrhart, and defendants demur to mis- joinder of parties, on the ground that the action should be prosecuted in the name of the administrator alone." The arguments of counsel upon questions that are not decided by the court are not reported. WORD & SPRATT, for appellants. The complaint does not state facts sufficient to constitute a cause of action. The respondent has no interest in the property, or right to the possession of the same. At com- mon law, the realty of the deceased descends to the heir when there is no last will ; in no event does it go to the administrator, nor does the administrator acquire any inter- est in, or right of possession to. the same. 1 Will, on Exec. r>60, 568, 715 ; Smith v. McConnell, 17111. 135 ; King v. Jones, 1 Eng. 0. L. 223 ; Emeric v. Penmman, 26 Cal. 122. 246 CARRHART c. MONTANA MINERAL, ETC., Co. [Aug. T. ; The common-law doctrine has been adopted in this Ter- ritory. Acts 1865, 356. Under our statutes, the adminis- trator can have no title, interest or right to the possession of the realty of his intestate. Acts 1865, 1, art. 2, p. 285. He has nothing but the naked power to sell for the payment <>f debts, or make short leases under the direction of the probate court. The right to the possession belongs to the heirs or devisees, and they are the proper parties to sue for an injury to the same, or maintain ejectment. The admin- istrator is not the real party in interest. Civ. Prac. Act, 4. Our statute of descent and distribution was in force in this Territory before the suit was commenced. Acts 1867, }). 64, 1. The administrator cannot take any interest in riie realty of the intestate. Salmon v. Symonds, 30 Cal. 301. Our administration law and the law of descents and distributions are literal copies from the laws of Missouri. The administrator cannot maintain an action of ejectment, <>r possess or control the realty of the intestate. Burdyne \. Mackey, 7 Mo. 374 ; AubucTion v. Lory, 23 id. 99 ; Sherman v. Dutch, 16 111. 285 ; Hopkins v. McOan, 19 id. 113. The decisions of California, New York and other States are based upon different statutes, that have repealed the common law and authorized the administrator to possess and control the realty. The defendants were entitled to judgment on the facts found by the court below. The judgment is void. The respondent is a stranger to the whole matter. The respond- ent's claim was barred b^y'the statute of limitations of Montana. C. MEAD and H. N. BLAKE, for respondent. The appellant, having filed no statement, cannot complain of any error outside of the judgment roll. Harper v. Minor, 27 Cal. 107 : Wethcrbee v. Carroll, 33 id. 553. The objection that the plaintiff has not the legal capacity to sue must be raised by demurrer under that head. It r'annot now be urg^d. under the sixth subdivision, that the 1870.] CARRHART v. MONTA.VA MINERAL, ETC., Co 247 complaint does not state facts sufficient to constitute a cause of action. 2 Whit. Pr. 54 ; Civ. Prac. Act, 40, 44, 45 ; Connecticut Bank v. Smith, 17 How. Pr. 487; Bank of Lowmlle v. Edwards, 11 id. 216 ; Bank of Havana v. Wickham, 16 id. 97. The judgment will not be reversed if it can be gathered from the complaint, as a whole, that plaintiff has any cause of action. Summers v. Parish-, 10 Cal. 347; Hallock v. Jaudin, 34 id. 174. An administrator may sue without joining with him the persons for whose benefit the action is prosecuted. Civ. Prac. Act, G. The administrator must commence and prosecute all actions which may be maintained, and are necessary in the course of his administration. Acts 1865, 288, 23. The administrator, under the laws of Montana, has a right of possession to the real and personal property of the deceased. Acts 1865, 271, 14; 272, 18; 277, 46, 47; -282, 66 ; 285, 1, 2, 3, 4; 291, 42, 43. The adminis- trator in this action is the proper plaintiff. Defendant ob- jected to the joinder of the heirs by demurrer, and insisted that the action should be prosecuted in the name of the administrator alone. Defendant's demurrer, fourth ground. Har-wood v. Mayre, 8 Cal. 580 ; Curtis v. Herrick, 14 id. 119; Curtis v. Suiter, 15 id. 264; Meeks v. Hahn, 20 id t;28. The action of the court in striking out the names of the heirs as plaintiffs, if erroneous, cannot be taken advan- tage of by appellant. It was a ruling, requested by appel- lant, and appellant cannot complain of an error of court committed in its favor. Gaven v. Dropman, 5 Cal. 342; Wilkinson v. Parrott, 3*2 id. 102. Tin- complaint is sufficient. Payne \. Treadwell, 16 Cal. 242; JIall-k \. .][!,v<:r. id. 577; Salmon, v. St/monds, 24 id. 26*' ; Curpcnt^r v. ScJimidt. 26 id. 512 ; Duncan v. Dun- m,v. 10 Mo. 308. The art regulating descents and distributions in Montana, approved November 21, 1867, does not apply to this case, . MONTANA MINERAL, ETC., Co. 253 Missouri statute that the administrator shall take posses- sion of all evidences of title to real estate, and make an inventory of all real and personal estate, and sell the same on petition for the payment of debts, and make leases of the same, not longer than one year, under direction of the probate court, that does not, under the construction given by the supreme court of Missouri, vest any title or interest in the administrator, or give him the right to maintain ejectment. We think the construction given by the su- preme court of Missouri correct in principle, and accord- ing to the intention of the legislature. -Had the legislature intended to vest the title or possession of the realty, for the purpose of administration and distribution to the heirs, in the administrator, they would certainly have provided for his taking possession of the same ; but they provide for his taking possession of the evidences of title and returning inventory of realty, and not for taking possession thereof - evidently intending that he should look after the realty for the benefit of the heirs. And, also, under the direction of the probate court, he may lease it, not longer than one year evidently meaning until the heirs can be notified and rake possession. The authorities referred to by respondent in California, to sustain their position, are under special statutes, and have no force here. The complaint in this case alleges that the plaintiffs, the administrator and heirs, were, after the death of the deceased, and before the commencement of the suit, the owners, and in possession of the quart/ claims sued for ; and that, being in possession, the defendants unlawfully ousted them, and still hold possession, and have been taking out quartz ore, and thereby damaged the realty $5,000. Before the trial all the heirs were stricken from the record, leaving the alle- gations of the complaint the same, to wit : that they were the owners in possession, and have been ousted therefrom by the defendants. Upon these allegations judgment was rendered for the plaintiff, the administrator, for the recovery of the possession of said property, and $5,000 damages for ouster and detention. The allegations of the complaint are 252 TERRITORY EX REL. FISK v. RODGERS. [Aug. T., not sufficient to support this judgment, and it must be reversed. The case seems to have been tried below without this question having been argued, for the names of the heirs were all stricken from the record on the suggestion of both parties. Judgment reversed and cause remanded. New trial granted TERRITORY EX REL. FISK, respondent, . RODGERS, appellant. PLEADING insufficient denials issues. An answer that "denies legally and lawfully " the allegations of the complaint, raises no issue of fact. TERRITORIAL, AUDITOR appointment by governor and council. Under the organic act of this Territory, the office of territorial auditor must be filled by the governor, who nominates and, by and with the advice and consent of the legislative council, appoints a person to fill said office. STATUTORY CONSTRUCTION statute relating to election of auditor void. The act approved November 16, 1867, which provides for the election of a territorial auditor by the legislative assembly and the voters of the Territory, conflicts with the organic act and is void; such an election confers no right upon the party claiming the office. AUDITOR NOMINATED BY GOVERNOR confirmation by council. A person, who has been nominated by the governor to fill the office of territorial auditor, has no right thereto until the legislative council has confirmed the nomination. GOVERNOR CANNOT FILL, CERTAIN VACANCIES IN OFFICE. The governor has no authority from the organic act, or the legislative assembly, to fill a vacancy in the office of territorial auditor. OFFICE OF TERRITORIAL, AUDITOR. The legislative assembly has created th office of territorial auditor, and can abolish it. Appeal from the First District, Madison County. THE facts are stated in the opinion. The judgment was rendered by WARREN, J. WORD & SPRATT and WOOLFOLK & TOOLE, for appellant. The governor cannot fill the office of territorial auditor by appointment, after he has exercised the appointing power 1870.] TERRITORY EX REL. FISK v. RODGERS. 253 in the iirst instance, under section 7 of the organic act. The expression of one thing is the exclusion of all others. The organic act provides the manner of filling the office and defines the powers of the executive. Smith's Const. Law, 667, 677, 778,790; 2 Story's Const. 403, 1542, 1543; People v. Langdori, 8 Cal. 15 ; People v. Whitman, 10 id. 40. There was no vacancy for the governor to fill. The legis- lative assembly can provide for the filling of vacancies dur- ing the recess of the council, if the organic act is silent thereon. People v. Oulton, 28 Cal. 44 ; People v. Tilton, 37 id. 618; Bourlaiidv. Hildreth, 26 id. 161. The governor exhausted his appointing power in the first instance, and the otlice became vacant by force of the organic act. The legislature has ever since filled the vacancy, and the incum- bent held by virtue of the laws, which the legislature had a right to make. Tappan v. Gray, 9 Paige, 507. The law creating the office of auditor provides that the incumbent shall hold over till a successor is qualified. Acts 1865, 533-539. The governor cannot declare a vacancy. There is no find- ing or admission in the proceedings that any proper tribunal had declared the office vacant at the time respondent was appointed. Was the office of auditor vacant by operation of law? If there was a vacancy, the legislature had the power to provide the manner of filling it, and this mode must be strictly followed. Acts 1869, 88, 2 ; Smith's Const. Law, 790. The governor has no right to remove officers. The leg- islature lias limited this right to a single cause. Acts 1867, 73, 8 ; Tappan v. Gray, 9 Paige, 507 ; People v. Carrique, I Hill, 93. The court finds that appellant's term of office expired in 1809 at the general election. The statute declaring in what oases vacancies occur applies to events occurring before the expiration of the term of office and cannot be extended to include other cases. Acts 1867, 72, 7. Section 2 of the Laws of 1869 repeals the ninth section of the Laws of 1867, 254 TERRITORY EX REL. FISK o. RODGERS. [Aug. T. ; page 73. These statutes cannot be construed together. By repealing the section providing for the governor alone to fill vacancies, and providing for the same to be filled by the governor and legislative council, the legislature intended that the governor alone should not fill such vacancy. 2 Story's Const, 405, 1544. The law makes no distinction between de facto officers. Respondent must show a perfect right to the office of appel- lant. There must be a vacancy and respondent must be appointed and qualified according to law. Peoplev. Smyth, 28 Cal. 21 ; 18 Mo. 341. The predecessor of appellant surrendered up the books and records and appellant was holding as his successor. There was no such vacancy as would authorize the governor to act. The office of auditor is never vacant when there is any one exercising its functions. The incumbent has the custody of public records. People v. Whitman, 10 Cal. 38 ; People v. Oulton,%$ id, 44; People v. Stratton, id. 382; People v. Van Horn, 18 Wend. 518. Congress authorized the legislature to re-enact the law pro- viding for the election of auditor, and it is valid. 2 Story' e Const. 1537. When the law provides that one can hold office until his successor is qualified, the right so to hold. after the expiration of his term, is a tenure by law. People v. Sanderson, 30 Cal. 160. The statutes prescribe the mode of removing an officer, and it can be done in no other way. Civil Prac. Act, 310-316 ; People v. Oarrique, 2 Hill, 104. The courts will not declare an office vacant, and leave the books and records without a custodian. Tappan v. Gray, 9 Paige, 507. The right of respondent to recover the office has abated during the pendency of this appeal. Civil Prac. Act, 16 : Sup. Ct. Rule lo. W. F. SANDERS and H. 5s". BLAKE, for respondent. The office of territorial auditor is appointive. Organic Act. 7. Sections 3 and 4 of the act of November 16, 1867 i'p. 72X conflict with the organic act, and are void. 1870.] TERRITORY EX UEL. FISK c. RODGERS. 255 The claim of appellant to hold said office, being based on said act, is invalid. The appellant was never nominated or appointed by the executive of Montana. The respondent was so nominated and appointed. It was necessary for the governor to so act to confer authority on any person to fill the office of auditor , Organic Act, 2, 7 ; Acts 1869, 88. The election of appellant was illegal, and the office was vacant. The executive, by appointing respondent auditor, thereby removed appellant. Exparte Hennen. 13 Pet. 139 , 2 Impeach, of Johnson, 160, 201, 202, 315-317. The organic act gives the governor the power of removal, and the legislature cannot impair it. Under similar pro- visions the power of the executive to remove certain officers has been conceded for two generations. 1 Kent, 316 ; 2 Impeach, of Johnson, 315. The organic act requires the executive to take care "that the laws be faithfully executed." 2. These words are borrowed from the United States constitution, and have a definite meaning. Congress intended to weave that mean- ing into our form of territorial government. Smith's Const. Law, 482 ; U. S. Const., art. 2, 1, 3. The office of auditor is in the executive department. Was there a vacancy in the office August 28, 1869, in con- templation of law 1 People v. Parker, 37 Cal. 639. Appel- lant never held the office dejure. Appellant's argument, in practice, gives the executive power to the legislature, and allows it to tie the governor 1 s hands so that he cannot see that the laws are faithfully executed. A part of the power to enforce those laws must be the turning out of an intruder from an executive office. The cases cited by appellant, of an officer de jure holding beyond his ordinary term, are, decided upon the principle that the holding over is a part of the legal term. They do not justify an intruder ab hiltlo. The limitation on executive power by the legislature, re- quiring that permanent appointments shall be made with the advice and consent of the council, does not apply to a case of removal where such concurrence is not required. 256 TERRITORY EX REL. FISK v. RODGERS. [Aug. T., No finding of facts is necessary where a judgment is ren- dered on the pleadings. Taylor v. Palmer, 31 Cal. 242. In this case no facts, but legal conclusions were put in issue. Rule 15 of the supreme court, and section 16 of the civil practice act, do not apply to this case. The people, who are parties, are neither dead or disabled, nor have they sold out. Appellant's denials are wholly of conclusions of law. Such denials raise no issue of fact. Wedderspoon v. Rog- ers, 32 Cal. 569 ; Curtis v. Richards, 9 id. 33 ; Busenius v. Coffee, 14 id. 91 ; Frisch v. Caler, 21 id. 71 ; Nelson v. Murray, 23 id. 338 ; Richardson v. Smith, 29 id. 529. SYMES, J. This was an action brought under title 7, chap- ter 5 of the Civil Code, for the usurpation of the office of territorial auditor, by the people of the Territory upon the relation of James L. Fisk, and James L. Fisk, who claimed that he was entitled to the possession and emolu- ments of said office, against W. H. Rodgers, the present incumbent. The complaint alleged in substance that plaintiff Fisk had been duly appointed and commissioned by the governor to the office of territorial auditor ; that plaintiff had taken the oath and filed the proper official bond ; that he had demanded possession of the said office from said defendant, but defendant refused to give up possession and wrongfully and unlawfully held and intruded himself into the said office. Further, that defendant claimed said office by virtue of an election by the legislative assembly of the Territory, which was illegal ; and ask judgment for possession of the office. Defendant answered and admitted being in possession of the office ; denied that plaintiff was lawfully appointed or entitled to the possession of the said office ; that he had been duly elected and appointed to the said office by the legislative assembly and the governor in December, 1867; and that he was duly elected by the qualified voters of the Terri- tory to said office in August, 1869, in accordance with the 1870.] TERRITORY EX REL. FISK v. RODQEES. 257 law of the Territory, and was entitled to hold and enjoy the emoluments of the same. The plaintiff moved for judgment on the pleadings, which motion was sustained by the court, and judgment rendered that defendant was not entitled to have and enjoy posses- sion of the said office, and that the plaintiff had been duly appointed to and was entitled to the possession and emolu- ments of the said office, and ordering the defendant ousted from, and the plaintiff put into the possession of, said office. From this judgment the defendant appealed to this court. There was no error in the court below proceeding to con- sider the case and rendering judgment on the complaint and answer. The answer raises no issue of fact ; it admits the allegations of the complaint, or denies legally and lawfully the rights set up in the complaint, such denials being preg- nant with the admission of all the facts claimed, only deny- ing the legal conclusions resulting therefrom. The decision of this case involves the consideration of two distinct propositions, first, whether the defendant, the incum- bent, is lawfully entitled to hold and enjoy the office, or is an intruder into the same ; and second, whether the plain- tiff Fisk has been legally appointed to said office, and is entitled to the possession and enjoyment of the same. The defendant, as appears by the pleadings, took posses- sion of the said office on the 29th of November, 1867, by virtue of an election by the two houses of the legislative assembly of the Territory of Montana and the commission of the governor, which election and commission was in accordance with an act of the legislative assembly, approved November 16, 1867. That defendant was so elected and appointed to the said office to hold the same until the general election on the first Monday in August, 1869 ; and that at said general election he was elected and chosen by a majority of the qualified electors of the territory, and took the proper oath of office, and offered to file an official bond, but the secretary of the Territory refused to recognize the said election as legal and refused to file the bond, and the, governor refused to issue a commission under said election VOL. I. r>: 268 TERRITORY EX BEL. FISK v. RODGERS. [Aug. T v The election and appointment by the legislative assembly and governor in November, 1867, and the election by the people on the first Monday of August, 1869, was in accord- ance with the provisions of the said act of the legislative assembly, and the question presents itself, is the said act in contravention of the provisions of the act of congress, enti- tled " An act to provide a temporary government for the Territory of Montana," known as the "organic act," and therefore null and void. Section 7 of said organic act provides that all town- ship, district and county officers not therein otherwise pro- vided for shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislative assembly ; and that the governor shall nominate and, by and with the advice and consent of the legislative council, appoint all officers not therein otherwise provided for. The office of territorial auditor is not a township, dis- trict, or county office, but is a territorial office, and is, consequently, not to be filled in such a manner as the gov- ernor and legislative assembly may provide ; but is an office not in the organic act otherwise provided for, and must be filled by the governor nominating and, by and with the advice and consent of the legislative council, appointing a person to hold said office. So much of the act of the legislative assembly, approved November 16, 1867, as provided for the election by the legis- islative assembly, or by the election of the Territory, of territorial auditor is in contravention of the organic act and of no force ; and the defendant Rodgers claiming to hold and exercise the duties of said office only by virtue of the provisions of said act of the legislative assembly has no lawful right to the possession and emoluments of said office; and the district court below did not err in adjudging that said Rodgers was not entitled to the office and ordering that he be ousted therefrom. 2. The plaintiff and relator Fisk claims the possession and emoluments of said office by virtue of a commission from the governor of the Territory, dated August 28, 1870.] TERRITORY EX-TCEL. FISK . RODGERS. 259 1869, appointing him to be territorial auditor until the next session of the legislative council of the Territory. Has the governor the power of appointment to nil such office, or are his powers limited by the language of the organic act, before quoted, to simply the power of nominating and appointing only, after lie shall have received the advice and consent of the legislative council. It is stated in the complaint that the plaintiff was nominated arid appointed to the said office, which nomination would be subject to the advice and con- sent of the legislative council ; and that he gave bond and took the oath prescribed by law, whereupon a commission was issued appointing him. The nomination only could give the plaintiff no right to the possession of the offic- until the legislative council had confirmed the nomination, and he was commissioned and appointed in accordance with the advice and consent of the legislative council or con- firmation. The word "nominate " means to recommend for confirma- tion. Paschal' s Annotated Const. 175, note 179 ; Ma/rbury v. Madison, I Cr. 137. If the plaintiff has any right, it is by virtue of his appointment and commission. The language of the organic act, conferring the power of appointment on the governor, is the same as that portion of section 2, article 2 of the constitution of the United States, giving the president the power of nominating and appointing officers. But there is another clause in section 2, article 2, which expressly empowers the president to fill all vacancies which may happen during the recess of the senate, by granting commissions which shall expire at the end of the next session. There is no such express power given to the governor to fill vacancies in our organic act. The court is of opinion that there was a vacancy existing when the governor issued the commission to the plaintiff, Pisk ; but it has been held that the power of appointment carries with it the power of removal. Stanbery's Opinions, 18, 19, and authorities cited. The legislative assembly passed an act in 1865, giving the governor the power to fill vacancies which should happen 260 TERRITORY EX REL. FISK x>. RODGERS. [Aug. T., during the recess of the legislature, and in the act approved November 16, 1867, making the office of auditor and others an elective one by the people, the governor is empowered to fill vacancies by appointment until the next general election. But, in an act approved December 31, 1868, it is provided, that vacancies happening shall be filled until the next gene- ral election by the governor, by and with the advice and consent of the legislative council, and repeals the former acts giving the governor, alone, the power to fill vacancies. If there is no express law or authority conferring on the governor of the Territory the power to fill vacancies by appointment, or any appointing power, as distinguished from the power to recommend, select or nominate, and ap- point only after having obtained the advice and consent of the legislative council, has the governor the inherent execu- tive or incidental power \ There are no decisions direct upon this question reported in the supreme court of the United States, because the third clause of the second section, second article of the constitution, expressly confers the power of appointment to fill vacancies on the president. And we have at hand no State constitution similar to our organic act, and, therefore, no decisions to enlighten us. We might be led to the conclusion, that the framers of the constitution thought that provision of the constitution, sec- tion 2, article 2, which is the same as our organic act, did not confer on the president the power to appoint to vacan- cies, without the consent of the senate, or they would not have inserted the third clause, expressly conferring the power, still, we may gather from the dictum of judges and the opinion of attorneys-general, that it would be held that the president, under some circumstances, would have the inherent executive power to appoint officers, under that pro- vision of the constitution, making it his duty to see the laws faithfully executed. It is contended by counsel for relator and plaintiff Fisk, that the governor had the power and authority to appoint under that clause in the organic act, making it his duty to see the laws faithfully executed. We may be of the 187C.] TERRITORY EX REL. FISK v. RODGERS. 26] opinion, that the president would have the power outside of the third clause, section 2, article 2, of the constitution, to appoint, during the recess of the senate, to fill a vacancy occurring in any of the executive offices necessary to carry on the machinery of the executive department of the gov- ernment. A vacancy might occur in the office of secretary of state, or war, whereby the government would be seriously embarrassed and injured, if the president did not appoint persons to carry on that part of the executive department, and his power to do so might be maintained under the doc- trine of ex necessitate. We might reason from analogy, that, if a vacancy should occur in the office of secretary of the Territory during the recess of the legislature, and the law as to filling the office was the same as that provid- ing for filling the office in question herein, the governor would have the inherent or incidental executive power to appoint to the vacancy, because the duties pertaining to the secretary's office must be performed, in order to carry on the machinery of the executive department of the govern- ment of the Territory. But the office of auditor bears no such relation to the executive department of the Territory. The office of auditor is not created or referred to in the organic act creating the territorial government, in any of its provisions relating to any of its departments or the offi- cers thereof. It is an office created by the legislature of the Territory. The legislative assembly can abolish the office when it chooses, and the executive and other departments of the government of the Territory can go on the same. The auditor has nothing to do with the financial part of the territorial government as regulated by congress. He does not settle or audit the accounts or salaries of the officers of the executive, legislative or judicial department of the Ter- ritory, so far as they are paid by the general government. Being an office created by the legislature of the Territory, the appointment to which comes under that clause of section 7 of the organic act, of officers not therein otherwise pro- vided for, and which the governor is empowered to nomi- nate and. by and with the advice and consent of the legis- 262 TERRITORY EX REL. FISK v. RODGERS. [Aug. T., lative council, appoint, we are of opinion that the commis- sion given by the governor to the plaintiff, Fisk, purporting to appoint him to the office of territorial auditor, without the advice and consent of the legislative council, does not confer the right to the possession and emoluments of the *aid office on said Fisk. In reply to the queries of counsel, that if the governor has not the power of appointment to fill vacancies during the recess of the legislature, who has, we would say that when the legislative assembly create an office, the appoint- ment to which under the organic act they have the power to control by their advice and consent, the governor having only the right or authority of selecting or nominating, and they enact that a vacancy in the office shall only be filled by the governor and legislative council, it is not the province of the court to legislate for a contingency, or direct how the proper authorities should proceed. So much of the judgment of the court below as adjudges that the defendant Rodgers is not entitled to hold said office, and that he be ousted from the same, is affirmed, and that part adjudging the respondent Fisk entitled to the posses sion and enjoyment of the said office, is reversed. Judgment affirmed in part and reversed in part. 1870.] MASON v. GEKMAINE. 263 MASON et al., respondents, . GERMAINE et al., appellants. PKACTICK default judgment after appearance. A default cannot be entered against a defendant, after he appears, but judgment can be rendered against him for want of an answer. PRACTICE intermediate orders reviewed. On appeal from a judgment, this court will review intermediate orders that affect the judgment. Pi:, \CTCIE suits consolidated. Suits cannot be consolidated, unless the parties are. the same and the subject-matter can be joined. PRACTICE mechanics' liens one trial one sale. The rights of all the parties to an action, that claim liens upon the same premises under the act "secur- ing liens to mechanics and others," must be adjudicated in one proceeding, utid the several liens of the parties should be satisfied out of the proceeds of the same sale of the incumbered property. PKACTICK questions of fact not considered without the statement. On appeal from aii order refusing a new trial, questions of fact will not be considered, unless all the evidence is brought before the court in the statement. PRACTICE errors not reviewed. Errors of law that are immaterial or not prop- erly specified will not be reviewed. PUACTICE stipulation not in the statement. The stipulation of attorneys, that is not embodied in the statement, will be disregarded on appeal. PRACTICE presumption in absence of evidence. This court will presume, in the absence of the evidence, that the court below found the facts correctly. MECHANIC'S LIEN'S excessive claims fraud. A party who, without any fraudulent intent, claims in his complaint and notice of lien a larger amount than that found by the court, does not destroy his lieu for the amount actually due. ASSIGNMENT OF MECHANIC'S LIEN. The lien of a mechanic for labor that has been performed, follows the assignment of the account of the labor. PRACTICE process, if court makes one a defendant. No process is required when the court orders that a person be made a defendant, and all the par- ties to the action are charged with notice thereof. STATUTORY CONSTRUCTION statute prefers liens of mechanics. The act passed December 30, 1S64, " securing liens to mechanics and others," gives pref- erence to the liens of mechanics and material men over any incumbrance made after the building is commenced. WARREN, C. J., dissenting. Appeal from tJte Third District, Lewis and Clarke County. Tins action was tried by SYMES, J., at the April term. 1870, and a decree was made in favor of Mason et al.. plain titt's. The facts appear in the opinion. WOOLFOLK & TOOLE, for appellant, Germaine. The court erred in refusing to consolidate and require all the parties to litigate their rights in one action. Acts 186.\ $ 11, 12, 13. 264 MASON V. GrERMAINE. [Aug. '^>. The allegations of the complaint will not support the prayer thereof. Civ. Prac. Act, 39 ; 1 Edw. Ch. 654 ; 1 U. S. Eq. Dig. 278, 280, 281, 292. The statement of facts agreed upon was in the nature of a special finding. The answer denies the contract sued on, and the statement will not support the contract. The appel- lant could set up the true contract in his answer to defeat the respondents. MurpJiy v. Napa County, 20 Cal. 497. The agreed statement would only support a personal judgment, if any. A contract is necessary to support a lien. HougJiton v. Blake, 5 Cal. 240 ; Brewster v. Hartley, 37 id. 15 ; Walker v. Hauss-ffijo, I id. 183. The mechanic's lien law is in derogation of the common law, and a party claiming rights under it must show a strict compliance. Respondents never complied with sixth sec- tion of the Acts of 1865, page 333. There was no evidence to support the contract. Appel- lant never agreed that judgment should be rendered against him. The variance between the findings, evidence and de- cree is fatal. Respondents' contracts, as set up in their com- plaint, will not support liens. No definite time for doing the work is alleged. Houck on Liens, 135. The findings do not show that the contracts were made and services ren- dered upon the property described. McKillican had no right to assign to Bilsland. Houck on Liens, 199. CriuMASERO & CHAD WICK, for appellant, Davis. The decree of the court below was erroneous. Bilsland commenced work on July 16, 1869, and completed on Novem- ber 10, 1861). The mortgage of Davis was made and re- corded on June 9, 1869. The linn of a mechanic can only date from the time he commenced work. In Missouri, under a similar statute, the lien begins when the first work is per- formed. Dubois* Adm'rv. Wttsorf s Trustees, 21 Mo. 213. No authorities are cited by the court to sustain its ruling. Such a construction is unconstitutional, as impairing the obligation of contracts and interfering with vested rights. 1870.] MASON v. GERMAINE. 26E Houck on Liens, 50, 54. In Missouri, the court has re- ceded from its position in 21st Missouri. 39 Mo. 170. In Iowa, the court held that the lien attaches at the com- mencement of the work. Houck on Liens, 142. The lien law must be strictly construed. Brady v. An- derson, 24 111. 112 ; Philip v. Stone, 25 id. 80 ; Houck on Liens, 70. The decree was rendered for more than was dne under any circumstances. The assignment of the indebtedness by a mechanic could not convey the right to a lien. Houck on Liens, 198. There is nothing in the evidence or findings of the court which justifies the decree in foreclosing Davis from all equity of redemption. The finding is that respondent, Bils- land, is entitled to a lien, but not that such lien is prior to the mortgage of Davis. SHOBER & LOWRY, W. F. SANDERS and J. A. JOHNSTON, for respondents. Mechanic's liens attach from the time of the commence- ment of the building and have priority over all incum- brances made subsequently. Acts 1865, 334, 8 ; Dubois* Adirfr v. Wilson's Trustees, 21 Mo. 214 ; I Hill. Real Prop. 492, 40 ; Acts 1867, 80 ; Houck on Liens, 163 ; Jones v. Swan, 21 Iowa, 183 ; Cogel v. Mickow, 11 Minn. 475. A mortgagee must examine the premises and see that they are free from the liens of laborers. Houck on Liens, 50. It is not necessary to state with whom the contract was made. Hauptman v. Catlin, 20 N. Y. 247. Courts favor mechanics and construe the law liberally in their favor. Houck on Liens, 66-68. Every fact not found will he presumed to be in accordance with the judgment. Ennnal v. Webb, 36 Cal. 197. The facts found are sutlicient to sustain the judgment. The denials of appellants respecting the liens are worth- less, because they deny conclusions of law. Wedderspoon v. Rogers, 32 Cal. 5(59 ; People v. Supervisors, 27 id. 655 : Landers v. Bolton, 26 id. 416. VOL. I. 34. 266 MASON v. GERMAINE. [Aug. T v WARREN, C. J. On the 25th day of November, A. D. 18G9, the respondents filed their complaint in the district court of the third judicial district in and for Lewis and Clarke county, to enforce a lien for work done and materials furnished by plaintiffs upon and for a certain building erected upon certain lots situated in the town of Helena, described in the complaint, under a contract with the owner, G. Jules Germaine, one of the defendants. The other defend- ants are made parties to the proceeding upon the ground of interest in the property sought to be charged, claimed by them respectively, which is alleged to have accrued subse- quent to plaintiffs' lien. It does not appear that summons issued, but defendants Davis and Germaine answered sepa- rately, and the court finds in the judgment rendered that all the defendants except Germaine, Davis, Dahler and Wyttenbach appeared to the action, waived service of sum- mons and that default was regularly entered against them respectively. After appearance of a defendant in an action default cannot be entered against him, but judgment can be rendered by nil dicit or for want of answer, and such is substantially the course pursued in this case. On the same day, November 25, 1869, John Bilsland, one of the defendants in this suit, filed his complaint in the same court, to enforce a mechanic's lien upon the same building and lots, making the plaintiffs in this suit, together with his co-defendants herein, parties defendant in that proceeding, and on the same day defendants Clark, Conrad and Curtin, commenced a proceeding, in the same court, for the purpose of enforcing a lien for materials furnished for the same building, and in which the same parties are impleaded. On November 27, 186y vv illiam P. Wilder and John Slirnely, D. B. Dressley, Samuel Davenport, E. L. Curry, respectively; and on November 29, 1869, Barnes and Arnold, as partners ; and on December 14, 1869, R. S. Hale ; and on February 10, 1870, Benjamin Daily ; and on February 12, 1870, D. B. McKillican, each being a defendant in this suit, separately commenced a suit to enforce their several liens against the same property, and impleading the parties to 1870.J MAHOX /. GKH.MAINK. 267 this suit, in each proceeding. Afterward such proceedings >vere had in each one of said suits, that judgment was ren- dered in favor of the respective plaintiffs, and in each case a separate decree of sale of the property was entered to satisfy the lien found. In each one of these several proceedings defendant Ger- niaine entered a motion for an order to consolidate these ac- tions, and also to require the plaintiffs therein to litigate their respective claims in one action, arid that all matters adjudged between the parties should be embraced in one decree. These motions were each overruled by the court. Upon appeal from a judgment this court will review inter- mediate orders affecting the judgment, and we will first Consider the order overruling these motions, as affecting the question of costs, and the rights of the parties appealing. A consolidation of suits is only ordered where the parties, plaintiff and defendant, are the same in each, and the sub- ject-matter such as may be joined, so that this was not properly a question of consolidation of the suits. The practice and proceedings, however, under the act in ques- tion are the same as in other civil actions. The remedies under it are two-fold an ordinary judgment, and, in the event no sufficient property be found, enforcement of the 1 ien established by sale of the property charged. As between themselves the several lienholders take priority in 'the order of filing their accounts and notices of lien with the county recorder. Where separate suits are commenced, the plaintiffs in which are not united in interest, and several judgments are sought, joinder of their actions would be improper, but in so far as the statute provides for enforcement of the liens created by it against the same property in favor of several lienholders, the; action under it is in the nature of an equi- table proceeding, and should be governed by the rules per- taining to such. It is not necessary to determine at this time whether in a suit instituted under the act a party may recover a judgment at law for the amount found due to him. notwithstanding 268 MASON . GEKMAINE. [Aug. T N his failure to establish a lien therefor. So far as the liens are concerned, the several lienholders are to be regarded as incumbrancers of the same property sought to be charged, and their respective rights adjudicated as such. The "act securing liens to mechanics and others," provides that parties to the contract shall, and all others interested may, be made parties, but at the same time the practice in other civil cases is made applicable under it, and, under our prac- tice, a defendant is required to answer the complaint, spe- cifically, and also to set up as a counter-claim any matter which entitles him to relief, either against the plaintiff or any co-defendant. It is not permitted him, after the court has acquired jurisdiction over him in a cause either by ser vice of summons or by voluntary appearance, to suffer a default or fail to answer, and then institute a separate action in which the same subject-matter and parties are in- volved. While different lienholders need not necessarily be made defendants unless it is sought to bind them by the decree, yet if made defendants, as in this case, their rights must be adjudicated in one proceeding so far as their several liens are concerned. Xone of the parties in these causes have appealed to this count except Grermaine, who appeals separately in each, and Davis, who appeals in the proceeding in which Bilsland is plaintiff below. There is manifest injury sustained by these appellants in permitting each one of the defendants in this cause to maintain a separate action for the enforce- ment of his lien, and in each entering a decree of sale of the property, when, under our practice act as well as under the established chancery practice the rights of all should have been determined in one action, and the several claims established as liens, ordered satisfied out of the pro- ceeds of one, and the same sale of the property charged. By the course pursued the appellants are not only harrassed by multiplicity of suits, and subjected to accu- mulation of costs, but suffer from possible sacrifice of the property, in consequence of the twelve sales ordered. It may be remarked, also, that the several lienholders, although 1870.] MASON v. GEUMAINE. 269 not appealing, sustain injury in consequence of the pro- ceeding. It is claimed that each has the right to redeem from the preceding sale or sales ordered, but this is not adequate protection of his rights, and may be substantially a denial of them. Mechanics and material-men are not always men of capital ; and to require junior lien holders to pay off all prior liens, in order to protect their own liens, defeats the purpose of the act. We hold, therefore, that the court erred in overruling the motion of defendant Germaine, to require the defendants to submit their respective rights for adjudication in one action ; but we feel authorized, as an appellate court, to correct this error, and to treat the several complaints tiled as counter- claims, set up by them respectively ; and since the motion of Germaine was filed in each case, and since this action, in which Mason and Duke are plaintiffs, is the first cause on the calendar of this court, commenced on November 25, 1869, in the court below, we will regard said complaints as counter-claims in this cause, and will review the transcripts in the order in which they stand on this calendar, and hav- ing reference, also, to the date of filing below. Before considering the questions raised in each case sep- arately, we will first pass upon questions applicable to all equally. In each case defendant Germaine appeals from the judgment rendered, and from the order overruling his motion for a new trial. This he may do ; but, upon appeal from a judgment, not accompanied by a statement, this court will only review errors of law appearing on the record itself, properly specified. Upon a motion for a new trial there must be, in every instance, either a statement, signed by the attorneys of the parties, or settled and certi- fied by the judge, or affidavits, showing the errors alleged. Xo question of fact will be considered in this court, unless all the evidence relating thereto be embodied or definitely referred to in the statement ; nor will any error of law be regarded unless material, and properly specified in the state- ment. Mere recitation in the transcript of what purport to he facts or stipulations of attorneys, not embodied in or "270 MASON v. G-EKMAINE. [Aug. T.> distinctly identified by the statement, will not be considered. In this case, in every instance, that which purports to be a "statement" is, more properly, a notice of a motion for a new trial than a statement, and, in no instance, is the evi- dence embodied or definitely referred to ; and, hence, it will be presumed in this court that the evidence was sufficient to support the finding of facts in the court below, and we will be confined to examination of errors in law appearing upon the record and properly specified. The several notices of appeal specify that the respective appeals are from the "findings" of the court below, as well as from the judg- ments and orders overruling the motions for a new trial, and we will remark that no appeal lies from the "findings'" of a court which correspond to the special verdict of a jury. The "statement" on the motion for a new trial, in each instance, specifies as grounds for the motion, in addition to error of law and insufficiency of the evidence, " irregularity in tUe proceedings of the court." The "irregularity"' mentioned in the statute refers to irregularity in the pro- ceedings, not appearing on the face of the record, and must be shown by affidavit. The "irregularities" specified in the several statements are not of this character, but appear on the record and we will so consider them. In the case under consideration, wherein Mason & Duke are plaintiffs, the first error of law specified is the overruling of the demurrer of appellant, Germaine, to the complaint. The demurrer we hold to have been properly overruled, as the facts stated constitute a cause of action. The order overruling the motion to require defendants to litigate their respective rights in this proceeding we have already considered, and the error assigned in rendering the decree of course depends upon the determination of the other questions presented. The second ground of the motion for a new trial is. "in- sufficiency of the evidence to support the findings and de- cree ;" but. as we have already stated, all the evidence not being preserved and embodied in the statement settled, wu must presume in favor of the judgment below. 1870.] MASON v. GERMAINE. 271 There appears in the transcript a stipulation signed by the attorneys of the respective parties, as to the amount due plaintiffs, and also an entry reciting the examination of witness upon certain matters and the allowance of $75 as damages by the court for a defective range and flue, but both of these, neither forming a part of the record nor being embodied in a statement, will be disregarded. The fact that the complaint and notice of lien claimed as due plaintiffs a larger amount than that found by the court will not destroy their lien for the amount actually due, un- less there be a fraudulent intent in filing the same, which must be proven and will not be presumed. Upon the other points specified, the evidence necessary to sustain them not being preserved, the presumptions are in favor of the judgment below. The court finds that the building in question was com- menced May 21, 1869 ; that thereafter plaintiffs, Mason & Duke, under a contract with the owner, defendant Germaine, furnished material for and performed labor on the same, and within sixty days after completion of said contract, and on September 29, 1869, at 2J o'clock P. M. of said day, duly filed their notice of lien and account in the county clerk's office of said Lewis and Clarke county, and that there was due plaintiffs therefor $5,215.46, for the payment of which they were decreed a lien on the property described. In the case of JoJtn Bilsland, defendant Germaine ap- peals from the order overruling his motion for a new trial ; and defendant Davis appeals from the decree therein ren- dered as against him. Under our view, the appeal of Davis in tins case is as effectual as if he had appealed in all, and his rights and priority as mortgagee can be determined fully, and we will consider these questions hereafter. In the order overruling Germaine' s motion fora new trial, a statement has been referred to as having been settled by the court, although none is certified by the court. Some evidence is set out in the transcript, but it is not certified, nor does it purport to be all the evidence, and the presump tions favor the judgment below. The error assigned in 272 MASON v. GTEEMAIINE. [Aug. T., overruling the demurrer to the complaint, and in admitting proof of and sustaining the assignment of McKillican's lien to plaintiff, we do not think well grounded. While a lien is inchoate, and before the completion of the contract, an assignment of the claim for labor or materials would not carry a lien, but we can see no reason in law, public policy, or principle, why a lien, when perfected, should not follow the assignment of the claim on which it is founded. The other errors assigned we have considered. The court finds the plaintiff entitled to a lien for $2,064.75, and that he duly filed his notice of lien for $742.87|- on November 17, 1869, at 2 o'clock p. M., and that McKiilican at the same time duly filed notice of his lien for $1,242.50. It is evident the court allowed interest upon these claims, and to sustain this ruling it must be presumed there was evidence before it that the amounts were vexatiously with- held. In the following cases no new questions are raised. The court finds Clark, Conrad and Curtin entitled to a lien for $627, and that notice of lien was filed November 22, 1869 ; that D. B. Dressier is entitled to a lien for $566.50, and that notice of lien was filed November 17, 1869 ; that William P. Wilder is entitled to a lien for $1,505.75, and that notice of lien was filed November 17, 1869, by himself, for $771.78, and on the same day at 10 o'clock A. M., by John A. Murphy, for $734, and that Murphy duly assigned his claim and lien therefor to Wilder ; that John Slimely is entitled to a lien for $400, and filed his notice of lien on November 17, 1869, at 11 o'clock A. M. ; that Barnes & Arnold are entitled to two liens, one for $5,277.69, notice of which was filed November 17, 1869, at 11 A. M., and the other for $1,037.87, notice of which was filed November 11, 1869. In this case the court made John Kinna a party de- fendant on his own motion. Kinna filed his answer setting up a lien on the property, for work done upon and materials furnished for the same. This was proper practice. The "objections" of appellant, though not properly presented. we will review. The first is, that appellant was not served with process., 1870.] MASON v. GERMAINE. 273 and did not appear in such proceeding. The order made by the court, making Kinna a defendant in the cause, charged all the parties with notice, and no process was required. Each party, however, was entitled to service of a copy of his answer and counter-claim. If such copy was not served, and appellant desired to save the error, it should have been presented by affidavit as an irregularity, and in the absence of such affidavit it will be presumed, from the finding of the court, that a copy was duly served, which gave the court jurisdiction of the subject-matter of the counter-claim. The court finds defendant, John Kinna, .-ill it led to a lien for $1,139, and that notice of lien was filed Xovember 30, 1869. The court also finds that Samuel Davenport is entitled to a lien for $480, and that he filed notice of lien November 17, 1869 ; that E. L. Curry is enti- tled to a lien for $888, and that notice was filed November 17, 1869, at 2 o'clock p. M. ; that R. S. Hale is entitled to a lien for $470.35, and filed notice November 15, 1869 ; that Benjamin Daily filed notice of lien for $571.63, on January 12, 1870, and is entitled to a lien for $590, which must include interest allowed for vexatious withholding ; that D. B. McKillican is entitled to a lien for $526, and filed notice of lien December 8, 1869, at 5 o'clock P. M. Upon the appeal of defendant Davis, the only question presented relates to the priority of the mortgage of the property in question executed to him by defendant Gfer- Tiiaine, over the several liens established. Upon this point a majority of this court are of opinion that the statute expressly gives preference to liens of mechanics and mate- rial-men, over any incumbrances made subsequent to the commencement of the building, and that the court having found the fact that the building in question was commenced before the execution of said mortgage, all the lins found were properly preferred to it. This cause is therefore remanded to the court below, and the judgments entered in favor of the plaintiffs and the several defendants herein, for the respective amounts found due to them, are affirmed, and the costs of filing the several Vol. I. 35. 274 MASON . GERMAINE. [Aug. T n complaints as answers in this cause, and serving copies of the same, and such costs as were necessarily incurred by them in defense and assertion of their several rights in this proceeding, shall be ascertained and taxed by the court ; and it is ordered and adjudged that the appellants, Germaine and Davis, respectively, recover from the several defendants herein, the costs and charges incurred by them in answering and defending the several separate proceedings herein speci- lied, to be taxed by the court. It is further ordered that special fieri facias executions issue in favor of said several parties, for the said amounts for which said judgments were rendered and their costs, by the court, if such executions have not heretofore issued, and that, if no sufficient property of defendant Germaine has been or can be found to satisfy the said several judgments and costs taxed, then the residue of such judgments, or any of them, be levied out of said property described in the complaint, and that said property, or so much thereof as may be necessary, be sold in accordance with law to satisfy the same ; and that out of the proceeds of such sale there be paid the costs of suit and of sale, and thereafter the said judgments be paid and satis- fied to the extent of such proceeds, in the order of filing the said several accounts and notices of lien in the recorder's office, as found by the court, and that said several liens so found by the court be decreed to be prior and paramount to the mortgage executed by appellant Germaine, to appellant Davis, mentioned and set out in the answer of said Davis, and that the surplus, if any, be brought into court to await its further order. WARREN. C. J., dissenting. I respectfully dissent from so much of the foregoing opinion as relates to the question of priority of Davis' mortgage over the several liens established. The contracts under which the different claimants performed labor or furnished material were entirely separate and dis- tinct, one from the other, and in my opinion the priority of each must be determined by the date at which he himself commenced to fulfill his contract, and not by the coin- 1870."| MASON ?>. (TERMAINK. 276 mencement of some other work, under another contract by another person on the same building. The statute contem plates the completion of the building or erection under on^ contract, and in that event gives preference over any incum brance made subsequent to the commencement of the build- ing or erection, but does not relate to several contracts, each of which is made with reference to incumbrances as they exist at the time of commencing to fulfill them respectively. Judgment affirmed in part and reversed in part. OASES ARGUED AND DETERMINED IN THK SUPREME COURT AT THB JANUARY TERM, 1871, HELD IN VIRGINIA CITY. Present : HON. HENRY L. WARREN, CHIEF JCSTIOK. HON. HIRAM KNOWLES, | HON. GEORGE G. SYMES, J JUSTICBS - MURPHY, respondent, v. AMES et al., appellants. PRACTICE probate judge cannot issue summons jurisdiction. A judge of the probate court has uo power to issue aiid attest a summons under his owu hand, if there is uo law providing for a clerk or seal of the court, and no jurisdiction is acquired by such a summons. PRACTICE special appearance jurisdiction. The special appearance of a party for the purpose of moving to dismiss the action confers no jurisdic- tion upon the court. Appeal from the Third District, Lewis and Clarke County. MURPHY commenced this action against T. P. and J. A. Ames, in the probate court of Lewis and Clarke county, in April, 1868, to recover $231. A summons was issued under 1871.] MURPHY 0. AMES. 277 the hand and- seal of M. P. Truett, probate judge. The defendants then appeared, specially, for the purpose of making a motion to dismiss the action and quash the sum- mons, because there was no legal summons issued under the seal of the court, and signed by the clerk thereof. The motion was overruled by the court, and the defendants' attorneys withdrew. Judgment was rendered in favor of plaintiff, and defendants appealed to the district court. In April, 1870, in the district court, SYMES, J., the judg- ment of the probate court was affirmed, and defendants appealed. GHUMASEKO & CHADWIOK, for appellants. The probate courts are courts of record. There can be no court without a special enactment of the legislature. A court should have, a judge and a prothonotary. Bouv. L. D., "Court." The practice of the probate court is regulated by that of the district court. Acts 1867, 259, 7. Suits must be com- menced in the probate court by filing the complaint with the clerk of the court, and the issuing of a summons thereon. The clerk must indorse the complaint and sign the summons. Civil Prac. Act, 22, 23. These sections must be strictly construed. The summons was not signed by "the clerk of the court," and the action should have been dismissed. The mode of commencing suits and acquiring jurisdiction of parties is regulated by the civil practice act and not by common law. The act must be strictly followed. Dupuy v. Shear, 29 Cal. 238. WOOLFOLK & TOOLE, for respondent. The organic act dot's not make probate courts courts of record, or require the appointment of a clerk in such courts. Organic Act, 9 ; Amended Organic Act, 2. There is no law making probate courts courts of record They are courts of inferior jurisdiction. Acts ]86.% 890, ] Probate judges are allowed fees for issuing a summons and 2*78 MURPHY v. AMES. [Jan. T performing duties that appellants claim they could not per form. Acts 1865, 473, 474. Clerks of the district court receive fees for similar services. Acts 1865, 470 ; Acts 1867, 348, 1, ?. If probate courts were courts of record under the laws of Montana, they are not common -law courts of record. Com mon-law courts may be modified by statute. The legisla- ture contemplated that the judges of probate courts should discharge the duties of clerk. There was no such office as clerk of the probate court until December 30, 1868. Acts 1869, p. 70. There could be no legal appointment until this office had been created. The organic act and the statutes had conferred powers upon the probate courts. This grant of powers carries with it every thing necessary to its complete exercise. The right of a probate judge to issue a summons would be implied as incident to its powers, even if there were no law giving him this right. Acts 1865, 139, 482, Nougues v. Douglass, 7 Cal. 80 ; Kennedy v. ffamer, 19 id. 374. Section 22 of the practice act was borrowed from Califor- nia and doubtless left in the act through mistake. It does not prevent a probate judge from acting as his own clerk. WARREN, C. J. The only question presented in this record is, whether the probate court acquired jurisdiction in the cause by the service upon defendants of a summons issued under the hand of the judge of that court. This was before the passage of the act of the legislative assembly making provision for clerks of the probate courts. The civil practice act, however, then in force, prescribed tin- manner of commencing actions in the probate courts, and required the summons to be issued under the hand of the: clerk, and the seal of the court. The fact that the statute had made no provision for either clerk or seal for such courts did not confer upon the judge the power to issue and attest a summons under his own hand. Voluntary appear- ance would be sufficient to confer jurisdiction, but the defendants in this case having confined their appearance tc 1871.] MASON v. GERMAINE. 279 he sole purpose of moving for a dismissal, and not being properly in court, the proceedings and judgment were cor am non judice and must be set aside. The judgment is reversed and cause remanded. Judgment reversed. *MASON et al., respondents, v. GERMAINE et al., appellant?. PRACTIOK appeal bond to supreme court of United States. The bond on appeal from this court to the supreme court of the United States is the same as that required by the laws of congress and the rules of the supreme court of the United States on appeals from the circuit court to the said supreme court. PRACTICE conditions of bonds on appeal to stay execution of judgment. The execution of a judgment for the sale of property to satisfy mechanics' lieua is not stayed on appeal to the supreme court of the United States, unless the bond on such appeal is conditioned according to law, and executed to the respondents, and sufficient in amount to secure the liens decreed, the costs of suit, the damages for the delay and detention of the property and the costs and interest on the appeal. THE facts appear in the opinion of the court. SHOBER & LOWRY, W. F. SANDERS and CHUMASERO & CHADWICK for motion for a remittitur. The bond required by the last clause of the judiciary act must be sufficient to secure the whole judgment in case it should be affirmed, if the writ of error operates as a super- sedeas. 1 U. S. Stats, at Largo, 84, 404 ; Catlett v. Brodie, 9 Wheat. 553 : Stafford v. Union Bank of Louisiana, 1C How. 135. No bond has been given in this case to secure any part of the judgment, if it is affirmed. The writ of error does not operate as a supersedeas ; and the remittitur follows as u matter of law. * The original cue l reported on page 283. 280 MASON v. GEKMAINE. [Jan. T , This is the proper court to apply to for the purpose of having the decree carried into effect. Stafford v. Union Bank of Louisiana, 17 How. 275. E. W. & J. K. TOOLE, against the motion. This motion should have been made in the supreme court of the United States. The court from which the appeal is taken cannot act in the first instance. The motions for a remittitur, in all the cases cited, were made in the supreme court of the United States. The question of the sufficiency of an undertaking to oper- ate as a supersedeas, where the citation, bond, etc., are given within the time, and allowed by the proper authority, must be determined by the court to which the appeal is taken. Appellants have a right to amend their undertaking if defective. Catlett v. J3rodie, 9 Wheat. 553. By granting a remittitur, this court would deprive appellants of a right to amend their bond, and they would have no redress. SYMES, J. This case came up on appeal, and the judg- ment below was affirmed at the August term of this court, and an appeal was taken to the supreme court of the United States. A motion is now made for a remittitur to the court below, to execute the judgment, on the ground that the bond, on appeal from this court, is not sufficient to stay the execution of the judgment. The case is one brought under the mechanics' lien law, to enforce liens to the amount of about $20,000, for the construction of a large brick hotel, and the bond given to supersede the exe- cution of the judgment, during the pendency of the appeal, in the sum of $25,000, in addition to a bond for costs, is conditioned only that the obligors will answer all damage? to the hotel building caused by waste or fire, during the possession of the same by appellants, not exceeding said sum. Respondents, for the motion, contend that the bond should be for the payment of the whole amount of the 1871.] MASON v. GERMAINE. 281 judgment in case of affirmance. Appellants, against the motion, contend that it is an appeal only from that portion of the judgment decreeing the enforcement of the liens, and ordering sale of the property therefor, and only required such a bond. The supreme court of the United States have held that, to supersede a judgment on writ of error or appeal, the bond must be sufficient to secure the whole amount of the judgment, damages for delay, and costs. Oatlett v. JSrodie, 9 Wheat. 552 ; Stafford et at. v. Baiik of Louisiana, 16 How. 139. In the latter case, holding that, although it was an appeal in equity, and the property was in the hands of a receiver, the bond should be the same, sufficient to secure the judg- ment. But the supreme court, at the December term, 1867, adopted a rule providing the bonds that should be given on writs of error and appeals. See 32d Sup. Ct. Rule. The rule provides that in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and suits on mortgages, indemnity in such cases shall only be required in an amount sufficient to cover amount recovered for use of the property, costs of suit and damages for delay, and costs and interest on the ap- peal ; and conditioned that the appellant will prosecute his writ of error or appeal to effect, and answer damages if he fail to make his plea good. The appeal in this case to this court, and after affirmance from this court, was from the whole judgment of the court ; but the bond given in the court below, and since in this court, was not intended to stay the personal judgment against defendants, but only that portion of the judgment decreeing the sale of the property to satisfy the liens. The bond on appeal to this court was given in accordance with section 336, Civil Code, which provides the bond to be given in such cases. But the bond on appeal from this to the supreme court of the United States must be in accordance with the law and practice provided by congress and the rules of the VOL. I. 36. 282 KING v. SULLIVAN. [Jan. T,, supreme court of the United States on appeals from the circuit courts of the United States to the supreme court thereof. Is the bond filed in this case in accordance with the said rule of the supreme court, adopted in accordance with the laws of congress ? The bond is filed to supersede or stay the execution of a decree for the sale of real property, which property neces- sarily follows the event of the suit. The bond should then provide for an amount to secure the liens recovered, if any, for detention of the property, the costs of suit, just dam- ages for delay, and costs and interest on appeal, and be executed to the respondents or appellees, and conditioned as required by said rule. The bond in this case is not executed to respondents ; does not provide for damages for delay, or detention of the property, nor for costs and interest on appeal, and is not conditioned as prescribed by law, and it is insufficient to stay the execution of the judgment. The court orders that a remittitur issue from this court to the court below to execute the judgment, unless the appel- lants within twenty days file a legal bond in accordance with the law as stated in this decision. Remittitur granted. KING et al., respondents, v. SULLIVAN, appellant. PRACTICE consideration of statement exceptions. This court will not con- sider a statement that has not been duly settled and certified, or exceptions that have not been duly presented and signed according to the statute. I'BACTICE review of exceptions to admission of evidence. An exception to the admission of evidence upon a cross-examination will not be examined if all the evidence is not before the court. 1871.J KING -o. SULLIVAN. 28% Appeal from the Third District, Lewis and Clarke County. THE arguments of counsel and statement of facts are not reported, because the court did not review them. The cause was tried in the district court before SYMES, J. WOOLFOLK & TOOLE, for appellant. OHUMASERO & CHAD WICK, for respondents. WARREN, C. J. In this case the appeal is from an order overruling defendant' s motion for a new trial, and from the judgment entered on the verdict of the jury for plaintiffs. The transcript contains what purports to be the evidence in the case, and also instructions given and refused, and excep- tions taken at the trial below. At the conclusion of ap- pellant' s motion for a new trial, which sets forth the grounds of the motion, appears the words, "statement settled as correct," but there is no certificate of settlement of any statement signed by the attorneys of the parties or by the judge below, nor does it appear what statement is referred to by these words. This court can consider nothing which is not part of the judgment-roll, unless it be presented by exceptions duly preserved and signed, or by statement set- tled and certified as required by the statute. An exception to the admission of some evidence, upon cross-examination of the defendant, is properly preserved by the signature of the judge, but, as the whole evidence is not before us, we cannot presume the ruling to be erroneous or that the ap- pellant was prejudiced by it. The judgment-roil does not show the errors assigned, and the judgment must be affirmed. Judgment affirmed. 284 NELSON v. O'NEAL. [Jan. T. NELSON, appellant, v. O'NEAL, respondent. iNJimcrriON miners' dam to stop tailings. It is not an abuse of discretion for a court to refuse to enjoin parties from building a dam upon their mining ground, to prevent tailings from injuring their property. RIGHT OP MINERS TO CHANNEL OF CREEK FOR WATEBAND TAILINGS. Miners are entitled to the free use of the channel of a creek, so that the water will flow from their ground, but they have no right to fill the channel with tail- ings that will flow down upon the claims of other miners. Appeal from the Third District, Lewis and Clarice County. THE facts are stated in the opinion of the court. The judgment appealed from was rendered in the district court, in August, 1870, by SYMES, J. SHOBER & LOWBY, E. W. TOOLE and G-. MAY, for appel- lant. It is admitted by the pleadings that respondents were insolvent. The jury found that the erection of the dam higher, as complained of by appellant and threatened by respondents, would interfere with the profitable use and enjoyment of appellant's mining ground. Appellant was entitled to an injunction to restrain respondents from erect- ing said dam. Ramsay v. Chandler, 3 Cal. 90. An injunction is a preventive remedy, and it comports more with justice to both parties to restrain the threatened trespass, than to leave the appellant to his remedy at law, particularly when the respondents admit their insolvency and have no remedy at law. Slade v. Sullivan, 17 Cal. 102 ; Hill, on Inj., ch. 1, 1, 5, 7, 14, 31. Appellant's mining operations will be interfered with, if respondents are not enjoined. Respondents have shown nc right to trespass on appellant's ground. W. F. SANDERS, for respondents. Respondents own the ground on which the dam was erected and debris arrested. Respondents threatened to 1871.] NELSON v. O'NEAL. 286 raise their dam higher to stop a trespass of appellant. They could compel appellant to stop this trespass on his own ground. The pleadings and findings do not show who has priority of right in mining. Appellant cannot have judgment, until the questions relating to the right of re- spondents to flow back on appellant's ground, debris, tail- ings, etc., which appellant is wrongfully attempting to flow on respondents, are settled in favor of appellant. Logan v. Dri.scoll, 19 Cal. 623 ; Am. Law Reg. 1867, 1868, p. 698. Parties must care for their own tailings on their own ground. Respondents could crib those of appellant on his own ground, but the jury find that respondents cribbed them on their own. A mere threat to commit a trespass, without an overt act, does not justify an injunction. KNOWLES, J. This is an action of trespass, brought by appellant for damages for an alleged entry upon his mining ground, and erecting a dam thereon, which stopped tailings upon the said mining ground, and alleging that the respond- ents threatened to continue the injury, and to erect the said dam higher, and asking for an injunction to restrain them from the commission of these wrongs. Respondents deny that appellant owns the mining ground described; admit erecting the dam and the intention to erect it higher, and aver that the dam is on their own ground, and that the same was erected to prevent appellant from running their railings down upon their ground. The jury, in their special findings, determine that appel- lant does not own the mining ground upon which the dam was erected ; that respondents had not interfered with the mining rights of appellant by the erection of the dam in question. They also find that the erection of the dam higher \vill interfere with the profitable mining operations of appel- lant. Upon this last finding, appellant asked an injunction >f the court below, which was refused. This is assigned as nrror. It appears, from the complaint of appellant, that the tail- ings which the dam of respondents prevented from flowing 286 TOOMBS 0. HOKNBUCKLE. [Jan. T., down, were tailings from appellant's mining ground. The granting or refusing an injunction was discretionary with the court below. We do not think it was an abuse of dis- cretion in refusing an injunction to restrain the respondents from building a dam on their own ground, so as to prevent appellant from committing an injury upon the same. Appel- lant would be entitled to the free use of the channel of the creek, to allow the water which came down from above to flow away from his mining ground, but he had no right to fill the channel of the creek with tailings and debris, and let it flow down upon respondent's ground. Order of the court below affirmed, with costs. Judgment affirmed. TOOMBS, respondent, n. HOBISTBUCKLE et al., appellants. PLBADINO insufficient dental. The denial of an "unlawful and wrongful" diversion admits the fact of the diversion. PRACTICE verdict against evidence. A. verdict will not be set aside, as con- trary to evidence, unless it is clearly unsupported by evidence. Appeal from the Third District, Lewis and Clarice County. THE facts are contained in the opinion. The action was tried in April, 1870, in the district court, before SYMES, J. CHTJMASERO & OHADWICK, for appellants. The decree of the court below was not justified by the evidence or special findings of the jury. The testimony shows that the water flowing from the springs was dimin- ished in quantity almost one-third, and lacked only ten inches of furnishing respondent with all the water he was entitled to by the findings of the jury. The use of this water by miners materially diminished its quantity below the springs. The findings are in accord with the facts, and 1871.] TOOMBS 0. HOHNBUCKLE. 287 the rights of the parties should be determined by them. These findings show that appellants had not diverted from respondent's ditch any water to which respondent was enti- tled, and that there flowed at all times from the springs, the water that respondent was entitled to, if the miners did not obstruct it. When the miners obstructed the water from the springs, sixty inches reached the respondent's ditch. The miners so obstructed this water during June and July, 1869. The decree makes appellants liable for the acts of those miners, and compels them to supply respondent with water to which respondent has no claim. Appellants are obliged to leave in the creek, at the head of respondent's ditch, seventy inches of water, regardless of any depredations that may be committed by strangers below their point of appro- priation. This decree overrides every principle of equity. No man should be made responsible for the acts of another, committed without his knowledge or assent. The injunc- tion wrests from the appellant his property, to compensate an injury that he did not cause. That part of the decree, which interferes with the user by appellants of all the waters at the head of their ditch, in Magpie creek, should be set aside, and the injunction should be dissolved. E. W. & J. K. TOOLE, for respondent. Respondent was first in right as to seventy inches of water. The decree gives him this amount at the head of his ditch. Respondent cannot suffer from natural causes affect- ing the supply of water. The finding, respecting the springs, is immaterial. The general verdict is conclusive as to tin- estoppel claimed by appellants. WARUEX, C. J. The plaintiff, in this case, alleges right of possession and user of about two hundred and fifty inches of the waters of Magpie creek, by virtue of his appropriation thereof, made in 1865, by means of a ditch there constructed, for the purpose of irrigation, and alleges ;i continuous wrongful diversion of such water by defendants, prior to tin 288 Too MBS i\ HOKNBUCKLE. [Jan. T., commencement of this action, and threats by defendants to continue such diversion. He prays judgment for damages ; that title be established and decreed in him to the extent of his prior appropriation, and that defendants and those in privity with them, be perpetually enjoined from diverting such waters. The answer in substance denies plaintiff's appropriation, and also denies that defendants " wrongfully or unlawfully " diverted said water, and sets up an appropriation of the waters of Magpie creek, made by defendants for mining purposes, in May, 1866, and subsequently, in October, 1866, by means of ditches then constructed, and that said waters were then unappropriated, and that defendants thereafter remained in full and peaceable possession thereof ; and, further, plead by way of estoppel, that plaintiff had actual knowledge of defendant's intention to so appropriate said water, prior to and during the construction of their ditches, and failed to assert his title to said water, or to forbid their construction of the ditches. The replication specifically denies each allegation of the answer. The denial of " unlawful and wrongful" diversion, as has been often held, admits the fact of diversion, so that the only issues on the pleadings are upon the priority of the respective appropriations, and upon the facts constituting the estoppel pleaded. The issues were tried by jury, which found a general verdict for the plaintiff, and a special verdict upon questions of fact submitted to them. The court below overruled defendant's motion for a new trial, and rendered judgment for the damages found by the jury, and entered a decree perpetually enjoining the defendants and their privies from so diverting the waters of the creek, as to prevent seventy inches of water, being the quantity found by the jury to have been first appropriated by plaintiff, from flowing down to plaintiff's ditch. From the order overruling his motion for a new trial, arid from the judgment and decree, the defendant appeals, and 1871.] TOOMBS 75. HOKNBUCKLE. 289 assigns as error that the evidence and special findings of the jury do not support the decree, and are in conflict with the general verdict. The evidence is in some respects conflicting, but whatever our views might be, in any case, we do not feel justified by uny precedents in setting aside a verdict as contrary to evi- dence, unless clearly unsupported by evidence, which is not the case here, so that the only question left to consider is, whether the special verdict conflicts with the general verdict, and fails to support the decree. The general verdict finds the issues joined, as to priority of appropriation, and as to the facts set up as an estoppel for the plaintiff. These were the only issues raised by the pleadings. The first special finding of the jury fixes the amount of plaintiff's appropriation at seventy inches of water, and of this finding appellants do not complain. The second finding is, that sixty inches of water flowed down to plain- tiff's ditch during June and July, 1869, when the diversion !>y defendants is alleged. The third finding is, that seventy inches of water "flow down Magpie gulch" from "the springs," when all the water is taken out above the springs d iii-ing wet or dry season, and it is not obstructed by miners. The " springs," mentioned in the last finding, ap- pear from the evidence to be situated between the respective ditches of plaintiff and defendants, the latter being some distance above the former, and appellants claim that under the third finding of the jury, the defendants did not, and as a physical fact could not, divert any water, to which plain- tiff was found by the jury to be entitled. Had the question of diversion been properly put in issue, and if the jury had definitely found that, at the time of the alit-ged diversion, the '"springs," below defendant's ditch, alone furnished sufficient water to supply the amount found to have been appropriated by plaintiff at the head of his ditch ; this would be undoubtedly true, but the last finding is too uncertain and indefinite to overturn the other special findings and the general verdict, and is, besides, immaterial, Vol. 1. 37 ' 290 LOMME fl. KlNTZINtt. [Jail. T.., being upon a fact not in issue. The point urged by appel- lant, that the decree makes him answerable for the acts of third parties with whom he has no privity, in diverting water below the springs, is not well taken, as the decree rendered only requires the defendants to permit so much of the waters in question to pass their ditch, as that seventy inches may in its natural flow reach the head of plaintiff's ditch, in the bed of the stream at that point, whether from the springs or above them, and this is all that is enjoined on them. They are not held responsible for any acts of others. The judgment and decree are affirmed. Judgment affirmed. LOMME, respondent, v. KINTZING et al., appellants. PRACTICE sham answer judgment on pleadings. If the answer does not raise a material issue it may be struck out as sham, or judgment may br rendered on the pleadings. PARTNERSHIP agreement about profits and payment of debts creditor. A special agreement between two parties by which one of them is to receive one-third of the profits of a business for his services, and the other is to be liable for the debts, is no defense to an action commenced against them as partners by a creditor, who had no notice or knowledge of the agreement before the liability accrued. PARTNERSHIP effect of plea of bankruptcy by one partner. In a suit against a firm in which one partner flies a plea of bankruptcy, the court properly directed a stay of proceedings as to him, and rendered a judgment for the amount claimed by plaintiff, to be enforced against the partnership prop- erty and the individual property of the other partner. Appeal from the Third District, Lewis and Clarke County. THE facts are stated in the opinion. The complaint alleged "that, on the 1st day of July, A. D. 1869, the said defend- ants were copartners, doing business at the town of Helena, county and Territory aforesaid, under the firm name of B. C. Kmtzing & Co.; that, on the day and year aforesaid, the said defendants, copartners as aforesaid, 1871. j Lu.MME C. KlNTZlNtJ. 291 unto this plaintiff in the sum of $4,384.89, balance due for money lent and advanced by plaintiff to the defendants, and for money had and received by the said defendants for the use and benefit of this plaintiff, for goods and wares and merchandise sold and delivered by plaintiff to the said de- fendants, and for work, labor and services done and per- formed by the said plaintiff for said defendants all at the special instance and request of the said defendants which said sum of $4,384.89 the said defendants, on the day and year aforesaid, promised to pay the said plaintiff when thereto requested by the said plaintiff; that the said plain- tiff has demanded payment of the said sum of the defend- ants ; that the defendants, or either of them, have not paid the said sum, or any portion thereof, and the same remains wholly due and unpaid, wherefore the said plaintiff prays judgment,'' etc. To this complaint the appellant B. C. Kintzing tiled his third amended answer, and "denies that on the 1st day of July, A. D. 1869, or at any other time, the defendants were partners in the town of Helena, and Territory of Montana, under the firm name and style of B. C. Kiiitzing & Co. Denies that on the day and year aforesaid, or at any other time, the said defendants, as such copartners, were indebted u> tlie plaintiff in the sum of $4,384.89, or any other sum, for money lent and advanced by plaintiff to defendants: for money had and received by defendants for the use and benefit of plaintiff; for goods, wares and merchandise sold and delivered by plaintiff to defendants, and for work, labor and services done and performed by plaintiff for said de- fendants, at their special instance and request, as charged in plaintiff's complaint. Denies that this defendant ever promised to pay plaintiff the said sum of $4,384.89, or any other sum; denies that plaintiff ever demanded payment of said amount of money from this defendant ; denies that this amount, or any other sum, remains due and unpaid to plaintiff. Defendant, for further answer to the complaint of the plaintiff, admits that for a short time, in the spring of 1869, 292 LOMME v. KINTZING. [Jan. T., the above defendants were associated in business in the town of Helena, and Territory of Montana, under the name and style of B. C. Kintzing & Co., but avers that this de- fendant had no interest whatever in the capital stock of said business, but only received for services rendered equal to one-third of the profits of the business of said B. C. Kiutz- ing & Co. ; that Charles S. Kintzing owned the entire capital stock in said business, and was solely liable for the debt incurred in said business by B. C. Kintzing & Co., under his agreement with this defendant ; and that plaintiff had full knowledge of the extent of this defendant's interest and liability as aforesaid while in the employment of B. C. Kintzing & Co. This defendant, for further answer to plaintiff's complaint, states that Charles S. Kintzing, his co-defendant as afore- said, has, since the institution of this suit, been adjudged a bankrupt under and by virtue of the provisions of an act entitled ; 'An act to establish a uniform system of bank- ruptcy throughout the United States." The proceedings, under said act, having been had in the city of St. Louis and State of Missouri, wherefore this defendant denies the right of plaintiff to prosecute this action, and asks to be discharged with his costs in this behalf expended." Judgment was rendered for plaintiff in October, 1870, by the district court, SYMES, J. E. W. & J. K. TOOLE, for appellants. The proceedings against appellants should have been suspended by the court after the plea in bankruptcy had been interposed. This plea, for the purposes of this appeal, must be taken as fully established. The local courts must yield to the superior authority of the courts of bankruptcy. The execution in one case and warrants in the other would require the respective officers, acting under them, to take the same property. Property thus taken belongs to the jurisdiction of one of these courts. The territorial courts cannot adjudicate the rights of parties under the bankrupt act. They must be determined in a court of bankruptcy. 1871.] LOMME v. KINTZING. 293 The court erred in rendering judgment on the pleadings. The complaint proceeds upon a general assumpsit, express or implied, on the part of appellants, to pay respondent a certain sum. An express or implied promise may be shown under this complaint. Higgins v. Germaine, ante, 228. The gist of this action is the express or implied promise of appellants to pay respondent. Appellants specifically deny any such promise. See answer. When there is a promise to pay a sum on account of certain items, a denial of such promise, or the indebtedness, is good. The partnership is denied as to the respondent. The answer states facts, showing that appellants were not liable as partners to respondent. The defective denials, if any, are cured by affirmative allegations. Nudd v. Thompson, 34 Cal. 39 ; 3 Estee's PI. 381 ; Newell v. Doty, 33 N. Y. 83. The answer denies that any thing is due respondent. To render a judgment on the pleadings, such judgment must not be inconsistent with any material matter denied or affirmatively pleaded. The defective denials, if any, were caused by the bad pleading of respondent, for which he should be held responsible. The practice act of Montana contains no provision for judgment on the pleadings. Section 50 provides that sham answers may be stricken out on motion. The New York Code provides expressly for judgment on the complaint, and answer on five days' notice. Howard's IN". Y. Code, 388. No judgment can be rendered on the pleadings if one material fact is denied, or the answer sets up new matter. The whole answer must be " sham and irrelevant." Ohir- arddli \. McDcrmott, 22 Cal. 539 ; Gay v. Winter, 34 id. 161 ; Willson v. McDonald cited in 3 Estee's PI. 381, 4. Under the New York Code judgment cannot be rendered on the pleadings, unless the whole answer is frivolous and insufficient. Nichols v. Jones, 6 How. Pr. 355 ; Van Valen v. LapJia,))i, 13 id. 240 ; Kelly v. Barnett, 16 id. 135 ; People v. McCumler, 18 N. Y. 315. Appellants denied all the material allegations of the com- plaint, and st>t up new matter. Yet the court, without 294 JJOMME . KINTZING. [Ja^. T., notice, rendered judgment on the pleadings, on the ground that one single denial was technically defective. CHUMASERO & CHADWICK, and W. F. SANDERS, for respondent. In effect, this case stands on a demurrer by respondent to the answer of appellant B. C. Kintzing, because it did not state facts to constitute a defense, and did not deny the allegations of the complaint so as to constitute a defense. The denial of copartnership is the denial of an immaterial allegation. Whitwell v. Thomas, 9 Cal. 499. But the denial is faulty. It makes the firm name and place of partnership material, both of which are immaterial. The allegations of the complaint are interpreted to be, that appellants did have and borrow moneys, and did perform labor at their request. The second denial is not of any fact, but the conclusion, the indebtedness. The conjunctive con- junction is also used by appellants in denying that they owe for the three several items. The promise to pay, upon the facts confessed, is implied by law. A denial of the promise is not a defense. The affirmative allegations, with Jio denials of the allegations of the complaint, are insufficient. The bankruptcy of C. S. Kintzing did not abate the action, nor destroy B. C. Kintzing' s liability or that of the firm. The following authorities are to the e fleet that the denials of the answer do not raise an issue : Sto. on Eq. PL 852 : Stephen on PI. 243-5, 37U : .Hojdiitif v. Everett, 6 How. Pr. 159 ; Salinger v. Lusk. 7 id. 430 ; Damson v. Rowell, 16 id. 467; Fish, v. Reel I in/ton. HI Cal. 194. and cases cited. An adjudication of bankruptcy is the judgment of a court, and must be pleaded with the precision required for pleading judgments. Xo court is named in the answer. If the bankruptcy were well pleaded, this action could pro- ceed against the other appellant, as surviving partner, and .judgment could be rendered against the property of the linn. Our statute recognizes the same principle, in allowing judgment against property where all the joint owners are not served. Civ. Prac. Act, 32. 1871.] LOMMK v. KINTZI.VG. 296 WARREN, C. J. The court below, in this case, on motion of the plaintiff, rendered judgment on the pleadings, from which the defendants appeal. Under our practice, where iin answer raises no material issue, the plaintiff may either move that it be stricken out as sham and irrelevant, or move for judgment. This is an action upon an account against the defendants, as copartners, under the firm name of B. C. Kintzing t Co., in the town of Helena arid Territory of Montana. The separate amended answer of B. C. Kintzing denies the partnership under the style and at the time and place alleged ; denies indebtedness of defendants as such partners : denies any promise by himself to pay ; denies any amount to be due plaintiff', and pleads as new matter that the defendants were, for a short time, in the spring of 1869, associated in business in the town of Helena and Ter- ritory of Montana, under the style of B. C. Kintzing & Co., but that C. S. Kintzing furnished all the capital stock for such business, and by special agreement was to be individually liable for all debts incurred therein, and B. C. Kintzing was to receive one-third of the profits thereof in compensation f<>r his services, and avers that plaintiff had actual knowl- edge of this agreement, while in the employment of B. C. Kintzing & Co., and further pleads an adjudication of bankruptcy of C. S. Kintzing since commencement of this action. These denials raise no issue as to the fact of partnership, or the alleged liability of the defendants as partners. The new matter is insufficient, as it states facts which legally constitute a partnership, and in order that the special agree- ment between defendants as to individual liability should affect the plaintiff", it was necessary to aver that plaintiff had notice or actual knowledge of such agreement, before the liability alleged in the complaint accrued. The allegation that plaintiff had such knowledge ; ' while in the employ- ment of B. C. Kintzing & Co.," is too vague, and being taken most strongly against the pleader, is insufficient. Under the plea of bankruptcy of C. S. Kintzing, the court directed a stay of proceedings as to him, and rendered a 296 COLUMBIA MINING Co. -o. HOLTEE. [Jan. T. judgment in favor of plaintiff for the amount claimed, to be enforced against the partnership property of B. C. Kintz- ing & Co., and the individual property of B. C. Kintzing. If this is error, it is not such as either appellant can com- plain of. Judgment affirmed. COLUMBIA MINING COMPANY, appellant, v. HOLTEB et al., respondents. WATER RIGHTS change of point of diversion. If H. appropriated the water of a creek at a certain point in 1865, and C. appropriated the same water above H., in 1867, for the use of a mill, and returned the water into the creek, so that H. had the benefit thereof, H. has no right to change his point of diversion of the water in 1869, and appropriate it above C.'s mill, and thereby deprive C. of the use of the water. WATEK RIGHTS claim to water appropriation possession. A party who intends to claim water must appropriate the same with reasonable diligence by some known means, and at a certain point ; a declaration of such a claim, without any acts of possession, is insufficient. Appeal from the Third District, Lewis and Clarke County. THE facts are stated in the opinion. The judgment was rendered in the district court, at the July term, 1870, by SYMES, J. W. F. SANDERS and CHUMASERO & CHAD WICK, for appel- lants. The answer does not deny the allegation of the complaint, that appellant and its grantors, from March 28, 1865, to the commencement of this action, had enjoyed the water speci- fied. Appellant would be protected in its use for four years by the statute of limitations. Acts 1865, 466; Union W. Co. v. Crar;/, 25 Cal. 504 ; American Co. v. Bradford, 27 id. 360 ; Lick v. Diaz, 80 id. 65. This was an equity case. GuJe v. Tuolumne W. Co., 14 1G71.] COLUMBIA MINING Co. v. HOLTER. 297 Cal. 25 ; Par~ke v. Killiam, 8 id. 77. The court properly sought to find four facts from the jury, the date of each appropriation and the place. Respondents could not change their point of appropriation after October, 1865, to the injury of intervening locators. Suite C. & D. Co. v. Vaughn, 11 Cal. 143 ; Kidd v. Laird, 15 id. 161 ; Nevada W. Co. v. Powell, 34 id. 109 ; Davis v. Gale, 32 id. 26. Respond- ents, in May, 1869, went two miles above their location, in September, 1865, and attempted to change the point of appropriation to the injury of appellant. The general verdict, being inconsistent with the special findings and admitted facts, should have been set aside. Civ. Prac. Act, 175. A subsequent appropriator, higher up the stream, who diverts the water and returns it to the first but lower appro- priator, is not liable to an action by the first appropriator. Union W. Co. v. Crary, 25 Cal. 504. Water collected in pipes and separated from the original source of supply is personal property. Heyneman v. Blake, 19 Cal. 579. The refusal of the jury to allow damages does not affect the right of appellants to the abatement of a nuisance or the costs. Sto. on Eq. Jur., , 921-920 ; Hudson v. Doyle, Cal. 101 ; Courtwright v. B. R. & A. ^Y. & M. Co., 30 id. 570. A judgment will be set aside without a motion for a new trial, if it cannot stand from the proof or conceded facts. A motion to modify the findings enables the court to look into the evidence for facts. San ford v. Elglith Are. R. R. Co., 23 N. Y. 343 ; Purchase v. Mattison, 15 Abb. Pr. 402 : 3 Estee's PI. 728, 237-239. E. \V. & J. K. TOOLE, for respondents. The statement cannot be considered in connection with the instructions. No exception is made a part of the judg- ment roll. Civ. Prac. Act, 203 ; Newell v. Doty. 33 N. Y. 83. No exception, except a general one, is assigned in the statement. Jones v. Osgoort. X. Y. 233 : Caldircll v. MurpJty, 11. id. 410: Dunckel v. TJVMv. id. -!2o : La it- ting v. WiswalL 5 Denio, 213; 3 Estee's PI. OSS, HO VOL. 138. 298 COLUMBIA MISIXG Co. . HOLTER. [Jan. T., Appellant' s use of the water was inconsistent with respond- ents' right, and under protest. The statement does not bring up all the evidence, and the verdict of the jury must be sup- ported. The court cannot consider the question of the suffi- ciency of the evidence to justify the verdict. 3 Estee's PI 727, 236 : Gifford v. CarmU, 29 Cal. 589 ; Bernal v. Gleim, 33 id. 669. A denial of appellant's title to the water, or any of its rights and equities, puts appellant on proof. Marshall v. Shafter, 32 Cal. 176. No estoppel or statute of limitations is pleaded. No damage is found. This is necessary to entitle appellant to a perpetual injunction. To this extent, the general verdict is conclusive, as it is only set aside to the extent of conflict with the special findings. WARREN, C. J. This is an action for damages, for diversion of the waters of the west branch of Oro Fino creek, by de- fendants, and praying a perpetual injunction against them. The answer does not sufficiently deny, under the well- established rules of pleading, any material allegation of the complaint, but sets up a prior appropriation, by grantors of defendants, under which the}' justify the diversion. The cause was tried before a jury, who found a general verdict for defendants, and also a special verdict. Appel- lant moved the court to set aside the general verdict, and for a, judgment and decree of injunction upon the special ver- dict, which was overruled, and a judgment rendered for defendants, and a dissolution of the restraining order in force. Appellant appeals from the judgment, and among other errors assigns this action of the court, and embodies the evidence in his statement. On appeal from a judgment, this court will look into the evidence for an explanation of errors assigned, and we are of opinion that the evidence preserved in this case, in connection with the pleadings and the special findings of the jury, disclose error in entering the judgment under the general verdict. The jury find, specially, that defendants' grantors appro- 1871.] COLUMBIA MINING Co. c. BOLTER. 299 priated the water in question, in October, 1865, and that the point at which they diverted it from its channel was one mile and a quarter below Uriionville. They also find that the grantors of plaintiff appropriated said waters in September, 1867, and that they took possession of same at a point about one hundred yards above the mill of the Columbia Mining Company. The evidence, explanatory of this finding, shows the facts to be that defendants derive title through one Laird, who, in October, 1865, posted a written notice on the creek, claiming all the waters of the f. reek and its tributaries, for mining and other purposes, and thereafter with due diligence erected a dam and reservoir at the point where his notice was posted, and constructed ditches and flumes from said point to convey the water for the purposes indicated. That plaintiff's grantors erected their mill and appropriated said waters for its operation in September, 1867, at a point on said creek, one mile and a quarter above the point where Laird's notice was posted. ;md his reservoir and ditches constructed, and continued thereafter to use such water until May 28, 1869, when defend- ants diverted the same at a point above plaintiff's mill, as alleged in the complaint and admitted in their answer. That plaintiff was charged with notice of defendants 1 claim, prior :o any appropriation for the purposes of said mill, and to ! he construction of the mill. That no work was done upon nor water actually diverted from said creek, by or on behalf i>f the defendants, at any point as high up the creek as the noint of plaintiff's appropriation, until after plaintiff's said appropriation, and that plaintiff, after using, returned said \vater to its natural channel, at a point above any work done ly defendants or their predecessors in interest. There is some evidence concerning an action brought by Laird against one Pearce, for the diversion of the water in mtroversy in this action, and that a recovery was had by Laird therefor ; but, as no privity whatever is shown between !* -an-e and the plaintiff in this action, or his grantors, the hitter is not affected by such proceeding. Examining the special findings in the light of this evidence. 300 RANKIN v. CAMPBELL. [Jan. T.. it is clear that the appropriation by defendants' grantors, found to have been made in 1865, at a point below that at which they iind plaintiff' s appropriation to have been made in 1867, could not justify the diversion made by defendants in 1869, complained of by plaintiff. The notice of Laird's claim was of no validity. An intention to appropriate water, to be effectual as against other parties, must be carried into actual execution with all reasonable diligence, by som< j known and tangible means, and at some designated point. By appropriation, a man acquires only the right of posses- sion and user of water, qualified by the right of others to its use, in such manner as shall not materially diminish or deteriorate it, at the place of his appropriation, in quantity or quality. A declaration of a claim to water, unaccom- panied by acts of possession, is wholly inoperative as ngainst those who shall legally proceed to acquire a right to the same. The special findings conflict with the general verdict, and the latter must be set aside. The judgment must be reversed and the cause remanded, with directions to the court below to (Miter a judgment upon the special findings of the jury, foi nominal damages in favor of the plaintiff, and a decree for perpetual injunction as prayed in the complaint. Judgment reversed. , appellant, y. CAMPBELL et al,, respondents. PRACTICE verbal stipulation. This court will not consider a verbal stipula- tion between the attorneys of the parties. Appeal from the Third District, Meagher County. Tins action was tried in the district court by SYMES, J The decision of the court renders unnecessary a report of the facts and arguments. 1871.] STEWART o. MILLER. 301 CHUMASERO & CHADWICK, for appellant. SHOBER & LOWRY, for respondents. WARREN, C. J. In this case there is no statement on motion for a new trial or on appeal. The affidavits pre- sented, relating to a verbal stipulation between the attor- neys of the parties, cannot be considered in this court, and the judgment roll disclosing none of the errors assigned, the judgment below is affirmed. Judgment affirmed. STEWART et al., respondents, v. MILLER et al., appellants. PRACTICE oral agreements. The oral agreements of attorneys should be dis- regarded, although the clerk has entered them in the transcript on appeal. EVIDKNCE IN SUIT ON INJUNCTION BOND damages. In an action upon an injunction bond, the obligors may prove the facts that entitle them to the injunction in mitigation of damages, if the injunction has been dissolved before the merits of the case have been adjudicated. DISSOLUTION OF INJUNCTION evidence. The dissolution of an injunction be- fore the case has been finally determined, is prima facie evidence that the injunction was improperly granted. PARTIES TO BONDS damage* apportioned. All the parties to a bond that has been executed jointly should be brought into court, so that the damages claimed can be apportioned. Appeal from the Third District, Lewis and Clarke County. STEWART, and eleven other plaintiffs, brought this action in August, 1869, against Miller and J. B. Hyde, to recover damages sustained by the granting of an injunction. The case was tried by a jury in March, 1870, and a verdict re- turned for plaintiffs for 1 ,750. On the trial the defendants, after the plaintiffs had closed their evidence, moved the court, SYMKS, J., to continue the cause, and order other parties to be brought in, on the ground that a complete determination of the action could not be had without their 302 STEWAKT c. MILLER. [Jan. T., presence. The motion was overruled and defendants ex- The defendants offered in evidence the amended com- plaint, the answer to the same, and the injunction in another action, for the purpose of showing the following facts : That the cause of action involved in the case, in which the injunction bond sued on had been executed by defendants. had been transferred to another suit, and that the same issues were still pending between the same parties ; and that the injunction had also been transferred and was still in existence. The defendants also offered in evidence the findings of the jury and the decree in another action, and also produced certain witnesses for the purpose of showing that the parties who procured the injunction, that was issued on the filing of the bond sued on. were equitably entitled to the same. to protect them in the enjoyment of their rights to certain 'springs," and that the rights of the parties had not been determined, as to the subject-matter of the injunction, at the time the injunction was dissolved and this action was brought. The foregoing evidence was excluded by th^ court. SYMES. J.. and defendants excepted. E. W. & J. K. TOOLE. for appellants. The complaint shows that respondents do not seek to recover the damages sustained by six other co-obligees on the bond sued on. The court should have required th<> other parties to be brought in. Civ. Prac. Act, 14, 17. The evidence shows that about one-half of the respondents sold out their interest in the damages recoverable on the bond sued on. before this suit was commenced, to persons wh<' were not parties to the suit. Every action shall be prosp- cuted in the name of the real party in interest. Civ. Prac. Act, 4. The parties not joined may still sue for their por- tion of the damages recoverable on the bond. People \. Love, 25 Cal. 520 : Fowler v. Frisbie. 37 id. 34 : Hill, on Tnj. 64, 26 ; Civ. Prac. Act. 17 ; Prader v. Grimm. 28 Cal. 11 : Kwnmfrs v. Fari'sTi. 10 id. 347: Baiter v. 1871.] STKWAKT v. MILLKR. 308 7 id. 551 ; Voorkies' Code, 265, b, c; Heywood v. City of Buffalo, 14 N. Y. 506. The respondents should have shown the portion of the damages recoverable to which they were entitled. Whitney v. Stark i 8 Cal. 514 ; Septembre v. Putnam, 30 id. 497. The reason for dismissing the suit and dissolving the in- junction was explained by the order of the court in the premises. It was for the purpose of trying the merits of both in the same action and consolidating them. Civ. Prac. Act, 497. Money is recoverable upon an injunction bond on the dis- missal of the action, on the theory that it is an abandon- ment of the rights of the plaintiff to enjoin the defendant. Tn this case the order of the court shows that the injunction was re-instated. Hill on Inj. 67; Gelston v. Whites idea, 3 Cal. 309 ; Hicks v. Michael, 15 id. 107 ; Fowler v. FrisUe, 37 id. 34 ; Shearman v. New York C. M., 11 How. Pr. 270 ; Methodist Churches v. Barker, 18 N". Y. 463. A party must prove his title to property on which lie alleges his damages to have accrued, and this title can be put in issue in mitigation of damages. A voluntary dis- missal of a suit does not estop the party from showing his title to the property, when that title may be the essential element on which a portion of the damages accrued. It cannot be contended that a person who is committing a tres- pass to the property of another is damaged, by being pre- vented in so doing. The dismissal of a suit does not become an adjudication on the title, and does not give a defendant, upon the dissolution of an injunction, damages he has not sustained. Cin'MASERo & CHADWICK and SHOBEK & LOWKY. for re- spondents. The bill on which the injunction was granted was finally dismissed and the injunction dissolved. That was a final determination of the cause, and an action would lie on the undertaking in the cause for any damages sustained l>y ihe parties restrained. Hill, c.n Inj. 1(>3, /7/o 304 STEWART o. MILLED. [Jan. T., dist Churches v. Barker, 18 N. Y. 463 ; Dowling v. PolacJc, 18 Cal. 625. When a defect of parties is apparent on the face of the complaint, the objection must be taken advantage of by demurrer. When it is not apparent on the face of the com- plaint, the objection must be taken by answer. Voorhies' Code, 148 and n.; Civ. Prac. Act, 45 ; Dunn v. Tozer, 10 Cal. 167 ; Borroughs v. Lott, 19 id. 125 ; Tissot v. Throck- morton, 6 id. 471. The jury were instructed, at the instance of appellants, that respondents could only recover the actual damages they sustained in consequence of the injunction. The re- spondents were a mining company, and the damages they sustained were joint, and the action was prosecuted in the name of the real party in interest. WARREN", C. J. In this transcript of the record there appeared a clerk's entry to the effect that ''the statement upon motion for a new trial being settled this day by the court, the respective parties waive the necessity of engrossing the same to be used upon the hearing of the said motion,' ' and the transcript contains what purports to be the instructions excepted to, and the evidence given and offered on the trial. The cause was argued and submitted in this court at the last term, and in lieu of perfecting the transcript by procuring the omitted certificate of settlement of the statement, and objections to the transcript being waived by agreement of the parties in this court, the cause was heard, by leave of court, upon the basis of the statement appearing in the transcript, as though properly certified. While oral agree- ments of attorneys are to be disregarded, and the entry of them by a clerk gives them no additional validity so as to entitle them to notice on appeal, the respondents in this case having admitted the statement in this transcript to be the one settled by the judge below and referred to on the motion for a new trial, and the cause having been submitted upon this basis, we will consider the errors assigned upon it, although the practice is bad and not to be regarded as precedent. 1871.] STEWART v. MILLEK. The action is brought upon an injunction bond. The statement shows that appellants offered in evidence on the trial the record of proceedings had in the action in which the bond was given for the purpose of showing that the action was dismissed and the injunction dissolved for the reason that another action theretofore commenced was pending and undetermined in the same court between the same parties and involving the same subject-matter ; and that the court, upon such dismissal and dissolution, holding that the appli- cation for the injunction sought should have been made in the original action and not in a separate and independent action, by order permitted the complaint filed in the latter suit to stand as an affidavit for an injunction in the original action, and the summons to be regarded as a notice to de- fendants of such application : all of which evidence the court excluded from the jury, to which ruling appellants fxcepted. In this the court erred. Where the dissolution of an injunction is not consequent upon a final determination or adjudication upon the merits of the action, the obligors in the bond may, according to rhe weight of authority and principle, show the facts and circumstances entitling them to the injunction, if not in full defense, at least in mitigation of damages in an action upon the bond, the order of dissolution being in such cases only prima facie evidence that the injunction was improperly issued. This has been held otherwise in some of the cases cited, but seems founded in sound principle, as otherwise, the obligees in a bond given in a cause in which the action was dismissed or the injunction dissolved, upon some formal matter, although the plaintiff was in equity entitled to the protection demanded, would, in an action upon the bond, stand upon the same footing in respect to damages recov- erable, as though the injunction was obtained without a shadow of equity, or even maliciously, and through per- jury. This we cannot believe to be the law, and the evi- dence offered in this action should have been admitted. The bond, too, having been executed by the defendants to the plaintiffs below jointly, it was necessary to a complete VOL. I. 39. 306 BOUCHER v. MULVERHILL. [.Jan. T., determination of the rights of the parties, that all should have been in court, in order to apportion damages claimed, and if any of the obligees refused to join as plaintiffs, the court, upon the showing made, should have ordered them brought in as defendants. The judgment is set aside and the cause remanded for a new trial. Exceptions sustained. BOUCHER et al., respondents, v. MULVERHILL, appellant. MINING PROSPECTING PARTNERSHIP how formed rights of partners. Au agreement made between parties, by which some of them prospect for gold, and the others furnish money and provisions, for which they are to receive interests in the mining grounds that may be discovered, constitutes a pros- p^cMug partnership, and those who furnish the money and provisions are entitled to pre-empt and hold mining claims under the laws of a district, which provide that claims shall be allowed the discoverers for their pros- pecting partners. M INING PROSPECTING PARTNERSHIP rules. A mining prospecting partnership is not governed by the technical rules of the law of commercial partnership. MINING PROSPECTING PARTNERSHIP mining law regulating, valid. The mining law of a district, which allows those who furnish money and provisions to the discoverers of placer gold mines, to hold claims without personally pre- empting them, is not against public policy and should be upheld. PRACTICE instructions that mislead not given. The court will not give an instruction, that is correct, if it will mislead the jury. Appeal from Second District, Missoula County. THE facts are stated in the opinion. The eighteenth section of the mining laws of the Barrette district, referred to in the opinion and briefs, is as follows : "That no claim shall be recognized as legally held, unless the prior claimant has personally pre-empted the same, with the exception of three claims allowed the discoverers for ~heir prospecting partners." The case was tried in June, 1870, before KNOWLES, J. 1871. ] BOUCHER v. MULVEBHILL. 307 CLAGETT & DIXON, for appellant. The respondents claimed under the exception, in section 18 of the laws of Barrette district, as prospecting partners of the discoverers. There was no evidence that respondents were the persons to whom this exception applied. The claims were recorded the day after the laws were passed. Respondents were not prospecting or other partners of the discoverers. If they had been such partners, the record of location should have shown it, and the location should have been in their names, so that third parties would know to what parties section 18 applied. Respondents never had actual possession of the ground in dispute ; they claimed by constructive possession only, and did not bring themselves within the laws. They were not in the district when their claims were located. Appel- lant proved location and actual possession of the ground, and work and money expended on it. The court erred in leaving it to the jury to find whether the claim in dispute was located according to the laws of the district, and refusing to instruct them as to what the mining laws required to make a location good. The court erred in refusing to instruct the jury as to the legal effect and meaning of the mining laws, and what it was necessary for the respondents to show to bring themselves within the laws. The construction of mining laws is for the court and not the jury. Fairbanks v. Woodhouse, 6 Cal. 433. A mining law, allowing every discoverer to locate ground for every one who might have furnished him means or assist- ance to prospect, would be contrary to general law and public policy, and void. MAYIIEW & McMuBTRY, for respondents. Miners have the right to pass laws for locating, holding and working mines, if they are reasonable and do not con- flict with the laws of the Territory or United States. Eng- lish v. Johnson, 17 Cal. 107. The eighteenth section is reasonable and not against public policy. Those who ren- der material aid to Drospectors for mines should be encour oy receiving claims, if they are