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Affirmed Dist. 13 (Yellowstone)

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Mark Dundas appeals from the District Court’s January 20, 2017 Order Granting Defendant’s Motion for Summary Judgment. We affirm. ¶2 The issue on appeal is whether the District Court properly granted summary judgment dismissing Dundas’ claims for wrongful discharge under the Montana Wrongful Discharge From Employment Act (WDEA), Title 39, chapter 2, part 9, MCA. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Defendant Winter Sports, Inc. (WSI) operates the Whitefish Mountain Resort in Montana. Its primary operation is a winter ski resort, but it also has limited operations in other seasons. The majority of WSI’s employees are seasonal and work less than a full year. WSI has approximately 100 year-round employees, but that number increases to approximately 525 in the winter season. The winter seasonal employees work a season that varies with the snowfall, and they may be off work as long as seven months between the end of one winter season and the beginning of the next. ¶4 Dundas was a winter seasonal employee at WSI during each of the winter seasons from 2003 to 2014. WSI hired Dundas for the 2014-2015 winter season for a new position of Snow Safety Coordinator. Dundas’ job was set to begin approximately November 19, 2014, and to end April 12, 2015, depending upon the weather. He also applied for the positions of Ski Patrol Manager and Assistant Ski Patrol Manager but was not hired for either position. ¶5 According to WSI managers, Dundas was angry because he did not get hired for either of the Ski Patrol positions. Dundas sent an email to Chester Powell, Director of Mountain Operations, that was critical of the hiring process and that stated he had a “very low opinion” of Powell and of Dan Graves, CEO of the WSI operation. The WSI managers also determined that Dundas expressed his anger to other employees “in a manner that WSI management found insubordinate and inappropriate.” The WSI Ski Patrol Manager David Stephens counseled Dundas that his negative attitude and his profane statements to others about his job and his superiors were inappropriate. WSI terminated Dundas on March 1, 2015, because of his inappropriate behavior. ¶6 Dundas sued WSI for damages for wrongful discharge under the Montana Wrongful Discharge From Employment Act, Title 39, chapter 2, part 9, MCA. Dundas alleged that WSI lacked good cause to terminate his employment (§ 39-2-904(1)(b), MCA); that WSI failed to follow its written personnel policies (§ 39-2-904(1)(c), MCA); and that WSI terminated him for refusing to violate public policy or for reporting violations of public policy (§ 39-2-904(1)(a), MCA). WSI moved for summary judgment on all the claims. The District Court held a hearing on January 18, 2017, and subsequently entered the order granting WSI’s motion, concluding that Dundas did not have a wrongful discharge claim because he was a probationary employee who could be terminated for any reason as provided in § 39-2-904(2)(a), MCA. Dundas appeals. STANDARD OF REVIEW ¶7 This Court reviews a district court’s decision on summary judgment to determine whether it is correct, using the same criteria under M. R. Civ. P. 56. Pilgeram v. GreenPoint Mortgage, 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. DISCUSSION ¶8 Issue: Whether the District Court properly granted summary judgment dismissing Dundas’ claims for wrongful discharge under the Montana Wrongful Discharge From Employment Act (WDEA), Title 39, chapter 2, part 9, MCA. ¶9 With few exceptions, the WDEA is the exclusive remedy under Montana law for an employee to recover damages for wrongful discharge. Section 39-2-902, MCA; Kuszmaul v. Sterling Life Ins. Co., 2012 MT 154, ¶ 22, 365 Mont. 390, 282 P.3d 665. The WDEA preempts all common-law remedies for discharge claims. Section 39-2-913, MCA; Blehm v. St. John’s Lutheran Hospital, 2010 MT 258, ¶ 19, 358 Mont. 300, 246 P.3d 1024. One of the purposes of the WDEA is to protect employees from wrongful discharge “after the end of their probationary period.” Blehm, ¶ 11. The existence of a probationary period of employment is an “integral part” of the WDEA, and an employer may establish a specific employment probationary period. Section 39-2-904(2)(b), MCA; Blehm, ¶ 15. During probationary employment either the employer or employee may terminate the relationship at will “for any reason or for no reason.” Section 39-2-904(2), MCA. ¶10 A crucial issue in the proceedings below was whether Dundas was a probationary employee when he was terminated. The District Court determined that he was a probationary employee and therefore that he could be terminated for any reason or for no reason as provided in § 39-2-904(2), MCA. ¶11 During the time that Dundas was associated with WSI, the Employee Handbook provided for categories of employees, including “seasonal employees” who are “hired to work for a period of less than 12 months.” The Handbook provided that: Seasonal employees are hired to work for a pre-determined period of less than 12 months. At the end of the temporary period, employment is terminated. If a seasonal employee wishes to be considered for employment following termination, they may reapply but, if hired, they are considered a new employee for all purposes. (Emphasis added.) The Handbook also provides that the probationary employment period is the “first 6 months of employment.” ¶12 Dundas argues that the Employee Handbook should be construed so that his six-month probationary employment period ended years ago, during his first or second terms of seasonal employment. He argues that he was in “continuous employment” at WSI from 2003 until he was expressly terminated in March 2015. This argument, however, is contrary to the express provisions of the Employee Handbook relating to the “temporary period” of seasonal employment. As provided in the Employee Handbook, beginning in 2003 Dundas was separately hired for each new winter season that he worked, and at the end of each of those winter seasons his employment was terminated. The District Court found that Dundas acknowledged that he was “rehired” by WSI at the beginning of each new winter season, in accordance with the Employee Handbook. This is consistent with both the Employee Handbook and the WDEA, which provides that a particular employment “is terminated by the expiration of its appointed term.” Section 39-2-501(1), MCA. Each seasonal term of employment at WSI was terminated at the end of the winter season. ¶13 The record is clear as to WSI’s policy on seasonal employees and as to the probationary period. Dundas argues that a seasonal employee could never be off probation because of the limited period of work. However, it is undisputed that seasonal work schedules varied with the weather and could therefore extend to six or more months if snow conditions warranted. In any event, we agree with the District Court that there is no reason to construe the plain language of the Employee Handbook in any way other than as it is written and that, viewing the document as a whole, the Employee Handbook is not ambiguous in this regard. A seasonal re-hire is clearly “a new employee for all purposes,” including for the purposes of the probationary period. As noted above, an employer may define the period of probationary employment, and WSI has done so. As provided in the Employee Handbook, the probationary employment period is the “first 6 months of employment.” ¶14 When Dundas was re-hired for the 2014-2015 winter season he was a new employee “for all purposes,” and began a six-month probationary period. He was still on probation when WSI terminated his employment four months later. ¶15 Dundas contends that he was entitled to imposition of progressive discipline before being terminated. However, as the District Court found, the fact that he was a probationary employee precludes such an argument because he could be fired for any reason or for no reason, as specifically provided in the WDEA. Section 39-2-904(2), MCA. ¶16 Finally, Dundas contends that he was terminated for refusing to violate public policy or for reporting a violation of public policy. He contends that the District Court should have further considered this issue and should have allowed him to prove that he was terminated for refusing to violate public policy or for reporting a violation of public policy. ¶17 The WDEA provides that one of the categories of “wrongful” discharge is a discharge “in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy.” Section 39-2-904(1)(a), MCA. This is in effect a protection for “whistle blowers.” Krebs v. Ryan Oldsmobile, 255 Mont. 291, 296, 843 P.2d 312, 315-16 (1992). The WDEA defines “public policy” as “a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule.” Section 39-2-903(7), MCA. The District Court considered this issue in the summary judgment proceeding and determined the Dundas failed to establish any constitutional provision, statute or administrative rule that WSI violated or that he reported. The District Court properly granted summary judgment to WSI on this issue because Dundas failed to produce “any evidence” to support his contention. CONCLUSION ¶18 The District Court properly granted summary judgment to WSI on Dundas’ claims for wrongful discharge. Affirmed. JUSTICES McKINNON, BAKER, SANDEFUR and RICE concur. The facts are based upon the “undisputed facts” found by the District Court as part of the consideration of the motion for summary judgment.

Denied Original Proceeding Habeas Corpus

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Jimmy Anderson, Glenda Anderson, Kristie Anderson, John Anderson, Glenda F. Anderson, and Rowdy Anderson, (collectively the Andersons) appeal from the Findings of Fact and Conclusions of Law of the Montana Twenty-First Judicial District Court, Ravalli County. The District Court concluded in its Order that Chriss and Carolyn Mack (Macks) shall have access to install a headgate at the point of diversion (POD) for Headgate No. 103 in South Burnt Fork Creek; that the Macks shall be provided access to the same POD, and along the course of the Mack Ditch across Andersons’ property to install the headgate at POD No. 103; that the Temporary Restraining Order (TRO), stipulated to by the parties and Order on May 19, 2014, shall remain in full force and effect; and that the District Court may still award the Macks all of their reasonable attorney fees and costs under § 70-17-112, MCA. We affirm. ISSUES ¶2 The Andersons raise several issues on appeal which we consolidate and restate as follows: ¶3 Did the District Court exceed its jurisdiction by ruling on the merits of the parties’ dispute? ¶4 Did the District Court exceed its jurisdiction by establishing or changing the POD for the ditch in dispute? ¶5 Did the District Court usurp the Andersons’ right to a jury trial regarding the existence of an irrigation ditch which crosses Andersons’ property? FACTUAL AND PROCEDURAL BACKGROUND ¶6 The Anderson and Mack families both own property in the South Burnt Fork Creek Watershed in Ravalli County, Montana. The Macks own a 160-acre section adjacent to the Andersons, who individually own several adjoined five-acre parcels along with a forty-acre parcel. The Mack property has fully adjudicated water rights in the South Fork Burnt Creek which are not at issue in the case. The water rights are “high water” rights which provide water for a limited time each year to the Mack property when there is high runoff in the creek. The Macks’ water right claims, 76H 125130-00 and 76H 125131-00, have an attached map that depicts the general location of Headgate 103 and a ditch crossing the Andersons’ property to the Mack property. While the record reflects some confusion regarding the name of the ditch, we will refer to the ditch as “Mack Ditch” for clarity. The water right claims set forth the legal description for the headgate in the SW1/4NW1/4SW1/4 of Section 4, Township 8 North, Range 19 West. The Macks’ water rights POD was assigned the designation of Headgate 103. ¶7 After purchasing the property in 2002, the Macks performed yearly maintenance on their irrigation ditch from South Burnt Fork Creek from the POD continuously through 2012. In 2014, the Macks hired Tracey Turek to oversee maintenance on the ditch to prepare for the high water season. During this maintenance, the Macks discovered that a dam existed on the ditch that diverted South Burnt Fork water to a pond on the Andersons’ property. Ms. Turek contacted the Andersons about removal of the blockage and received a hostile response. As a result, the Macks filed a complaint on May 8, 2014, against the Andersons alleging violations of § 70-17-112, MCA, and seeking a temporary restraining order and preliminary injunction. ¶8 On May 9, 2014, Judge Haynes issued a TRO restraining the Andersons from interfering with the Macks’ access to the Mack Ditch including their related rights under § 70-17-112, MCA, and ordered a show cause hearing for May 20, 2014. The parties subsequently entered into a Stipulation on May 16, 2014, that the TRO should remain in effect until further court order. The court upheld the stipulation on May 19, 2014, and vacated the show cause hearing. ¶9 Under the May 19, 2014 Order, Ms. Turek, with a work crew and the assistance of Dan Claggatt, water commissioner for South Burnt Fork Creek, initiated maintenance on the Mack Ditch. While the work was ongoing Jimmy Anderson allegedly threatened to harm Ms. Turek and anyone working on the Mack Ditch. On May 27, 2014, the Andersons filed a Motion to Dismiss the Macks Complaint. The motion claimed that the Mack Ditch did not exist on the Anderson property. The Andersons also filed a complaint with the Bitterroot Conservation District alleging the Macks failed to get a 310 permit prior to conducting maintenance on the ditch. The Bitterroot Conservation District determined Macks must obtain a permit and mitigate the disturbance to the Mack Ditch, including an improved control structure at the head of the ditch. When the Macks and Ms. Turek attempted to comply with the Bitterroot Conservation District mitigation order, they were stopped by the Andersons. The Andersons also obstructed the ditch with a load of gravel near the headgate. ¶10 In an effort to resolve the issue, the District Court held hearings to take evidence and ascertain whether the Macks were entitled to a preliminary injunction. The Macks presented evidence showing that the physical location of Headgate 103 and the legal description set forth in the Statement of Claim contained a discrepancy. The Statement of Claim included an attached map, which was not to scale, showing the ditch POD in the SWNWSW Section 4, Township 8 North, Range 19 West. The physical location of the headgate is in the NESWSW Section 4, Township 8 North, Range 19 West. Ms. Turek testified that the legal land description was listed in error. The Andersons contended this was because the Mack Ditch was not on their property but was in the SWNWSW section as listed on the Statement of Claim. The Macks presented extensive evidence demonstrating the land description was in error, including the “Amended and Updated Decree of Distribution of the Waters of the Burnt Fork Watershed, Ravalli County, Montana” issued by the Ravalli County District Court in 1978 (1978 Decree). The 1978 Decree included a map that located and numbered the various PODs in the drainage including Headgate 103, which was located in the NESWSW Section 4, Township 8 North, Range 19 West. Based upon this information, the Macks amended the Statement of Claim to correct this error on April 10, 2015. ¶11 The District Court issued its Findings of F act, Conclusions of Law, and Order on September 16, 2015. The court found that the Macks were entitled to the preliminary injunction, and that the Macks or their agents must be provided access to the POD in the NESWSW Section 4, Township 8 North, Range 19 West, and along the course of the Mack Ditch for the purpose of installing the headgate and for repair and maintenance purposes. The court also indicated that the Macks demonstrated a likelihood they would prevail on the merits and reserved the issue of an award of attorney fees and costs allowed under § 70-17-112, MCA. Andersons appeal. STANDARDS OF REVIEW ¶12 District courts are vested with a high degree of discretion to maintain the status quo through injunctive relief. Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. This Court will not disturb a district court’s decision to grant or deny a preliminary injunction unless a manifest abuse of discretion is shown. Cole v. St. James Healthcare, 2008 MT 453, ¶ 9, 348 Mont. 68, 199 P.3d 810 (citing Sweet Grass Farms, Ltd. v. Bd. of Cnty. Comm’rs, 2000 MT 147, ¶ 20, 300 Mont. 66, 2 P.3d 825). “A ‘manifest’ abuse of discretion is one that is obvious, evident or unmistakable.” Shammel, ¶ 12. If the district court issues an injunction based on conclusions of law, we review those conclusions for correctness. Cole, ¶ 9. DISCUSSION ¶13 Did the District Court exceed its jurisdiction by ruling on the merits of the parties’ dispute? ¶14 Preliminary injunctions are governed by § 27-19-201, MCA, which provides in five subsections the circumstances under which an injunction may be granted. Arguments at the District Court were directed toward subsections (1) and (2), which provide that a preliminary injunction may be issued: (1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; (2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant. ¶15 We note that the subsections of § 27-19-201, MCA, are disjunctive, and findings that satisfy one of the five factors are sufficient to support a preliminary injunction. Sweet Grass Farms, ¶ 27 (citation omitted). For the injunction to issue, the applicant must show that he “has a legitimate cause of action, and that he is likely to succeed on the merits of that claim,” and must also show that an injunction is an appropriate remedy. Sandrock v. DeTienne, 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 (citing Cole, ¶ 15). “[A]n applicant for a preliminary injunction must establish a prima facie case, or show that it is at least doubtful whether or not he will suffer irreparable injury before his rights can be fully litigated.” Sandrock, ¶ 16 (citation omitted). “Upon the requisite showing, a preliminary injunction is issued to maintain the status quo pending trial, which has been defined as ‘the last actual, peaceable, noncontested condition which preceded the pending controversy.’ ” Sandrock, ¶ 16. Finally, regarding the determination of a preliminary injunction, “[w]e have consistently held that a district court should not resolve the ultimate merits of the case when initially analyzing the propriety of a preliminary injunction.” City of Whitefish v. Bd. of Cnty. Comm’rs of Flathead Cnty., 2008 MT 436, ¶ 18, 347 Mont. 490, 199 P.3d 201 (citation omitted). ¶16 The Andersons challenge the District Court’s factual findings and legal conclusions arguing that the court adjudicated matters beyond the preliminary injunction and reached the merits of the case. The Macks respond that the Andersons have failed to identify any language in the Order which improperly reached the merits of the case while defending Judge Haynes’ position that the court reserved judgment on the merits without prejudice to the ultimate resolution of the case. ¶17 The District Court held four hearings to gather evidence regarding the ditch easement and headgate location in an attempt to determine the status quo or “the last actual, peaceable, noncontested condition which preceded the pending controversy.” Sandrock, ¶ 16. Because the Andersons’ defense in the matter was based on the premise that the Macks lacked ditch rights through the Andersons’ property, not that the Andersons were interfering with the Macks’ irrigation ditch rights, the District Court needed to inquire whether the Macks were likely entitled to the relief they requested as applicants for an injunction. This determination included whether the Macks possessed water rights, and if so, how the water is delivered to the Mack property. ¶18 While the Andersons characterize this inquiry as a final adjudication on the merits, it is clear from the District Court Order that the court’s findings were not a final determination. The court concluded in the Order that “it is likely that the Macks will succeed on their claims against Defendants.” Regarding the prescriptive easement the District Court noted “[t]he Macks have established the strong likelihood they will succeed on the merits” and listed its reasoning for the initial determination. Finally, the court found that the status quo to be maintained in this case is the Macks’ ability to make beneficial use of their undisputed South Burnt Fork Creek water right by way of the historic diversion point and route of the Mack Ditch. The court established this as the status quo, imposed the injunction, and added that a determination on the merits would follow as part of the proceedings. ¶19 The court determined that the Macks made a proper showing for an injunction, including a showing that they are likely to succeed on the merits. The court was also careful to state, both during the hearing and in its order, that it was reserving judgment on the ultimate issues of the case. Sandrock, ¶ 24. The Andersons have not identified language in the court’s order that reached the merits of the case. Instead, their arguments are directed at their dissatisfaction with the court’s determination of the status quo of the current controversy. ¶20 The District Court gathered evidence and carefully untangled the issues of the case to establish the status quo prior to the request for preliminary injunction. The District Court made proper findings and clearly reserved final adjudication on the merits in the Order. The preliminary injunction determination was not an abuse of the court’s discretion. ¶21 Did the District Court exceed its jurisdiction by establishing or changing the POD for the ditch in dispute? ¶22 Andersons argue that the District Court brushed aside the Water Court’s exclusive jurisdiction to determine points of diversion under § 85-2-234(6)(g), MCA, and created a new POD for Headgate 103. Macks respond that no place of use or means of diversion was changed under the court’s findings and Order. ¶23 It is well established that ditch or easement rights are separate and distinct property rights from a water right. Connolly v. Harrel, 102 Mont. 295, 57 P.2d 781 (1936). Jurisdiction to interpret and determine existing water rights rests exclusively with the water court. Mildenberger v. Galbraith, 249 Mont. 161, 166, 815 P. 2d 130, 134 (1991); § 3-7-501, MCA. Conversely, district courts are granted authority to supervise the distribution of water through ditches and other distribution means concerning water rights which have already been adjudicated. Baker Ditch Co. v. District Court, 251 Mont. 251, 255, 824 P.2d 260, 262-63 (1992); § 85-2-406(3), MCA. ¶24 The District Court in these proceedings was tasked with the responsibility for interpreting the 1978 Decree and the location of Headgate 103 referenced within the 1978 Decree, as it was the place of diversion for Macks’ claimed ditch right which was the water distribution method in dispute. The 1978 Decree had a map depicting the physical location of Headgate 103 within the NESWSW Section 4, Township 8 North, Range 19 West. The Andersons presented the District Court with evidence that had been submitted to the Water Court, in the form of Statements of Claim 76H 125130-00 and 76H 125131-00, which indicated a different location for the Headgate 103 and which tended to defeat Macks’ ditch claim under the 1978 Decree because it placed Macks’ POD in SWNWSW Section 4, Township 8 North, Range 19 West. In order to assess the weight to be attributed the Statements of Claim evidence, the District Court considered Macks argument that the Statements of Claim contained an error in the location of the POD, as well as evidence presented by Turek, two water commissioners, Mack, and documentary evidence. Presentation of this evidence spanned four days. The District Court ultimately concluded that the 1978 Decree depicted the POD as claimed by Mack and rejected Andersons’ argument that the Statements of Claim altered that which had been set forth in the 1978 Decree. That the District Court concluded the Macks’ water rights claims contained an error is inconsequential, except for the fact that it demonstrated the court weighed and considered the evidence presented in an effort to distribute the water pursuant to the 1978 Decree. The District Court did not change the physical location of a POD, which is the province of the Water Court, but rather interpreted the location of the POD as depicted in the 1978 Decree, following consideration of evidence which had also been submitted to the Water Court. ¶25 The District Court therefore was careful not to tread upon the jurisdiction of the Water Court while maintaining its obligation to determine whether a preliminary injunction was necessary to protect the Macks’ ditch rights. The considerations are often discreet and demonstrate the difficulty for a district court in managing distribution controversies concerning water. ¶26 Did the District Court usurp the Andersons’ right to a jury trial regarding the existence of an irrigation ditch which crosses Andersons’ property? ¶27 The Andersons’ final argument is that the District Court determined the merits of the dispute regarding the Mack Ditch. The Andersons argue this conclusion took away their right to a jury trial. However, this argument fails to recognize the plain language of the District Court’s Order. Judge Haynes clearly acknowledged in the Order that the court’s determinations were to preserve the status quo and that the rights of the parties would be determined at trial. The Order specifically directs the parties to file status reports within 90 days and make requests at the time for a trial setting “to permanently decide andfinalize any remaining contested issues.” The District Court anticipated further litigation of the issues, including a final determination regarding rights on the Mack Ditch. The Andersons’ argument that their right to a jury trial was usurped by the court’s status quo determination is incorrect. The District Court’s conclusions of law were correct and the court clearly reserved the merits of the case for a jury as requested by the Andersons. CONCLUSION ¶28 The District Court made proper findings and clearly reserved final adjudication on the merits in the Order and the preliminary injunction determination was not an abuse of the court’s discretion. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and BAKER concur.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 J.G. (Father) appeals from two orders entered by the Eighteenth Judicial District Court, Gallatin County, terminating his parental rights to his daughter A.G. and son T.G. We affirm. ¶2 Father presents the following issue for review: Did the Department of Health and Human Services (the Department) make reasonable efforts to prevent the necessity of removing A. G. and T.G. as required by § 41-3-423, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Father and K.G. (Mother) have two minor children together, A.G., born in 2009, and T.G., born in 2014. In 2009, K.G. was intoxicated, operating a motor vehicle, and involved in an accident while A.G. was in the vehicle. As a result, the Department entered into a voluntary services agreement with Mother to work with her chemical dependency issues and parenting of A.G., then only two months old. On February 16,2010, Mother left A.G. in her unlocked vehicle parked in a lot while she was in a store shopping. As a result, a police officer cited Mother with endangering the welfare of a child and the Department and Mother entered into a second voluntary services agreement. On February 24, 2011, a police officer arrested Father for assaulting Mother in A.G.’s presence. Both parents were intoxicated. Father was charged with Aggravated Assault. The Department entered into a third voluntary services agreement with the family. ¶4 On June 21, 2011, the Department removed A.G. because Mother was attempting to drive to North Dakota under the influence of drugs and alcohol with A.G. in the vehicle. Mother pled guilty to endangering the welfare of a child and DUI. On June 24,2011, the Department filed a petition for emergency protective services and temporary legal custody of A.G. Mother stipulated, but Father contested A.G.’s adjudication as a youth in need of care and the Department’s petition for emergency protective services. After conducting a hearing, the District Court adjudicated A.G. a youth in need of care and granted the Department temporary legal custody for six months. The District Court approved a treatment plan and Father signed it on January 9, 2012. The District Court extended temporary legal custody several times. ¶5 On April 30, 2013, the Department placed A.G. with Father for a trial home visit in North Dakota. The visit was successful and Father successfully completed his treatment plan. On June 25, 2013, Mother relinquished her parental rights to A.G. On August 2, 2013, the District Court sentenced Mother to thirteen months commitment to Department of Corrections with five years suspended for criminal endangerment and DUI, both felonies, in connection with an incident wherein Mother left an unrelated child unattended in a vehicle in hot weather. On November 18, 2013, the District Court terminated Mother’s parental rights to A.G. On December 17, 2013, the District Court ordered permanent placement of A.G. with Father and the dependent and neglect proceeding concerning A.G. was dismissed. A child protection specialist involved in the case cautioned Father that if Father and Mother resumed their relationship and Mother resumed drinking alcohol, Father needed to protect A.G. Father agreed that protecting A.G. was his priority. ¶6 Upon discharge from her period of commitment, Mother and Father resumed their relationship in North Dakota, Mother resumed drinking alcohol, and the parties married. Thereafter, Father routinely left A.G. in Mother’s care without supervision of Mother’s parenting. Father, however, contacted North Dakota police and asked them to remove Mother because she was drunk and out of control in Father’s home. Mother returned to Montana because she violated her probation by drinking alcohol in North Dakota. She again drank when she returned to Montana. Father and A.G. then moved back to Montana to live with Mother. ¶7 On May 14, 2014, Father bought Mother a bottle of wine to drink, even though he knew Mother was pregnant. Father admitted he understood that Mother consuming large amounts of alcohol while pregnant can harm the fetus. Father also admitted that he advised Mother to stay in the vehicle and bought her the alcohol because she was drunk and pregnant and he was embarrassed. That night, A.G. was not home and Mother and Father drank and watched movies together. According to Father, Mother “got a little physical” and he locked himself in the bedroom. Neighbors contacted police when they heard Mother and Father arguing. Mother picked the bedroom door lock and Father locked himself in the bathroom until police arrived. When police arrived they believed Mother was intoxicated. They observed alcohol bottles, noticed that Mother was slurring her words, struggling to balance, and leaning on the walls for support. Both Mother and Father were arrested—Father because he had an outstanding warrant and Mother for violating her probation by drinking alcohol. Police contacted the Department. The Department removed A.G. and placed her in kinship care. Again, the Department filed a petition for emergency protective services and temporary legal custody “based on the Father’s physical neglect of A.G., including exposure to alcohol abuse, domestic violence, and failure to protect against [Mother] whose parental rights to A.G. were terminated.” ¶8 In June 2014, while Mother was five months pregnant, a motorist found her drunk and lying in a roadway. The motorist tried to take her home, but Mother could not describe to him where she lived. He took her to his house instead, where she became aggressive and he contacted police. Police arrived and took Mother to the hospital. Mother went from the hospital to jail where a breath test indicated she had ablood alcohol content of .238. Mother’s probation officer contacted the Department. Mother’s probation officer also listened to a recording of a phone call Mother made to Father while she was incarcerated wherein Father indicated he planned to flee the state with A.G. ¶9 Later that month, a neighbor observed Father with A.G. According to the neighbor, Father and A.G. were alone at a pond, although he was not allowed unsupervised visits with A.G. at the time. Father was intoxicated and repeatedly dunking A.G. underwater. The neighbor explained that A.G. was crying, choking, and reminding her father that she did not know how to swim, but Father continued dunking and throwing her into the water. The neighbor contacted the Department. Afterwards, Father left a message on the neighbor’s husband’s phone saying he was so angry he could “kill someone” and warning that his wife should “stayD the fuck out of [his] life.” The neighbor and her husband obtained an order of protection against Father. ¶10 T.G. was born in September 2014, and the Department removed him the following day before Mother and Father could leave the hospital with him. The reasons listed for T.G.’s removal were Mother and Father’s history of domestic violence, alcohol abuse, A.G.’s pending dependent and neglect case, the Department’s prior history with Mother and Father, and T.G.’s vulnerability as a newborn. T.G. was placed in foster care for several days and then in kinship care with A.G. On October 3, 2014, the Department filed for emergency protective services and temporary legal custody of T.G. ¶11 After conducting a hearing, the District Court adjudicated A.G. a youth in need of care. In its findings of fact and conclusions of law, issued November 10, 2014, the District Court concluded that the Department had made reasonable efforts to prevent A.G.’s removal: 11 Including providing the Father a Treatment Plan and services in the prior DN; providing reunification services in the prior DN; placing A.G. in kinship placement in this case; and arranging for supervised parenting time in this case. The Court make[s] this determination recognizing per § 41-3-423, MCA, the child’s health and safety are of paramount concern in making reasonable efforts. Mother and Father stipulated to T.G. being a youth in need of care. The District Court concluded reasonable efforts had been made; however, “no services could have been provided to the family which would have prevented or eliminated the need” for T.G.’s removal. The District Court approved a treatment plan and Father signed it on November 26, 2014. The District Court also granted the Department temporary legal custody of A.G. and T.G. for six months. ¶12 Also on November 26,2014, the Department placed A.G. and T.G. with Mother and Father for a trial home visit. On December 23, 2014, police and the Department were contacted after A.G., aged five, and her cousin, also five, were found walking around town unsupervised. When found, the two said they had been sleeping in a park and someone’s dad had dropped them off there. The children were taken home, where Mother was found intoxicated. Police were contacted and arrested Mother for violating her probation. The Department removed A.G. and T.G. from their trial home visit. ¶13 Father did not successfully complete his treatment plan. On May 26, 2015, the Department filed a petition to terminate Father’s parental rights to A.G. and T.G. Mother relinquished her rights to T.G. On November 30, 2015, the District Court terminated Mother’s parental rights to T.G. The District Court held a termination hearing for Father. Father failed to appear. On December 1, 2015, the District Court terminated Father’s parental rights to A.G. and T.G. In its orders terminating Father’s parental rights, the District Court concluded reasonable efforts had been made given the need to protect the children’s health and safety. ¶14 Father appeals. STANDARDS OF REVIEW ¶15 We review a district court’s decision to terminate parental rights for an abuse of discretion. In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899 (citation omitted). We review a district court’s findings of fact for clear error and its conclusions of law for correctness. ¶ 10 (citations omitted). DISCUSSION ¶16 Did the Department make reasonable efforts to prevent the necessity of removing A.G. and T.G. as required by § 41-3-423, MCA? ¶17 “It is the policy in Montana to protect children whose health and welfare may be threatened by those persons responsible for their care, but this protection must be provided in a manner that preserves the family environment, if possible.” In re C.J., 2010 MT 179, ¶ 23, 357 Mont. 219, 237 P.3d 1282, citing § 41-3-101(1)(a)-(b), MCA. Section 41-3-423(1), MCA, provides: The department shall make reasonable efforts to prevent the necessity of removal of a child from the child’s home and to reunify families that have been separated by the state. Reasonable efforts include but are not limited to voluntary protective services agreements, development of individual written case plans specifying state efforts to reunify families, placement in the least disruptive setting possible, provision of services pursuant to a case plan, and periodic review of each case to ensure timely progress toward reunification or permanent placement. In determining preservation or reunification services to be provided and in making reasonable efforts at providing preservation or reunification services, the child’s health and safety are of paramount concern. We have stated that this statute “obligates the Department to make ‘reasonable efforts’ to reunify families; however, the statute does not define the term and indeed it would be impossible to do so, as each case must be evaluated on its own facts. But clearly the statute does not require herculean efforts.” In re K.L., 2014 MT 28, ¶ 41, 373 Mont. 421, 318 P.3d 691. We similarly understand that “reasonable efforts” are required to prevent the necessity of removal; however, these efforts must be tailored to the facts of each case and clearly “herculean efforts” are not required. ¶18 Father argues § 41-2-423, MCA, requires the Department “make reasonable efforts prior to the removal in each and every case” and, here, the Department failed to make reasonable efforts prior to removing A.G. in May 2014 and prior to removing T.G., the day after he was born. The Department counters that the children’s health and safety required their removal and nothing could have been done to prevent it. We agree with the Department. The Department removed A.G. in May 2014 after Father bought Mother alcohol during her pregnancy with T.G. and a neighbor contacted police when they could hear Mother and Father arguing. Both parents were subsequently arrested. The Department removed T.G. when he was two days old because he was vulnerable and there were no viable options to assure his in-home safety amid Mother and Father’s repeated instances of alcohol abuse and domestic violence. ¶19 Here, the Department had been involved with and receiving referrals regarding this family since A.G. was two months old. The Department entered into three voluntary services agreements before removing A.G. for the first time. The Department provided treatment plans and services during the first removal. Father was successful, Father and A.G. were reunified, and the first proceeding was dismissed. Father was cautioned to prioritize A.G.’s protection, including protecting her from Mother and he agreed that A.G.’s safety was a priority. Father reinitiated his relationship with Mother and married her knowing Mother was an alcoholic and drinking. He recognized that Mother’s parental rights to A.G. had been terminated and that Mother had multiple citations for endangering the welfare of his children. In spite of this history, Father allowed Mother to care for A.G. without supervision. Father also recognized that Mother was drinking during her pregnancy and that this could harm the fetus. Nonetheless, Father purchased alcohol for Mother and consumed alcohol with Mother during her pregnancy with T.G. ¶20 Reasonable efforts must be reasonable under the circumstances. What may have been reasonable prior to removing A.G. the first time—providing three separate voluntary services agreements—was not reasonable for the Department prior to removing A.G. for the second time and removing T.G. shortly after his birth. Father argues “the Department made no efforts whatsoever” to prevent A.G.’s removal in May 2014, but fails to assert what efforts the Department could have utilized when Father was arrested that evening on an outstanding warrant. Conversely, we believe it would have been unreasonable for the Department not to resume responsibility for A.G. at that point because Mother’s rights had been terminated and Father was taken into custody, leaving no one responsible for A.G.’s health and safety. Father also fails to assert what efforts the Department could have utilized to assure T.G.’s safety after his birth. We believe it would have been unreasonable for the Department to allow Mother and Father to leave the hospital with T.G. knowing T.G.’s vulnerability as a newborn and that Mother and Father had exposed him to alcohol and domestic violence prior to his birth. ¶21 In consideration of the paramount importance of A.G. and T.G.’s health and safety and given the evidence of extensive interaction between the Department and this family from the time A.G. was two months old until Father’s termination, we conclude the District Court correctly determined that the Department made reasonable efforts to prevent the necessity of their removal. CONCLUSION ¶22 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and COTTER concur.

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Tammy Wagenman (“Tammy”) appeals the final judgment of the Montana Thirteenth Judicial District, Yellowstone County, denying her Cross-Petition to Amend the parties’ Findings of Fact, Conclusions of Law and Final Decree of Dissolution. We reverse and remand. ISSUES ¶2 Appellant raises two issues on appeal which we address as follows: 1. Whether the District Court erred when it denied Tammy’s Motion to Amend the Findings of Fact, Conclusions of Law, and Final Decree of Dissolution pursuant to M. R. Civ. P. 60(b)(6). 2. Whether the District Court erred when it awarded attorney fees to Matt Wagenman. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Matt Wagenman (“Matt”) and Tammy were married on March 22, 1996. During nearly sixteen years of marriage the parties acquired a marital home and mortgage along with other personal property and debts. On February 17, 2012, Matt and Tammy filed a pro se Joint Petition for Dissolution to dissolve the marriage and divide up their property and debt. As pro se parties, the parties utilized a “Joint Petition for Dissolution, no Children” form approved by the Montana Supreme Court. In the “Real Property” section of the petition the parties indicated that they were the owners of record of real property, their marital home, located at 5611 Haynes Road, Shepherd, Montana. At section 9(b) of the Petition, they stated that their real property should be distributed as described in Exhibit A, which they attached to their Petition. The parties signed the Petition and filed the documents with the District Court on February 17,2012, with Exhibit A attached. ¶4 Exhibit A is a property settlement agreement between the parties. The agreement is signed and dated September 1, 2011, and contains specific details agreed upon by the parties to settle their real property claims, payments owed to the IRS, and other debts. The agreement also included plans to refinance car loans for Matt’s Corvette and Tammy’s Camaro from joint to individual loans. The real property division made allowances for Matt to stay in the marital home, so long as he made payments in a timely manner. The agreement also required Matt to refinance the home within one year and to remove Tammy from the mortgage or the property would be listed for sale. Upon sale or refinancing of the home, the agreement provided that each party would receive 50% of the equity. According to the Petition, the home was valued at $205,000 and the mortgage balance on the property was $112,000. ¶5 After filing the Petition, Matt and Tammy appeared in District Court on March 13, 2012. Following a two-minute hearing, the court granted the dissolution of the marriage. The court record contains five documents as part of the dissolution, including the parties’ Petition with Exhibit A attached and the Final Decree granting the dissolution dated the day of the hearing. In the Final Decree, the court filled in a Montana Supreme Court approved decree form but did not enter the property and debt distribution according to Exhibit A, nor did it incorporate Exhibit A into the Decree. Instead, the court distributed the marital home to Matt and entered a mortgage debt to Matt in the amount of $180,000, an amount unsubstantiated in the record. ¶6 Over the next two years, the parties took action in accordance with their settlement agreement as they disentangled their assets. During this time, the parties communicated in regard to refinance of the house and Tammy’s eventual receipt of her portion of the marital home equity. Because Matt had not sold the home or paid Tammy the equity after two years, on May 20,2014, Tammy contacted an attorney who sent a letter to Matt indicating she was going to proceed with the property distribution in accordance with the Decree. Matt and Tammy subsequently agreed on an extension for Matt to comply with the provisions of the property distribution. Matt hired an attorney in August 2014, and it was then that both parties discovered the District Court failed to incorporate Exhibit A into the Decree. ¶7 Upon discovering that Exhibit A was not incorporated into the Decree, Matt changed his position from honoring the agreement with Tammy to asking Tammy to file a quitclaim deed on her interest in the house pursuant to the Decree. On September 22, 2014, Matt’s counsel filed a Motion to Compel, requesting that the court order Tammy to quitclaim her interest in the home based on the Final Decree. Matt also requested reasonable attorney fees in connection with the motion. On September 30,2014, Tammy responded to the Motion to Compel by filing a Cross-Petition to Amend the Findings of Fact, Conclusions of Law, and Final Decree of Dissolution. She argued that the Decree should be amended pursuant to M. R. Civ. P. 60(b)(6) to incorporate Exhibit A as the parties originally requested. The District Court held a hearing on October 31, 2014, and Matt argued that he did not sign anything in the file, and alleged that Tammy had forged his name on the documents. After receiving supplemental briefing on the issues, the court denied Tammy’s Rule 60(b)(6) Motion to Amend the pleadings, and granted Matt’s Motion to Compel and awarded Matt attorney fees. Tammy appealed to this Court on May 13, 2015, and this Court dismissed the appeal without prejudice pending the District Court’s determination of attorney fees. The Order approving stipulation regarding attorney fees was filed on October 26,2015. Tammy appeals. STANDARD OF REVIEW ¶8 The standard of review of a district court’s ruling on a motion pursuant to M. R. Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding from which relief is sought and the specific basis of the Rule 60(b) motion. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. In cases not involving a default judgment, we review a district court’s denial of a M. R. Civ. P. 60(b) motion for abuse of discretion. Tanascu v. Tanascu, 2014 MT 293, ¶ 9, 377 Mont. 1, 338 P.3d 47 (citation omitted). A district court abuses its discretion when “it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice.” Essex, ¶ 19. “We review a district court’s conclusions of law regarding a division of marital assets to determine whether they are correct.” In re Marriage of Bushnell, 2014 MT 130, ¶ 7, 375 Mont. 125, 328 P.3d 608. DISCUSSION ¶9 1. Whether the District Court erred when it denied Tammy’s Motion to Amend the Findings of Fact, Conclusions of Law, and Final Decree of Dissolution pursuant to M. R. Civ. P. 60(b)(6). ¶10 Upon motion, the Court may relieve a party from a final judgment in certain circumstances. M. R. Civ. P. 60(b) provides: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. (Emphasis added.) ¶11 We have determined that a motion under Rule 60(b)(6) “must be more than a request for rehearing, or a request for the district court to change its mind; it must be shown that something prevented a full presentation of the cause or an accurate determination of the merits that for reasons of fairness and equity redress is justified.” Orcutt v. Orcutt, 2011 MT 107, ¶ 11, 360 Mont. 353, 253 P.3d 884. We have also concluded that Rule 60(b) “is designed to be applied primarily as an exception to the finality of a judgment where a party was wronged through no fault of its own.” In re Marriage of Hopper, 1999 MT 310, ¶ 29, 297 Mont. 225, 991 P.2d 960. ¶12 “A successful Rule 60(b)(6) motion requires that the movant demonstrate each of the following elements: (1) extraordinary circumstances; (2) the movant acted to set aside the judgment within a reasonable period of time; and (3) the movant was blameless.” Essex, ¶ 25 (citations omitted). In this case, the District Court applied the Essex test and found no extraordinary circumstance to support Tammy’s motion. The court reasoned that because Tammy was present when the court filled in the provisions regarding the marital home on the decree, the court received input from the parties and Tammy was aware of the court’s determination. The court also concluded that waiting two and one half years to move to set aside the final judgment was not acting within a reasonable time. The court concluded that Tammy was not blameless because she failed to read the Final Decree until the fall of 2014 in spite of her frustrations over Matt’s failure to comply with Exhibit A. ¶13 Tammy asks the Court to modify the Final Decree to incorporate Exhibit A as the parties initially intended. She contends that the record demonstrates that the Essex “extraordinary circumstance” is the District Court’s failure to incorporate Exhibit A to the Final Decree, which is a violation of § 40-4-201, MCA, and an incorrect conclusion of law. Matt counters with several arguments, including that Exhibit A was only a preliminary negotiation between the parties, that the Joint Petition with Exhibit A cannot be considered a final contract between Tammy and Matt, and that neither party complied with the majority of the provisions in Exhibit A. ¶14 The public policy of the State of Montana is to promote the amicable settlement of disputes between parties to a marriage. Section 40-4-201(1), MCA; Tanascu, ¶ 14. For this reason, parties in a marital dissolution may enter into a written settlement agreement dividing any property owned by either spouse. Section 40-4-201(1), MCA; Tanascu, ¶ 14. The district court must honor the separation agreement statutes which clearly indicate that the terms of a separation agreement are binding upon a district court unless the court finds the separation agreement to be unconscionable. Section 40-4-201(2), MCA; Tanascu, ¶ 14. ¶15 The District Court determined in the Montana Supreme Court-approved Final Decree form that the parties’ division of property was reasonable and should be enforced. On the form, the District Court concluded as a matter of law that the “[pletitioner’s proposed division of property and debts is equitable,” and that “the relief requested should be granted.” These conclusions support Tammy’s argument that Exhibit A should have been incorporated into the Final Decree. During the short hearing, the District Court filled in the form order. In the real property provision, the court indicated that Matt would receive all of the real estate and attendant debt, while Tammy would quitclaim her interest. The District Court then left blank all spaces for division or settlement of other property including vehicles and debt. The only proposal for division of the remainder of property and debt was contained in their Joint Petition for Dissolution and Exhibit A, which addressed the division of those other items of property between the parties and was made part of the court record. The court’s action of leaving most of the form blank lends significant support to Tammy’s argument that the court was relying upon Exhibit A to equitably settle the marital property, because the Final Decree is incomplete without its detailed provisions. ¶16 In addition, because the court failed to incorporate Exhibit A, the court failed to comply with § 40-4-201(4)(a)-(b), MCA, which requires the decree to include the terms for settlement of property and debts. We have previously determined that a district court cannot substitute its particular division of property in lieu of the parties’ division unless the court finds the agreement to be unconscionable. In re Marriage of Blankenship, 210 Mont. 31, 35, 682 P.2d 1354, 1356 (1984). In Blankenship, the parties sought to divide a particular piece of land, and the court substituted its own boundary line in lieu of the parties’ proposed subdivision without making a finding of unconscionability. Blankenship, 210 Mont. at 35, 682 P.3d at 1356. We concluded the court had no authority to do so and reversed. ¶17 As we stated in Blankenship: Section 40-4-201, MCA, sets forth certain criteria that must be present before a court may disregard a separation agreement. Subparagraph two of the statute states that the terms of the agreement are binding on the court unless it finds the agreement unconscionable. If the court does find the agreement unconscionable, then the court may make its own disposition of the property. Section 40-4-201(3), MCA. Blankenship, 210 Mont. at 35, 682 P.3d at 1356. ¶18 Here, the court created its own division of the only property of value in the marriage, giving 100% of the marital home to Matt instead of a 50% equity division to each party under the settlement agreement. Because the District Court did not incorporate Exhibit A into the parties’ separation agreement without providing a determination of unconscionability or other provision for an equitable division of the marital property, the court failed to comply with the separation agreement statute § 40-4-202, MCA. Similar to Blankenship, we conclude that, absent a finding of unconscionability it was legal error for the District Court to substitute its own property settlement in place of the parties’ agreement. Because the District Court neither found unconscionability nor followed the parties’ property settlement agreement as set forth in Exhibit A, Tammy was wronged through no fault of her own. Marriage of Hopper, ¶ 29. Accordingly, under the first Essex factor, we conclude the District Court’s legal error created the “extraordinary circumstances” that provides grounds for Tammy’s motion to amend. Essex, ¶ 25. ¶19 The second element under the Essex test requires that the movant must act to set aside the judgment within a reasonable time. Essex, ¶ 25. Tammy argues her motion was made within a reasonable time because her failure to act earlier stemmed from a belief that the court had incorporated Exhibit A into the parties’ settlement, and upon the discovery of the error by Matt’s counsel, she immediately filed a motion to amend the settlement. In Bartell v. Zabawa, 2009 MT 204, ¶ 34, 351 Mont. 211, 214 P.3d 735, we determined that filing a motion to set aside 10 days after discovery of the error entered against Zabawa and his insurer six years after the underlying accident was “within a reasonable amount of time” because Zabawa had proceeded with diligence. Similarly, we conclude here that Tammy acted within a reasonable time as she moved immediately, within 8 days, to amend the judgment against her upon the discovery of the District Court’s error. ¶20 Finally, we conclude that Tammy is blameless for failing to discover the issue, as the error was not due to her actions. Because the court had a duty to inquire about the equity of the agreement, we do not fault Tammy as a pro se litigant who had little previous contact with the court system and who was relying on the marital dissolution statutes, and the court, to uphold their agreement. ¶21 Accordingly, the District Court’s subsequent decision to deny her Rule 60(b)(6) motion was an abuse of discretion. The court’s legal error prevented an “accurate determination of the merits” regarding the property settlement agreement; thus, we reverse the District Court’s denial of Tammy’s Motion to Amend under Rule 60(b)(6), because it was an abuse of the court’s discretion. ¶22 2. Whether the District Court erred when it awarded attorney fees to Matt Wagenman. ¶23 Under § 40-4-110(1), MCA, a court “from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4.” The District Court awarded attorney fees to Matt without a consideration of financial resources of the parties. We have determined that the court reached the incorrect result in its denial of Tammy’s Rule 60(b)(6) amendment. Thus, we find that the court’s award of attorney fees was incorrect. Accordingly, we reverse the District Court’s award of attorney fees. CONCLUSION ¶24 The District Court erred by failing to incorporate the parties’ property settlement, detailed in Exhibit A, into the Final Decree. The District Court abused its discretion when it denied Tammy’s Rule 60(b)(6) motion to amend the Final Decree to incorporate Exhibit A. Further, the District Court improperly awarded attorney fees to Matt. Accordingly, we reverse and remand for further proceedings on the property settlement agreement. CHIEF JUSTICE McGRATH, JUSTICES BAKER, SHEA and RICE concur.

Dismissed Original Proceeding Prohibition

Affirmed Dist. 4 (Missoula)

Affirmed Dist. 13 (Yellowstone)

Affirmed Dist. 4 (Missoula)

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Joey Wendell Brave appeals an order on restitution and a judgment of the First Judicial District Court, Broadwater County, requiring him to pay restitution for his conviction of criminal endangerment and imposing various probation conditions. We address: 1. Whether the District Court erred in ordering Brave to pay $25,000 in restitution. 2. Whether the District Court erred in imposing several probation conditions. ¶2 We affirm the District Court’s restitution order. We reverse several of the probation conditions and remand the judgment to the District Court for proceedings consistent with this Opinion. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On July 15,2013, the State of Montana charged Brave with sexual intercourse without consent, a felony in violation of § 45-5-503, MCA. The State alleged that Brave had sexual intercourse with A.C. and, as a result, A.C. became pregnant and gave birth to twins. At the time of the alleged offense, Brave was eighteen years old and A.C. was fourteen years old. On May 16, 2014, the parties entered into a plea agreement, and Brave pled guilty to an amended charge of criminal endangerment, a felony in violation of § 45-5-207, MCA. ¶4 The District Court held a restitution hearing on September 12, 2014, and a sentencing hearing on November 7, 2014. On November 13, 2014, the District Court issued a restitution order, ordering Brave to pay $35,667.36 in restitution to A.C.’s mother, D.C. The restitution award included $25,000 D.C. claimed as lost wages because of a ten-week Family and Medical Leave Act (FMLA) leave of absence she took from work to care for A.C. and the twins, three months after the twins were born. On December 9, 2014, the District Court issued its judgment, imposing a six-year deferred sentence, subject to conditions of probation. Brave appeals the restitution order and the judgment, challenging the $25,000 in restitution to D.C. for lost wages and several of the probation conditions. STANDARDS OF REVIEW ¶5 If an offender is sentenced to less than one year of actual incarceration, we utilize a two-tiered approach. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. “Upon request, we will review such sentences for both legality and abuse of discretion.” Herd, ¶ 22 (emphasis in original). Brave does not argue that his sentence constitutes an abuse of discretion. Therefore, we review Brave’s sentence for legality only. See State v. McCaslin, 2011 MT 221, ¶ 6, 362 Mont. 47, 260 P.3d 403. “A sentence is legal if it falls within statutory parameters.” McCaslin, ¶ 6. ¶6 “The appropriate measure of restitution is a question of law, which we review for correctness.” State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841 (citation omitted). We review for clear error a district court’s finding of fact as to the amount of restitution. Aragon, ¶ 9. A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that the court made a mistake. Aragon, ¶ 9. “Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance.” Aragon, ¶ 9 (citation and internal quotation marks omitted). DISCUSSION ¶7 1. Whether the District Court erred in ordering Brave to pay $25,000 in restitution. ¶8 Under Montana law, “a sentencing court shall, as part of the sentence, require an offender to make full restitution to any victim who has sustained a pecuniary loss, including a person suffering an economic loss,” § 46-18-241(1), MCA, such as loss of income, see § 46-18-243(l)(a), MCA. “The extent of the restitution obligation is not limited to the defined elements of the offense and is not limited to losses that arise as a ‘direct’ result of the offense.” State v. Cerasani, 2014 MT 2, ¶ 13, 373 Mont. 192, 316 P.3d 819 (quoting State v. LaTray, 2000 MT 262, ¶ 14, 302 Mont. 11, 11 P.3d 116). Rather, “[a] condition of a sentence will be upheld as long as there is a nexus either to the offense or to the offender.” Cerasani, ¶ 12. For example, in State v. Perkins, 2009 MT 150, ¶¶ 5, 6, 350 Mont. 387, 208 P.3d 386, a child was placed into foster care with her aunt, P.M., during Youth in Need of Care proceedings that resulted in the defendant’s conviction of criminal endangerment. We upheld the district court’s restitution award for expenses P.M. incurred that were not covered by the foster care program, including daycare. Perkins, ¶¶ 9, 13. ¶9 The victim of a criminal act has a duty to mitigate restitution damages. State v. Kalal, 2009 MT 103, ¶ 9, 350 Mont. 128, 204 P.3d 1240. However, this duty is limited; an injured person is not expected to do what is unreasonable or impracticable. Kalal, ¶ 9. Thus, we consider what a reasonable and prudent person would be expected to do, if capable, under the circumstances. Kalal, ¶ 9. The District Court found that D.C.’s lost wages for her ten weeks of FMLA leave were necessarily connected to assisting her minor daughter in caring for the twins. Brave does not dispute that D.C. took ten weeks of FMLA leave or that her salary for that time period amounted to $25,000. Rather, he contends that D.C. should have mitigated her damages by hiring a child care provider to care for the twins, which presumably would have cost less than D.C.’s hourly wage of $62.50. ¶10 In her application for FMLA leave, D.C. listed A.C. as the family member for whom she would provide care. She wrote: “[A.C.] is the 15 year old mother of twin girls (now 3 mo. old) and is going through an emotional time. She ran away from home and was hospitalized due to suicidal statements. Now in respite care & therapy. We’re providing temporary legal guardianship for her babies.” At the September 12, 2014 restitution hearing, D.C. testified that she took FMLA leave “[blecause [A.C.] was not able to care for twins on her own, so I had to help her.” When asked whether there was anyone else who was able to care for the twins, D.C. answered: “No. Because I’m [A.C.’s] mom and she needed me there.” Although D.C. later stated that she “probably could have” hired child care to help with the twins, this statement did not negate her need to care for A.C. When D.C. took FMLA leave, A.C. was a minor. Under the circumstances, it was reasonable that D.C. would not want to entrust a stranger with the care and support of her fifteen-year-old daughter, who had previously run away from home, had been hospitalized due to suicidal statements, and was the new mother to infant twins. D.C. was not required to mitigate her damages by hiring a child care provider. The District Court did not err in awarding D.C. $25,000 in lost wages. ¶11 2. Whether the District Court erred in imposing several probation conditions. ¶12 Brave also alleges that the District Court erred by (1) attaching a sex offender tier designation to Brave; (2) issuing a written judgment that does not conform to its oral pronouncement of Brave’s sentence; and (3) ordering Brave to pay Presentence Investigation Report (PSI) and public defender fees without making a determination of his ability to pay. The State concedes each of these allegations. Therefore, on remand: * Condition “ee”, which designates Brave as a Level 1 sexual offender, shall be stricken from the District Court’s judgment. * Condition “z”, which requires Brave to enter and complete sexual offender treatment, shall be stricken from the District Court’s judgment. * Condition “mm”, which requires Brave to submit to annual polygraph testing, shall be stricken from the District Court’s judgment. * Condition “bb” of the District Court’s judgment shall be amended to allow the Department of Health and Human Services, Child and Family Services Division (Department), to determine the appropriateness of Brave’s contact with the victim and the victim’s immediate family. In the event that the Department is no longer involved, the discretion for determining the appropriateness of any contact will revert to Brave’s probation officer. * The citation to § 45-5-503, MCA, in the first paragraph of the District Court’s judgment shall be replaced with a citation to § 45-5-207, MCA. * Pursuant to § 46-8-113, MCA, the District Court on remand shall determine Brave’s ability to afford the costs of appointed counsel and PSI preparation. CONCLUSION ¶13 We affirm the District Court’s restitution order. We reverse several of the probation conditions in the District Court’s judgment and remand for proceedings consistent with this Opinion. JUSTICES COTTER, McKINNON, WHEAT and RICE concur.

JUSTICE RICE delivered the Opinion of the Court. ¶1 Joshua James Allen (Allen) appeals from the denial of his motion to dismiss thirty-four of thirty-five charges of violating an order of protection by the Fourth Judicial District Court, Missoula County. We affirm. ¶2 Allen raises the following issues: 1. Did the District Court err by denying the motion to dismiss multiple charges of violating an order of protection pursuant to § 46-11-410(2), MCA? 2. Did the District Court err by denying the motion to dismiss multiple charges of violating an order of protection on double jeopardy grounds ? ¶3 Because we conclude that Issue 2 was not preserved for appeal, we address Issue 1 only. PROCEDURAL AND FACTUAL BACKGROUND ¶4 On September 9, 2014, Allen sent a series of messages by text, Facebook, and phone to his former girlfriend, B.D. B.D. had previously obtained an Order of Protection against Allen prohibiting him from contacting her. Allen sent B.D. a total of 35 individual messages in a two-hour period. B.D. alerted the police to the unwanted messages. The content of Allen’s messages ranged from obscenities, to apologies, to admissions he was drinking, to declarations of love, to indications he knew B.D. had called the police. ¶5 The State charged Allen by Information with 35 counts of violating an Order of Protection under § 45-5-626, MCA. Allen moved to dismiss 34 of the 35 counts on the grounds that the offenses were “a continuing course of conduct” rather than a series of individual crimes. The District Court denied the motion. Allen then entered a plea agreement with the State. Pursuant to the plea agreement, the State dropped all charges of violating an Order of Protection and Allen instead entered a guilty plea to one count of felony stalking. In the agreement, Allen reserved his right to appeal the denial of his motion to dismiss. He appeals. STANDARD OF REVIEW ¶6 A district court’s denial of a motion to dismiss is reviewed de novo. State v. Zink, 2014 MT 48, ¶ 9, 374 Mont. 102, 319 P.3d 596 (citation omitted). DISCUSSION ¶7 1. Did the District Court err by denying the motion to dismiss multiple charges of violating an order of protection pursuant to § 46-11-410(2), MCA? ¶8 “When the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense.” Section 46-11-410(1), MCA (emphasis added). “A defendant may not, however, be convicted of more than one offense if ... the offense is defined to prohibit a continuing course of conduct and the defendant’s course of conduct was interrupted, unless the law provides that the specific periods of conduct constitute separate offenses.” Section 46-11-410(2)(e), MCA (emphasis added). ¶9 Allen argues he could only be charged with one offense because his actions formed the same transaction and the crime of violating an order of protection is intended to prohibit a continuing course of conduct. Thus, according to Allen, § 46-11-410(2)(e), MCA, quoted above, barred the State from charging him with multiple offenses for violating the order of protection. We disagree for two reasons. ¶10 First, we recently held that the statute criminalizing the violation of an order of protection—§ 45-5-626, MCA—is not “defined to prohibit a continuing course of conduct.” State v. Strong, 2015 MT 251, ¶ 19, 380 Mont. 471, 356 P.3d 1078. Therefore, § 45-5-626, MCA, does not come within the multiple conviction prohibition stated in § 46-11-410(2)(e), MCA. ¶11 Second, Allen fails to note the critical distinction between the two subsections of § 46-11-410, MCA, upon which this case turns. As emphasized in the quotations of the statute above, § 46-11-410(1), MCA, uses the word “prosecute!],” and, as we have explained, this provision “expressly allows a person to be charged with and prosecuted for multiple offenses arising out of the same transaction.” State v. Dixon, 2000 MT 82, ¶ 49, 299 Mont. 165, 998 P.2d 544. In contrast, § 46-11-410(2), MCA, uses the word “convictfion],” which “prohibits the State from convicting a defendant of more than one offense” if the offense is within the purview of § 46-11-410(2), MCA. Dixon, ¶ 49 (emphasis in original). By its plain language, § 46-11-410(2), MCA, is not implicated by the State’s charging decisions. Rather, it is implicated only after a conviction is obtained, and even then, only when a defendant is convicted of multiple offenses. See Dixon, ¶¶ 48-50. Thus, even if a charged offense falls within its purview, § 46-11-410(2), MCA, provides no avenue for Allen to challenge the State’s charging decisions because it does not prohibit the State from charging a defendant with more than one offense. Dixon, ¶ 49. ¶12 Although we have previously stated “a defendant may be prosecuted for more than one offense arising from the ‘same transaction’ unless the charges are among those described in subsection (2),” Strong, ¶ 17 (quoting State v. Goodenough, 2010 MT 247, ¶ 16, 358 Mont. 219, 245 P.3d 14), the issue in both Strong and Goodenough was not whether the State could charge multiple offenses, but instead whether a defendant could be convicted of multiple offenses, making it unnecessary in those cases to make this distinction. Strong, ¶¶ 16-19; Goodenough, ¶¶ 14-18. ¶13 Allen contends that if his argument is not accepted, “the statute could be used as an unreasonable weapon” because “if the matter is simply one of prosecutorial discretion or largesse, an overly zealous prosecutor could have levied an individual charge against Allen for every character typed into the text message.” Allen raises a viable policy concern, but it is not for the judiciary to undertake review of the State’s charging decisions absent a statutory or constitutional violation. See Strong, ¶ 23 (“Charging decisions are generally within the prosecutor’s exclusive domain, and the separation of powers [doctrine] mandates judicial respect for the prosecutor’s independence.”) (internal quotations and citation omitted). By its plain language, § 46-11-410, MCA, is not violated, or even implicated, by the State’s charging decisions, and therefore provides no mechanism for courts to examine those decisions. The District Court correctly denied Allen’s motion to dismiss thirty-four charges of violating an order of protection. ¶14 2. Did the District Court err when it denied the motion to dismiss multiple charges of violating an order of protection on double jeopardy grounds? ¶15 Allen made a passing reference to double jeopardy in his briefing before the District Court, but did not develop a constitutional argument. As such, Allen’s constitutional claim is not preserved for our review. See In re G.S., 2002 MT 245, ¶ 48, 312 Mont. 108, 59 P.3d 1063 (general references to constitutional provisions in the district court insufficient to preserve those issues for appeal). ¶16 Affirmed. JUSTICES SHEA, BAKER, COTTER and WHEAT concur. The State notes that, in contrast to the defendant in Strong, who pled and was sentenced to three counts, Allen pled and was sentenced to only one count under the plea agreement, but does not argue that the issues raised here have been mooted by Allen’s single conviction. Allen states in reply that, upon the denial of his motion to dismiss, he faced a “plethora of charges” that could have been sustained had he proceeded to trial and been convicted, and thus he “resolved this case through a plea agreement to one count of stalking.”

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Bozeman residents Peter Arnone, Dave Baldwin, Ross Hartman, Dawnette Osen, and Sharon Swanson (collectively, “Petitioners”), appeal three orders issued by the Eighteenth Judicial District Court, Gallatin County: (1) denying the Petitioners’ motion for summary judgment and dismissing their complaint; (2) denying the Petitioners’ motion for reconsideration; and (3) granting a motion filed by City Commissioners Jeff Krauss, Carson Taylor, Chris Mehl, Cynthia Andrus, and I-Ho Pomeroy (collectively, “Commissioners”) to dismiss the Petitioners’ complaint against them in their individual capacities. We address the following issues: 1. Whether the District Court erred in denying the Petitioners’ motion for summary judgment and dismissing their complaint. 2. Whether the District Court abused its discretion in denying the Petitioners’ motion for reconsideration. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 In June 2014, the Bozeman City Commission (Commission) adopted Nondiscrimination Ordinance 1890 (Ordinance), which “prohibits] discrimination on the basis of actual or perceived sexual orientation or gender identity or expression” by landlords, providers of public accommodations, and parties engaged in residential real estate transactions. The Ordinance was codified as “Bozeman Ordinance Section 24.10.010 et seq.” and became effective in July 2014. The Ordinance creates a private cause of action for an aggrieved party claiming a violation of one of its provisions and authorizes the Bozeman Municipal Court to fashion civil remedies, including injunctive relief. The Ordinance defines an “aggrieved party” as “a person who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and who has been or is likely to be specifically and injuriously affected by a violation of this article.” The Ordinance contains an exception for landlords who rent “individual rooms in a private residence designed as a single dwelling unit in which the owner also resides.” ¶3 In August 2014, the Petitioners filed suit against the City of Bozeman (City), the Commission, and the Commissioners (collectively, “Respondents”), seeking a legal declaration that the Ordinance is invalid because it is preempted by State law and beyond the scope of the Respondents’ power or authority. In January 2015, the Petitioners filed a motion for summary judgment, again contending that the Ordinance is invalid as a matter of law. The Respondents opposed the motion, alleging that the Petitioners’ complaint failed to present a justiciable case or controversy. The District Court held oral argument and, on September 15, 2015, issued an order denying the Petitioners’ motion for summary judgment and dismissing their complaint on the ground that the Petitioners did not present a justiciable case or controversy. The District Court determined that the Petitioners were requesting an advisory opinion, lacked standing, and had not alleged a claim that was ripe for review. The Petitioners then filed a motion for reconsideration and to amend their pleadings, alleging that Osen’s individual circumstances had materially changed since filing suit because although Osen—who was the only landlord among the Petitioners—was only renting out a room in her home at the time the Petitioners filed their complaint, she was now renting out her entire home. Therefore, the Petitioners argued that Osen was now subject to the Ordinance and had standing. The District Court denied the motion for reconsideration and to amend. The Petitioners appealed. STANDARDS OF REVIEW ¶4 We review summary judgment orders de novo. Bailey v. State Farm Mut. Auto. Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary judgment is appropriate when the moving party demonstrates an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A district court’s ruling on whether a justiciable controversy exists is a conclusion of law that we review for correctness. Northfield Ins. Co. v. Mont. Ass’n of Cntys. (Northfield), 2000 MT 256, ¶ 8, 301 Mont. 472, 10 P.3d 813. We review for abuse of discretion a district court’s denial of a motion to alter or amend a judgment, Locke v. Estate of Davis, 2015 MT 141, ¶ 14, 379 Mont. 256, 350 P.3d 33, or a pleading, Farmers Coop. Ass’n v. Amsden, LLC, 2007 MT 286, ¶ 12, 339 Mont. 445, 171 P.3d 690. DISCUSSION ¶5 1. Whether the District Court erred in denying the Petitioners’ motion for summary judgment and dismissing their complaint. ¶6 The District Court dismissed the Petitioners’ complaint on multiple grounds. Although the Petitioners’ appeal focuses almost entirely on the District Court’s determination that they lacked standing, the District Court also held that they were requesting an advisory opinion, and that the issue was not ripe for review. We find the District Court’s advisory opinion analysis to be dispositive of both issues before us. ¶7 “The judicial power of Montana’s courts is limited to justiciable controversies,” Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 19, 366 Mont. 450, 288 P.3d 193. We consistently have held that we will not render advisory opinions. Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 9, 355 Mont. 142, 226 P.3d 567. To fall within a court’s adjudicatory power, a controversy must be “real and substantial..., admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.” Plan Helena, ¶ 9 (quoting Chovanak v. Matthews, 120 Mont. 520, 526, 188 P.2d 582, 585 (1948)). ¶8 The District Court concluded that the Petitioners sought an advisory opinion because “[t]he hypothetic facts are posited by [the Petitioners] as if they were currently subject to a complaint alleging a violation of the [Ordinance] filed in Municipal Court. In fact, none of the [Petitioners] are susceptible to such an action.” The Petitioners have not substantively addressed the District Court’s determination that they seek an advisory opinion, though that analysis is dispositive in this case. ¶9 Violation of the Ordinance requires third-party action. Specifically, the Petitioners must receive an application from an “aggrieved party”—i.e., someone the Ordinance was designed to protect—then reject that application for reasons the Ordinance was designed to address, and then be sued by the aggrieved party, in order for the Ordinance to be enforced. None of the Petitioners have alleged that he or she has experienced or engaged in any of these actions. Nor is it even possible for any of the Petitioners to engage in actions that would precipitate a conflict under the Ordinance of their own volition, because of the need for an independent aggrieved party to initiate both the interaction that would provide the basis for a legal action under the Ordinance and then to pursue the legal action itself. ¶10 Although the Uniform Declaratory Judgment Act (UDJA) “is to be liberally construed and administered,” Lee v. State, 195 Mont. 1, 6, 635 P.2d 1282, 1284 (1981) (citing § 27-8-102, MCA), it “does not license litigants to fish in judicial ponds for legal advice,” Mont. Dep’t of Natural Res. & Conservation v. Intake Water Co., 171 Mont. 416, 440, 558 P.2d 1110, 1123 (1976) (citation omitted). See also Northfield, ¶ 10 (“I L liberal interpretation of the [UDJA] is tempered by the necessity that a justiciable controversy exist before courts exercise jurisdiction.”). In Northfield, secondary insurers sought a declaratory judgment as to their contractual duty to indemnify a primary insurer, even though the primary insurer had not yet sought indemnification. Northfield, ¶ 16. We held: “the judicial determination [the secondary insurers] seek involves a contractual duty which has not yet arisen and which may, in fact, never arise. A determination of the issue, therefore, would constitute an advisory opinion and courts have no jurisdiction to issue such opinions.” Northfield, ¶ 18. In reaching this conclusion, we cited Hardy v. Krutzfeldt, 206 Mont. 521, 672 P.2d 274 (1983). Northfield, ¶ 18. In Hardy, the plaintiffs sought a judicial declaration that several preemptive rights of first refusal pertaining to their real property were unreasonable restraints on alienation. Hardy, 206 Mont. at 523, 672 P.2d at 275. We held that there was no justiciable controversy because there was no pending sale or offer for sale of the properties that would be affected by the rights of first refusal, and no third party was seeking relief from the contractual provisions providing for the refusal rights. Hardy, 206 Mont. at 524-25, 672 P.2d at 275-76. ¶11 Here, the Petitioners have not alleged facts indicating that they have engaged or are about to engage in any concrete transaction that would violate the Ordinance, or that a potential aggrieved party has sued or threatened to sue them under the Ordinance. It is entirely possible that none of the Petitioners will ever be confronted with a situation in which they must decide whether to refuse accommodation to a person the Ordinance was designed to protect. ¶12 In Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), and Mont. Immigrant Justice Alliance v. Bullock (MIJA), 2016 MT 104, 383 Mont. 318, 371 P.3d 430, we held that the plaintiffs could challenge a law in court before it was enforced against them. The critical distinction between those two cases and the present case, however, is that in Gryczan and MIJA there existed at least a putative dispute between the plaintiffs and the defendants. In Gryczan, the plaintiffs were three homosexual couples who acknowledged their past violations of § 45-5-505, MCA, and their intent to violate the statute in the future. Gryczan, 283 Mont. at 439, 942 P.2d at 115-16. In MIJA, the plaintiffs met the definition of “illegal alien” set forth in LR 121 “because they entered the United States unlawfully, and... accordingly they will be deprived of state services even though they now are considered documented, lawful immigrants by the Department of Homeland Security.” MIJA, ¶ 8. In both cases, the State defendants contested the plaintiffs’ standing on the grounds that the challenged statutes had not been enforced and the State was not threatening enforcement. We rejected this argument in both cases, noting in MIJA that “[t]he State’s assurance that LR 121 will not be enforced against them under the current administration is insufficient to render MIJA’s claims hypothetical, speculative, or illusory.” MIJA, ¶ 26 (citation and internal quotation marks omitted). ¶13 In contrast to both Gryczan and MIJA, the Respondents in this case are not promising to withhold enforcing the Ordinance as a basis to render the Petitioners’ claims “hypothetical, speculative, or illusory,” see MIJA, ¶ 26, because the Respondents in this case have no basis to enforce the Ordinance against the Petitioners, in any event. The plaintiffs in both Gryczan and MIJA either had violated, or possessed the unilateral power to violate, the laws being challenged. Likewise, in both Gryczan and MIJA, the parties being sued—the State of Montana and various public officials—had the power to prosecute those violations. However, the Petitioners in this case do not have the power to unilaterally violate the Ordinance, and the Respondents do not have the power to prosecute violations of the Ordinance even if they wanted to. The only enforcement mechanism under the Ordinance is a private suit, brought by a private individual who meets the Ordinance’s definition of an “aggrieved party.” Notably, such an “aggrieved party” is not a Respondent in this case, nor has a potential aggrieved party been identified, precisely because no such individual exists, and such individual may never exist. In short, the Petitioners in this case ask us not only to resolve a hypothetical dispute, they seek resolution of a hypothetical dispute with an entirely hypothetical opponent. ¶14 As in Northfield and Hardy, the Petitioners are asking this Court to speculate about a transaction “which has not yet arisen and which may, in fact, never arise.” Northfield, ¶ 18; see also Hardy, 206 Mont. at 525, 672 P.2d at 276. We have held that “[t]he courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, ... deal with theoretical problems, give advisory opinions, ... provide for contingencies which may hereafter arise, or give abstract opinions,” Intake Water Co., 171 Mont. at 440, 558 P.2d at 1123 (citations omitted), yet that is exactly what the Petitioners ask us to do. The District Court correctly concluded that the Petitioners were requesting an advisory opinion and properly dismissed the case on summary judgment. ¶15 2. Whether the District Court abused its discretion in denying the Petitioners’ motion for reconsideration. ¶16 The Petitioners allege that, because Osen began renting out her entire home during the course of the proceedings, she was no longer subject to the Ordinance’s exception for landlords renting a room in their residence, and the District Court should have granted their motion for reconsideration or allowed them to amend their pleadings. In making this argument, the Petitioners again focus entirely on the District Court’s determination that they lacked standing. Irrespective ofher changed circumstances, Osen nevertheless seeks an opinion from this Court advising her as to what would be the legal outcome if she received an application from someone who meets the Ordinance’s definition of an “aggrieved party,” and if she rejected that application for reasons the Ordinance was designed to address, and if the aggrieved party then relied upon the Ordinance to seek redress in court. This is a situation that may never arise, and presents precisely the “hypothetical facts and abstract propositions” we previously have refused to address. See Northfield, ¶ 14. A determination of the issue would constitute an advisory opinion, and the District Court did not abuse its discretion in denying the Petitioners’ motion to amend their pleadings. CONCLUSION ¶17 We affirm the District Court’s order denying the Petitioners’ motion for summary judgment and dismissing their complaint, and its order denying the Petitioners’ motion for reconsideration and to amend. Because our resolution of these two issues is dispositive of the issue of whether the District Court erred in granting the Commissioners’ motion to dismiss the complaint against them in their individual capacities, we decline to address this issue. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and RICE concur.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Chris Wagner appeals from the District Court’s dismissal of his claims at trial pursuant to M. R. Civ. P. 50. We affirm in part and reverse in part. ¶2 We restate the issues on appeal as follows: Issue 1: Did the District Court err in dismissing Wagner’s intentional interference claims against all defendants and granting them judgment as a matter of law pursuant to M. R. Civ. P. 50(a)? Issue 2: Did the District Court err in dismissing Wagner’s claims by granting Shea Realtors summary judgment, and judgment as a matter of law pursuant to M. R. Civ. P. 50(a)? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 2009 Wagner sought to buy land in Butte to establish a commercial nursery. He hired Shea Realtors as his agent in purchasing approximately sixty acres of land from the Montana Tech Foundation. Shea became the agent of both Wagner and the Foundation, and in November 2009 Wagner and the Foundation entered a buy-sell agreement under which Wagner would purchase the land. Shea agreed to not engage in negotiations with any other persons or to show the property while the buy-sell agreement was in place. The parties agreed to close the purchase on January 8, 2010. ¶4 Wagner inserted four contingencies into the buy-sell agreement with the Foundation. Those were that he would not be required to bore underneath adjacent railroad tracks for utility installation; that he not be required to use city water for irrigation; that he could subdivide the property; and that his business would meet zoning requirements. There are numerous references in this case to an “easement” condition, but no such condition appears on the face of the buy-sell. ¶5 In December 2009 Wagner hired Gaston Engineering to advise him about the feasibility of subdividing the property and selling the majority of it to others. Gaston identified access as an issue and concluded that the only feasible access was an existing road that was on adjacent property owned by MSE. A Gaston representative spoke to MSE Vice President Tretheway about securing an easement for use of the existing road. Tretheway told Gaston that MSE “would not stand in the way” of Wagner’s purchase and would not “throw monkey wrenches” into the process. After additional investigation Gaston advised Wagner that it was feasible for him to subdivide the land into six parcels and to sell five of them. ¶6 MSE requested that Gaston provide more information about Wagner’s plans for the land. On January 5, 2010, Gaston responded with a simple “conceptual plan” that showed possible boundaries for dividing the land into six lots. The Foundation agreed to extend the closing date to January 29, 2010. Wagner waited to hear from MSE about an easement and testified that his several attempts to contact MSE about this were unsuccessful. The Foundation agreed to extend the closing date again, to February 15, 2010. ¶7 On January 29, 2010, representatives of the Butte Local Development Corporation (BLDC), the Foundation and MSE met to discuss the property. During the meeting, Mr. Kebe from MSE called Shea to ask whether Wagner would be interested in purchasing a forty-seven-acre parcel owned by MSE adjacent to the land he was trying to buy from the Foundation. At Shea’s request Wagner visited the property and then told Shea that he was not interested in it. While the forty-seven-acre parcel contained the existing road that Wagner needed for access to the sixty acres, Wagner never knew this and never obtained an easement from MSE. ¶8 On February 9, 2010, the same persons who were at the January 29 meeting met again to work out an agreement for BLDC to buy the sixty acres from the Foundation and for MSE to provide the necessary easements. On or after February 11, 2010, Shea began working to implement BLDC’s purchase of the sixty acres from the Foundation. Wagner knew nothing about the January 29 or February 9 meetings and knew nothing about Shea’s involvement. Shea claimed at trial that on or about February 11 Wagner told him he was no longer interested in buying the sixty acres. Wagner denied saying that. ¶9 The February 15, 2010 closing date on the Wagner-Foundation buy-sell agreement passed and Wagner did not close. On February 26, 2010, BLDC purchased the land from the Foundation for the same price contained in the buy-sell with Wagner, and MSE granted easements over its land to BLDC. ¶10 In July 2010 Wagner sued the MSE entities and BLDC, contending that they had improperly interfered with his attempt to purchase the sixty acres from the Foundation. Wagner later amended the complaint to add Shea Realtors as a defendant. The case stagnated and Wagner could not get the District Court to issue a scheduling order or to rule on pending motions. In May 2014 Wagner applied to this Court for a writ of supervisory control. This Court granted relief, ordering the District Court to rule on pending motions and to issue a scheduling order, including a trial date. After the District Court’s rulings on motions and two more amendments to the complaint, Wagner’s claims were distilled to intentional interference with his prospective economic advantage against all defendants; constructive fraud against Shea and MSE; professional negligence against Shea; breach of contract against Shea; and breach of the covenant of good faith and fair dealing against Shea. Prior to trial the District Court granted partial summary judgment against Wagner by dismissing the professional negligence claim against Shea because Wagner did not have an expert to establish the standard of care for a realtor. ¶11 The case went to jury trial on the remaining claims in June 2015, and Wagner presented his case-in-chief over four days. Witnesses who testified included defendant Shea; Mike Johnson, former president of the Foundation; Jeremy Olson from Gaston Engineering; Mr. Tretheway, former vice president of MSE; Jim Smitham, executive director of BLDC; William Kebe, a member of the board of directors of both MSE and BLDC; and Chris Wagner. At the close of Wagner’s case the District Court granted the defendants’ M. R. Civ. P. 50 motions for judgment as a matter of law in their favor. ¶12 The District Court concluded that Wagner had not presented sufficient evidence to allow the jury to reasonably find facts that would support a verdict against any of the defendants. The District Court found that Wagner failed to present any evidence that any of the defendants prevented him from purchasing the land from the Foundation. To the contrary the District Court noted Wagner’s own testimony that he was free to purchase the Foundation land up to the final closing date (February 15,2010), and that none of the defendants prohibited him from doing so. The District Court determined that Wagner presented insufficient evidence that any of the defendants intentionally interfered with his prospective economic advantage and that the claims for tortious interference must fail. ¶13 As to the breach of contract claim against Shea, the District Court found that while Shea moved on to become the dual realtor in the BLDC-Foundation transaction for the same land, this did not occur until after Wagner’s buy-sell with the Foundation expired. The District Court also concluded that Wagner had failed to present sufficient evidence that he was actually damaged and that the defendants were entitled to judgment as a matter of law on that ground alone. ¶14 Wagner appeals. STANDARD OF REVIEW ¶15 This Court reviews a district court’s M. R. Civ. P. 50 decision granting or denying judgment de novo, as an issue of law, without special deference to the views of the trial court. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. A district court should grant judgment as a matter of law only where there is a complete lack of any evidence which would justify submitting an issue to the jury, considering all evidence and any legitimate inferences that might be drawn from it in a light most favorable to the opposing party. Deonier & Assoc. v. Paul Revere Life Ins. Co., 2004 MT 297, ¶ 18, 323 Mont. 387, 101 P.3d 742. ¶16 This Court reviews a district court’s decision on summary judgment to determine whether it is correct, using the same criteria under M. R. Civ. P. 56. Pilgeram v. GreenPoint Mortgage, 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. The district court must apply the facts in a way most favorable to the opposing party, and may not grant summary judgment if there are genuine issues of material fact. Pilgeram, ¶ 12. DISCUSSION ¶17 Issue 1: Did the District Court err in dismissing Wagner’s intentional interference claims against all defendants and granting them judgment as a matter of law pursuant to M. R. Civ. P. 50(a)? ¶18 Montana Rule of Civil Procedure 50(a) provides: (1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. A district court should grant judgment as a matter of law under Rule 50(a) only where there is a complete lack of any evidence which would justify submitting an issue to the jury, considering all evidence and any legitimate inferences that might be drawn from it in a light most favorable to the opposing party. Deonier, ¶ 18. In this case the defendants invoked Rule 50(a) at the close of Wagner’s presentation of his evidence, and the District Court granted judgment against Wagner on all his claims. The issue is whether Wagner presented sufficient evidence of his claims to warrant allowing the jury to determine the case. ¶19 Wagner first claims on appeal that all the defendants should have been held liable to him for intentionally interfering with his prospective economic advantage. This Court has recognized the tort of intentional interference with contractual or business relations under the Restatement (Second) of Torts. In Bolz v. Meyers, 200 Mont. 286, 292-93, 651 P.2d 606, 609 (1982), we adopted the language of the Restatement describing this tort: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive and burdensome is subject to liability to the other for the pecuniary loss resulting to him. Restatement (Second) of Torts 766A (1977). This tort may be maintained only against a person who is a stranger to the contractual or business relationship at issue. Bolz, 200 Mont. at 293, 651 P.2d at 610. Establishing a prima facie claim requires evidence that the defendant’s acts were intentional and willful; that they were calculated to cause damage to the plaintiff or the plaintiffs business; that they were done with the unlawful purpose of causing damage or loss without right or justifiable cause; and that damage resulted. Bolz, 200 Mont. at 295, 651 P.2d at 611; Emmerson v. Walker, 2010 MT 167, ¶ 23, 357 Mont. 166, 236 P.3d 598. ¶20 In this case the contract or relationship at issue is Wagner’s buy-sell agreement with the Foundation for purchase of the sixty acres of land. The issue is whether Wagner presented sufficient proof for a jury to find that any of the defendants prevented him from completing his buy-sell agreement with the Foundation. The evidence presented at trial during Wagner’s case-in-chief directly contradicted his premise. As the District Court noted, Wagner himself testified that no party had prevented him from following through with the purchase of the property and that he could have done so up to the final extended closing date of February 15, 2010. Wagner however chose not to complete the purchase, apparently based upon the contingencies that he inserted into the agreement. ¶21 In Emmerson this Court upheld a district court’s decision that a third party committed the tort of intentional interference with a property exchange agreement. In that case, the third party decided that he needed to frustrate the exchange agreement to obtain property that he desired. The defendant set about to entice one of the parties to repudiate the agreement; offered the party substantially more money to repudiate the agreement; connived to obtain legal advice for the party that would support his position and ultimately filed a legal action seeking to invalidate the agreement. These actions were improper and were sufficient to establish the tort of intentional interference. Emmerson, ¶ 25. Nothing in the present case rises to the level of interference seen in Emmerson. ¶22 Wagner waited for MSE to come to him with an offer of an easement, while acknowledging in testimony that he had no right to an easement from MSE and had no contract with MSE for an easement. While Wagner’s testimony established that he believed that his purchase depended upon getting an easement from MSE, he did very little to seek an easement and did not list obtaining an easement from MSE as a contingency of the buy-sell. Wagner relies heavily upon a statement that MSE made to Gaston that MSE would not stand in the way of the project and would not “monkey wrench” it. While these statements may have encouraged Wagner in his project, they fall far short of imposing a legal obligation upon MSE to do anything at all, and certainly do not support a claim that MSE had an obligation to take affirmative steps to provide an easement across its property. An agreement to transfer an interest in real property must be in writing, signed by the party to be charged with the obligation. Section 28-2-903(1)(d), MCA; Hinebauch v. McRae, 2011 MT 270, ¶ 21, 362 Mont. 358, 264 P.3d 1098. ¶23 The District Court met the high standards required to grant a Rule 50 motion. Based upon the evidence presented at trial, the District Court correctly granted judgment for all defendants on Wagner’s claim for intentional interference with the buy-sell contract with the Foundation. ¶24 Issue 2: Did the District Court err in dismissing Wagner’s claims by granting Shea Realtors summary judgment, and judgment as a matter of law pursuant to M. R. Civ. P. 50(a)? ¶25 Initially Wagner argues that the District Court improperly granted pre-trial summary judgment to defendant Shea on Wagner’s claim of professional negligence. Shea moved for summary judgment after Wagner announced that he did not intend to call an expert witness to support his claim of professional negligence. Wagner argued that he did not need to present an expert on the professional negligence claim because a realtor’s duties under Montana law are specifically set out in § 37-51-313, MCA. The District Court concluded that while a realtor’s duties may be defined by statute, expert testimony is still required to show a breach of those duties because the “practice of real estate professionals, and the manner in which they communicate with and act on behalf of their clients are matters beyond the common experience of ordinary lay jurors.” ¶26 Wagner’s Third Amended Complaint alleged claims against Shea. Wagner alleged that Gary Shea acted as a dual agent for him and for the Foundation in Wagner’s attempt to purchase the property, and that Shea simultaneously acted as dual agent for the Foundation and for the BLDC in its attempt to buy the same land. Wagner alleged that after he entered the buy-sell agreement with the Foundation and developed a conceptual plan for the property, Shea changed allegiances to break up the agreement. Finally Wagner alleged that Shea’s acting simultaneously as his agent as well as the agent for the BLDC constituted a conflict of interest and that Shea withheld and failed to communicate information about BLDC’s plan to purchase the land. Wagner alleged that Shea’s actions and his failure to communicate information interfered with his effort to obtain an easement from MSE. Wagner alleged that Shea breached his professional duty to protect his interests in the attempt to purchase the land from the Foundation and that Shea’s actions were a direct cause of damages including emotional distress, lost profits, and costs. ¶27 At the time that the District Court granted summary judgment against Wagner on the professional negligence claim, it should have been clear that there were genuine issues of material fact as to the allegations of negligence against Shea. The fundamental factual issues of what Gary Shea knew about the BLDC transaction; of when he knew of that transaction; and of the extent to which he participated in that transaction were all in dispute. Summary judgment is not appropriate if there are genuine issues of material fact concerning the dispute. Pilgeram, ¶ 12. ¶28 Further, as a general rule a plaintiff must support a claim of professional negligence with expert testimony as to the professional’s duty and as to breach of that duty. May v. ERA Landmark, 2000 MT 299, ¶ 66, 302 Mont. 326, 15 P.3d 1179. However, if the determination of professional negligence involves issues “easily within the common experience and knowledge of lay jurors,” expert testimony may not be necessary. Dulaney v. State Farm Fire and Cas., 2014 MT 127, ¶ 14, 375 Mont. 117, 324 P.3d 1211; M. R. Evid. 702. As to real estate professionals, Montana law specifies in detail “the duties [that] govern the relationships between brokers and salespersons and buyers or sellers and are intended to replace the duties of agents as provided elsewhere in state law and replace the common law as applied to these relationships.” Section 37-51-313(1), MCA (emphasis added). Additionally § 37-51-102, MCA, provides extensive and detailed definitions of the various relationships in real estate transactions. ¶29 Shea’s duties to Wagner were therefore provided by statute and expert testimony may not have been necessary to establish those duties. Zuazua v. Tibbles, 2006 MT 342, ¶ 16, 335 Mont. 181, 150 P.3d 361. However, even if Shea’s duties were established by statute, expert testimony may be required to explain to a jury whether or not Shea breached that duty. As this Court has noted, § 37-51-313, MCA, is “not a model of clarity.” Zuazua, ¶ 14. Nevertheless, in that case we answered questions posed by the United States District Court by analyzing the facts and applying the statute to determine the real estate professional’s duties without making reference to any need for expert testimony. Zuazua, ¶ 4. ¶30 In summary, when a plaintiff makes a claim of professional negligence against a real estate professional, expert testimony may or may not be required to explain the applicable statutory duty and whether that duty was breached. It is the responsibility of the district court to analyze the claims and the evidence in each case to determine the extent to which expert testimony may be required. It was error for the District Court in this case to grant summary judgment to Shea solely because there was a claim of professional negligence. ¶31 Wagner secondly argues on appeal that the District Court’s M. R. Civ. P. 50 order was error, asserting that his claims of breach of contract and breach of the covenant of good faith and fair dealing against Shea Realtors should have gone to the jury. The parties agree that Shea acted as realtor for both Wagner and the Foundation for purposes of buying the property from the Foundation. Shea and Wagner each signed a document entitled “Relationships/Consents in Real Estate Transactions,” dated November 11, 2009. This is clearly a contract, § 28-2-102, MCA, Chipman v. Northwest Healthcare Corp., 2014 MT 15, ¶ 15, 373 Mont. 360, 317 P.3d 182, that binds Shea to a number of obligations as to Wagner. Those include the obligation to act “solely in the best interests of the buyer”; the obligation to not represent other buyers without Wagner’s written consent; the obligation to “disclose all relevant and material information” about the transaction; and the obligation to “exercise reasonable care, skill, and diligence in pursuing the buyer’s objectives.” ¶32 Wagner presented sufficient evidence at trial that Shea may have acted contrary to Wagner’s interests based upon his involvement in and knowledge of the sale of the property to BLDC. Wagner presented sufficient evidence at trial that Shea may have acted contrary to Wagner’s interests and may have violated his disclosure obligation by holding undisclosed information about a potential sale of the property to BLDC. These were questions that, at the close of Wagner’s evidence, were sufficient to be presented to the jury. ¶33 Wagner also contends that Shea violated the covenant of good faith and fair dealing that is implied into “every contract, regardless of type” under Montana law. Phelps v. Frampton, 2007 MT 263, ¶ 29, 339 Mont. 330, 170 P.3d 474. This covenant requires that the parties deal with each other in good faith without any attempt to deprive the other party of the benefits of the contract through dishonesty or abuse of discretion. Phelps, ¶ 29. ¶34 Wagner’s trial testimony was somewhat equivocal in that he appeared to vouch for Shea’s honesty and performance, but he still testified that there came a point in their relationship when Shea became unresponsive to his communications. If the jury inferred from the evidence that Shea was actually working on the sale of the property to BLDC while the Foundation’s sale to Wagner was still pending, it could have found, based upon evidence presented in Wagner’s case-in-chief, that Shea violated the covenant of good faith and fair dealing. ¶35 Wagner next argues that the District Court dismissed his claims based upon an improper finding that Wagner “failed to offer sufficient evidence” that he sustained actual damages. As noted above, the standard to be applied in a Rule 50 motion is whether there was a complete absence of any evidence on damages. It is clear that Wagner presented some evidence of damages. He testified that he paid Gaston Engineering $6,937 for work on the project; that he had to buy another parcel of land at a higher cost per acre; and that he lost between $300,000 and $350,000 because he was unable to purchase the land from the Foundation. This was clearly some evidence of damages and was sufficient to withstand the motions for a judgment as a matter of law. Casiano v. Greenway, 2002 MT 93, ¶¶ 32-33, 309 Mont. 358, 47 P.3d 432. ¶36 We emphasize that the sole issue on appeal under M.R. Civ. P. 50 is whether there was a “complete lack of any evidence which would justify submitting [Wagner’s claims against Shea] to the jury.” Deonier, ¶ 18 (emphasis added). We are not called upon to determine whether Wagner should ultimately prevail on his claims after a full trial, and we express no view on whether Wagner can or should ultimately prevail in his claims against Shea. CONCLUSION ¶37 We affirm the District Court’s decision granting judgment as a matter of law to MSE Technology Applications, MSE Infrastructure Services, and Butte Local Development Corporation. We reverse the District Court’s decisions granting summary judgment to Shea Realtors and granting Shea’s motion for judgment as a matter of law pursuant to M. R. Civ. P. 50. ¶38 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion. JUSTICES COTTER, WHEAT, BAKER and RICE concur. The District Court also found that Wagner failed to present sufficient evidence that any defendant misrepresented any fact to him that was material to the land purchase agreement with the Foundation. Absent a misrepresentation of material fact, the District Court determined that Wagner’s claims for constructive fraud and negligent misrepresentation failed. Wagner did not appeal that decision.

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Kal Kenfield appeals the order of the Montana Twelfth Judicial District, Liberty County, dismissing his third petition for postconviction relief as untimely, and for the failure to meet his burden under the Montana postconviction relief statutes. We affirm. ISSUES ¶2 Kenfield raises several issues on appeal, which we restate as follows: 1. Whether the District Court erred by dismissing Kenfield’s newly discovered evidence claim. 2. Whether the criminal charging process used for Kenfield was consistent with the 1972 Montana Constitution and Montana statutes. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In September 2008, a jury convicted Kenfield of one count of attempted deliberate homicide for engaging in a drive-by shooting at the Liberty County Sheriff s Office in Chester, Montana. The incident involved shots that were fired in the direction of the sheriffs dispatcher seated at her desk. Additionally, a jury convicted Kenfield of three counts of felony criminal mischief and six counts of misdemeanor criminal mischief for shooting at and damaging nine businesses in Chester. ¶4 Following his convictions, Kenfield filed a petition for postconviction relief alleging ineffective assistance of counsel (IAC) by his trial counsel. In the petition, Kenfield asserted numerous instances of his trial counsel’s shortcomings, including alleged failures regarding the analysis of the crime scene. The IAC claim in Kenfield’s original petition centered around his trial counsel’s decision to challenge the State’s expert and his analysis of the bullet-ridden crime scene on cross examination rather than use his own investigator or perform tests for direct examination. Kenfield also challenged his counsel’s decision not to use the defense’s expert analysis of surveillance video of the crime scene and only cross-examine the State’s expert on the video. The District Court held a hearing on Kenfield’s petition and issued a detailed order denying Kenfield relief. In the order, the District Court concluded that Kenfield’s defense counsel did not render IAC. The court determined that counsel provided an adequate defense and chose to limit the defense’s expert analysis in part because his expert would not look as qualified as the State’s. The court ultimately concluded that defense counsel’s decisions were strategic, after hearing the State’s expert and considering the evidence in the record. Kenfield appealed the decision and we affirmed the District Court on appeal. State v. Kenfield, 2011 MT 150N, 2011 Mont. LEXIS 187 (Kenfield I). Kenfield later filed a second petition for postconviction relief, alleging IAC based upon his trial counsel’s suspension from the practice of law, which was unrelated to Kenfield’s case. This Court again affirmed the District Court’s dismissal of his second petition. Kenfield v. State, 2014 MT 172N, 2014 Mont. LEXIS 401 (Kenfield II). ¶5 Kenfield filed a third petition for postconviction relief on November 4, 2015. Prior to filing the third petition, Kenfield commissioned and paid for a “new” analysis of the crime scene, which he now claims qualifies as newly discovered evidence. Skylark Technologies, the same business that analyzed Kenfield’s trial evidence, conducted a reconstruction of the crime scene utilizing the truck Kenfield drove the morning of the shooting. Skylark analyzed three of the ten shots fired at the sheriff s office based on the trajectory calculations originally provided by the Department of Justice’s report on the incident. The Department of Justice’s report was available at trial, and was created at Kenfield’s trial counsel’s request. Kenfield argues that the new truck analysis demonstrates his actual innocence—that it was not possible that Kenfield fired the bullets from his vehicle based upon the angle of the shots. The “new” evidence also included an analysis by Skylark of the sheriffs department’s surveillance footage and time records, which Kenfield argues further supports his theory of actual innocence. ¶6 The District Court reviewed the petition and found that Kenfield’s new independent crime scene analysis did not constitute newly discovered evidence that would allow a subsequent petition. The court reasoned that Kenfield knew about alleged problems with the State’s crime scene analysis prior to trial, or at least by the time he filed his first postconviction relief petition where he raised IAC based upon the same reasoning. Ultimately, the court determined that under § 46-21-102(2), MCA, Kenfield’s new analysis did not constitute “newly discovered evidence.” Further, the court determined that Kenfield was barred from asserting IAC claims in his third petition pursuant to § 46- 21-105(2), MCA. Finally, the District Court found that Kenfield’s constitutional claim lacked merit because it was based on the 1889 Montana Constitution and that the process for filing the Information was legally sound. Under this reasoning, the District Court dismissed the petition on November 18, 2015. STANDARD OF REVIEW ¶7 We review a district court’s denial of postconviction relief to determine if the court’s findings of fact are clearly erroneous, and if its conclusions of law are correct. Stock v. State, 2014 MT 46, ¶ 9, 374 Mont. 80, 318 P.3d 1053. DISCUSSION ¶8 1. Whether the District Court erred by dismissing Kenfield’s newly discovered evidence claim. ¶9 Kenfield argues in his third petition for postconviction relief that the new crime scene analysis he commissioned, seven years after the shooting, demonstrates that he received IAC when his attorney failed to conduct a reasonable investigation of the case. This petition is untimely, thus Kenfield seeks to avoid the procedural time bar set forth under the postconviction relief statutes by arguing that he has “newly discovered evidence” of actual innocence that permits review of the IAC claim. The State responds that Kenfield has filed no new relevant grounds for relief in his petition and that all of his claims have previously been raised or could reasonably have been raised on direct appeal. ¶10 Postconviction remedies are governed by specific statutes. Section 46-21-102(2), MCA, provides: A claim that alleges the existence of newly discovered evidence that, if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted, may be raised in a petition filed within 1 year of the date on which the conviction becomes final or the date on which the petitioner discovers, or reasonably should have discovered, the existence of the evidence, whichever is later. (Emphasis added). Additionally, because Kenfield has filed two previous petitions for postconviction relief, § 46-21-105, MCA, applies. It provides: Amendment of petition - waiver of grounds for relief. (1) (a) All grounds for relief claimed by a petitioner under 46-21-101 must be raised in the original or amended original petition. The original petition may be amended only once. At the request of the state or on its own motion, the court shall set a deadline for the filing of an amended original petition. If a hearing will be held, the deadline must be reasonably in advance of the hearing but may not be less than 30 days prior to the date of the hearing. (b) The court shall dismiss a second or subsequent petition by a person who has filed an original petition unless the second or subsequent petition raises grounds for relief that could not reasonably have been raised in the original or an amended original petition. (2) When a petitioner has been afforded the opportunity for a direct appeal of the petitioner’s conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under this chapter. Ineffectiveness or incompetence of counsel in proceedings on an original or an amended original petition under this part may not be raised in a second or subsequent petition under this part. (3) For purposes of this section, “grounds for relief’ includes all legal and factual issues that were or could have been raised in support of the petitioner’s claim for relief. Section 46-21-105, MCA, (emphasis added). ¶11 Kenfield’s current petition is subject to dismissal under § 46-21-105(l)(b), MCA, as a second or subsequent petition, unless he raises new grounds for relief that could not have reasonably been raised in his prior two petitions. Kenfield’s first and second petitions demonstrate that he has already raised the claims he now raises in this third petition. Because Kenfield’s claims of IAC and flawed crime scene analysis were raised in the previous petitions, and his remaining claim could have been raised in the original petition, the petition must be dismissed under statute. Sections 46-21-105(l)(b), (2), MCA. ¶12 Kenfield further claims that his current petition is timely because he possesses “newly discovered evidence” of actual innocence under § 46-21-102(2), MCA. However, as the District Court correctly concluded, Kenfield clearly knew about the alleged problems with the crime scene analysis because he addressed the same issues in his original petition, which was affirmed by this Court. Kenfield I, ¶¶ 5-6. Because he has previously presented the evidence, Kenfield’s “new” independent analysis of the shooting evidence is not “newly discovered evidence.” ¶13 The only “new” evidence presented by Kenfield is an eleven-page report created by Skylark that analyzes the bullet trajectories. The analysis evaluates the trajectories of three of the ten bullets fired at the sheriffs office during the incident using Kenfield’s truck to measure the trajectories. The report does not draw out the premise of the analysis, but Kenfield advances the same argument that he made in his original petition for postconviction relief—that the Department of Justice used a truck not representative of his truck. The truck used in the original reconstruction sat lower than Kenfield’s truck; thus, Kenfield posits, because his truck sits higher there is no way the shots could have been fired from his truck. Skylark concluded that the shot positions, when traced back to Kenfield’s truck, are consistently lower than the rear window, and close to the height of the side window of the truck. Kenfield argues this is evidence of actual innocence. ¶14 Kenfield’s “newly discovered” evidence analyzes only three of the bullets fired on the evening of the incident, but fails to provide an analysis of significant evidence against Kenfield, including the seven additional shots fired at the sheriffs office. There is no evidence of actual innocence regarding Kenfield’s convictions of the misdemeanor and felony criminal mischief charges pertaining to the other shots fired that night. Those shots include the bullets that hit and damaged several businesses in Chester, includingThe Roadhouse, Sugar Shack, Moodie Implement, Cenex Harvest States, Fraser Oil, Tiber Tractor, and The Grand Bar. Section 46-21-102(2), MCA, regarding newly discovered evidence includes a qualifier that new evidence may be raised if “proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted ....” Given the extent of his criminal conduct and convictions in the case, we conclude that a re-analysis of three of the ten bullets fired does not overcome evidence of Kenfield’s guilt. ¶15 In addition, the new report is simply an additional analysis of the same evidence used at trial and in Kenfield’s two previously denied petitions for postconviction relief. Given the extent of the discussion of the crime scene analysis in the court record, there is no question that the bullet trajectory issue is not newly discovered. Because the evidence is not newly discovered, Kenfield’s petition does not meet the requirements set forth in § 46-21-102(2), MCA. Schlup “Gateway” Claim ¶16 Kenfield’s remaining argument is a Schlup procedural claim, where under federal law Kenfield argues that his new crime scene analysis evidence is sufficient to grant him passage around state and federal statutory time bars, otherwise known as the “Schlup gateway.” Schlup v. Delo, 513 U.S. 298, 316, 115 S. Ct. 851, 861 (1995). Kenfield seeks to use Schlup to gain review of his IAC claim through the lens of his “new” independent crime scene analysis. ¶17 “A Schlup procedural, or ‘gateway,’ innocence claim alleges that newly discovered evidence demonstrates that ‘a constitutional violation has probably resulted’ in a wrongful conviction.” State v. Beach, 2013 MT 130, ¶ 14, 370 Mont. 163, 302 P.3d 47 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867). A Schlup claim accompanies an assertion of trial error, which in this case involves Kenfield’s IAC allegation that his counsel failed to use a proper crime scene analysis at trial. Beach, ¶ 14 (citing Schlup, 513 U.S. 315-16, 115 S. Ct. at 861). To meet the Schlup standard of proof a petitioner need only produce evidence that creates “sufficient doubt about his guilt to justify the conclusion that his [criminal sanction] would be a miscarriage of justice unless his conviction was the product of a fair trial.” Beach, ¶ 14 (citing Schlup, 513 U.S. at 316, 115 S. Ct. at 861-62) (emphasis in original). A Schlup gateway petitioner must “show that it is ‘likely’ or ‘probable’ that ‘no reasonable jury’ would find him guilty.” Beach, ¶ 16. If the Schlup petitioner makes the required showing, the petitioner passes through the “gateway” that entitles him to present his constitutional claims of trial error, despite the procedural bars that would normally prohibit such claims. Beach, ¶¶ 14, 16. In Beach, we noted that because this Court respects the finality of a verdict, the reviewing court must determine whether the petitioner has supported his innocence claim “with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Beach, ¶ 8 (citing Schlup, 513 U.S. at 324, 115 S. Ct. at 865). ¶18 The pitfall for Kenfield’s Schlup claim is that the evidence is not “new reliable evidence ... that was not presented at trial.” Beach, ¶ 8. As we noted above, the record in this case is replete with similar evidence regarding the crime scene analysis at trial, on Kenfield’s original postconviction relief petition with accompanying IAC claim, and once again on his second petition for postconviction relief. Specifically, the evidence that Kenfield brings forward on this third petition can be boiled down to the use of one different factor: Kenfield’s truck. The height of Kenfield’s truck versus the truck in the “flawed” crime scene analysis allegedly demonstrates Kenfield could not possibly have fired the shots from the truck. This is not newly discovered evidence. This same evidence was reviewed and available for Kenfield at trial and his counsel strategically chose not to use the information. ¶19 We concluded in Kenfield I that it was not IAC when Kenfield’s counsel chose to rely on the cross examination of the State’s crime scene analysis at trial rather than present an independent analysis of the data. Kenfield I, ¶ 6. We affirmed the District Court’s conclusion that Kenfield’s defense counsel made a strategic decision, among many, to hold back his expert in part to avoid the risk that the expert would not look as qualified as the State’s expert. Regardless, the evidence contained in Kenfield’s current analysis was available at trial and the “new” analysis presents nothing new. In the order dismissing Kenfield’s third petition, the District Court concluded that this issue was addressed in the original petition. We agree. We conclude that Kenfield has not presented any evidence that can be considered new or different from what was available at trial or what he has already presented in this case. Because he has failed to provide new evidence, the Schlup gateway Kenfield seeks is not open for him to pass through. Because it was previously addressed, and because the evidence that Kenfield presents is not new, we affirm the District Court’s dismissal of the petition pursuant to § 46-21-105, MCA. We also conclude that Kenfield’s IAC-related claim similarly fails because Kenfield previously raised it and the District Court properly dismissed the claim as barred under § 46-21-105(2), MCA. ¶20 2. Whether the criminal charging process used for Kenfield was consistent with the 1972 Montana Constitution and Montana statutes. ¶21 Kenfield argues that the charging process used in his criminal case was unconstitutional because it violates the 1889 Montana Constitution. Petitioner fails to recognize that the State of Montana adopted and ratified a new Constitution in 1972. “Montana’s specific constitutional and statutory provisions define a district court’s jurisdiction and provide for commencing a state prosecution.” State v. Montgomery, 2015 MT 151, ¶ 9, 379 Mont. 353, 350 P.3d 77 (citing Mont. Const. art. II, § 20(1) and art. VII, § 4(1); §§ 3-5-301(1), - 302(1)(a), and 46-11-101, MCA). We have also concluded that “ ‘[t]he district court has original jurisdiction in all criminal cases amounting to felony ....’ ” Montgomery, ¶ 9 (quoting Mont. Const, art. VII, § 4(1)). Accordingly, the District Court properly determined that Kenfield’s claims are not valid or sustainable under the Constitution or laws of the State of Montana. ¶22 Additionally, the postconviction relief statutes require that the district court dismiss a second or subsequent petition unless the petitioner raises grounds for relief that “could not reasonably have been raised in the original or an amended original petition.” Section 46-21-105(1)(b), MCA; State v Osborne, 2005 MT 264, ¶ 14, 329 Mont. 95, 124 P.3d 1085. Kenfield’s claim could reasonably have been raised in his original petition. We affirm the District Court’s dismissal of the claim as it was not an abuse of the court’s discretion. CONCLUSION ¶23 The District Court made proper factual findings regarding Kenfield’s third petition for postconviction relief, and its conclusions of law are correct. Accordingly, we affirm the District Court’s dismissal of Kenfield’s petition because he failed to present any newly discovered evidence. We also affirm the District Court’s conclusion that the criminal charging process used to charge and prosecute Kenfield was consistent with the 1972 Montana Constitution and Montana statutes. JUSTICES BAKER, SHEA, COTTER and RICE concur.

JUSTICE COTTER delivered the Opinion of the Court. ¶1 Mountain Water Company (Mountain Water) owns the water system that provides potable water to the residents of Missoula. The City of Missoula (the City) filed a complaint in the Fourth Judicial District Court, Missoula County, to condemn the water system. Montana’s eminent domain statutes required the City to prove that public ownership of the water system is “more necessary” than private ownership. After a bench trial regarding the necessity of condemnation, the District Court issued findings of fact, conclusions of law, and a preliminary order of condemnation. Mountain Water, its employees, and its corporate owner, Carlyle Infrastructure Partners, LP (Carlyle), appeal from the preliminary order of condemnation. We affirm. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 Issue One: Did the District Court deny Defendants procedural due process by denying their motions for a continuance? ¶4 Issue Two: Did the District Court abuse its discretion by declining to admit evidence of valuation during the necessity phase of the proceedings? ¶5 Issue Three: Did the District Court err by refusing to dismiss Carlyle as a party to this case? ¶6 Issue Four: Did the District Court err in concluding that collateral estoppel does not bar the City from initiating this condemnation action? ¶7 Issue Five: Did the District Court err in concluding that a municipality may condemn a water system even if the owner of the water system does not have a franchise agreement or a contract to provide the municipality with water? ¶8 Issue Six: Did the District Court err in concluding that the effect of condemnation on the Mountain Water Employees is a factor to be considered in determining whether the acquisition is “more necessary,” but is not a dispositive factor? ¶9 Issue Seven: Were the District Court’s findings regarding the effects of condemnation on the Mountain Water Employees clearly erroneous? ¶10 Issue Eight: Did the District Court err in finding that public ownership of the water system is more necessary than private ownership? FACTUAL AND PROCEDURAL BACKGROUND ¶11 The City of Missoula is a municipal corporation. Its residents obtain potable water through a water system fed by an underground aquifer. Missoula is the only one of Montana’s 129 municipalities that does not own its own water system; its water system is owned and operated by Mountain Water. Mountain Water is a corporation owned by Park Water Company, whose only equities are Mountain Water and two other water utilities in California. Park Water Company is the sole equity of Western Water Holdings. Western Water Holdings is a holding company; its controlling member is Carlyle, a global investment partnership. Carlyle acquired Mountain Water by acquiring Western Water Holdings’ stock in 2011. ¶12 The City desired to own the water system that serves its residents because City officials believe a community’s water system is a public asset best owned and operated by the public. In January 2014, the City offered to purchase Mountain Water from Carlyle for $50 million. Carlyle rejected the offer. The City then filed an amended complaint in the Fourth Judicial District Court, Missoula County, on May 5, 2014, in which it sought to condemn the water system, pursuant to Montana’s law of eminent domain. The City intends to put the water system to the same use to which it is currently put by Mountain Water and Carlyle (collectively, the Defendants): providing potable water to Missoula residents. Cognizant of the statutory requirement to proceed with all aspects of a condemnation proceeding “as expeditiously as possible,” § 70-30-206(5), MCA, the District Court set a three-week bench trial for March 18, 2015. The parties proceeded with discovery. ¶13 On May 28, 2014, thirty-eight employees of Mountain Water (Employees) moved to intervene in the action, asserting that the condemnation of Mountain Water would affect their rights, benefits, and interests in employment. The City did not object to the intervention, so long as the Employees’ participation was limited to addressing their employment interests and how those interests affect the analysis of whether public ownership of the water system is more necessary than private ownership. The District Court granted the Employees’ motion to intervene and allowed them to participate in the action “based upon the twelve specific interests asserted in their motion to intervene.” The District Court reserved the right to confine the Employees’ participation in the litigation should they stray from those interests. The Employees participated in the litigation from this point forward. ¶14 Five months after the City commenced its condemnation action, Liberty Utilities Company (Liberty) entered into a merger agreement with Carlyle to purchase Mountain Water. Liberty then sought to intervene in the condemnation action, arguing that because it is under contract to purchase Mountain Water, it has a contractual interest in the property sufficient to justify intervention. The District Court denied Liberty’s motion to intervene, finding that present, vested ownership is necessary for intervention under Rule 24(a) of the Montana Rules of Civil Procedure, and that Liberty’s interests would be adequately pursued by Carlyle. Liberty filed a petition for a writ of supervisory control with this Court, seeking a stay of the proceedings and a right to intervene as a defendant. We denied Liberty’s petition on February 5, 2015. See Liberty Utils. Co. v. Mont. Fourth Judicial Dist. Court, 2015 Mont. LEXIS 284, 378 Mont. 539, 348 P.3d 671. Discovery and trial preparation continued. ¶15 Three weeks before trial, the City produced thousands of documents that were, for the first time, in usable electronic formats. Mountain Water filed a motion for a continuance of the trial to allow the Defendants more time to review the documents and prepare for trial. The District Court denied the motion. Mountain Water then filed a petition for a writ of supervisory control with this Court on March 5, 2015, seeking to compel the District Court to grant the continuance. We denied the petition, but we noted that “we are troubled by what appears to be the City’s obstruction of discovery to gain a tactical advantage.” We denied the petition because Mountain Water “[did] not ma[ke] a compelling case that it cannot be ready for trial,” and we concluded that “the extent, if any, to which [Mountain Water] ultimately is prejudiced by the delay [in document production] is a matter that may be raised on appeal.” See Mountain Water Co. v. Mont. Fourth Judicial Dist. Court, 2015 Mont. LEXIS 647. ¶16 A three-week bench trial commenced on March 18,2015. On June 15, 2015, Judge Townsend issued a 68-page Findings of Fact, Conclusions of Law, and Preliminary Order of Condemnation. On June 23, 2015, Mountain Water, Carlyle, and the Employees appealed the Findings of Fact, Conclusions of Law, and Preliminary Order of Condemnation and all orders and rulings that led up to and resulted in that Order. ¶17 By statute, condemnation proceedings occur in two phases, a necessity phase and a valuation phase. The necessity phase was concluded with the District Court’s Preliminary Order of Condemnation. The results of that phase are before us on appeal. The valuation phase occurs after entry of a preliminary order of condemnation, § 70-30-207(1), MCA, and begins with filing of the condemnee’s claim of just compensation. If the condemnor fails to accept the claim, the District Court appoints three condemnation commissioners to determine the value of the property being condemned. In this case, Mountain Water, Carlyle, and the Employees filed their claims of just compensation on July 15, 2015. The City rejected the claims on July 24, 2015. As a result, the District Court appointed three condemnation commissioners. On November 17,2015, the condemnation commissioners determined the fair market value of the water system was $88.6 million. The parties did not appeal this valuation. Additional facts will be discussed as necessary in the following analysis. STANDARDS OF REVIEW ¶18 A district court has broad discretion to determine the admissibility of evidence at trial, so we review a district court’s evidentiary rulings for abuse of that discretion. Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. We also review for abuse of discretion a district court’s rulings regarding discovery and control of pretrial and trial proceedings. Pallister v. Blue Cross & Blue Shield of Mont., Inc., 2012 MT 198, ¶ 9, 366 Mont. 175, 285 P.3d 562; Stevenson v. Felco Indus., 2009 MT 299, ¶ 32, 352 Mont. 303, 216 P.3d 763. A district court’s ruling on a motion for a continuance is one such discretionary ruling. In re Matter of R.F., 2001 MT 199, ¶ 21, 306 Mont. 270, 32 P.3d 1257. In order to establish an abuse of discretion, “the appellant must demonstrate that the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason.’’ Seltzer, ¶ 65 (internal quotations omitted). If the appellant demonstrates that the district court abused its discretion, “[w]e must then determine whether the demonstrated abuse of discretion constitutes a reversible error.... [N]o reversible error occurs unless a substantial right of the appellant is [ajffected, nor does reversible error occur unless the evidence in question was of such character as to have affected the outcome of the trial.” Seltzer, ¶ 65 (internal citations omitted). ¶19 We review de novo a district court’s rulings on motions to dismiss and motions for summary judgment. Hein v. Sott, 2015 MT 196, ¶ 7, 380 Mont. 85, 353 P.3d 494. ¶20 We review a district court’s findings of fact to determine if they are clearly erroneous. In re Marriage of Olson, 2008 MT 232, ¶ 20, 344 Mont. 385, 194 P.3d 619. “A finding is clearly erroneous if it is not supported by substantial evidence, the district court misapprehended the effect of the evidence, or our review of the record convinces us the district court made a mistake.” In re Marriage of Olson, ¶ 20. We review a district court’s conclusions of law de novo to determine if they are correct. In re Marriage of Olson, ¶ 20. Mixed questions of law and fact, “including the district court’s application of controlling legal principles to its factual findings,” are reviewed de novo. BNSF Ry. Co. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. ¶21 It is well established that in a condemnation action, the question of whether public or private ownership of the property is “more necessary” is a fact-specific, judicial determination. Missoula v. Mountain Water Co., 228 Mont. 404, 410-11, 743 P.2d 590, 594 (1987); Helena v. Rogan, 26 Mont. 452, 476, 68 P. 798, 802 (1902); Butte, Anaconda & Pac. Ry. v. Montana Union Ry., 16 Mont. 504, 538, 41 P. 232, 243 (1895). Section 70-30-111, MCA, includes the “more necessary” finding as one of the “Facts necessary to be found before condemnation,” and we have emphasized before that “[i]n an action to condemn private property for a public use, the question of necessity is one of fact, to be determined as other questions of fact, in view of all the evidence in the case.” State ex rel. Livingston v. District Court, 90 Mont. 191, 196, 300 P. 916, 918 (1931). Thus, we will not disturb a district court’s finding that a public use is “more necessary” than a private use unless the finding is not supported by substantial credible evidence, the trial court has misapprehended the effect of the evidence, or a review of the record “leaves this Court with the definite and firm conviction that a mistake has been committed.” Montana Power Co. v. Burlington N. R.R., 272 Mont. 224, 227, 231-32, 900 P.2d 888, 890, 893 (1995) (“Applying the above-described standard of review, we hold that the District Court’s conclusion, that an easement for the electric power transmission line is necessary, is supported by substantial credible evidence. We further hold that the District Court did not misapprehend the effect of the evidence and that our review of the record does not suggest to this Court that a mistake has been committed.”). DISCUSSION ¶22 Issue One: Did the District Court deny Defendants procedural due process by denying their motions for a continuance? ¶23 Before trial, Mountain Water twice moved the District Court for a continuance, arguing that the City’s alleged discovery abuses had left it inadequately prepared for trial. The District Court acknowledged that “the timelines in this case are undoubtedly demanding and difficult,” but denied the motions for a continuance, noting that the trial date was set for ten months following the date of service of the amended complaint, which is four months longer than is contemplated by § 70-30-202, MCA, and that the parties consented in the scheduling order to the March trial date. The denial of its motions for a continuance was the impetus for Mountain Water’s petition to this Court for a writ of supervisory control. As explained above, although “we [were] troubled by what appealed] to be the City’s obstruction of discovery to gain a tactical advantage,” we denied the petition because Mountain Water “[did] not ma[ke] a compelling case that it cannot be ready for trial.” Carlyle then moved on the eve of trial to exclude certain untimely disclosed expert testimony and, in the alternative, for a continuance. The District Court orally denied that motion on the second day of trial. The Defendants argue on appeal that the denial of their motions for a continuance deprived them of due process. In this connection, they argue that the City delayed production of thousands of pages of documents in useable format until three weeks prior to trial. ¶24 Article II, § 17 of the Montana Constitution provides that “[n]o person shall be deprived of life, liberty, or property without due process of law.” The F ourteenth Amendment to the U.S. Constitution provides a similar guarantee. Due process has both substantive and procedural components. Montanans v. State, 2006 MT 277, ¶ 29, 334 Mont. 237, 146 P.3d 759. Here, the Defendants have alleged a procedural due process violation. ¶25 Although “the phrase ‘due process’ cannot be precisely definedf,...] the phrase expresses the requirements of fundamental fairness.” In re A.R., 2004 MT 22, ¶ 11, 319 Mont. 340, 83 P.3d 1287 (internal quotations omitted). “[T]he requirements for procedural due process are (1) notice, and (2) opportunity for a hearing appropriate to the nature of the case.” Montanans, ¶ 30. These requirements are “flexible and are adapted by the courts to meet the procedural protections demanded by the specific situation,” taking into account “the factual circumstances of the case, the nature of the interests at stake and the risk of making an erroneous decision.” Montanans, ¶ 30 (internal quotations and citations omitted). Procedural due process “includes, among other things, the ability to discover information relevant to the case against [the Defendants] along with the identity of the witnesses who are expected to testify and the substance of the expected testimony.” Wilson v. Dep’t of Pub. Serv. Regulation, 260 Mont. 167, 172, 858 P.2d 368, 371 (1993). ¶26 The Defendants are not arguing that they lacked notice of or an opportunity to be heard at the condemnation trial. Rather, Defendants argue that the City’s discovery abuses left them inadequately prepared for trial and the District Court’s refusal to grant a continuance “prejudicially impaired the [Defendants’ ability to prepare and present their case.” ¶27 Although the timelines imposed in this case were undoubtedly difficult, Defendants have presented no evidence that would allow this Court to conclude they were deprived of procedural due process. Defendants were allowed to conduct discovery, they knew the identity of the witnesses expected to testify, and they knew the substance of the expected testimony. Wilson, 260 Mont. at 172, 858 P.2d at 371. The tight timeline under which all parties were forced to prepare for trial is a result of the District Court’s discretionary case management rulings, so to the extent the Defendants object to the tight timeline and its alleged prejudicial effects, we review those rulings for abuse of discretion. See e.g. State v. Toulouse, 2005 MT 166, ¶ 16, 327 Mont. 467, 115 P.3d 197 (“Toulouse argues that the District Court violated his due process rights when it denied his motion for a continuance .... A district court... may grant the continuance, in its discretion, if the interests of justice so require. We do not overturn a district court’s ruling on a motion for a continuance absent a showing of prejudice to the moving party.”) (internal citations omitted). ¶28 The Defendants must persuade this Court that the District Court abused its discretion in denying their motions for a continuance, and that they suffered actual prejudice as a result. Fair Play Missoula, Inc. v. City of Missoula, 2002 MT 179, ¶ 34, 311 Mont. 22, 52 P.3d 926. Defendants have not persuaded this Court on either point. Defendants did not prove or even contend that the District Court “acted arbitrarily without conscientious judgment,” nor have they proven that in making its rulings, the District Court “exceeded the bounds of reason.” Seltzer, ¶ 65 (internal quotations omitted). In response to the Defendants’ contentions, the City points to the District Court’s thorough orders denying the motions for a continuance, and notes that the District Court “did not blindly adhere to arbitrary deadlines,” but rather “considered these matters carefully.” Upon review of the District Court’s orders, we agree. Thus, we are not persuaded that the District Court abused its discretion in denying the Defendants’ motions for a continuance. ¶29 Defendants have demonstrated inconvenience and frustration, but not actual prejudice. Defendants cannot point to a single piece of evidence that they were unable to discover, unable to present, or to which they were unable to respond at trial. The PDF documents, emails, and expert reports that are the subject of the Defendants’ accusations that the City abused the discovery process were ultimately produced in useable form in compliance with the rulings of the Special Master. The fact that production was delayed and occurred shortly before trial is not, by itself, sufficient to demonstrate prejudice. As we said in the Order denying Mountain Water’s petition for a writ of supervisory control, “the [Defendants’] frustrations with the City’s document production are understandable,” but the Defendants “ha[ve] not made a compelling case that [they were not] ready for trial.” This pretrial observation was borne out by the fact that Defendants presented a full and well-prepared defense at trial. ¶30 Justice Rice’s Dissent makes much of the allegations that the City abused the discovery process, and concludes that prejudice to the Defendants amounting to a due process violation was the result. But the hardship arising from the tight trial preparation timeline was not uniquely suffered by Defendants. In fact, both parties won and lost discovery disputes before the Special Master, both parties supplemented expert disclosures or produced new documents after the respective deadlines, and both parties had to respond at trial to new information, witnesses, or opinions. Justice Rice’s Dissent characterizes the late production of the City’s 5-year capital expenditure plan and a supplement to an expert report providing a new administrative cost analysis as inherently prejudicial to the Defendants. But at trial Mountain Water was able to thoroughly and meaningfully cross-examine the City’s experts regarding these documents, and we are therefore unable to conclude that the late production was inherently prejudicial. The Defendants have now had ample time to review all of the documents produced in discovery, and still they are unable to identify any specific instance of prejudice. Defendants have not persuaded this Court that the District Court’s discretionary case management rulings prejudiced them so much that the trial was fundamentally unfair. Such a showing is required in order to succeed on a procedural due process claim. In re A.R., ¶ 11. As a result, we conclude that the District Court did not abuse its discretion in denying the Defendants’ motions for a continuance, and because no prejudice resulted from the denials, the District Court did not deny the Defendants procedural due process. ¶31 Issue Two: Did the District Court abuse its discretion by declining to admit evidence of valuation during the necessity phase of the proceedings? ¶32 In their briefs on appeal, Defendants requested a remand and retrial of the necessity phase, in significant part because during the necessity phase they were disallowed from introducing evidence of the value of the water system. They argue that the City’s claims about the financial benefits of public ownership are essential to the District Court’s determination that public ownership is “more necessary” than private ownership, and that by excluding Defendants’ competing evidence about the actual value of the water system (and thus the related cost to taxpayers of acquisition, rate increases, and capital investments), the District Court made the “more necessary” finding without considering relevant, even determinative, evidence. ¶33 On November 17, 2015, after this appeal was filed, the condemnation commissioners determined the fair market value of the water system to be $88.6 million. As we noted above, Defendants did not appeal that valuation. In light of the valuation determination, this Court inquired of defense counsel at oral argument why we should remand for a new trial and introduction of valuation evidence. Counsel responded that they are no longer seeking a new trial; they now seek dismissal of the case. We therefore must determine whether the District Court’s refusal to admit Defendants’ valuation evidence during the necessity trial compels dismissal of the case for lack of sufficient valuation evidence to support the “more necessary” finding. We conclude that this result is not warranted, and that the District Court did not abuse its discretion by declining to admit all of the proposed valuation evidence. ¶34 In order to be admissible at trial, evidence must be relevant, M. R. Evid. 402, meaning it must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” M. R. Evid. 401. By statute, condemnation proceedings occur in two phases, a necessity phase and a valuation phase. Sections 70-30-206, -207, MCA. This bifurcation of condemnation proceedings dictates what evidence is “of consequence” to which proceeding. The District Court understood the sequential nature of condemnation proceedings when it declined to admit valuation evidence during the necessity phase, noting that “[wjhile there is a nexus between acquisition price and rates, the Court at the public necessity hearing is limited by statute to a consideration of whether the condemnor has established public necessity.” The District Court concluded that “if the Court were to undertake determining the fair market value of the Water System’s total assets it would be invading the province of the commissioners and jury as set forth in the condemnation statutes.” ¶35 We agree with the Defendants that to the extent the value of the water system bears upon its acquisition cost, the rates to be charged to consumers, and the cost of capital investments, some valuation evidence is relevant in a necessity proceeding. However, we also agree with the District Court that “[t]he scope of testimony proposed to be introduced by Mountain Water indicated its intention to import valuation questions into the necessity phase to a much greater extent than necessary for the Court to carry out its role of determining public necessity.” It was within the District Court’s discretion to make evidentiary rulings to strike the balance between admitting evidence relevant to the necessity phase and limiting extensive valuation evidence more appropriately addressed in the valuation phase. Given that the District Court did allow limited testimony about valuation and that the legislature clearly intended for valuation to be determined by unbiased fact-finders after the necessity determination is made by the District Court, the District Court did not abuse its discretion in limiting the admission of the valuation evidence offered by the Defendants. ¶36 In any event, the District Court did in fact allow some valuation testimony and exhibits during the necessity trial. Specifically, the District Court allowed the City’s evidence that its condemnation plan assumed the acquisition price of the water system was $77 million. The District Court then allowed Defendants’ testimony from Frank Perdue, a municipal investment advisor, about the effects on the ratepayers of having the water system condemned and owned by the City. Perdue testified that if the City used $75 million in bond proceeds to acquire the water system, there would not be a rate increase, but if the City used $100 million in bond proceeds, the rate payers will see an increase of almost 12 percent. Further, a bond issuance of $125 million would result in a 24 percent rate increase, and a $140 million bond issuance would result in a rate increase of 30 percent. Simply put, the Defendants were allowed to put on evidence that as the cost of acquiring the water system increases, so too does the cost to rate payers. ¶37 This evidence was sufficient to satisfy the Defendants’ request to admit some valuation evidence to counter the City’s contentions that the water system could be acquired for $77 million, and that at such a price, public ownership is “more necessary” than private ownership. Further, it was sufficient to inform the District Court of the consequences to the public should the value of the water system prove to be incrementally higher than the value proposed by the city. ¶38 As noted above, the Defendants now seek not remand for failure to admit valuation evidence, but dismissal of the entire case. In light of our conclusion that the District Court did not abuse its discretion in limiting the admission of the valuation evidence offered by the Defendants, and in light of the valuation subsequently placed on the water system by the commissioners, we conclude that dismissal of the case premised upon the District Court’s limitation of the valuation evidence would be unwarranted. ¶39 Issue Three: Did the District Court err by refusing to dismiss Carlyle as a party to this case? ¶40 Carlyle moved in the District Court to be dismissed as a party to this case on the grounds that it is not the record owner of the physical assets the City was seeking to condemn. Mountain Water was the record owner of the assets being condemned, so according to Carlyle, it was not a proper party in the eminent domain action. The City responded that Carlyle is a proper party because Carlyle is the ultimate owner of Mountain Water and the water system, and at all times Carlyle represented itself as the entity that would make any decision about selling Mountain Water and its assets to the City. The District Court relied on the language of § 70-30-203(l)(b), MCA, and Carlyle’s actions and representations throughout this case to deny Carlyle’s motion. Carlyle then moved for summary judgment on the same grounds. The District Court again denied Carlyle’s motion, noting that “Carlyle has not provided support for its interpretation of § 70-30-203(l)(b) MCA that a condemnation action can only be taken against a record owner.” On appeal, Carlyle argues the District Court erred by refusing to dismiss it as a party to this case. We are not persuaded by Carlyle’s assertions. ¶41 Section 70-30-203, MCA, governs the contents of a complaint in a condemnation action. The statute provides, in relevant part, “(1) The complaint for condemnation must contain: ... (b) the names of all owners, purchasers under contracts for deed, mortgagees, and lienholders of record and any other claimants of record of the property sought to be taken, if known, or a statement that they are unknown, who are the defendants.” Section 70-30-203(l)(b), MCA. The plain language of the statute reveals an intent to include as defendants all parties with an interest in the property being condemned, not just “record owners,” as Carlyle insists. Since Carlyle offers no supporting authority for its interpretation of the statute and we have no controlling case law on point, our analysis of the plain language of the statute could end the inquiry here. ¶42 However, the facts in this case lead us to conclude that Carlyle is a proper party to this action even though it does not hold title to the assets being condemned because it is the ultimate corporate owner of the assets and at all times relevant to this case it exercised control over the assets. The evidence established that the boards of Western Water Holdings, Park Water, and Mountain Water are all controlled by Carlyle. Robert Dove, Carlyle’s managing director, acted at all times on behalf of Mountain Water in addressing the City’s efforts to acquire the water system. Indeed, leading up to the potential sale of the water system, the City negotiated exclusively with Carlyle. The City’s offers to purchase the water system, including the “operating assets” of Mountain Water, were directed to Carlyle. Mr. Dove, on behalf of Carlyle, declined the City’s offers. In his letters to the City, Mr. Dove praised Carlyle’s operation of the water system, commenting that “Carlyle Infrastructure, along with the fine employees of Mountain Water, have more than fulfilled our responsibilities to provide quality water service to [the City].” The record is replete with evidence that Carlyle exercised control over the potential sale of the water system, and took credit for the role it played in providing the City with water. Carlyle cannot have it both ways; it cannot control Mountain Water, its assets, and the potential sale of its assets while claiming that it is not a proper party to this suit because title to the assets is not in its name. We therefore conclude that the District Court did not err by refusing to dismiss Carlyle as a party. ¶43 Issue Four: Did the District Court err in concluding that collateral estoppel does not bar the City from initiating this condemnation action ? ¶44 Mountain Water moved for partial summary judgment on the grounds that the City’s unsuccessful attempt to condemn the water system in the 1980s collaterally estops the City’s current condemnation action. According to Mountain Water, both the question of necessity and the parties to the action are the same now as they were in the 1980s, and the City is therefore attempting to re-litigate issues that were determined in a prior suit. The City responded that much has changed in 30 years, and the issues being litigated now are not identical to the issues that were litigated in Missoula v. Mountain Water Co. (Mountain Water I), 228 Mont. 404, 743 P.2d 590 (1987) and Missoula v. Mountain Water Co. (Mountain Water II), 236 Mont. 442, 771 P.2d 103 (1989). ¶45 The District Court compared the pleadings, evidence, and circumstances in the prior condemnation action with those in this action and concluded that “[w]hile there may be some instances in which issue preclusion would apply despite a 30 year difference between the first and second action, this case is not one of them.” The District Court’s review of the two records indicated that the decisions in the 1980s “considered facts and circumstances as they existed between 1979 through 1987 in order to determine public interest and whether the taking was more necessary than the use of the Water System at the time,” while the City’s 2014 complaint is “based on allegations regarding facts and circumstances that occurred after the 1980s case was concluded and focused primarily on a time frame from 2000 forward.” The District Court denied Mountain Water’s motion for partial summary judgment because “[t]he issues in eminent domain are fact specific and requirl e I findings be made on a case by case basis and with reference to the current public interest and necessity.” We agree with the District Court. ¶46 Collateral estoppel, or issue preclusion, “bars a party from reopening an issue that was litigated and determined in a prior suit.” McDaniel v. State, 2009 MT 159, ¶ 28, 350 Mont. 422, 208 P.3d 817. To determine whether relitigation of an issue is barred, we apply a four-part test. McDaniel, ¶ 28. In this case, only the first element is at issue: “Was the issue decided in the prior adjudication identical to the issue raised in the action in question?” McDaniel, ¶ 28. Regarding the first element, we have said before that “I i Issue preclusion requires more than similarity, however, it requires that the issues be identical.” Planned Parenthood v. State, 2015 MT 31, ¶ 23, 378 Mont. 151, 342 P.3d 684. We quoted with approval the U.S. Supreme Court’s holding that “[issue preclusion] must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding.” Planned Parenthood, ¶ 23 (quoting Comm’r v. Sunnen, 333 U.S. 591, 599-600, 68 S. Ct. 715, 720 (1948)). ¶47 Both the current action and the prior action were brought under Title 70, Chapter 30 of the Montana Code, and both actions required a finding that “the public use for which the property is proposed to be used is a more necessary public use.” Section 70-30-11 l(l)(c), MCA. Thus, the question that was litigated in the 1980s appears to be identical to the question being litigated now. However, the question of which use is more necessary is a question of fact that can only be answered by reference to many circumstances that change over time. Whether public or private use is more necessary depends upon factors like the owner’s profit motives, public opinion, efficiency and quality of services, and administrative costs, none of which are static. For this reason, many courts have historically applied a general rule with regard to claim preclusion in condemnation actions: A prior unsuccessful attempt to acquire property for a public purpose should not bar the commencement of a subsequent action to acquire the same land providing the court is satisfied that the subsequent action was brought in good faith and that there has been a change of circumstances such that the action is not merely an attempt to relitigate identical issues based upon identical factors for consideration. Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697, 701 (N.D. 1978) (citing City of Chicago v. Walker, 96 N.E. 536 (Ill. 1911); Laguna Drainage Dist. v. Charles Martin Co., 89 P. 993 (Cal. 1907); Perkiomen v. Sumneytown Turnpike Road, 25 Pa.Super. 462 (1904); Warlick v. Lowman, 16 S.E. 336 (N.C. 1892); Terry v. Town of Waterbury, 35 Conn.Rep. 526 (1869); Whitcher v. Town of Landaff, 48 N.H.Rep. 153 (1868); Petition of Howard, 8 Foster’s Reports 157 (N.H.Super.Ct. of Judicature 1854)); see also City of Chicago v. Midland Smelting Co., 896 N.E.2d 364 (Ill. App. Ct. 1st Dist. 2008); Charlotte v. Rousso, 346 S.E.2d 693, 694 (N.C. Ct. App. 1986) (“A judgment, even though in an action between the same parties, operates as an estoppel only as to the facts in existence when the judgment was rendered; it does not bar a re-litigation of the same issue when new facts occur that alter the legal rights of the parties in regard to the issue.”). ¶48 In support of this unique treatment of preclusion questions in condemnation proceedings, the North Dakota Supreme Court reasoned: Although the doctrine of [claim preclusion] applies to condemnation actions, the doctrine is not readily applicable to those cases in which a condemning authority seeks to bring a second condemnation action to acquire a part of the same land for which the courts in a prior condemnation action against the same party determined that the condemning authority had failed to prove a public use or public necessity. Those cases possess a unique character to which the doctrine is not readily applied—in that, as time passes from the entry of the judgment in a condemnation action, changes may occur which would add new and important factors to be considered in a determination of whether a proposed taking in a subsequent action is for a public purpose and whether the particular land sought is necessary for that public purpose. The change in circumstances may present an entirely new case for determination even though the same issues involving public use and public necessity had been determined in a prior condemnation action between the same parties involving the same land. Oakes Mun. Airport Auth., 265 N.W.2d at 700. The District Court found this reasoning persuasive, and so do we. Thus, although the precise question of which use is more necessary is the same question that was litigated in the 1980s, we will determine if the current action is collaterally estopped by the first action by assessing whether “there has been a change of circumstances such that the action is not merely an attempt to relitigate identical issues based upon identical factors for consideration.” Oakes Mun. Airport Auth., 265 N.W.2d at 701. ¶49 We are satisfied that there has indeed been a change of circumstances sufficient to warrant a new analysis of whether public ownership of the water system is more necessary than private ownership. For example, in Mountain Water I, we said that evidence regarding profit motives and out-of-state ownership was “pertinent to the determination of whether the public interest requires the taking.” Mountain Water I, 228 Mont. at 413, 743 P.2d at 596. During the first condemnation action, Mountain Water was owned by Sam Wheeler. The court at the time considered the profit motive of the family-held business and determined this factor did not weigh in the City’s favor because Mountain Water’s profits were in large part reinvested into the system for improvements. In the present action, the District Court found that the profit motive of the new owner, Carlyle, a billion-dollar investment firm whose stated primary goal is to maximize profits for investors, did weigh in the City’s favor. When compared to the City’s unchanged motivations of public health, safety, and access to water, the corporate owner’s profit motive has changed dramatically since the 1980s. ¶50 The home office expense is another example of the change in circumstances. In Mountain Water I, the City claimed that it could eliminate the home office expense entirely, thereby saving rate payers $350,000 per year. The District Court rejected this purported savings because the home office in California “supports the Missoula operation by providing planning, finances, consultation, engineering and management for which the city would have to find a substitute.” Mountain Water I, 228 Mont. at 419, 743 P.2d at 599. In the 1980s, that factor did not weigh in the City’s favor. Now, the City pays Park Water Company between $2.2 million and $2.5 million per year for home office expenses. In addition to valuable management services, however, much of the money goes to costs that would not be incurred if the City owned the water system. For instance, $1.3 million of that money goes to salaries for California staff, $48,000 to “travel and entertainment,” and $103,000 to a Board of Directors fee. The City’s Central Services Director testified at trial that the administrative expenses paid by Mountain Water exceed every other Montana water system by $2 million, and that Mountain Water’s administrative cost per customer is the highest in the state. The City’s expert testified that under City ownership, the administrative expenses incurred by the rate payers will be significantly reduced. This change in circumstances is another indication that the facts relevant to a “more necessary” finding are not the same now as they were during the prior condemnation action. ¶51 The District Court analyzed seven factors that have changed between the 1980s and the present, including the owner’s profit motive, water rates, home office expenses, Public Service Commission regulation, public opinion, efficiency gains under City ownership, and the City’s tax exempt status. We agree with the District Court that the City’s previous unsuccessful attempt to acquire the water system does not bar its current attempt because we are satisfied that “there has been a change of circumstances such that the action is not merely an attempt to relitigate identical issues based upon identical factors for consideration.” Oakes Mun. Airport Auth., 265 N.W.2d at 701. The District Court did not err in refusing to grant Mountain Water partial summary judgment on the grounds of collateral estoppel. ¶52 Issue Five: Did the District Court err in concluding that a municipality may condemn a water system even if the owner of the water system does not have a franchise agreement or a contract to provide the municipality with water? ¶53 Carlyle moved for summary judgment on the grounds that §§ 7-13-4403 and -4404, MCA, require the existence of a franchise agreement or contract between a water system owner and a municipality before the municipality may exercise its right of eminent domain over the water system. Carlyle contended it was entitled to judgment as a matter of law because no such franchise agreement or contract existed between the City and Carlyle, so the City was statutorily barred from initiating this condemnation action. The City responded that Carlyle misinterpreted the relevant statutes, and our holding in Mountain Water I illustrates the proper interpretation. The District Court denied Carlyle’s motion, finding that [Carlyle’s] proposed interpretation fails to adhere to a plain reading of the language used by the Legislature. Giving effect to all the words used in the enactment, it is plain that the Legislature intended to define the process to be used whenever a contract or franchise exists rather than to impose a prohibition on the power of a municipality to secure a water supply system by eminent domain to only those instances where there is a contract or franchise. We agree with the District Court. ¶54 In our interpretation of the governing statutes, we are guided by several well-settled rules of statutory construction. First, the role of a judge “is simply to ascertain and declare what is in terms or in substance contained [in the statute], not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” Section 1-2-101, MCA. Second, “[o]ur function as an appellate court is to ascertain and carry out the Legislature’s intent by looking at the plain meaning of the words in the statute.” In re Marriage of Rudolf, 2007 MT 178, ¶ 41, 338 Mont. 226, 164 P.3d 907. Third, “[sjtatutes are not to be read in isolation, but as a whole.” In re Adoption of K.P.M., 2009 MT 31, ¶ 14, 349 Mont. 170, 201 P.3d 833. ¶55 As a preliminary matter, § 70-30-102, MCA, entitles a municipality to condemn a water system for public use: “Subject to the provisions of this chapter, the right of eminent domain may be exercised for the following public uses: ... (6) water and water supply systems as provided in Title 7, chapter 13, part 44.” Thus, we begin our analysis in Title 7, chapter 13, part 44. ¶56 The statutes at issue here are §§ 7-13-4403 and -4404, MCA. The first statute provides: Acquisition of private water supply system. (1) It is provided that whenever a franchise has been granted to or a contract made with any person or persons, corporation, or corporations and such person or persons, corporation, or corporations, in pursuance thereof or otherwise, have established or maintained a system of water supply or have valuable water rights or a supply of water desired by the city or town for supplying the city or town with water, the city or town granting such franchise or entering in such contract or desiring such water supply shall, by the passage of an ordinance, give notice to such person or persons, corporation, or corporations that it desires to purchase the plant and franchise and water supply of such person or persons, corporation, or corporations. (2) The city or town shall have the right to so purchase the plant or water supply upon such terms as the parties agree. Section 7-13-4403, MCA. The relevant portion of the second statute provides: Use of eminent domain powers to acquire water supply system. (1) If agreement is not reached pursuant to 7-13-4403, then the city or town shall proceed to acquire the plant or water supply under Title 70, chapter 30.... Section 7-13-4404(1), MCA. ¶57 According to Carlyle, the statutes dictate the following analysis. First, Title 7, chapter 13, part 44 permits a municipality to use eminent domain to take a water system only if an agreement is not reached under § 7-13-4403(2), MCA. Section 7-13-4404(1), MCA. Second, § 7-13-4403, MCA, applies only if the municipality and the owner of the water system have a franchise agreement or contract under which the owner supplies the municipality with water. Section 7-13-4403(1), MCA. Accordingly, if a municipality does not have a franchise agreement or contract with the water system’s owner, it may not use eminent domain to take the water system. In other words, Carlyle argues that § 7-13-4404, MCA, does not permit a municipality to utilize the general condemnation procedures in Title 70, chapter 30 if § 7-13-4403(1), MCA, does not apply. Therefore, since it is undisputed in this case that Carlyle and the City do not have a franchise agreement or contract, the City is statutorily barred from condemning the water system. ¶58 Carlyle’s interpretation is contrary to the plain language of the statutes and fails to read the statutes as a whole. Section 7-13-4403, MCA, does not make a franchise or contract a prerequisite to condemnation of a water system; section (1) merely sets out the procedure a municipality must follow if there is in fact a franchise or contract in place, and section (2) provides that the parties may also agree to the municipality’s purchase of the water system. As the District Court noted, “[i]n order to adopt Carlyle’s interpretation, the Court would have to interpret ‘whenever a franchise has been granted [to] or contract [] made’ to mean ‘eminent domain is prohibited unless a franchise has been granted or a contract has been made.’ ” Such a reading is contrary to the plain meaning of the words used by the Legislature and requires the insertion of words not used by the Legislature. ¶59 Furthermore, § 7-13-4404, MCA, provides that a municipality shall proceed with condemnation under Title 70, chapter 30 “[i]f agreement is not reached pursuant to 7-13-4403.” The agreement to which this provision refers is an agreement between the parties reached pursuant to § 7-13-4403(2), MCA. Section 7-13-4404, MCA, does not also require the existence of a franchise or contract referred to in § 7-13-4403(1), MCA. The word “if’ in § 7-13-4404, MCA, provides a simple contingency: if the parties reached an agreement under § 7-13-4403(2), MCA, the agreement controls, but if the parties did not reach an agreement, the municipality may proceed with condemnation under Title 70, chapter 30. Section 7-13-4403(1), MCA, is only relevant, then, “whenever a franchise has been granted [] or a contract made.” ¶60 As the City notes, we followed this statutory procedure in Mountain Water I. At that time, there was also no franchise or contract between the City and the water system’s owner. Nonetheless, we held that [ujnder Section 7-13-4403, MCA, the City properly exercised its right of offering to purchase the water system. Where, as here, there is no agreement to purchase, Section 7-13-4404, MCA, provides that the City “shall proceed to acquire the plant or water supply under the laws relating to the taking of private property for public use.” Mountain Water I, 228 Mont. at 411, 743 P.2d at 595. We went on to analyze the facts which must be found under Title 70, chapter 30 before private property may be taken for public use. Carlyle has not provided any reason why we should proceed with the same statutory analysis differently in this case. ¶61 Finally, our interpretation of the subject statutes is borne out by the provisions of § 7-13-4405, MCA, which provides that water rights and property necessary for the provision of an adequate water supply for a municipality “may be acquired by purchase, appropriation, location, condemnation pursuant to Title 70, chapter 30, or in any other legal manner.” This statutory allowance of acquisition of property and rights by any legal means available is patently inconsistent with the cramped interpretation that Carlyle would have us apply to the subject statutes. ¶62 Carlyle’s proffered interpretation of §§ 7-13-4403 and -4404, MCA, is contrary to the plain language of the statutes, requires the insertion of words not used by the Legislature, and fails to consider the relevant statutes in conjunction with one another. Accordingly, the District Court did not err in denying Carlyle’s motion for summary judgment. ¶63 Issue Six: Did the District Court err in concluding that the effect of condemnation on the Mountain Water Employees is a factor to be considered in determining whether the acquisition is “more necessary,” but is not a dispositive factor? ¶64 The Employees contend that if they would suffer harm under City ownership, the District Court must find, as a matter of law, that City ownership of the water system is not more necessary than private ownership. The Employees are incorrect. The effect of condemnation on the Employees is one factor to be considered in the “more necessary” analysis, but, as the District Court noted, it is not a dispositive factor. Moreover, the factor is a factual finding, not a legal conclusion that somehow compels rejection of the City’s action as a matter of law. ¶65 In Mountain Water I, we held “that the effect on Mountain Water employees is one factor to be considered in determining whether the acquisition is necessary, but that factor alone is not dispositive.” 228 Mont. at 413, 743 P.2d at 595. And the question of whether acquisition is necessary is itself a question of fact. Section 70-30-111, MCA. There is simply no support for the Employees’ contention that the effect of condemnation on them is a legal conclusion that should result in a determination that City ownership is not more necessary than private ownership if the Employees suffer harm under City ownership. ¶66 The District Court made nineteen factual findings specific to the effects of condemnation on the Employees, so it certainly considered this factor as part of its “more necessary” analysis. The District Court did not err in concluding that the effect of condemnation on the Employees is just one of several non-dispositive factors that must be considered in the “more necessary” analysis. ¶67 Issue Seven: Were the District Court’s findings regarding the effects of condemnation on the Mountain Water Employees clearly erroneous? ¶68 The Employees argue that the City is not entitled to condemn the water system unless the Employees are made whole, and that the District Court’s findings with respect to the Employees were not supported by substantial credible evidence. The City responds that there is no legal authority requiring the City to make the Employees whole, and that substantial credible evidence did support the District Court’s findings. Furthermore, the City contends that since the effect of condemnation on the Employees was merely one factor to be considered in the “more necessary” analysis, it was the Employees’ burden to show that the alleged negative effects of condemnation on them outweigh the other factors favoring condemnation, but the Employees were silent on this point. The City is correct. ¶69 The Employees contend that “public policy affords the Employees the same protection as the physical assets” being condemned. According to the Employees, because the law protects all employees from wrongful or constructive discharge, §§ 39-2-901 et seq., MCA, the Employees must be made whole by the City if the City successfully condemns the water system. There is simply no legal authority supporting the Employees’ position. It is well settled that the “total compensation in an eminent domain case is made up of two parts: the value of the condemned property and severance damages,” K&R P’ship v. City of Whitefish, 2008 MT 228, ¶ 27, 344 Mont. 336, 189 P.3d 593, and that “[t]he only person entitled to recover damages for condemnation is the owner of the land at the time of the taking,” Riddock v. Helena, 212 Mont. 390, 394, 687 P.2d 1386, 1388 (1984). The Employees do not own the water system, so they are not entitled to be compensated or made whole by the City. However, as we said above, they were entitled to present evidence during the necessity phase of the proceeding that the negative effects of condemnation outweigh any factors favoring condemnation. Mountain Water I, 228 Mont. at 413, 743 P.2d at 595. Although they do not explicitly engage in this balancing analysis, the Employees do identify what they perceive to be the negative effects of condemnation. ¶70 The Employees strenuously object to the City’s condemnation of the water system, and maintain that “[t]he overwhelming evidence, and in fact undisputed evidence, was that the City would not match the wages, benefits and terms of employment” the Employees currently receive. Specifically, the Employees take issue with three of the District Court’s factual findings: (1) that “[w]ith the exception of three executive level positions, the current Mountain Water employees’ salaries are comparable to those in the municipal environment”; (2) that “I e Imployment by the City confers advantages on Employees in terms of job security”; and (3) that “[t]he City’s offer of employment is reasonable and fair to Employees.” Since we review a District Court’s findings of fact for clear error, we will not disturb a finding because one party disagrees with it, but rather because “it is not supported by substantial evidence, the district court misapprehended the effect of the evidence, or our review of the record convinces us the district court made a mistake.” In re Marriage of Olson, ¶ 20. ¶71 The District Court’s first finding, that as employees of the City, the Employees would receive “comparable salaries,” was based on substantial credible evidence. The Mayor of Missoula, John Engen, testified at trial that “[w]e do not want to terminate employees, nor do we want to reduce their salaries or benefits.” The Mayor testified that he compared a list of City employees and their salaries to a list of Mountain Water Employees and their salaries, and that he took that information into consideration when determining what to offer the Mountain Water Employees. The Mayor was then asked, “As you sit here today under oath, a representative of the City, are you prepared to assure the Court that if you acquire the water system, the current employees that serve that water system will be able to be employed by the City at their current levels of income?” The Mayor responded affirmatively, and agreed that the guarantee extends for a minimum of five years. With respect to the top two or three Employees, whose salaries are significantly higher than equivalent employees of the City, the Mayor testified that he was willing to offer those Employees their current salaries for a minimum of one year. ¶72 In response to the Mayor’s testimony, the Employees solicited testimony from Michelle Halley, the Business Administration Manager for Mountain Water. Halley testified that the Employees would suffer harm under City employment because the offered minimum employment terms for top executives (1 year) were not equal to the minimum terms offered to all other employees (5 years) although the former are valuable employees, that the offered wages and benefits are set as of February 9, 2015, and that employee pay increases after acquisition are not guaranteed, but are subject to City approval. ¶73 Although this evidence about what the Employees perceive to be the negative effects of City ownership was in the record at trial, the contention that the City could not match the Employees’ current wages was certainly not undisputed, as the Employees contend. In light of all the evidence and the conflicting opinions presented at trial, we cannot conclude that the District Court’s finding that the City could offer the Employees comparable salaries was clearly erroneous. ¶74 The District Court’s second finding, that the Employees would have more job security under City ownership, is also supported by substantial credible evidence. Mayor Engen testified at trial that the City’s offer to employ the Employees at their current salaries for five years is not a five year limit of employment, but rather a minimum guarantee. Under Mountain Water’s current ownership, the Employees have no employment guarantee. As long as Mountain Water is owned by a large, for-profit enterprise like Carlyle or Liberty, the Employees will have no guarantee that their employer and employment terms this year will be the same next year, since investors in the water utility business tend to “buy and flip” such utilities. Robert Dove, Carlyle’s Managing Director, testified at trial that Carlyle and investors like it try to buy water utilities at a “good price, work to improve the return, and then at some point exit.” Carlyle has done just that; it has entered into a merger agreement with Liberty to sell Mountain Water. The City contends that the identity of the water system’s owner is an important factor when assessing the job security of the water system’s employees. ¶75 The Employees do not share the City’s understanding of “job security.” The Employees believe that the terms of employment offered by Liberty are superior to those offered by the City. With respect to employment guarantees, Liberty offered an eighteen month guarantee of employment in the Merger Agreement with Carlyle, but at trial it offered the Employees a five year guarantee. However, as the District Court noted, there is no guarantee that Liberty will own Mountain Water in eighteen months or in five years. Although we are cognizant of the Employees’ objections to City ownership, we cannot conclude that the District Court was clearly in error when it found, in light of competing understandings of “job security,” that the Employees would have more job security under City ownership. ¶76 The District Court’s overall finding that the City’s offer to the Employees is “fair and reasonable” is also supported by substantial credible evidence, some of which is listed above. The Employees devote much of their brief to listing the ways in which they perceive the City’s offer to be unfair and unreasonable. But their dissatisfaction with aspects of the City’s offer does not render the District Court’s finding mistaken or unsupported. Harrison v. Liberty Northwest Ins. Corp., 2008 MT 102, ¶ 11, 342 Mont. 326, 181 P.3d 590 (“As for the scope of our review, we do not resolve conflicts in the evidence, and we do not consider whether evidence supports findings that are different from those made by the [court]; rather, we confine our review to determining whether substantial credible evidence supports the findings actually made by the [court].”). It is also important to bear in mind that the effect of condemnation on the Employees is simply one factor that must be considered before the District Court determines whether public ownership of the water system is more necessary than private ownership. The District Court did extensively consider the effects of condemnation on the Employees, but their dissatisfaction at the prospect of City ownership was not enough to dissuade the District Court from finding that public ownership of the water system was more necessary than private ownership. We are satisfied that the District Court’s findings regarding the effects of condemnation on the Mountain Water Employees are supported in the record and are not clearly erroneous. ¶77 On a final note, the Employees’ participation in this case was limited by the District Court to twelve articulated employment interests. We therefore decline to address the Employees’ general objections to the City’s condemnation of the water system because those objections have more to do with the effect of condemnation on rate payers than they have to do with employment interests, and because those objections are best made by Carlyle and Mountain Water. ¶78 Issue Eight: Did the District Court err in finding that public ownership of the water system is more necessary than private ownership? ¶79 The Defendants maintain that “the ‘more necessary’ test should be informed by the Montana Constitution’s strong protections for private property owners,” and that many of the findings upon which the District Court based its “more necessary” determination were clearly erroneous. The Defendants ask this Court to dismiss the case on the grounds that the District Court clearly erred in finding that the City’s ownership of the water system is more necessary than the Defendants’ ownership. The City responds that the District Court’s individual factual findings, as well as its overall finding that public ownership is more necessary than private ownership, were based on substantial credible evidence, so this Court should not reverse the District Court for committing clear error. For the reasons set forth below we hold that the District Court’s factual finding that public ownership of the water system is more necessary than private ownership was not clearly erroneous. A. The law of eminent domain ¶80 “Eminent domain is the right of the state to take private property for public use.” Section 70-30-101, MCA. This power is “constitutionally grounded” and it “derives from the power of sovereignty,” and “the power of the state for the perceived common good of the public as a whole.” Montana Talc Co. v. Cyprus Mines Corp., 229 Mont. 491, 501, 748 P.2d 444, 450 (1987). However, the Montana Constitution also endows all persons with the right to acquire, possess, and protect private property. Mont. Const, art II, § 3. For this reason, the Montana Constitution limits the state’s power of eminent domain such that “Iplrivate property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner.” Mont. Const, art II, § 29. Furthermore, “[t]he due process rights of the party whose property is taken for public use are protected by the statutes providing the procedures for eminent domain.” Montana Talc, 229 Mont. at 501, 748 P.2d at 450. Although our constitution and statutes provide certain protections to private property owners, the Defendants provided no legal authority in support of their contention that the private property right is elevated in the constitution above the right of eminent domain, nor has this Court located any such authority. We observed as much in Mountain Water I when we noted “the absence of a declared policy by the Legislature giving greater or lesser weight to public ownership as compared to private ownership of a water system.” Mountain Water I, 228 Mont. at 413, 743 P.2d at 596. Rather, the constitutional right of eminent domain presumes the existence of private property and provides protections to private property owners in the event of a taking. ¶81 In Butte, Anaconda & Pacific Railway, 16 Mont. at 536, 41 P. at 243, and again in Montana Talc, 229 Mont. at 497, 748 P.2d at 448, we stated that “the state has an inherent political right, pertaining to sovereignty and founded on what has been expressed to be a ‘common necessity and interest,’ to appropriate the property of individuals to great necessities of the whole community where suitable provision is made for compensation.” We cautioned, however, that “vigorous compliance with procedures required for eminent domain is commanded.” Montana Talc, 229 Mont. at 498, 748 P.2d at 448. ¶82 Among those protective statutory procedures is § 70-30-111, MCA, which outlines the facts that must be found by a preponderance of the evidence before condemnation is ordered. Specifically, a District Court must find the following facts before allowing condemnation: (a) the use to which the property is to be applied is a public use pursuant to 70-30-102; (b) the taking is necessary to the public use; (c) if already being used for a public use, that the public use for which the property is proposed to be used is a more necessary public use; (d) an effort to obtain the property interest sought to be taken was made by submission of a final written offer prior to initiating condemnation proceedings and the final written offer was rejected. Section 70-30-111(1), MCA. It is finding (c)—that the public use for which the water system is proposed to be used by the City is a more necessary public use than the use to which it is currently put by Mountain Water and Carlyle—that is disputed in this case. As we said above, it is well established that in a condemnation action, the question of whether public or private ownership of the property is “more necessary” is a fact-specific, judicial determination. Section 70-30-111, MCA; Mountain Water I, 228 Mont. at 410-11, 743 P.2d at 594; State ex rel. Livingston, 90 Mont. at 196, 300 P. at 918; Helena, 26 Mont. at 476, 68 P. at 802; Butte, Anaconda & Pac. Ry., 16 Mont. at 538, 41 P. at 243. As a result, we review this factual finding for clear error, and we will not disturb the finding unless it is not supported by substantial credible evidence. Montana Power, 272 Mont. at 227, 231-32, 900 P.2d at 890, 893. ¶83 Before reviewing the District Court’s factual findings against the backdrop of the foregoing discussion, we must briefly address Justice McKinnon’s Dissent. Justice McKinnon maintains that we err in applying the “more necessary” requirement of § 70-30-lll(l)(c), MCA, contending that this subsection does not apply when the proposed appropriation does not contemplate a change in the usage of property already dedicated to a public use. We disagree with her analysis for two reasons. First, the theory upon which Justice McKinnon’s Dissent is premised was not raised by any of the parties to this litigation. To the contrary, all parties agreed that it was appropriate to conduct the “more necessary” analysis in this proceeding, consistent with our holding in Mountain Water I that the court must resolve whether it is necessary for the City to have its own water system, and whether the proposed use by the City is “more necessary” than the present use. Mountain Water I, 228 Mont. at 412, 743 P.2d at 595. We reiterated in Mountain Water II that this analysis must be conducted by the District Court. 236 Mont. at 453, 771 P.2d at 110. As we have frequently stated, this Court generally declines to resolve a case on a theory that was not raised by the parties. F.H. v. C.P.H. (In re D.A.H.), 2005 MT 68, ¶ 7, 326 Mont. 296, 109 P.3d 247 (citing Armstrong v. State, 1999 MT 261, ¶ 4, 296 Mont. 361, 989 P.2d 364). ¶84 Second, we disagree with Justice McKinnon’s analysis on the merits because the key cases cited in her Dissent simply do not stand for the proposition stated. In Montana Power, we said that the “more necessary” determination “affects condemnation proceedings only when we have two public uses that are not compatible uses.” 272 Mont. at 233, 900 P.2d at 894. In addressing “compatible uses,” we quoted with approval Cocanougher v. Zeigler, 112 Mont. 76, 112 P.2d 1058 (1941), to the effect that two uses could be made compatible where “[t]he latter use does not inhibit the prior use.” Montana Power, 272 Mont. at 234, 900 P.2d at 894. We concluded that it was not necessary for the District Court to make a “more necessary” determination in the Montana Power case “because MPC’s use would not destroy nor materially injure BN’s prior use.” Montana Power, 272 Mont. at 234, 900 P.2d at 895. Here, of course, because the City’s acquisition of the water system would “inhibit” Mountain Water’s use of its property by wholly depriving it of the use of the water system, the uses are not compatible, thus requiring the “more necessary” analysis to be conducted. This conclusion is plainly borne out by Montana Talc and Cocanougher, cases Justice McKinnon cites in paragraphs 1, 3, 6, and 7 of her Dissent: The proposed use must be “more necessary” where the effect of granting the succeeding public use condemnation will deprive the first owner of his use altogether. If the first owner will be completely deprived of his public use of appropriated property, such that his use will be defeated or seriously interfered with by the proposed condemnor’s right if granted, the statute requiring a “more necessary” public use comes into play. Montana Talc, 229 Mont. at 504, 748 P.2d at 452 (citing Cocanougher, 112 Mont. at 83-84, 112 P.2d at 1061). We turn now to the District Court’s factual findings, which we review for clear error. ¶85 Our case law establishes that the term “ ‘[njecessary,’ in the context of eminent domain, does not mean absolute or indispensable, but reasonable, requisite and proper for the accomplishment of the intended objective.” Park County v. Adams, 2004 MT 295, ¶ 17, 323 Mont. 370, 100 P.3d 640. Our case law further establishes that determining whether one use is a more necessary public use than another involves consideration of a wide range of factors, the relevance of which varies depending on the property and uses in question. We have articulated only one firm “rule” regarding the “more necessary” determination: the proposed public use need not be different than the use to which the property is currently put. Butte, Anaconda & Pac. Ry., 16 Mont. at 546, 41 P. at 246-47. Otherwise we have analyzed general factors such as “the public good to be accommodated by the public uses so proposed,” Montana Talc, 229 Mont. at 504, 748 P.2d at 452, and factors specific to condemnation of a water system, including the owner’s profit motive, the consequences of out-of-state ownership, the effect on public savings, rates, and charges, the effect of having the home office in the municipality, the public interest as expressed by city residents, the effect on the water system’s current employees, and “the importance of the City obtaining ownership of the water rights themselves, in order that the City may assure its inhabitants of long range access to water,” Mountain Water I, 228 Mont. at 413-14, 743 P.2d at 595-96. ¶86 The District Court properly analyzed all of these factors before making its factual finding that the City’s proposed use of the water system was more necessary than the use to which the water system was put by the Defendants. With these constraints in mind, we review the District Court’s findings for clear error. B. The District Court’s factual findings ¶87 The District Court’s ultimate finding that the City carried its burden of proof by a preponderance of the evidence in “establishing that its contemplated use of the Water System as a municipally owned water system is more necessary than the current use as a privately owned for-profit enterprise” was based upon 63 pages of factual findings. Those factual findings and their supporting evidence are summarized below. ¶88 The District Court first considered public opinion, and concluded that the Missoula public supports City ownership of the water system. The District Court heard testimony from three elected officials from Missoula, including Mayor Engen, that there was strong public support for City ownership. The District Court also heard testimony about the favorable results of a public opinion poll commissioned by the City. On cross examination, the Defendants elicited some flaws in the poll’s methodology, but the District Court was persuaded by testimony from Harstad Strategic Research that the poll was conducted according to industry standards. The District Court concluded that the use of a poll, even if it was not methodologically perfect, was a reasonable method of measuring public opinion, and that the poll’s results were credible evidence of public support for City ownership of the water system. Our review of the record satisfies us that the District Court’s finding that the Missoula public supports condemnation was based upon substantial credible evidence. ¶89 Next, the District Court looked at evidence about the condition of the water system and the implications of such a condition under public or private ownership. The City introduced testimony that leakage is an important measure of the quality and condition of a water system, and that the Mountain Water water system leaks at a rate of 50% or more, a rate significantly higher than that of other water systems. Experts for the City also testified that 20% of the water system mains and 75% of the service lines have exceeded their useful life, but Mountain Water invested less than $1 million per year in replacing water distribution mains from 2004 to 2014, and Mountain Water has replaced only half of the service lines that its internal analysis determined was minimally necessary. Mountain Water offered testimony that it makes over $4 million in annual capital investments in the water system, and that one of the main sources of leakage is believed to be customer service lines, which are owned and maintained by the customers and not Mountain Water. Mountain Water’s experts also contended that leakage in the water system is not actually wasteful because the water that leaks out of the system returns to the aquifer. The District Court analyzed this competing evidence and determined that the “leakage rate reflects poor utilization of a valuable resource, failure to conform operations to industry standards, and [...] failed coordination with the City and other stakeholders.” The District Court determined that no matter who owns the water system, significant capital expenditures will be required, but that under municipal ownership, long term maintenance planning and capital expenditures can occur under the management of a stable, long term owner. We are satisfied that this conclusion was based upon substantial credible evidence. ¶90 The District Court then considered evidence regarding the City’s ability to effectively manage the water system if it were condemned. The City pointed to its professional and efficient management of the wastewater system as evidence that it has the requisite experience and expertise to manage a complex water utility that is critical to public health and safety. Mountain Water alleged the City’s management of the wastewater system was deficient in various ways. The District Court concluded that even if it was not without difficulty, the City’s history of owning, operating, and setting rates for the wastewater system supports its contention that it can effectively manage the water system as well. The District Court determined that if both public and private owners are competent to manage the water system, municipal ownership is preferable because it would allow for increased coordination and “efficiencies in public health, safety, and welfare functions performed by the City, including transportation, urban planning, and fire safety.” Our review of the record demonstrates that the District Court’s conclusion about the City’s ability to manage the water system was based upon substantial credible evidence. ¶91 Next, the District Court looked at evidence from all parties about the financial considerations relating to owning and operating the water system, including administrative expenses, profit motive, rate setting, and the cost of acquisition and needed capital improvements. Regarding administrative expenses, we said above that the City pays Park Water Company between $2.2 million and $2.5 million per year for home office expenses, much of which would not be incurred if the City owned the water system. For instance, $1.3 million of that money goes to salaries for California staff, $48,000 to “travel and entertainment,” and $103,000 to a Board of Directors fee. The City’s Central Services Director testified at trial that the administrative expenses paid by Mountain Water exceed every other Montana water system by $2 million, and that Mountain Water’s administrative cost per customer is the highest in the state. The City’s expert testified that under City ownership, the administrative expenses incurred by the rate payers will be significantly reduced because the home office expenses would be eliminated and the remaining necessary administrative functions would be combined with those of other City departments that already have full administrative staffing in place. Mountain Water contended that the administrative services performed by the home office are valuable, but it offered no evidence that such services were unique or required special expertise. The President of Liberty testified that under Liberty’s ownership, Mountain Water would be required to make similar payments for corporate personnel and oversight to a home office in Canada. The District Court concluded that “lulnder municipal ownership, the home office expenses to a parent company would be eliminated” and necessary administrative services could be performed by the City. The District Court found this factor weighed in favor of condemnation. ¶92 The District Court also found the profit motive factor to weigh in favor of condemnation. The City offered testimony, which Mountain Water did not dispute, that Mountain Water will continue to earn a profit as long as it is privately owned. Currently, the return on equity is 9.8%. The City also offered testimony that as a municipality, it would not operate the water system on a for-profit basis. The District Court was persuaded that “lulnder City ownership, the water system would not have to generate profits to meet investor expectations,” but rather would charge customers only the amount necessary to operate and maintain the water system. ¶93 Regarding rate setting, the City offered testimony from Alec Hansen, the former executive director of the Montana League of Cities and Towns, that municipalities all over the state are able to set appropriate rates for their water systems using a system that notifies consumers of proposed rate increases and allows public comment. A Missoula City Council member then testified that the City’s rate setting process would involve public informational meetings, public hearings, debate among the council members, public meetings to address and adopt amendments, and a final vote. Mountain Water then offered testimony from John Guastella, an engineer and utility rate and valuation consultant, that the current oversight of Mountain Water by the Public Service Commission (PSC) serves as a substitute for market competition. According to Mountain Water, PSC regulation is preferable to municipal regulation because the PSC uses trained professionals and an intensive fact investigation process to set rates. The District Court determined that the rate setting process is a factor that weighs in favor of condemnation because the protections offered by the PSC “against the potential for earning unfair profits from a captive market are not necessary under municipal ownership,” and municipal rate setting would be subject to transparency and public participation requirements. ¶94 The final financial consideration addressed by the District Court was the effect on rates due to the cost of acquisition and needed capital improvements. The City offered evidence that with its AA+ credit rating from Standard and Poor’s, its eligibility for tax-exempt, low-interest municipal bonds not available to private owners, and its eligibility for state and federal grants not available to private owners, it can afford to acquire and run the water system in a cost effective manner. Mountain Water countered that the City’s evidence regarding its ability to manage the water system in a cost effective manner is speculative because at the time of the necessity trial, the value of the water system was undetermined. Mountain Water also offered evidence that rates would increase under municipal ownership due to the cost of acquisition. The District Court recognized that the City’s acquisition costs may indeed cause future rate increases, and that under either owner, significant capital expenditures will be required to replace and maintain key infrastructure. However, under private ownership, the cost of needed capital improvements will be increased by a rate of equity (currently 9.8%), whereas no such increase would be seen under municipal ownership. The District Court also looked to Carlyle’s marketing materials for Park Water, which forecast a 13% growth in the rate base compounded annually. The District Court concluded that although the value of the water system was undetermined at this point, and the exact effect on rates due to acquisition costs and capital improvements could not be precisely known, municipal ownership was preferable because financial decisions could be made by locally elected officials who would operate the water system to support public health, safety, and welfare, and not to return a profit. ¶95 After weighing all the evidence and testimony about the financial considerations relating to owning and operating the water system, including administrative expenses, profit motive, rate setting, and the costs of acquisition and needed capital improvements, the District Court found that municipal ownership was more necessary than private ownership. Our review of the record satisfies us that this finding was based upon substantial credible evidence. ¶96 The District Court next considered economic and public policy factors. The City presented testimony from Dr. C. Kees Corrsmit, a water utility economist, that City ownership of the water system would benefit the public in a number of ways. Public ownership allows for long term studies and financial planning, which result in rates that are predictable and steady over time. Public ownership also allows for improved coordination of water services with other municipal services like wastewater services and planning for urban growth. In addition, public ownership allows management of the water system to reflect local values like conservation and environmental stewardship. ¶97 The City also presented testimony from Dr. Thomas Power, a professor of economics who specializes in natural resources. Dr. Power testified that private companies are not well suited to the promotion of public interest goals like urban planning, environmental stewardship, and public health, because they must balance those goals against the profit motive and the need to return value to stockholders. Furthermore, frequent change in corporate ownership makes it difficult to engage in long term planning or budgeting for capital improvements to the water system. Finally, Dr. Power testified that City ownership would increase the potential for cost savings as a result of the City’s ability to integrate management of the water system with management of the wastewater system and other City services like street maintenance, urban planning, fire protection, and environmental conservation. ¶98 Mountain Water responded by presenting testimony from Dr. Arthur Laffer, a current economic consultant and former Chief Economist of the Office of Management and Budget under President Reagan. Dr. Laffer testified that municipal management of a water system is only more necessary when a private owner has failed to maintain the water system, and that given Mountain Water’s exemplary record of service to the Missoula community, there is no compelling reason for public ownership of the water system. The District Court did not find Dr. Laffer’s testimony as persuasive as that of Dr. Corrsmit or Dr. Power because Dr. Laffer did not address the “inextricable link” between management of a water supply and public health, safety, and welfare. The District Court also noted that under Montana law, acquisition of a water supply by a municipality is certainly not limited to only those instances in which the current private owner is failing to provide for the needs of the community. The District Court ultimately found, based upon substantial credible evidence, that economics and public policy weigh in favor of condemnation. ¶99 Next, the District Court looked at evidence regarding public health, safety, and welfare. The District Court began this analysis by reviewing testimony from Carlyle’s managing director, Robert Dove, that Carlyle invested in Mountain Water with the intention of profiting from a subsequent sale. The District Court found this short term profit motive to be “incompatible with the long term planning and investment needed to ensure the reliable delivery of clean water” to Missoula residents. The District Court then considered testimony from various City officials that municipal ownership of the water system would help the City meet its public health, safety, and welfare responsibilities, including wastewater treatment and disposal, transportation, management of storm water run-off, urban planning, fire safety, and environmental protection. Mike Haynes, the City’s Development Services Director, testified that Mountain Water has 50 fewer miles of water mains than the City has of sewer mains, and this lack of coordination of water and sewer services is contrary to best practices for urban development and has resulted in a hodgepodge of private wells. Peter Nielsen, the Missoula Water Quality District supervisor, testified that Mountain Water’s failure to extend the water system to cover certain areas of growth has resulted in areas of high industrial and commercial activity that lack fire hydrants for fire suppression or emergency response. This is detrimental to public health and safety. Jason Diehl, the City’s Fire Chief, also testified that there are gaps in fire hydrant coverage throughout the City because these areas are not adequately served by the water system. Firefighters must transport water in tanker trucks to these areas, making the hydrant gaps a public health and safety concern. ¶100 In response, Mountain Water offered testimony regarding its long history of cooperating with the City. Mountain Water engages in advertising to educate the public about environmental concerns, it provides meter data for wastewater billing, it meets regularly with the fire department to coordinate operations, and it works with the City to coordinate a project list of upcoming main replacements and expansions. The District Court recognized that Mountain Water has shown itself to be a good corporate citizen and has engaged in cooperative efforts with the City. However, the District Court was persuaded by the “distinction between cooperation and coordination.” The District Court found that while Mountain Water has been cooperative with the City, municipal ownership would result in coordination of all public health, safety, and welfare functions, which would be more beneficial to the public. The District Court’s finding in this regard was based upon substantial credible evidence. ¶101 Finally, the District Court considered the effects of condemnation on the Mountain Water Employees. These effects were addressed above and will not be repeated here, except to say that the District Court’s finding that this factor did not weigh against condemnation was supported by substantial credible evidence. ¶102 During oral argument, the Defendants complained that many of the District Court’s broad generalized findings and conclusions touting City ownership of the water system reflected an inherent judicial preference in favor of public as opposed to private ownership. Justice Rice’s Dissent goes so far as to characterize the District Court’s general findings in favor of municipal ownership as a “predispositional perspective” that amounted to an unconstitutional burden shifting. Our view of these findings is not that they established a judicial preference for municipal ownership, but rather that they summarized general differences in the capacities and interests of municipalities compared to those of corporations when it comes to how each would manage the water system from an administrative, operational, and financial perspective. Given the context of this case, the court’s findings with respect to how the City would manage the water system were necessarily premised upon projection. This does not equate to a shift in the burden of proof. Furthermore, our exhaustive review of the record confirms that the court’s detailed factual findings summarized above are supported by substantial credible evidence and are not the product of bias in favor of public ownership. We therefore are satisfied that the District Court’s conclusion that the City carried its burden to prove by a preponderance of the evidence that “its contemplated use of the Water System as a municipally owned water system is more necessary than the current use as a privately owned for-profit enterprise” is not clearly erroneous. CONCLUSION ¶103 For the foregoing reasons, we affirm the District Court’s June 15, 2015 Findings of Fact, Conclusions of Law, and Preliminary Order of Condemnation. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER and WHEAT concur. The records pertaining to the valuation phase of this proceeding are not before this Court on appeal. The City requested that pursuant to Rules 201 and 202 of the Montana Rules of Evidence we take judicial notice of the facts and law regarding valuation that became part of the District Court record after it was sent to this Court for purposes of this appeal on December 24, 2015. Defendants objected on relevance grounds and argued that “[j]udicial notice cannot be utilized to present facts for the first time on appeal.” We have not ruled on the City’s motion to take judicial notice, but we note our authority under M. R. Evid. 202(b)(6) to take judicial notice of “[r]ecords of any court of this state.” The District Court records in this case reveal the valuation reached by the condemnation commissioners. Further, the subject of the valuation was addressed by the Court and counsel for the Defendants at oral argument. Although the District Court records regarding the valuation are not part of the record before us on appeal, the valuation determination is relevant to various portions of our Opinion and we therefore take judicial notice of the valuation figure reached by the commissioners. The courts that have addressed this issue have done so in the context of claim preclusion, or res judicata. While the question before us is one of issue preclusion, not claim preclusion, the doctrines are related in that they both “embody a judicial policy that favors a definite end to litigation,” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267, and therefore we find the claim preclusion analysis done by other courts in condemnation actions to be applicable and persuasive here. In Montana Power, we also referenced this Court’s 1893 opinion in Butte, Anaconda & Pacific Railway, in which this Court stated: “We cannot agree that the statute which authorizes lands to be appropriated for a more necessary public use means a different public use in all cases. If the legislature had intended that construction to be put upon the statute, instead of carefully restricting the right to a more necessary public use, they could easily have said a different public use.” 16 Mont. at 546, 41 P. at 246-47.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Joshua James Kline (Kline) appeals from ajudgment and sentence entered by the Third Judicial District Court, Deer Lodge County, convicting him of criminal distribution of dangerous drugs, endangering the welfare of children, and incest. We affirm. ¶2 We restate the issues Kline presents for review: 1. Did the District Court err by concluding S.K. was not legally accountable for Kline’s incest? 2. Was there sufficient evidence corroborating S.K’s testimony? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On December 11, 2013, the State charged Kline by information with criminal distribution of dangerous drugs, a felony, in violation of § 45-9-101(1), MCA; endangering the welfare of children, a felony, in violation of § 45-5-622(3)(c), MCA; and incest, a felony, in violation of § 45-5-507, MCA. The information alleged Kline committed these offenses when he gave methamphetamine to S.K., Kline’s biological daughter, on more than one occasion; allowed S.K. to ingest methamphetamine while in his care on more than one occasion; and had sexual intercourse or sexual contact with S.K. ¶4 The District Court held a jury trial from May 27 to May 29, 2014. At trial, S.K. testified that, while she was 17 years old, Kline repeatedly recommended she try methamphetamine. She initially said no, but eventually said yes and tried the drug. She continued using methamphetamine with Kline, often in Kline’s vehicle while it was parked at a local truck stop and casino. Kline’s other daughter, S.K.’s younger sister (Sister), testified that she observed Kline give S.K. methamphetamine and observed Kline and S.K. smoking methamphetamine in the front seat of Kline’s vehicle while she was in the back seat. S.K.’s blood tested positive for methamphetamine. ¶5 S.K. testified that sometimes, when Kline parked at the truck stop and casino, Kline would go inside and gamble while S.K. waited alone in the vehicle. S.K. could not go inside because she was underage. After Kline gambled, Kline and S.K. would have sexual intercourse in the vehicle. S.K. testified that she and Kline had consensual sexual intercourse every day for around two months, sometimes in Kline’s vehicle and sometimes in the bed they shared while intermittently living at Kline’s parent’s house. S.K. testified that she first disclosed her incestuous relationship in several text messages she sent to her cousin, some of which read “I had sex with my dad like 100 times,” “It was my choice,” and “I was high on that white shit.” S.K. testified that she sent text messages with similar content to Sister, who in turn notified their mother (Mother). ¶6 The jury returned verdicts of guilty for each of the three felony offenses charged. The District Court sentenced Kline to concurrent terms of twenty years for criminal distribution of dangerous drugs, five years for endangering the welfare of children, and life imprisonment for incest. ¶7 Kline appeals only his incest conviction on the grounds that S.K., his 17-year-old daughter, was legally accountable for Kline’s conduct when he had sexual intercourse with her. Kline argues that S.K. was legally accountable for his incest and, as a result of her accountability, the State was required to provide evidence corroborating her testimony and he was entitled to a jury instruction cautioning the jurors to view S.K.’s testimony with distrust. ¶8 Prior to trial, the State filed a motion in limine requesting the District Court preclude Kline “from arguing and/or introducing evidence that [S.K.] is an accomplice to the crime of Incest or that she is in any way legally accountable for [Kline’s] conduct for the crime.” Kline objected to the State’s motion and argued that S.K. was legally accountable for his incest. The District Court concluded S.K. was Kline’s victim, stating, “It’s illegal for relatives to have sex with each other. It’s incest. They are each other’s victims.” The District Court concluded S.K., as Kline’s victim, was not legally accountable for Kline’s conduct and granted the State’s motion. ¶9 At trial, Kline raised the issue of S.K.’s legal accountability for his incest when he moved for a directed verdict of acquittal on the incest charge because the State failed to present evidence of incest corroborating S.K.’s testimony. The District Court denied Kline’s motion. Kline also requested a jury instruction directing the jury to view S.K.’s testimony with distrust because she was legally accountable. The District Court refused to give that instruction. Kline appeals. On appeal, Kline argues the District Court erred in granting the State’s motion in limine, denying his motion for a directed verdict of acquittal, and refusing to instruct the jury on accountability. The errors Kline asserts are all premised upon the District Court’s initial conclusion that S.K. was not legally accountable because she was a victim under § 45-2-302(3)(a), MCA. STANDARD OF REVIEW ¶10 A District Court’s interpretation of a statute is reviewed for correctness. Payne v. Knutson, 2004 MT 271, ¶ 14, 323 Mont. 165, 99 P.3d 200 (citations omitted). We conduct a de novo review of the record for sufficient evidence. State v. Bekemans, 2013 MT 11, ¶ 18, 368 Mont. 235, 293 P.3d 843 (citation omitted). DISCUSSION ¶11 Did the District Court err by concluding S.K. was not legally accountable for Kline’s incest? ¶12 “A person commits the offense of incest if the person knowingly marries, cohabits with, has sexual intercourse with, or has sexual contact, as defined in 45-2-101, with an ancestor, descendant, abrother or sister of the whole or half blood, or any stepson or stepdaughter.” Section 45-5-507(1), MCA. Pursuant to § 45-5-507(2), MCA, “[cjonsent is a defense ... to incest with or upon a stepson or stepdaughter, but consent is ineffective if the victim is less than 18 years old.” The parties maintain that subsection (2) applies only to incest involving stepchildren and that it is therefore not applicable to the circumstances here. We agree. Additionally, the penalty provisions of § 45-5-507, MCA, are graduated and dependent upon the age of the participants, distinguishing when the “victim” is under 16 years of age or under 12 years of age. S.K. was 17 years old at the time of the offense and thus the provisions characterizing one of the participants as a “victim” are similarly inapplicable. ¶13 “Under Montana criminal law, an individual is responsible for his or her own conduct.” In re B.W., 2014 MT 27, ¶ 18, 373 Mont. 409, 318 P.3d 682. In fact, pursuant to general maxims of jurisprudence, “[n]o one should suffer for the act of another,” and “[a] person is not responsible for that which a person cannot control.” Sections 1-3-211, -217, MCA. These maxims arise from fundamental principles in criminal law which seek to hold the primary perpetrator responsible for his or her own conduct in causing the criminal offense; that is, it is a basic precept that personal wrongdoing is a predicate to criminal punishment. The law recognizes, however, that circumstances may exist in which persons other than those actually committing the offense should nonetheless be held criminally culpable. “One may be responsible for the conduct of another only in limited circumstances.” B.W., ¶ 18. The theory of accountability, or accomplice liability, is one such limited circumstance and has its origins in early Anglo-American jurisprudence. Such a theory prevents secondary parties from escaping liability when they are as equally blameworthy for committing the crime as the perpetrator herself. Accountability theory evolved from and attempted to simplify intricate common law distinctions between principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. Thus, we have explained, “accountability is not a separate offense from the crime for which the actor assumes accountability but ‘is merely a conduit by which one is held criminally accountable for the acts of another.’ ” B. W., ¶ 19, (quoting State v. Hatten, 1999 MT 298, ¶ 50, 297 Mont. 127, 991 P.2d 939). ¶14 Sections 45-2-301 and -302, MCA, entitled “Accountability for conduct of another” and “When accountability exists,” “describe those circumstances in which liability may be based upon the conduct of another.” B.W., ¶ 18 (citation omitted). “A person is responsible for conduct that is an element of an offense if the conduct is either that of the person or that of another and the person is legally accountable for the conduct as provided in 45-2-302, or both.” Section 45-2-301, MCA. Section 45-2-301, MCA, provides that a person is “either:” (1) responsible for their own conduct, “or” (2) legally accountable for the acts of another if § 45-2-302, MCA, applies. Section 45-2-301, MCA, therefore encompasses both theories of criminal culpability—personal wrongdoing and accountability. ¶15 Section 45-2-302, MCA, specifies when the accountability theory of culpability may be applied to hold one responsible for the conduct of another. A person is legally accountable for the conduct of another when: (1) having a mental state described by the statute defining the offense, the person causes another to perform the conduct, regardless of the legal capacity or mental state of the other person; (2) the statute defining the offense makes the person accountable; or (3) either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense. However, a person is not accountable if: (a) the person is a victim of the offense committed, unless the statute defining the offense provides otherwise. Section 45-2-302, MCA. Accordingly, § 45-2-302, MCA, “replaces all prior law regarding accessories. Under this section, any person who assists in the commission of a crime, either before or during the occurrence, other than the victim, is liable as a principal offender.” Compiler’s Comments to § 45-2-302, MCA, at 166 (2014 annotations). ¶16 In recognition that a person responsible or accountable for an offense may be inherently untrustworthy and have a motive to testify untruthfully, § 46-16-213, MCA, provides: A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. Additionally, if “a person legally accountable for the acts of the accused” testifies, the jury must be instructed that the person’s testimony “ought to be viewed with distrust.” Section 26-1-303(4), MCA. ¶17 Relying on § 45-2-302, MCA, Kline argues S.K. was legally accountable for his incest. Kline argues that, because S.K. was legally accountable, § 46-16-213, MCA, required the State to corroborate her testimony with other evidence of his incest, and § 26-1-303(4), MCA, required the jury be cautioned about her veracity. However, the District Court concluded S.K. was not legally accountable for Kline’s incest, making the evidentiary corroboration and jury instruction unnecessary. ¶18 We agree with the District Court that S.K. was not legally accountable. Had the State chosen to charge S.K., it would have been incorrect to rely upon accountability theory to prosecute S.K. for incest. S.K. was responsible for her own commission of incest, and she was not simultaneously responsible under a theory of accountability for Kline’s commission of incest. The rules governing legal accountability do not arise in circumstances where liability could be based on S.K.’s responsibility for her own conduct in the first instance. ¶19 The State did not prosecute S.K. The State’s choice does not implicate whether or not she was also responsible for incest. In State v. Harris, 1999 MT 115, ¶ 22, 294 Mont. 397, 983 P.2d 881, the State prosecuted Harris for engaging in incest with his adopted daughter. Harris argued that the State’s failure to prosecute his adopted daughter for her incest with him constituted disparate treatment of members of the same class and violated his constitutional right to equal protection. Harris, ¶ 21. This Court disagreed. We concluded that the prosecutor had broad discretion to prosecute or not prosecute Harris’ adopted daughter and Harris failed to show the prosecutor’s decision was based on an arbitrary or unjustifiable standard. Harris, ¶ 24. Here, the prosecutor’s decision not to charge S.K. similarly demonstrates an appropriate exercise of its broad discretion. ¶20 S.K. was not legally accountable for Kline’s incest under § 45-2-302, MCA, because 1) S.K. did not knowingly cause Kline to commit incest; 2) § 45-5-507, MCA, does not make S.K. accountable for Kline’s conduct; and 3) S.K. did not purposefully solicit, aid, abet, agree, or attempt to aid Kline plan or commit incest. Instead, S.K. independently committed the actions proscribed by § 45-5-507, MCA, by knowingly having sexual intercourse with Kline. Therefore, although S.K. is responsible under § 45-2-301, MCA, the rules governing when “[a] person is legally accountable for the conduct of another” do not apply to S.K. or make her accountable for Kline’s incest. ¶21 Incest is a qualitatively unique sexual offense because the act itself is unlawful whether or not it is consensual or a minor is involved and especially because it requires two participants. Accountability cannot be applied to the participants in incest because accountability is a theory of transferring culpability to a non-actor that is unnecessary where each participant is responsible for his or her own conduct and independently commits the offense. Instead, our case law suggests that accountability for incest requires three actors: two related participants engaging in sexual contact or sexual intercourse and a third party who in some manner either knowingly causes incest or solicits, aids, abets, agrees, or attempts to aid another in the planning or commission of incest. ¶22 In State v. Guill, 2011 MT 32, ¶ 3, 359 Mont. 225, 248 P.3d 826, which we noted was “factually one of the more bizarre cases to reach this Court,” a third party, Nicole, was convicted of incest by accountability for facilitating incest between her boyfriend and his daughter. Douglas Guill started molesting his daughter when she was six years old. Guill, ¶ 27. Nicole and Douglas started dating and Nicole moved in with him, his children, and his then-wife, Candace, who was thereafter “relegated to the status of an unseen domestic worker.” Guill, ¶ 12. “Nicole began participating in the sexual abuse” of Douglas’s daughter when she was eight years old and continuing until she was 22 years old. Guill, ¶ 28. Together the three would regularly engage in behavior constituting sexual contact and sexual intercourse. Guill, ¶ 28. Although Nicole did not commit incest, because, at the time, she was unrelated to Douglas’s daughter by either blood or marriage, she was convicted of incest by accountability, among other offenses, for her sexual involvement with Douglas and his daughter. Guill, ¶ 43. ¶23 In another case of accountability for incest, State v. Henderson, 265 Mont. 454, 457, 877 P.2d 1013, 1015 (1994), Henderson coerced his three stepchildren into undressing and simulating sex acts while he masturbated nearby. This Court overturned his conviction because the children’s actions did not constitute the predicate offense of incest that was necessary to uphold his conviction for accountability for incest. Henderson, 265 Mont. at 458, 877 P.2d at 1016. The children’s actions did not constitute incest because incest requires sexual contact, which, under § 45-2-101(60), MCA, requires participation be motivated by either sexual arousal or gratification. Henderson, 265 Mont. at 458, 877 P.2d at 1015. The children’s actions did not constitute sexual contact because they did not “engage in the touching for the purpose of sexual arousal or gratification.” Henderson, 265 Mont. at 458, 877 P.2d at 1016. Instead, evidence showed that the children were angry, embarrassed, and did not want to participate in the forced acts. Henderson, 265 Mont. at 458, 877 P.2d at 1015-16. Under the circumstances, we concluded, “the State failed to introduce evidence on which the jury could find that the children committed the offense of incest and, therefore, Henderson could not be legally accountable for that offense.” Henderson, 265 Mont. at 458, 877 P.2d at 1016. ¶24 Guill and Henderson demonstrate that a person can be held accountable for incest under § 45-2-302, MCA, when the person is a third party to two related participants in incest and the person’s conduct alone does not satisfy the offense. Here, S.K. was not a third party, but a participant in incest. In both Guill and Henderson, the person charged with incest by accountability had not committed incest. In Guill, Guill was not related to Douglas’ daughter by either blood or marriage. In Henderson, Henderson did not have sexual contact or sexual intercourse with his stepchildren. Unlike in Guill and Henderson, here, S.K. was not a third party to incest, but personally responsible for every element of incest. Therefore, S.K. was not legally accountable for Kline’s incest under § 45-2-302, MCA. The District Court did not err in granting the State’s motion in limine and refusing to instruct the jury under § 26-1-303(4), MCA, because S.K. was not legally accountable. ¶25 2. Was there sufficient evidence corroborating S.K’s testimony? ¶26 Despite not being legally accountable, S.K. was responsible for incest and the State was required to provide “other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense.” Section 46-16-213, MCA. ¶27 The State presented evidence to the jury, through testimony from various witnesses other than S.K. Several of S.K.’s family members testified. Sister testified that Kline and S.K. shared a bed, pillow, and blanket when they lived at Kline’s parent’s house in their “back bedroom,” even though an additional bed in the house was unoccupied. When S.K. needed to go to the police station to meet a detective, Kline testified that he dropped her off a half block away instead of accompanying her inside. He explained to the jury, “I thought I was in trouble too, so I didn’t want to go to jail that night.” Kline’s mother, testified that S.K. was very attached to Kline, was upset, cried, and called him when he left without her, and would accompany him to casinos and wait in the car “for hours on end” while he gambled. Sister testified she disclosed to Mother that S.K. was smoking methamphetamine with Kline, cutting herself, and having an incestuous relationship with Kline. Mother testified that after she was notified, she took S.K. to the hospital to be examined by Douglas Dunham, a doctor of emergency medicine, and contacted local police. ¶28 A detective and several medical professionals testified. Detective Ken Walund testified that Mother contacted him with concerns about Kline supplying drugs to, and having sex with, S.K. Detective Walund testified that when he interviewed S.K., S.K. disclosed using drugs and having sexual intercourse with Kline. Detective Walund testified that S.K. seemed “very embarrassed, shy, withdrawn,” had difficulty answering his questions, and “[s]he was blaming herself.” Detective Walund testified that, during her interview, S.K. expressed that she did not want criminal charges brought against Kline. Detective Walund testified that he also interviewed Kline. During his interview with Kline, Detective Walund testified that Kline’s reactions to the allegations were unexpected, “he got extremely nervous, fidgeting, no eye contact.” ¶29 After examining S.K., Dr. Douglas testified that he diagnosed her with “depression, methamphetamine use and mood disorder.” Sue Casey, a forensic interviewer and contractor with the Child Evaluation Center, testified that she interviewed S.K. Casey testified that, during her interview with S.K., S.K. seemed reluctant, which is a characteristic consistent with victims of sexual abuse. Casey testified that S.K. disclosed the sexual activity to her by writing down what had happened to her, while verbally expressing her embarrassment. Casey testified that when family members are involved in sexual abuse cases, the children are often groomed beforehand “[a]nd kids, they crave the love and affection and attention from the parents, so it gets really confusing to them when those boundaries are just violated.” We conclude the State presented sufficient evidence to the jury corroborating S.K.’s testimony regarding incest. The District Court properly denied Kline’s motion for a directed verdict of acquittal based on the State’s failure to present corroborating evidence. ¶30 Finally, we take this opportunity to explain why both the State and the District Court reached the correct conclusion, that S.K. was not legally accountable, but for the wrong reasons. Section 45-2-302(3)(a), MCA, excepts victims from being legally accountable. The State and the District Court agree that S.K. was not accountable because she was Kline’s victim under this exception, although they disagree about why she was his victim. ¶31 Relying on People v. Tobias, 21 P.3d 758 (Cal. 2001), the State argued S.K. was Kline’s victim because she was under 18 years old. In Tobias, the defendant appealed his conviction for incest, “arguing among other things that the trial court should have instructed the jury to consider whether [defendant’s daughter] was an accomplice.” Tobias, 21 P.3d at 760. Based on California’s statutory scheme, which penalized sexual intercourse with someone under 18 years old, the California Supreme Court concluded, that a minor is a victim of incest, not an accomplice to incest. Tobias, 21 P.3d at 762. Concluding defendant’s daughter was a victim because of her age, the California Supreme Court affirmed the district court’s failure to instruct the jury on accomplices. Tobias, 21 P.3d at 765. ¶32 In contrast, relying on State ex rel. Keyes v. Montana Thirteenth Judicial Dist. Court, 1998 MT 34, 288 Mont. 27, 955 P.2d 639, the District Court concluded both that S.K. was Kline’s victim and Kline was S.K.’s victim. In Keyes, Keyes and LaFromboise “exchanged gunfire from their respective vehicles” and, during their “shoot-out,” a passenger in LaFromboise’s vehicle was killed. Keyes, ¶ 1. The State charged Keyes with three alternative counts of deliberate homicide, one under the felonymurder rule and two by accountability. Keyes, ¶ 3. Discussing the accountability statute, this Court stated, “[e]ven if the charge was interpreted to allege the commission of two criminal offenses, Keyes becomes the victim of LaFromboise’s offense, and LaFromboise becomes the victim of Keyes’ offense. As a victim, neither can be legally accountable for a death caused by the other’s crime. Montana’s accountability statute excludes victims from such accountability.” Keyes, ¶ 31. The District Court used this case as authority to conclude S.K. and Kline “are each other’s victims. [S.K.], if this happened, is [Kline’s] victim. The statute does not say otherwise, [§ 45-2-302(3)(a), MCA], and she’s not accountable.” ¶33 We disagree with the conclusion that either S.K. or Kline is a victim of incest. If both participants are over the age of 16, as they were here, the statute criminalizes both as participants in incestuous conduct. In our reading, § 45-5-507(1), MCA, does not require a victim. Incest requires two relatives engaging in sexual contact or sexual intercourse. Depending on the circumstances, it could be that neither are victims, both are victims, or only one is a victim. In some cases it maybe clear who constitutes a victim; in others, unclear. Fortunately, § 45-5-507(1), MCA, does not contemplate, or require, a determination of who is a victim of incest unless one party is under the age of 16. In that case, § 45-5-507(4), MCA, presumes the party under 16 is a victim because they are legally incapable of consenting to sex. ¶34 “[W]e will affirm a district court’s decision when it reaches the correct result for the wrong reasons.” State v. Morrisey, 2009 MT 201 ¶ 49, 351 Mont. 144, 214 P.3d 708 (citing State v. Howard, 2008 MT 173, ¶ 20, 343 Mont. 378, 184 P.3d 344). Although the District Court concluded S.K. was a victim under § 45-2-302(3)(a), MCA, instead of a participant under § 45-5-507(1), MCA, its conclusion that she was not legally accountable was the correct result. CONCLUSION ¶35 For the foregoing reasons, the District Court correctly concluded S.K. was not legally accountable for Kline’s incest. Affirmed. JUSTICES COTTER, WHEAT, BAKER and RICE concur. Section 45-2-301, MCA, also contemplates that a person may be both responsible for the criminal offense and accountable for the acts of another when the other person commits the offense. However, as we discuss infra, the crime of incest is unique in that it requires two participants who may willingly engage in and each be held responsible for their actions if they are over 16 years of age. Whether a person can be held both responsible and accountable for the acts of others will depend on the particular facts and the crime(s) charged.

JUSTICE RICE delivered the Opinion of the Court. ¶1 The City of Colstrip (Colstrip) appeals from the denial of its motions for judgment as a matter of law and a new trial by the Thirteenth Judicial District Court, Yellowstone County. Larry Reinlasoder (Reinlasoder) cross-appeals the District Court’s grant of Colstrip’s motion to amend the judgment. We reverse and remand for entry of judgment in favor of Colstrip, and do not reach the cross-appeal. ¶2 Because it is dispositive, we address only the following issue: Did the District Court err by denying Colstrip’s motion for judgment as a matter of law where Reinlasoder failed to contest that he had sexually harassed an employee? PROCEDURAL AND FACTUAL BACKGROUND ¶3 “You ain’t getting s— for Christmas! I’ve just examined your computer and it’s full of porn, you f--pervert,” read a captioned picture of Santa Claus attached to a December 2007 office email from Reinlasoder, one of many instances of misconduct cited by Colstrip when it discharged Reinlasoder from his position as Colstrip’s Chief of Police on May 22, 2012. Reinlasoder had held the position since May 17, 2004. ¶4 Reinlasoder sued Colstrip for wrongful discharge. In defense, Colstrip contended it had fired Reinlasoder for good cause. Colstrip alleged numerous instances of misconduct by Reinlasoder that violated Colstrip’s employment policy manual, including the December 2007 email, a September 2009 email which contained “pornographic pictures of men and women in various stages of sexual intercourse,” lying about his work history on his job application, an accusation of Criminal Mischief by the Rosebud County Sheriffs Office, insubordinate conduct, intimidating a female dispatcher to the point that she “no longer [felt] comfortable in dispatch without someone else being present,” and, finally, sexual harassment of a female dispatcher. Colstrip’s notice and letter of termination given to Reinlasoder stated that he was “in violation of the City’s work environment-discrimination policy, in which the City will not tolerate verbal or physical conduct by any employee which harasses, discriminates, disrupts, or interferes with another employee’s work performance or which creates an intimidating, offensive, or hostile environment.” ¶5 At trial, Reinlasoder introduced a letter from Mercedes Kroll (Kroll), a Colstrip dispatcher, to Mayor Rose Hanser (Hanser). The letter complained about statements Reinlasoder had made to Kroll. The letter stated that Reinlasoder had asked Kroll, “Do you want to come see my porn in my office?” When Kroll declined the invitation, Reinlasoder responded, “You look like a freaky kind of girl that would like porn.” When called to testify at trial, Kroll reiterated the incident as stated in the letter. ¶6 Reinlasoder introduced a second document that corroborated Kroll’s version of this event. The second document was a witness statement written by Officer Cory Hert (Hert). Hert stated he was present during the incident in question, and that Reinlasoder had asked Kroll, “Would you like me to send you some of my internet porn? You look like you would enjoy it; you’re kind of freaky that way, aren’t you?” When called to testify, Hert reiterated the incident as stated in his statement. ¶7 Officer Michael Hayes’ (Hayes) video deposition was then introduced. Hayes witnessed the incident between Reinlasoder and Kroll. Hayes testified that he “overheard [Reinlasoder] saying that [Kroll] looked like the freaky kind of girl and that she might enjoy watching pornography with him. He had invited her to go back to his office to watch pornography on his computer.” ¶8 When asked what he thought about the allegations, Reinlasoder believed he “may have said something,” but couldn’t “recall making that statement” because he “[didn’t] remember.” ¶9 On cross-examination, Kroll admitted she had originally stated in her deposition that the incident occurred on February 29, 2012, but that her written statement asserted it occurred on March 6, 2012. ¶10 Colstrip moved for judgment as a matter of law, pursuant to Montana Rule of Civil Procedure 50(a), at the close of Reinlasoder’s case. Colstrip argued Reinlasoder’s uncontested sexual harassment of Kroll constituted good cause for termination as a matter of law. The District Court denied the motion. The jury returned a verdict for Reinlasoder, awarding him $300,000 in damages. Colstrip made a renewed motion for a judgment as a matter of law, pursuant to Montana Rule of Civil Procedure 50(b), which the District Court also denied. The District Court granted Colstrip’s motion to amend the judgment, offsetting unemployment benefits received by Reinloasoder in the amount of $12,068 from the jury’s award. ¶11 Sometime before trial, Kroll filed a complaint with the Human Rights Bureau against Colstrip for Reinlasoder’s sexual harassment. After the Human Rights Bureau found reasonable cause to move forward with Kroll’s complaint, Kroll and Colstrip settled. STANDARD OF REVIEW ¶12 We review the denial of a motion for judgment as a matter of law de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. Judgment as a matter of law is properly granted only when there is a complete absence of any evidence which would justify submitting an issue to a jury. Johnson, ¶ 13. All such evidence and any legitimate inferences that might be drawn from the evidence must be considered in the light most favorable to the party opposing the motion. Johnson, ¶ 13. However, mere denial or speculation does not create an issue of fact. Johnson, ¶ 28. Judgment as a matter of law is not proper if reasonable persons could differ regarding conclusions that could be drawn from the evidence. Johnson, ¶ 13. DISCUSSION ¶13 Did the District Court err by denying Colstrip’s motion for judgment as a matter of law where Reinlasoder failed to contest that he had sexually harassed an employee? ¶14 Sections 39-2-901 through -915, MCA, set forth the provisions of the “Wrongful Discharge From Employment Act.” A discharge is wrongful if it is not for good cause. Section 39-2-904(l)(b), MCA. “Good cause” is defined as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” Section 39-2-903(5), MCA. We have defined “a legitimate business reason” as a reason that is not false, whimsical, arbitrary, or capricious, and one that must have some logical relationship to the needs of the business. Davis v. State, 2015 MT 264, ¶ 10, 381 Mont. 59, 357 P.3d 320 (citing Buck v. Billings Mont. Chevrolet, 248 Mont. 276, 281-82, 811 P.2d 537, 540 (1991)). In applying this definition we have stressed the importance of the “right of an employer to exercise discretion over who it will employ and keep in employment.” Davis, ¶ 10 (internal quotation and citation omitted). The balance between the employer’s discretion and “the employee’s equally legitimate right to secure employment... should favor an employee who presents evidence, and not mere speculation or denial, upon which a jury could determine that the reasons given for his termination were false, arbitrary or capricious, and unrelated to the needs of the business.” Kestell v. Heritage Health Care Corp., 259 Mont. 518, 526, 858 P.2d 3, 8 (1993). We have explained that an employer’s discretion is at its greatest when the discharged employee is in a management position. Sullivan v. Cont’l Constr. of Mont., LLC, 2013 MT 106, ¶ 18, 370 Mont. 8, 299 P.3d 832. A chief of police is responsible for managing an entire police department. Section 7-32-4105, MCA. ¶15 At trial, Reinlasoder factually contested many of Colstrip’s allegations. However, such factual disputes do not render judgment as a matter of law inappropriate where there are facts not in dispute that provide “good cause” for discharge from employment. Davis, ¶ 14. Kroll’s testimony, corroborated by two other officers, established she was sexually harassed by Reinlasoder when, in the workplace, he invited her to view pornography with him because he thought she looked like “a freaky kind of girl that would like porn.” When Reinlasoder was given the opportunity to deny that this sexual harassment took place, he repeatedly stated he “could not recall.” Reinlasoder’s equivocation does not create a material issue of fact. Johnson, ¶ 28. ¶16 In his briefing, Reinlasoder argues that his cross-examination of Kroll created a material issue of fact with regard to the sexual harassment incident. First, Reinlasoder argues Kroll stated in her deposition that the incident occurred on February 29th, but her letter stated it occurred on March 6th. However, Reinlasoder fails to articulate how this inconsistency created an issue of material fact. The crucial material fact was whether Reinlasoder made the comments to Kroll. Reinlasoder’s questions on cross-examination did not dispute that the sexual harassment occurred, but only whether it occurred on February 29th or March 6th. ¶17 Second, Reinlasoder argues that, while Kroll testified the Human Rights Bureau found reasonable cause to proceed with Kroll’s complaint, the complaint had nonetheless been settled before it was adjudicated in a hearing. Again, Reinlasoder fails to articulate how this testimony created an issue of material fact about the harassment incident. That the Human Rights Bureau was precluded by settlement from determining in its process whether Reinlasoder had committed sexual harassment does not contradict the testimony of Kroll, Hert, and Hayes that the incident actually occurred. ¶18 The uncontested evidence showed Reinlasoder sexually harassed Kroll. Reinlasoder failed to meet his burden of presenting evidence, “and not mere speculation,” Kestell, 259 Mont. at 526, 858 P.2d at 8, contesting the allegation. Sexual harassment is unquestionably a “legitimate business reason” or “reasonable job-related grounds for dismissal” that satisfies the “good cause” standard contained in § 39-2-903(5), MCA. See Barbara Foster v. Albertson’s, Inc., 254 Mont. 117, 127, 835 P.2d 720, 726 (1992) (“Sexual harassment is against public policy.”). Judgment as a matter of law was therefore appropriate because the undisputed facts precluded Reinlasoder from establishing the crucial element of his wrongful discharge claim, an absence of “good cause.” Davis, ¶ 14. ¶19 The amended judgment is reversed and this matter is remanded for entry of judgment in favor of Colstrip. CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON and WHEAT concur.

JUSTICE COTTER delivered the Opinion of the Court. ¶1 On November 3, 2014, following a dispositional hearing, C.C. was involuntarily committed to the Montana State Hospital for a period of ninety days. She appealed the Nineteenth Judicial District Court’s order, arguing it lacked a sufficiently detailed statement of facts to justify her commitment. We vacate, reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In September 2014, the Lincoln County Attorney filed a petition alleging that C.C. suffered from a mental disorder that required commitment. C.C. had been evaluated by a mental health professional with the Western Montana Mental Health Center who requested that the petition be filed. The professional asserted that C.C. posed an imminent danger to herself and to others. The Nineteenth Judicial District Court issued an order finding probable cause and appointing an attorney, a friend for C.C. and a professional person. A Kalispell public defender representing C.C. requested that she be examined by a professional person of her choosing and the court granted the request. F oil owing the requested examination and an initial hearing conducted on October 6, 2014, the District Court concluded that C.C. did not suffer from a mental disease and dismissed the petition. ¶3 On October 18, 2014, Officer Chris Pape of the Troy Police Department was dispatched to C.C.’s residence at approximately 5 a.m. via a 9-1-1 call. Pape spoke with C.C. for several minutes and while her behavior was unusual and she was in possession of a loaded shotgun, he concluded no further action was necessary. Several days later, on October 27, he responded to a call from C.C.’s neighbor, Sunshine Thill, who reported that C.C. was on her front porch at 4:45 a.m. and she felt threatened by C.C.’s odd behavior and frightening statements. Pape arrested C.C. for disorderly conduct. While transporting C.C. to detention, the officer heard her having a conversation with Satan in which C.C. was saying that some unidentified male, presumably Pape, must be killed before C.C. arrived at the jail. C.C. was booked and the officer discovered ammunition in her pockets but no weapons. While in detention, C.C.’s strange behavior caused the staff concern, so they transported her to the emergency room for a mental health evaluation. Several hours later Nancy Huus evaluated her and found her to be calm and functional at the time. ¶4 On October 28, the Lincoln County Attorney’s office filed a second petition alleging that C.C. suffered from a mental disorder and required commitment. The District Court conducted an initial hearing on the same day and both Pape and Huus testified. Pape testified that while he found C.C.’s language in the squad car during transport disturbing, C.C. never directly threatened him. Huus testified in some detail that C.C. displayed symptoms of paranoid schizophrenia. She recommended that C.C. be committed to Montana State Hospital for further observation, assessment, and possible treatment by a psychiatrist. ¶5 The District Court conducted an adjudicatory hearing on November 3, 2014. Huus, Pape, Sunshine Thill and C.C. testified. Additionally, Sunshine’s sister, Deana Thill, who lives in the same mobile home park as Sunshine and C.C., testified that she was frightened when a confused C.C. entered her home without knocking, thinking she was at a laundry facility. At the conclusion of the hearing, the District Court orally concluded that C.C. needed “to go to Warm Springs” because the Montana State Hospital was “the least restrictive treatment at this point.” The court ordered that arrangements be made to keep C.C.’s trailer home safe and winterized while she was at the hospital and to ensure that her bills were properly paid. Following the court’s oral pronouncement and before adjournment, the State offered a prepared order which the court signed. The written order included findings of fact, conclusions of law and an order of commitment. As the adequacy of these findings and conclusions are at issue in this appeal, we repeat them in their entirety: FINDINGS OF FACT 1. Respondent suffers from a mental disorder, Unspecified Schizophrenia Spectrum, as diagnosed by Nancy K. Huus, Mental Health Professional. 2. Because of her mental disorder, Respondent presents an imminent threat of injury to herself and others for the reasons set forth in the testimony and report of Nancy K. Huus, Mental Health Professional. 3. Respondent is a person who requires residential treatment and commitment, and the [clourt finds that there are no services available locally which meet Respondent’s needs. 4. Respondent is a person who is not competent to make decisions regarding her medication and treatment. Involuntary medication is necessary to protect the Respondent and the public and to facilitate effective treatment. 5. The least restrictive treatment facility available for the Respondent is at the Montana State Hospital at Warm Springs, Montana. CONCLUSIONS OF LAW 1. Respondent is a person who suffers from a mental disorder within the meaning of § 53-21-102, MCA. Due to this mental disorder, Respondent requires commitment. 2. Respondent should be committed to Montana State Hospital at Warm Springs, Montana, for the period of time sufficient to adequately diagnose and treat Respondent’s mental illness. This commitment is for a period of ninety (90) days, unless extended by further order of this [clourt. The [clourt specifically finds that this is the least restrictive treatment alternative necessary to protect Respondent and the public and to permit effective treatment. 3. Respondent needs to receive appropriate medication for her mental disorder while at Montana State Hospital at Warm Springs, Montana. The physicians at the Montana State Hospital shall have full authority to administer medication by injection if necessary as the Respondent is unable to give informed consent. ORDER OF COMMITMENT 1. That Respondent is committed to the Montana State Hospital at Warm Springs, Montana, for a period of ninety (90) days. 2. That the physicians at the Montana State Hospital shall have full authority to administer necessary medication to Respondent involuntarily, if Respondent refuses appropriate medication. 3. Respondent shall be immediately transported to Montana State Hospital at Warm Springs, Montana, by the Lincoln County Sheriffs Office. ¶6 On November 5, 2014, C.C. moved to amend the written order to conform to the oral pronouncement noting that the court’s oral pronouncement did not include a finding of need nor a hospital authorization for involuntary medication. The District Court denied the motion, holding that its omission regarding involuntary medication was inadvertent. ¶7 C.C. filed a timely appeal. ISSUES ¶8 Did the District Court err when it failed to provide a detailed statement of facts to justify C.C.’s involuntary commitment? ¶9 Did the District Court err when its written judgment included a provision for involuntary medication that was not made at the oral pronouncement, was not in compliance with statute, and was not supported by any findings in the record? STANDARD OF REVIEW ¶10 Whether a district court’s findings of fact meet the statutory requirements is a question of law which we review for correctness. In re L.L.A., 2011 MT 285, ¶ 7, 362 Mont. 464, 267 P.3d 1. DISCUSSION ¶11 Did the District Court err when it failed to provide a detailed statement of facts to justify C.C.’s involuntary commitment? ¶12 Section 53-21-127(8)(a), MCA, provides: In ordering commitment pursuant to this section, the court shall make the following findings of fact: (a) a detailed statement of the facts upon which the court found the respondent to be suffering from a mental disorder and requiring commitment. ¶13 Relying on L.L.A., In re Mental Health of E.P.B., 2007 MT 224, 339 Mont. 107, 168 P.3d 662, and In re Mental Health of O.R.B., 2008 MT 301, 345 Mont. 516, 191 P.3d 482, C.C. asserts that the court’s commitment order does not contain a detailed statement of facts as required by § 53-21-127(8)(a), MCA. The State urges us to employ the doctrine of implied findings and conclude the commitment order complies with the applicable statute. ¶14 An involuntary commitment can have calamitous effects on an individual. Such a commitment includes loss of liberty and potential damage to a person’s reputation. For these reasons, we have repeatedly stressed the critical importance of strict compliance with the statutory requirements addressing involuntary commitment. L.L.A., ¶ 9. ¶15 In L.L.A., the State’s petition presented significant detailed evidence of L.L.A.’s schizophrenic behavior. L.L.A., ¶ 3. Further detailed facts were presented at the district court hearing at the close of which the State indicated it would prepare a commitment order for the court’s signature in “less than ten minutes.”L.L.A., ¶ 5. The State’s order contained seven facts that this Court noted were “derived almost exclusively from the language of § 53-21-126, MCA,” but did not reflect L.L.A.’s circumstances or the particular facts that would support the court’s commitment order. L.L.A., ¶¶ 10,13. We further observed that the court’s “ ‘conclusory statements of statutory criteria’ do not ‘constitute strict compliance with the statutory mandate of § 53-21-127(8)(a), MCA.’ ” Additionally, we concluded that the court’s order contained “no indication of the facts upon which it found that, because of her mental disorder, L.L.A. is substantially unable to protect her life and safety or that imminent threat of injury to herself or others will result if she is left untreated.” L.L.A., ¶ 11. Based upon the court’s failure to strictly adhere to the applicable statutes, we reversed the district court’s commitment order. L.L.A., ¶ 22. ¶16 Similarly, in E.P.B., just prior to the close of the initial hearing on Silver Bow County’s petition to involuntarily commit E.P.B., the county attorney presented the district court with an order of commitment. The court signed the order and E.P.B. subsequently appealed the sufficiency of the findings. E.P.B., ¶ 4. We stated that “given the deputy county attorney’s production of the order before the hearing ended and the lack of any reference to E.P.B.’s testimony—it is relatively clear that the order was prepared before the hearing commenced.” E.P.B., ¶ 12. We chastised the district court stating that “a hearing on a petition for involuntary commitment is not merely a pro forma requirement, but an opportunity for the parties—both the petitioner and the respondent—to present evidence upon which the trial court can make required findings and enter appropriate orders.” E.P.B., ¶ 12. We urged courts to “at the very least—ensure that such ‘prepared’ orders comply with statutory mandates.” E.P.B., ¶ 12. We held that the court did not comply with statutory requirements to present a detailed statement of the facts and reversed and remanded with instructions to enter an order vacating the commitment order. E.P.B., ¶¶ 13-15. ¶17 The State argues that it presented ample evidence on which the District Court could rely in finding that C.C. suffered from a mental disorder requiring her commitment. It advocates that we follow those cases in which we employed the doctrine of implied findings to uphold the court’s commitment order. See, e.g., In re Mental Health of S.C., 2000 MT 370, 303 Mont. 444, 15 P.3d 861 and In re S.M., 2014 MT 309, 377 Mont. 133, 339 P.3d 23. In the alternative, the State urges us to remand to the District Court for a supplemental order containing a detailed statement of facts. C.C. counters that the Court’s application of the implied findings doctrine to involuntary commitment cases over the past few years has expanded the doctrine into a substitute for statutory compliance. She urges us not to apply it in this case, and to remand for dismissal. ¶18 In S.C., we applied the doctrine of implied findings to an involuntary commitment case for the first time. We stated that where the district court’s “findings are general in terms, any findings not specifically made, but necessary to the [determination], are deemed to have been implied, if supported by the evidence.” S.C., ¶ 14. In S.C., the district court ordered that “[S.C.] will agree to take medication as prescribed ....” S.C. ¶ 6. We noted that while the district court made multiple “detailed findings of fact,” it did not make specific findings that S.C. was incompetent and required involuntary medication. S. C., ¶¶ 14, 7. This Court, however, employed the doctrine of implied findings, set forth the detailed findings presented by the court, and held that the evidence supported the district court’s ruling on involuntary medication. S.C., ¶ 14. ¶19 It was more than a decade before we again considered the application of the doctrine of implied findings in an involuntary commitment case, and we rejected its use in In re the Mental Health of L.K.-S., 2011 MT 21, 359 Mont. 191, 247 P.3d 1100. However, in In re R.W.K., 2013 MT 54, 369 Mont. 193, 297 P.3d 318, the Court again invoked the doctrine to uphold an involuntary medication order, as it had done in S.C. ¶20 In In re S.M., we noted that the district court’s written order of commitment was “minimally sufficient” and was supported by substantial evidence. S.M., ¶ 30. We therefore applied the doctrine, consulting not just the district court’s written findings but also the hearing transcripts to determine if the evidence supported the court’s finding that Montana State Hospital was the least restrictive placement for S.M. S.M., ¶ 28. ¶21 Subsequently, in In re M.P.-L., 2015 MT 338, 381 Mont. 496, 362 P.3d 627, the district court issued two commitment orders within three days of one another. We held that the first order was “deficient” in factual detail and failed “to meet the mandatory statutory requirements.” M.P.-L., ¶¶ 7, 11. However, the district court’s second order included information reflecting M.P.-L.’s circumstances leading to the court’s conclusion that M.P.-L. required commitment. M.P.-L., ¶ 19. We noted that while the court’s written findings were “bare-boned,” when combined and reviewed in conjunction with the hearing findings they were sufficient to support the district court’s ruling on commitment. M.P.-L., ¶ 20. ¶22 Most recently, in In re S.G.R., 2016 MT 70, 383 Mont. 74, 368 P.3d 1180, we applied the doctrine of implied findings after noting that the district court’s order of recommitment, while “spartan” nonetheless set forth facts recounted from specific witness testimony from the hearing. S.G.R., ¶ 21. We stated “the order identifies the testimony and evidence on which the court premised its findings. The evidence and testimony support the court’s conclusion that S.G.R.’s mental illness required extension of his commitment because he was a ‘danger to himself and was ‘unable to appreciate the necessity for a proper medication regimen to control his mental illness.’ ” S.G.R., ¶ 22. ¶23 The case at bar is analogous to L.L.A. Here, the District Court issued an order that was prepared before the evidentiary hearing took place; consequently, the order contained no detailed facts and recounted no testimony that was specific to C.C.’s condition, symptoms, or actions. We decline to expand the doctrine of implied facts to the degree necessary to affirm a commitment order that is beyond “bare-bones” and “spartan.” As we have emphasized on numerous occasions, “the statutory requirements of an involuntary commitment must be strictly adhered to by the district courts, including the requirement of detailed findings under § 53-21-127(8)(a), MCA, in order to justify appropriate decisions and to follow proper procedure.” M.P.-L., ¶ 24. The pre-prepared order signed by the District Court wholly fails to satisfy statutory requirements. ¶24 Did the District Court err when its written judgment included a provision for involuntary medication that was not made at the oral pronouncement, was not in compliance with statute, and was not supported by any findings in the record? ¶25 Because we have determined that the District Court’s findings of fact are insufficient and are vacating the order of commitment, we need not address this issue. CONCLUSION ¶26 For the foregoing reasons, and relying upon established authority, we decline the State’s invitation to remand to the District Court for a supplemental order containing a detailed statement of facts. L.L.A., ¶ 23. We vacate the District Court’s Order of Commitment and its separate Findings of Fact, Conclusions of Law and Order of Commitment and reverse and remand for an order of dismissal. JUSTICES BAKER, WHEAT, SHEA and RICE concur.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 J. Russell Parker appeals from the District Court’s order filed August 12, 2015, granting summary judgment in favor of defendant Safeco Insurance Company. We affirm. ¶2 We restate the issue on appeal as follows: Whether the District Court erred in construing Parker’s insurance policy with Safeco to exclude coverage for damage caused by a large rock falling down a hillside into Parker’s cabin. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In March 2014 a large boulder dislodged from a hillside several hundred feet from Parker’s vacation cabin near Sheridan, Montana. The boulder fell down the hillside and into Parker’s unoccupied structure, causing substantial damage. Parker submitted a claim to his insurer Safeco. ¶4 Safeco hired an engineer who examined the incident within 12 days of the rock fall. Safeco’s expert reconstructed the 440-foot path that the boulder took down the hillside and into Parker’s cabin, and found the “fresh scar” where the boulder dislodged from the cliff. The expert observed “a significant amount of soil remnants” where the boulder originally sat in the cliff, and opined that expansion of soil and water in cracks in the rock caused it to dislodge. Upon receiving the expert’s report, Safeco requested more information as to the cause of the rock fall. The expert responded that the freeze-thaw process or “frost wedging” of the soil and water in the rock joints was the cause. The following day, on April 3, 2014, Safeco sent a copy of the expert’s report to Parker. ¶5 On April 14, 2014, Parker’s expert examined the site. He concurred with Safeco’s expert as to the original location of the boulder on the cliff, and as to the role of the freeze-thaw process in the rock fall. Parker’s expert did not observe “soil” at the cliff site, but rather “infilling from weathered granitic gneiss.” About ten days later Safeco wrote Parker stating that his claim appeared to be excluded by the earth movement exclusion in the insurance policy. ¶6 The Safeco policy contained an exclusion from coverage for damages caused by “earth movement.” The policy provided: BUILDING PROPERTY LOSSES WE DO NOT COVER We do not cover loss caused directly or indirectly by any of the following excluded perils. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss results in widespread damage or affects a substantial area; 9. Earth Movement, meaning: a. the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, mudslide, sinkhole, subsidence, movement resulting from improper compaction, site selection or any other external forces, erosion including collapse or subsidence of land along a body of water as a result of erosion or undermining resulting from the action of water. b. erosion, shifting or displacement of materials supporting the foundation; and c. volcanic blast, volcanic explosion, shockwave, lava flow, lahars and fallout of volcanic particulate matter. This exclusion applies whether the earth movement is caused by or resulting from human or animal forces or any act of nature. After the experts made their reports and especially after Safeco concentrated on determining the cause of the boulder fall, debates arose, and continue, over whether any “soil” was involved in the boulder fall, and whether rock is “earth” as used in the policy language. Safeco’s expert concluded that freezing and thawing of water and soil in the joints of the rock outcrop, over time, caused the boulder to break free and fall. Parker’s expert opined that no actual “soil” was involved in the boulder fall because the decomposition of the granitic gneiss at the site from which the boulder fell does not create “soil” that is susceptible to expanding with freezing water. Safeco denied Parker’s claim, informing him that the “rockfall is considered earth movement from landslide which is specifically excluded under your policy.” ¶7 Parker sued Safeco for breach of contract and for damages under the Unfair Trade Practices Act, §§ 33-18-201 and -242, MCA. Safeco argued that the earth movement exclusion precluded coverage. Parker argued that the policy language was ambiguous; that Safeco had wrongfully changed its theory of why there was no coverage; that “earth movement” did not describe a single falling boulder; and that excluding coverage was contrary to his reasonable expectations. Both parties moved for summary judgment. The District Court granted Safeco’s motion and denied Parker’s motion. ¶8 The District Court first analyzed Parker’s argument that Safeco failed to notify him of the policy defenses it intended to rely upon and had thereby waived the right to raise those defenses. The District Court found that Safeco promptly and clearly informed Parker that it intended to rely on the earth movement exclusion. Therefore, the District Court concluded that he could not have been surprised by the reason for denial. In addition, Parker could not demonstrate any prejudice arising from Safeco’s communications on coverage and so could not hold Safeco to have waived its policy defenses. ¶9 The District Court analyzed Parker’s argument that the language of the policy exclusion was ambiguous, beginning with the legal premise that ambiguous language in an insurance policy will be construed against the insurer who drafted it. However, the District Court determined that disagreement over the meaning of policy language does not create an ambiguity and absent an ambiguity a court must enforce the contract as written. The District Court analyzed Parker’s reliance upon Kresge v. State Farm Fire and Casualty, 2012 WL 8499731 (Colo. Dist., Nov. 4, 2012), a case with similar facts and policy language. The District Court found that Kresge’s conclusion that the policy language was ambiguous was flawed and should not be followed. ¶10 The District Court then analyzed the Safeco policy language, determining that an excluded earth movement event could be either small or large, and could include only a few rocks or many. Accepting Parker’s argument that one rock could not constitute an excluded landslide would result in courts being “called upon to distinguish between one rock and two, or two and three” when there is “no principled basis to do so.” The Safeco policy language excluded coverage regardless of the size of the event and regardless of whether it is described by one of the listed examples. “The damage to Parker’s home resulted from earth movement, an occurrence which the text of the policy unambiguously excludes from coverage.” ¶11 The District Court considered Parker’s argument that “only soil constitutes earth” and that a rock is not earth under the policy exclusion—that a soil slide would be excluded but a rock slide would not. The District Court concluded that “earth” as used in the policy includes both rock and soil, relying upon the policy’s examples of “earth movement” events to include earthquake, landslide, volcanic blast and lava flow. These examples of earth movement could occur with or without soil movement, or with a mixture of soil and rock. Therefore, the District Court concluded that it is clear that “earth” in the policy language must mean “the land surface of the world” which “clearly includes rock.” “There is no principled basis to distinguish between the movement of two or three boulders compared to one boulder. The fall of a large boulder is a landslide. The exclusion applies.” ¶12 The District Court considered Parker’s argument that because the insurance policy represented a contract of adhesion, it was proper to defer to Parker’s “reasonable expectations” about the scope of Safeco’s coverage. The District Court found no support for Parker’s argument. The earth movement exclusion did not nullify any coverage granted elsewhere in the policy and Parker’s purported conversations with the adjuster after the rock fall as well as Safeco advertising that he did not read before purchasing the policy were irrelevant. Because the Safeco policy clearly excluded coverage for Parker’s loss, he could not demonstrate to the District Court that he had a reasonable expectation of coverage, and he could not establish that the policy was oppressive or unconscionable. ¶13 Finally, the District Court rejected Parker’s claims under the UTPA. Safeco had a reasonable basis in fact for contesting the claim under the earth movement exclusion. Because the policy “unambiguously excludes coverage for earth movement,” the District Court granted summary judgment to Safeco and Parker appeals. STANDARD OF REVIEW ¶14 The district court’s interpretation of an insurance policy is reviewed as an issue of law, to determine whether the interpretation was correct. Wendell v. State Farm, 1999 MT 17, ¶ 10, 293 Mont. 140, 974 P.2d 623. General rules of contract law apply, and we construe insurance policies against the insurer and in favor of the insured. Travelers Cas. & Sur. Co. v. Ribi Immunochem, 2005 MT 50, ¶ 17, 326 Mont. 174, 108 P.3d 469. A court should interpret terms in an insurance policy according to their usual, common-sense meaning as viewed from the perspective of a reasonable consumer of insurance products. Park Place Apts. v. Farmers Union, 2010 MT 270, ¶ 12, 358 Mont. 394, 247 P.3d 236. Ambiguity exists when the insuring document, taken as a whole, is reasonably subject to differing interpretations, and ambiguity should be construed in favor of the insured. Travelers, ¶ 17. ¶15 This Court reviews a district court’s order on a motion for summary judgment by applying the same criteria as the district court under M. R. Civ. P. 56. Thornton v. Flathead County, 2009 MT 367, ¶ 13, 353 Mont. 252, 220 P.3d 395. DISCUSSION ¶16 Issue: Whether the District Court erred in construing Parker’s insurance policy with Safeco to exclude coverage for damage caused by a large rock falling down a hillside into Parker’s cabin. ¶17 The Safeco policy in this case provided several exclusions from coverage, one of which was loss due to “earth movement.” Parker contends that because a large rock caused the damage to his cabin, there was no “earth movement.” ¶18 The text of the policy contains the bolded heading of “BUILDING PROPERTY LOSSES WE DO NOT COVER.” The policy excludes coverage for damage from “earth movement,” defined as the “sinking, rising, shifting, expanding or contacting of earth.” The policy provides that earth movement includes but is not limited to earthquake, landslide, mudflow, mudslide, sinkhole, subsidence and erosion. The policy provides that earth movement includes volcanic blasts, lava flows and “fallout of volcanic particulate matter.” The policy provides that the coverage exclusion applies whether the earth movement is caused by human forces or an act of nature, and whether or not the earth movement event is widespread. ¶19 The District Court read this provision as a whole, without isolating single words, to determine that the clear intent of the policy language was to expansively exclude coverage for damage caused by any movement of materials that make up the Earth’s surface. As the District Court noted, the term “earth” includes more than just soil such as that found in a garden. Reasonable people would recognize that rocks of all sizes ordinarily comprise more or less of the surface of the earth upon which we live. Digging a shovel or two of earth in most places in Montana will yield both soil and rock. Construing the policy to exclude only damages caused solely by soil movement would improperly distort the policy language. Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 35, 354 Mont. 15, 221 P.3d 666. ¶20 Further, there is nothing in the language of the exclusion to indicate that there is any basis for separating rock from soil when considering “earth movement.” To the contrary, the policy language includes landslides and lava flow as examples of earth movement. The Montana District Court in Yellowstone County construed “landslide” in an insurance policy exclusion as “the rapid downward movement of a mass of rock, earth, or artificial fill on a slope.” Deschner v. Hartford, Cause DV 10-1800, Montana Thirteenth Judicial District Court, Yellowstone County (2013). “The ordinary meaning of the term ‘landslide’ includes rocks falling down a bluff.” Dupps v. Travelers Ins. Co., 80 F.3d 312, 314 (8th Cir. 1996). These cases reflect the common understanding of the term landslide as a movement, falling or sliding of whatever is on the surface of the earth and some distance below the surface. Clearly, in many instances this would include both soil and rocks of varying size. Other courts have held that the ordinary meaning of “landslide” in a similar earth movement policy exclusion includes movement of “soil or rock on or from a steep slope.” Murray v. State Farm, 509 S.E.2d 1, 8 (Sup. Ct. App. W. Va. 1998); Deschner; Dupps, 80 F.3d at 314. Similarly, as the District Court explained, lava (a specific example of earth movement listed in the policy) is molten rock per se, and not soil. We agree with the District Court that the clear intent of the Safeco policy language was to broadly exclude coverage for any and all types of earth movement. ¶21 We disagree with Parker’s basic contention that the District Court found that the Safeco policy was ambiguous and yet failed to construe it against Safeco. While ambiguity in insuring language is construed so as to extend coverage, courts considering coverage issues must examine the document as a whole, giving words their usual meaning. Mitchell v. State Farm, 2003 MT 102, ¶ 26, 315 Mont. 281, 68 P.3d 703. Significantly, the District Court never determined that any of the policy language was ambiguous. The fact that the District Court here had to consider and discuss the words of the policy in order to apply it does not equate with a finding that the policy language was ambiguous. Consideration and interpretation of the policy language is simply the court’s function when disputes arise. ¶22 The extent that the parties “struggled” as Parker describes it, to apply the policy language was attributable in part to Parker’s argument that “earth” could only mean soil, so that the exclusion did not apply. There is no language in the earth movement exclusion requiring the involvement of “soil” or limiting the exclusion to events involving soil. The policy exclusion applies regardless of the cause of the earth movement. The clear examples of earth movement provided in the policy make it clear that it is not limited to movement of soil. The policy exclusion examples include earthquake, landslide, mudflow, mudslide, along with volcanic blast, volcanic explosion, shockwave, lava flow, lahars and fallout of volcanic particulate matter. We agree with the District Court that “earth” as used in the policy is clearly intended to be broadly inclusive of all natural materials that comprise the surface of the earth, including rocks and soil. ¶23 Parker further contends that the District Court wrongfully resolved a genuine issue of material fact in deciding the summary judgment motions. Parker’s expert visited the site and could not find any “soil” of a type that could have combined with water to freeze and thaw and cause the rock fall event. However, this again relates to the rejected contention that the presence or absence of “soil” is determinative of coverage. The District Court granted summary judgment based upon the language of the policy, not upon a resolution of a factual dispute. ¶24 As noted, Parker relies heavily upon the Colorado lower court decision in Kresge in support of his position. In that case a single boulder fell on insured’s property and the insurer denied coverage under the “earth movement” exclusion in the policy. The insured argued that a boulder is not “earth” any more than a tree or an animal carcass, and that a single boulder cannot be a “landslide.” That court determined that a majority of other state courts have recently held that the earth movement exclusions are ambiguous, and at the same time there is “so much judicial disagreement” about the earth movement clause that it must be ambiguous. The Colorado court determined that “reasonable consumers” could expect the boulder fall to be covered. ¶25 While many state courts have considered whether “earth movement” coverage exclusions are ambiguous, the vast majority of those cases were decided in the context of disputes over whether the exclusion applied to human-caused events. See, for example, the cases collected at Appendix A in Murray. The policy in this case applies the exclusion to earth movement regardless of its cause, making the debate over human-caused events irrelevant. We do not find Kresge persuasive. ¶26 In Deschner, the court considered an incident in which “one or multiple pieces of rock” fell from the Rimrocks in Billings. When that rock hit the ground it broke into pieces and fell onto plaintiffs house, severely damaging it. The insurer denied coverage under its earth movement exclusion and the district court granted summary judgment to the insurer. The parties presented several dueling expert opinions as to whether a “rockfall” constituted a “landslide” from a geologist’s perspective, and plaintiff argued that this disagreement demonstrated that the term “landslide” was ambiguous. ¶27 The district court concluded that it need not consider the opinions of the various experts about rock falls and landslides because they do “not bear upon a reasonable consumer’s understanding of the term landslide as used in the ‘Earth Movement’ exclusion.” This Court recently held that expert testimony is inadmissible when the issue was construction of the language of a deed which, like the construction of an insurance policy, is a question of law. Wicklund v. Sundheim, 2016 MT 62, ¶¶ 15-17, 383 Mont. 1, 367 P.3d 403. See also Jordan v. Allstate, 116 Cal. App. 4th 1206, 1218 (2004) (rejecting expert testimony as an aid in construing insurance policies from the viewpoint of a reasonable lay person). Montana Rule of Evidence 702 allows for the use of expert testimony to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Dubiel v. Montana DOT, 2012 MT 35, ¶¶ 16-17, 364 Mont. 175, 272 P.3d 66. ¶28 It is well established that a court should interpret terms in an insurance policy according to their usual, common-sense meaning as viewed from the perspective of a reasonable consumer of insurance products. Park Place Apts., ¶ 12. The District Court consulted dictionary definitions of the term “landslide” to determine that it is “the rapid downward movement of a mass of rock, earth, or artificial fill on a slope.” The event under consideration—a large boulder falling off a cliff, breaking upon impact, and then continuing downhill to hit the insured’s house—was a landslide under the earth movement exclusion and therefore not covered. ¶29 We agree with the district court’s analysis in Deschner that a common understanding of the term “landslide” in the context of the earth movement exclusion in the Safeco policy would include the large boulder that came down the hill and onto Parker’s cabin. Parker attempts to distinguish Deschner on the basis that the boulder in that case fell from its cliff and then broke into two or more pieces, whereas the boulder that hit his cabin stayed intact. There is no basis in the Safeco policy language for such a distinction and no reasonable person would expect coverage to turn upon whether the falling rock stayed intact or broke into two or more pieces. ¶30 Parker contends that Safeco wrongfully changed its reason for excluding coverage, and therefore should be prohibited from denying coverage. Portal Pipe Line Co. v. Stonewall Ins. Co., 256 Mont. 211, 217-18, 845 P.2d 746, 750 (1993); § 33-18-201(14), MCA. The insured seeking to impose coverage in this situation must demonstrate that the insurer’s change of position caused him prejudice. Safeco v. Ellinghouse, 223 Mont. 239, 245, 725 P.2d 217, 221 (1986). Early in the process Safeco informed Parker by letter that it was denying coverage because the event was “considered earth movement from landslide which is specifically excluded under your policy.” ¶31 In this case Parker contends that Safeco’s reasons for denying coverage were deficient because they did not also mention that freezing and thawing in fissures up on the cliff caused the boulder to fall. Parker contends that he was prejudiced because he could have had an expert examine the scene earlier had he known about the freezing and thawing. The District Court found, and we agree, that Safeco promptly informed Parker that it would rely upon the earth movement exclusion in the policy, and that Safeco considered the falling boulder to constitute a “landslide” under the examples given in the policy. The District Court further found that Safeco promptly provided a copy of its expert’s report on the freezing-thawing cause of the event. ¶32 Finally, we agree with the District Court’s determination that Safeco’s conduct did not constitute a violation of the UTPA, which prohibits insurers from engaging in unfair and deceptive practices. Section 33-18-101, MCA. Here, Safeco promptly investigated the claim and hired an engineer to examine the facts. Safeco provided Parker with all the information it had about the event as it became available. As the District Court determined, the “UTPA encourages insurers to provide more information rather than less.” Safeco informed Parker of its determination that the earth movement exclusion applied, and did not change its initial statement to him that the earth movement exclusion in the policy precluded coverage for his claim. In any event, whether the rock fall was caused by freezing soil or freezing water or a mixture thereof, the earth movement exclusion applied whether the material was “combined with water or not” and it applied whether or not the movement was caused by “external forces” or erosion. ¶33 Because Safeco properly denied Parker’s claim based upon an express coverage exclusion in the policy, the District Court properly found that there was no basis for a claim under the UTPA. CONCLUSION ¶34 Having considered the arguments and authorities raised by the parties, the decision of the District Court is affirmed. JUSTICES COTTER, BAKER, McKINNON and RICE concur.

Denied Original Proceeding Supervisory Control

Affirmed Dist. 20 (Lake)

Granted & Reversed Original Proceeding Supervisory Control

Granted in Part Original Proceeding Habeas Corpus

Remanded Original Proceeding Supervisory Control

Granted in Part Original Proceeding Habeas Corpus

Affirmed Dist. 8 (Cascade)

De Witt, J. This is an action of unlawful detainer commenced in the Justice’s Court, an action in which it is required that, even in the Justice’s Court, the pleadings shall be in writing and be verified. (Code Civ. Proc. § 769.) The action was commenced August 15, 1889, and summons was served on defendant, August 17th. On August 20th, by consent, defendant was given until August 28th to answer. August 28th, by consent, he was given until August 31st. August 31st, by consent, he was given until September 3d. Trial was set for September 5th at 10 A. M. September 5th, 10 A. M. continued until 2 p. M. September 5th continued until September 20th, and defendant to have until September 17th to answer. September 17th, by consent, time to answer continued. October 19th, trial set for October 22d. Defendant had been given until October 15th to file answer. The justice’s record further shows that on October 22d, the time for answer on- the part of John Dowd having expired, and no answer being filed, and said John Dowd having appeared in person, and stated to the court that he would not further contest said case in that court, the default of defendant was entered and judgment rendered against him. Defendant then appealed to the District Court. The case thus came into the District Court without an answer being among the files, and if the justice’s record is correct, without an answer having been filed. In the District Court plaintiff moved for judgment on the pleadings, for the want of an answer, which motion was granted, and judgment entered in that court for plaintiff. Defendant moved the court to set aside the judgment, and give him leave to file an answer. But the theory upon which the motion was made and heard seems to be, judging from the affidavits and all the record, that an answer had been filed in the Justice’s Court and lost, and no record made of it, and defendant desired to substitute an answer for that which he claimed had existed. The motion was denied. On the motion for judgment on the pleadings, and on tho motion to set aside the judgment, there were a number of affidavits used. The tenor of the affidavits upon the part of the defendant was that an answer had been prepared and filed in the Justice’s Court, while plaintiff denied that allegation by affidavits on his part. It is impossible to reconcile the affidavits of the contending parties upon the theory that each stated the facts. The conflict is irreconcilable. The District Court weighed them, and declined to open the default or allow defendant to file an answer. In reviewing this action of the District Court, it is pertinent to observe that continuance after continuance was granted to defendant in the Justice’s Court, and that time after time the defendant’s time to answer had been extended, and that finally, when the case came to trial on October 22d, no answer being yet filed, defendant appeared in person, although he has at various stages of the case indulged in the luxury of five different lawyers, and stated that he would not further contest the case in that court. His words “in that court” had no significance. He was in that court, and that court alone had to do with the proceedings at that time. Judgment was then rendered against defendant, practically for the want of an answer. He then appeals to the District Court, and there undertakes to show that he had filed an answer in the Justice’s Court. As before remarked, his effort seems to have been to show that an answer had been filed in the case in the lower court, and he wished to substitute one for the one lost: The affidavit of one of the defendant’s multitude of counsel states that he prepared, had verified by defendant, and filed in the Justice’s Court, an answer on August- 20th. To this effect also depose defendant, and two other affiants. But the significant fact remains that on this very day, August 20th, time to answer was extended to August 28th, and after that extension six more extensions of time to answer were given. Why these seven extensions of time, if the answer had been filed on the date of the first extension? It is apparent that the District Court believed that defendant and his affiants were wrong in their statements that an answer had been filed. There is, to our mind, ample intrinsic evidence in the record, as above recited, to justify our view that the action of the District Court in this regard was the exercise of a sound discretion. No showing was made of surprise, inadvertence, or excusable neglect that would justify the District Court in allowing an answer to be filed in that court originally, even if it were contended that that court might allow such answer' after default and judgment in the Justice’s Court, and no effort having been made in the Justice’s Court to set aside such default, and ask leave to answer therein. The judgment of the District Court is affirmed. ‘ Affirmed. Blake, C. J., and Harwood, J., concur.

De Witt, J. E. C. Waters was a debtor. He transferred all his personal property within the jurisdiction of the court to the Livingston National Bank, which was a creditor to the amount of $5,737.09, and which indebtedness Waters was unable to pay, and by reason of which inability he made the transfer of said property. We think that it is clear, from the agreed case, that Waters did this on account of his inability to pay his debts. What was this transfer — a chattel mortgage or an assignment? It is called a “chattel mortgage” in the instrument and in the language of the agreed case. But we have the whole instrument before us as a part of the agreed case, and we have all the facts, and we are not concluded from inquiring into the nature of the transaction by any inscription that the parties have put thereon. Upon an examination of the instrument and the facts, do we find the essential characteristics of a chattel mortgage? One of the elements of a mortgage is that it is a security for a debt. It is not a payment of a debt, or a present instant means for the payment of a debt. The transaction at bar was a transfer at once of all the' debtor’s property within the jurisdiction to a creditor, with instructions to sell the same, at private or public sale, and to apply the proceeds to the payment of a debt of such creditor of $5,737.09, which debt the debtor and creditor made to be due at once. Furthermore, the creditor, after the payment of such debt, is to render the overplus from the proceeds of the sales to the debtor. The court will look through forms, and arrive at the substance. White v. Cotzhausen, 129 U. S. 329, is an instructive case upon this point, and its doctrine in this respect has not been overruled in Union Bank v. Kansas City Bank, 136 U. S. 233, as suggested by counsel. Therefore regarding the transaction at bar, and looking beyond the partial chattel mortgage form and name, we do not find the elements of a mortgage security. Again, a characteristic of a chattel mortgage is that there should be a defeasance. Is there one here? We find this clause in the mortgage, “ and these presents shall be void if such payment be made [referring to the notes, which are set out in full] according to the terms of said respective promissory-notes.” But following this provision, the instrument sets forth: “It is further provided that said second party shall have the immediate possession of all said above described property, and shall have the right, at its option, to immediately declare all of said debts to be due, and is hereby authorized and empowered to sell all and singular the above-described chattels, with all and every of the appurtenances, or any part thereof, at public or private sale, and out of the money arising therefrom to retain the said principal and interest, and the costs of making such sale, and the attorney’s fees, and the overplus, if any there be, to be paid over to the said first party, his heirs or assigns.” So it appears that there is a defeasance in words. It is upon payment of the notes as provided. But one note was upon its face past due, and the provisions of the instrument make the three other notes due instantly, upon the option of the second party in the instrument, which option that party exercised instantly. Therefore, the whole indebtedness was due at once. The default of the debtor was complete at the time of the transaction as set forth in the agreed case. There was no opportunity for defeasance in the manner suggested in the instrument, for the instrument itself, and the contemporaneous acts of the parties, emasculated the defeasance proposed in the document. Therefore no defeasance was actually contemplated or provided in the transaction. The instrument called a “chattel mortgage” we find shorn of almost all its essential elements as such, except its label, which latter does not commend itself to our mind with any force. The District Court called this instrument and transaction an assignment,” and applied thereto the provisions of the wage-workers’ law (§ 2050), and held that thereunder the respondent was entitled to a lien for his wages upon the funds in the hands of the appellant arising from the proceeds of the sales of the property. Appellant bases his argument largely upon a line of cases, some of which are as follows: Dana v. Stanford, 10 Cal. 269; Lawrence v. Neff, 41 Cal. 566; Cowles v. Ricketts, 1 Iowa, 582; Fromme v. Jones, 13 Iowa, 474; Farwell v. Howard, 26 Iowa, 381; Peck v. Merrill, 26 Vt. 687; McGregor v. Chase, 37 Vt. 225; Gage v. Chesebro, 49 Wis. 486; Vallance v. Miners’ Life Ins. etc. Co. 42 Pa. St. 441; Fecheimer v. Robertson, 53 Ark. 101; Moore v. Meyer, 47 Fed. Rep. 99; Union Bank v. Kansas City Bank, 136 U. S. 223. But those were cases from States where assignments for the benefit of creditors with preferences were forbidden by statute. Instruments and transactions which upon their face were mortgages, or transfers in payment, or confessions of judgment, were sought to be construed as attempted preferential assignments, and were sought to be so construed in order to avoid them by reason of such assignments being prohibited by statute. We have no such statutory prohibition in this State, and, in the case at bar, we are not considering a transaction which appears prima facie to be a mortgage. An instrument, a mortgage on its face, may be a mortgage, and it may be an assignment. A determination may be a difficult and delicate task, depending upon the particular facts of each case, and one case cannot be wholly a precedent for another. But in the case before us the first inspection discloses that the transaction was not a mortgage, and we are not confronted with the difficulty of deciding whether an apparent mortgage should be construed as an assignment. Therefore the transaction at bar was not a chattel mortgage. Again, it was not a delivery of the goods as a payment of the debt, for the bank was to receive the goods, to sell them at private or public sale, collect the proceeds, apply them upon the costs, expenses, and indebtedness, and pay the overplus to Waters. If it were unquestioned by the parties to this litigation that the acts narrated were an assignment, what else would or could have been done that was not done? What fact could have brought the transaction more clearly within an assignment in contemplation of the wage-workers’ law? The debtor was unable to pay his debts. By reason -of that inability, he transferred at once all his property within the jurisdiction to the bank. The bank was not to hold it as security, or accept it as payment. It was to sell, collect the proceeds, to pay expenses, to pay the notes, and not await a payment by the debtor, and thus as well to save a solvent indorser on one of the notes; and, after these payments, the bank was to account for any balance to the debtor. What further ear-mark of an assignment could be present we fail to discover. We are of the opinion that the transaction was an assignment, within the operation of the wage-workers’ law. An instructive and a well-considered case, and a review of the authorities, we find in the Supreme Court of the late Territory of Dakota. (Straw v. Jenks, 6 Dak. 414. See, also, White v. Cotzhausen, 129 U. S. 329; Richmond v. Mississippi Mills, 52 Ark. 30; Collier v. Wood, 85 Ala. 91; State v. Dupuy, 52 Ark. 48; Wilks v. Walker, 22 S. C. 108; 53 Am. Rep. 706; Ordway v. White, 80 Ala. 244; Meinhard v. Strickland, 29 S. C. 491; Farwell v. Cohen, Ill., June 10, 1891, 28 N. E. Rep. 35.) But it is objected by the appellant that the transaction cannot be an assignment, because it is to a creditor, who is the beneficiary. Counsel cite, as the definition of an “assignment,” from Bacon’s Abridgment, “ the transferring and setting over to another of some right; title, or interest in things in which a third party, not a party to the assignment, has a concern and interest.” He contends that an assignment cannot be to one of the creditors of the assignor, but that it can be to a third person only for the benefit of creditors. He cites the following language from Dickson v. Rawson, 5 Ohio St. 218: “ Whether it is so in trust (that is, a conveyance under consideration), and the assignee or grantee such trustee, depends upon the question whether, by the terms of the instrument, or by necessary implication, the assignee or grantee is liable to account to the creditors for the property in his hands, and for the manner in which he disposes of it.” But the opinion from which the foregoing is quoted goes on at once to say: “If a court of chancery, at the instance of the creditor, would compel him thus to account, the character of the transaction and his own position are thereby determined; and the statute then steps in, and enlarges the trust, and makes it inure to the benefit of all the creditors, and distributes the fund to all, in proportion to their respective demands.” So, adapting the language of the Ohio case to the case at bar, the court, “ at the instance of the creditor,” the wage-worker in this case, compels the bank to account, and the character of the transaction is determined, and the wage-workers’ statute steps in and makes the transaction inure to the benefit of the wage- worker. The instrument itself does not declare the trust, but the statute and the law construe it into the transaction. Appellant does not cite authorities to the effect that a creditor may not be the assignee in an assignment for the benefit of creditors, but he argues his conclusion from cases that have held that a particular transfer in controversy to a creditor was not an assignment, but a mortgage, or a payment, or something other than an assignment. We do not understand that it is the law that one of the creditors may not be an assignee. (Burrill on Assignments, p. 66, and cases cited; also 1 Am. & Eng. Encycl. of Law, p. 851, cases in note 4; also Ordway v. White, Straw v. Jenks, and other cases supra.) In Flanders v. Murphy, 10 Mont. 398, we have held views of which those now expressed are a confirmation. This second consideration of the application of the wage-workers’ law satisfies us that cases arising thereunder must stand upon their own particular facts. It is a law which is liable to attempts at evasion; not suggesting, however, that the case at bar is such an attempt. But herein, as in Flanders v. Murphy, we are of opinion that the, facts fully warrant the application of the wage-workers’ lien. And so all cases must be decided upon a diligent and patient inquiry into the particular facts. That statute was enacted for a purpose. Wage-workers were not a well-protected class of creditors. No class contributes more directly to the fund from which the debtor satisfies his creditors; and their contribution extends, usually, to the moment of the crisis between' debtor and creditors. They are the least likely or able to attach their employer, or precipitate his business failure. They are not among the vigilant and oppressive creditors. It would seem that, by reason of these considerations, the law has treated them tenderly; and we must construe that statute so as to secure the accomplishment of its intent. Any other view of the case at bar than the one we have adopted would leave the door wide open for the failing debtor and his pursuing creditor to set at naught the wage-workers’ law by indirection, where they would not attempt to do so directly. The judgment of the District Court is affirmed. Affirmed. Blake, C. J., and Harwood, J., concur. '

Harwood, J. This action was brought to obtain judgment, declaring plaintiff’s prior right, as against defendant, to the use of one half of the waters of Dawkins Creek, for the irrigation of plaintiff’s lands, described in her complaint, situate in Fergus County, and for an injunction prohibiting defendant from further interference with her alleged right to said water. Defendant by answer controverted the allegations of plaiu tiff’s complaint, and set forth facts whereby he claimed to be entitled to the first use of all of the waters of said creek. A trial was had before the court and a jury, wherein each party appeared and introduced testimony to establish their respective claims to the use of said water in controversy. The jury returned a verdict in favor of plaintiff, upon which judgment was rendered granting plaintiff the relief demanded. This appeal was taken from said judgment, as well as from an order overruling defendant’s motion for a new trial, assigning errors of law occurring at the trial, and insufficiency of the evidence to justify the verdict of the jury. It is urged by counsel for appellant that the court erred in giving the jury an instruction to the effect that a conveyance of land, “ with all appurtenances,” operated, without any further express grant of a water right, to convey to the grantee a water right appropriated, owned, and used by the grantor, and necessary for the proper irrigation of the land granted. This instruction is in entire harmony with the law as heretofore declared by the Supreme Court of Montana, in the case of Tucker v. Jones, 8 Mont. 225, supported-by authorities there cited; and we think this holding is also in harmony with the general principles announced in Donnell v. Humphreys, 1 Mont. 518. After a careful review of the authorities upon this point, presented in briefs of counsel, we express without hesitation our adherence to the doctrine that a water right acquired and used for a beneficial and necessary purpose, in connection with the realty, is an appurtenance thereto, and is conveyed as such in a grant of the realty, unless expressly reserved from the operation of the grant. During the progress of the trial William Wunderlin was introduced as a witness on behalf of plaintiff, and testified that he and J. B. Dawkins, in the year 1881, entered certain claims adjacent to said creek, and also appropriated the waters of said creek, each appropriating one half thereof; that in February, 1882, the witness and said Dawkins made declarations in writing of their respective claims and appropriations of said water, and caused the same to be recorded. A certified copy of each of said declarations was thereupon shown to the witness, and by him identified as copies of the two declarations referred to. The same were then offered in evidence, to which defendant objected, on the ground that such declarations were incompetent, irrelevant, and immaterial, because it appeared that the declarations were filed prior to the passage of any act requiring a record of water appropriation to be made. Plaintiff’s counsel answered said objection, by stating that the instruments were offered to prove the intention of the parties in making their appropriations, and the quantity of said water each intended to claim. Thereupon the court admitted said declarations, to which action of the court defendant excepted, and assigns the same as error. The plaintiff claimed to be the owner of one half of the waters of said creek by virtue of the alleged appropriation and use thereof by William Wunderlin, and the conveyance thereof afterwards to plaintiff. Defendant claimed the same water — that is, all of the waters of said creek — by reason of the alleged appropriation and use thereof by J. B. Dawkins, and the conveyance, thereof to defendant. It is therefore important to ascertain what were the original appropriations made by said Dawkins and Wunderlin as to time and quantity of appropriation. It appears from said declarations that the same were sworn to and subscribed, February 10, 1882, by said Dawkins and William Wunderlin, respectively, before the same notary public, and were caused to be recorded. It does hot appear which was first recorded. The two declarations are alike in terms, with the exceptions of the name of the declarants, and a reference to the different branches of said creek, the waters of which are declared to be claimed by the subscriber. Each claims one hundred and sixty inches of the waters of said creek, describing the creek as rising from a certain spring, and (quoting from Dawkins’ declaration) “running thence in a northwesterly direction to section 13, township 14 north, of range 15 east, where it branches into two distinct streams, of which I claim the upper one, or the one running in a nearly northerly direction, while the other running in a more westerly direction is claimed.by William Wunderlin.” The declaration signed and sworn to by William Wunderlin likewise describes said spring and creek, and asserts his claim to the waters of the lower branch, “or the one running in a northwesterly direction, while the other one running in a more northerly direction is claimed by J. B. Dawkins.” It is true there was no statute of Montana at the time requiring the execution and recording of a declaration of the appropriation and claim of water rights. But if parties voluntarily make, subscribe, and verify declarations of their respective claims, or appropriations of certain quantities of the waters of a certain creek, the question before us is as to the admissibility of such declaration as evidence tending to show the intention of such appropriators as to quantity and time of the appropriation, as well as the understanding of the parties respecting each other’s rights in and to any of the waters of the stream in question, if such matters are explained by the writing offered. We think that character of evidence is of the best type always preferable if it can be had. The objection made to the introduction of those declarations, on the ground that no statute required the same to be made, would apply with equal force to all documentary evidence, except in the small number of cases where a statute requires that a writing shall be made upon the subject. It is true, also, that the making and recording of a declaration was not sufficient in itself to establish the right of declarant to the use of the water therein described. Such right could only be acquired by the actual appropriation, diversion, and use of a quantity of the waters of the stream for a beneficial and lawful purpose. The objection of defendant to the introduction of said writings proceeded upon the ground that it was the actual appropriation and use of waters which matured a right thereto, and not the making and recording of a declaration. But the declarations were offered as evidence tending to show what the intention, understanding, and action of the original appropriators was in relation to the waters in dispute, and for such purpose were admissible. It is further contended by appellant that the evidence is insufficient to justify the verdict of the jury. Under this assignment, it is urged that plaintiff in her complaint alleges that she became possessed of the right to the first use of one half of the waters of said creek by conveyance of certain land, together with said water right, to her by William Wunderlin; and that it appears from the evidence that a portion of said waters claimed by plaintiff was originally used by one Joseph Wunderlin, for the irrigation of his laud adjoining the land of the said William, his brother; and therefore said William owned only one half of the waters of said creek used by the Wunderlin brothers — that is to say, one fourth of the waters of said stream; and hence it is insisted that in that particular the verdict is not justified by the evidence. We do not find, from an inspection of the record, that appellant is sustained in this position. Plaintiff sets forth in her complaint, in effect, that she is the owner of two quarter sections of land, described,, one of which she became possessed of by grant from William Wunderlin, and that she acquired the other by grant from Joseph T. Wunderlin and wife. Plaintiff further alleges that in the first instance the one half of the waters of said stream, which plaintiff claims, was appropriated and diverted by said William Wunderlin onto the quarter section then owned by him; and that afterwards the said water right was conveyed to this plaintiff by said William Wunderlin. Turning to the evidence before us in the record, we find, in addition to the documentary evidence introduced by plaintiff, that both William and Joseph Wunderlin were present and testified on behalf of plaintiff. William testified, in effect, that in August, 1881, the waters of said creek were appropriated and claimed by J. B. Dawkins and himself, both being settlers upon lands adjoining said creek; that each of said original appropriators claimed and diverted one half of the waters of said creek, by each taking the waters of one branch thereof, whereby the said waters were, and continued to be, divided into two equal streams; that “ afterwards [quoting from the testimony of William], in February, when Dr. Rotwitt came along, we had him make out the papers, which were put on record;” referring to the declarations which were considered above. William testified that he personally did the work of excavating the ditches by which said portions of the waters of the creek were diverted, both for himself and Dawkins, in the first instance; that in 1883 Dawkins proposed to William that they use the waters of said creek in common, and take the water out at any place either desired, up the creek; and that either might use all of the water when the other was not in need of his proportion thereof; to which proposition William consented. This witness further testified that he and his brother Joseph “were partners, and what one had the other had; ” that he caused the waters of said creek to run through his ditches onto his land, and also onto adjoining land belonging to his brother Joseph; that both said brothers, were interested in the second ditch made by them. Joseph Wunderlin testified that in 1883 he used one half of the waters of said creek on his brother’s land; that he used said water in 1884, in the upper ditch, and it ran down through his garden, and spread out over his brother’s land, and over his own land. He also testified that he and his brother William wére partners. Upon this evidence it is insisted by appellant that, if any claim to any portion of the waters of said creek was proved in favor of said William Wunderlin, it was a claim or right, not to one half of the waters of said stream, but to a common partnership interest with his brother Joseph in one half of the said waters. As before observed, the plaintiff’s complaint alleges her ownership of two quarter-sections of land acquired by grant from said Wunderlin brothers. It was these two quarter-sections which are referred to in the evidence as the land of William and Joseph Wunderlin. It appears from the record that said brothers held their lands severally, but farmed jointly, and otherwise had their interests in common. It does not appear in the record that William at any time conveyed to his brother Joseph any interest in the one half of the water of said stream, which it is alleged, and the evidence tends to prove, was originally appropriated by William; but it is shown that William and Joseph, during some time, used said water in common. Now, it is neither possible, nor is it necessary in this action, to ascertain what, if any, interest Joseph may have acquired in the waters of said creek appropriated by William, by reason of the partnership relation of said brothers in the use of said water, for the reason that plaintiff succeeded by grant to the interests of both said brothers by purchase of their lands and water right which attached as an appurtenance thereto; all of which is set forth in plaintiff’s complaint and covered by the evidence introduced. We have carefully considered all specifications presented wherein it is claimed by appellant’s counsel that the evidence is insufficient to justify the verdict, and find not only that there is ample testimony upon these points, but that the testimony is of a very satisfactory character, both documentary and parol, so far as can be judged from this record. It is true there is a marked disagreement of witnesses on behalf of the respective' parties upon certain points, but in this conflict the jury found where the preponderance was, which is the especial province of a jury in such cases; and it is a well-established rule that this court will not disturb a verdict on the alleged ground of insufficiency of evidence, where such verdict is supported by substantial testimony, although there is conflicting testimony as to facts which the jury must find in order to arrive at a verdict. We find no error in the record. It is therefore ordered that the judgment and order overruling appellant’s motion for new trial be affirmed, with costs. Judgment affirmed. Affirmed. Blake, C. J., and Ds Witt, J., concur.

De Witt, J. There is an appeal from the judgment and an appeal from the order denying the motion for a new trial. Respondent contends that the judgment is not a final one, hence that appeal must be dismissed; and again, that if the judgment is not final, the motion for a new trial was premature, and hence that appeal must be dismissed. We will inquire as to the first proposition. Was the judgment final, and so appealable; or was it an interlocutory order, and not appealable? Under the statute, an appeal can be taken only from a final judgment, and from certain defined orders. (§§ 421, 444, Code Civ. Proc.) Whether a judgment is final or not is sometimes a matter difficult of determination. Mr. Black, in his work on Judgments (§ 41), introduces his discussion of this subject with these words: “In drawing the distinction between final and interlocutory adjudications, the greatest difficulty has been experienced in the ease of decrees in equity; the confusion arising principally from the peculiar nature of the. decisions, and the wide range of means which chancery possesses both for informing the mind of the judge and for acting upon the parties concerned. Many tests of finality have ' been proposed,” etc. The author cites from Kelley v. Stanbery, 13 Ohio, 408, commending the rule as laid down in that case as follows: “The confusion has sprung up from failing to observe the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree. Because a final decree might direct that certain facts should be ascertained in execution of such decree, it will not make it interlocutory; nor, .on the other hand, because the decree finds the general equities of the cause, and reference is had to a master to ascertain facts preparatory to final disposition, will it be regarded as final.” In all the many cases that we have examined we find the general tendency to be as laid down in the Ohio case — that if the matters and things to be ascertained after the entry of the judgment are for the purpose of carrying that judgment into execution, then such judgment is final. As is said in Freeman on Judgments (§ 36): “If, after a decree has been entered, no further questions can come before the court except such as are necessary to be determined in carrying the decree into effect, the decree is final; otherwise it is interlocutory.” We have very carefully examined the cases cited by respondent in his brief on the motion. We have also examined the following cases in New York: Swarthout v. Curtis, 4 N. Y. 415; Griffin v. Cranston, 5 Bosw. 658; Lawrence v. Farmers’ L. & T. Co. 6 Duer, 689; Prentiss v. Machado, 2 Rob. (N. Y.) 660; Ives v. Miller, 19 Barb. 196; Lawrence v. Fowler, 20 How. Pr. 407; Chittenden v. Missionary Society, 8 How. Pr. 327; Clark v. Brooks, 2 Abb. Pr. N. S. 385; Tompkins v. Hyatt, 19 N. Y. 534. We are fully aware of the modern tendency to allow but one appeal in a case; that is, that a case shall come up altogether, and not by piecemeal. This, of course, is outside of the consideration of the particular orders made independently appeal-able; such as an order denying a motion for a new trial, etc. (§§ 421, 444, Code Civ. Proc.) But the statute of this State recognizes that something may occur even after a final judgment whereby a party may be so aggrieved that he should have an appeal; and the section last above cited provides for an appeal from a special order made after final judgment. The case at bar is an action of an equitable nature. Are all the equities of the parties determined, and nothing left to be done but to carry the judgment into execution? We find it remarked in several New York cases that, although further proceedings before the master are necessary to carry the decree into effect, yet, if all the consequential directions depending upon the result of the proceedings are given in the decree, it is final. Some future orders of the court may be necessary to carry it into effect. So some future order of the court might be necessary to carry into effect a plain money judgment in an action at law. It seems, from an examination of the decisions of the courts wherein a Code practice prevails, that the doctrine of allowing but one appeal is more strictly enforced; and that the judgment, to be appealable, must finally determine the rights of the parties. But this tendency of legislation and decision thereupon is not in conflict with the view that, even if a judgment does finally determine the rights of the parties, there may be still left to the court the office of putting the party into possession of his rights so determined, and the carrying into execution of such judgment. We entertain no doubt as to the correctness of these principles. Their application to particular facts of a case is sometimes difficult. The case at bar must be determined upon its own facts. The case was tried partly by a jury and partly by the court. The jury found one issue — the existence of the partnership. This the court adopted, and found other facts, and added its conclusions of law. It is to be observed at this point that the decree recites that “ this cause came on to be heard and determined,” and, further, “that the only issue now being tried to said jury is whether or not a copartnership existed,” etc. So but one issue was being tried by the jury, and the other issues by the court. This appears by the stipulation of the parties, approved by the court, and by the decree itself, which determines, as observed, many issues other than that found by the jury. On the motion to dismiss the appeal the findings and conclusions are not attacked, and so we may take them as correct. The issue in this case was this: The plaintiff, on his side, contended that a partnership had existed; that it had been dissolved by plaintiff’s withdrawal; that the partnership property and assets were in the possession oí defendant; that plaintiff was entitled to an accounting; that he was entitled to have a receiver appointed, and the property of the firm sold, the debts of the firm paid, and the surplus divided between plaintiff and defendant, according to their several interests, which interests, the complaint alleged, were equal. The defense was a denial of the existence of the partnership, and all the facts auxiliary thereto pleaded by plaintiff, and the setting up that the relations of defendent and plaintiff were that of employer and servant. The judgment of the court, after adopting the finding of the jury, determined every issue above recited in favor of plaintiff, and furthermore found that the shares of the partners were equal. It is true that the prayer of the complaint, in section 5, asks for judgment against defendant for such sum as may be found due from defendant to plaintiff. This portion of the prayer is wholly out of place in the pleading, for the whole theory of the complaint is that plaintiff wants the partnership affairs wound up and settled, and that out of the net assets of the concern plaintiff receive his share, and defendant as well receive his. The action is not on a money demand by plaintiff against defendant, as section 5 of the prayer would indicate. The complaint is wholly inconsistent with the idea that there is any indebtedness from defendant to plaintiff, for the reason that it alleges that plaintiff has drawn more money from the alleged partnership than has the defendant. The complaint, read as a whole, makes this clear, and thus section 5 is immaterial matter. (Davis v. Davis, 9 Mont. 275.) The complaint does not ask judgment for any amount of money. It was not the nature of the action for the complaint to so pray. The complaint prayed for the determination of certain matters. Those matters were all determined by the judgment. The complaint prayed for certain relief. Every item of such relief was granted. Every right alleged, every relief prayed, by plaintiff, was determined in his favor. Now what remains? Simply to put plaintiff in possession of that which the court has determined that he is entitled to ; simply to execute the judgment, which has settled the rights of the parties; simply to carry out relief granted. The court takes possession of the property by its receiver. The referee, as an accountant, states the account. The court parcels to this one his half, and to that one his half, and so executes the judgment. • We are of opinion that the facts of this case fall within the rule above pointed out, and that the matters remaining to be ascertained are for the purpose of carrying out the judgment; not for the purpose of framing the judgment. The judgment is that each party is entitled to one half of the assets of the partnership, after the debts are paid. That is the determination of their rights. That is the judgment. The execution of this judgment is all that remains. We are aware of the condition of the California decisions in this matter. Crowther v. Rowlandson, 27 Cal. 376, was an action to declare certain instruments void. Findings were made, and the case was referred to a master to state an account. In the opinion appears a dictum to the effect that the trial was not complete until the report of the referee was filed. This dictum is quoted and treated as a decision in Hinds v. Gage, 56 Cal. 486, and Duff v. Duff, 71 Cal. 513. The question is also touched upon in Harris v. San Francisco Sugar Refining Co. 41 Cal. 393; Jones v. Clark, 42 Cal. 180; Clark v. Dunnam, 46 Cal. 205; Rates v. Gage, 49 Cal. 126; Williams v. Conroy, 52 Cal. 414; White v. Conway, 66 Cal. 383; Dominguez v. Mascotti, 74 Cal. 269; San Diego etc. Co. v. Neale, 78 Cal. 63; Sharon v. Sharon, 79 Cal. 701. We do not understand that it can be laid down as a general principle that a trial is incomplete, and hence a judgment is not final, simply because a reference is had for some purpose; that is to say, the fact of a reference being had after judgment, does not in itself determine that the judgment is not final. Nor do we think that the California cases intend to so hold, although in some of the cases from that court the principle is announced so generally and without qualification that the reader may be led to conclude that the court intended to announce that the fact of a reference after judgment in itself determined the non-final character of the judgment. But the case of Clark v. Dunnam, following Jones v. Clark, and the later cases, especially Sharon v. Sharon, bring the principle nearer to what we believe is the correct rule, as we have indicated above. A reference after judgment does not, per se, determine the character of the judgment as to its finality. It may be final, or it may be an interlocutory order, depending upon its facts. If the reference be for the purpose of executing the judgment only, after the judgment has finally determined all the rights of the parties, then the judgment is final. We observe, from the study of the adjudicated cases, that great difficulty arises in applying the rule; but we are of opinion that in this particular case the facts warrant us in concluding that the judgment was final. The appeal therefore lies. The motion for a new trial was not premature, and the motion to dismiss the appeal must be denied, which is accordingly done. Motion denied.' Blake, C. J., and Harwood, J., concur.

Harwood, J. This action was brought to recover the sum of one thousand two hundred and twenty dollars damages, alleged to have been sustained by plaintiff by reason of the wrongful destruction of one hundred and twenty tons of hay, fifteen cords of wood, and a quantity of grass standing in a field, the property of plaintiff, by fire emitted from defendant’s locomotive engine, and communicated to said property by means of dry grass and other combustible matter which was carelessly and negligently allowed by defendant to accumulate and remain on its right of way opposite the place where said property was situate, near said right of way, at the time the fire occurred. Appellant contends that the complaint fails to state facts sufficient to constitute a cause of action, and points out as the defect that plaintiff “alleges that the fire was set in grass upon defendant’s right of way, but nowhere alleges that by reason thereof or that thereby the fire was communicated to the property of the plaintiff.” After alleging the ownership, description, and situation of the property alleged to have been destroyed, the following aver ments 'are set forth in the complaint: “ That at said time and place the defendant’s right of way of said railroad (not exceeding one hundred feet on either side of said railroad bed) was covered with large quantities of dead and dry grass and other combustible material. That on account of defendant not keeping free from dry and dead grass and other such combustible material its right of way aforesaid, not exceeding one hundred feet on either side of its road-bed, and on account of not providing suitable spark-arresters and other machinery in operating said road, and by the negligence and carelessness of its officers, agents, servants, and employees in managing the same, the defendant’s locomotive did at said time and place, and while passing plaintiff’s property as above described, emit sparks of fire which set fire to the dead and dry grass on defendant’s right of way, which fire was then and there communicated to the said standing grass in plaintiff’s enclosure, and to the said hay and wood, and did then and there burn up and totally destroy all of said ” property. The language employed in the complaint to allege the communication of fire from defendant’s engine to plaintiff’s property cannot be approved. It is subject to the criticism of appellant’s counsel, as being ambiguous or uncertain in the averment that the defendant’s locomotive emitted sparks which set fire to said dry grass on defendant’s right of way, “which fire was then and there communicated to said standing grass in plaintiff’s enclosure, and to said hay and wood.” The ambiguity lies in the fact that the averment does not show with certainty how the fire was communicated to plaintiff’s property. The objectionable averment would undoubtedly have sustained a demurrer on the ground of ambiguity or uncertainty, but no such demurrer was offered by appellant at the proper time. If there is only an ambiguity or uncertainty in the averment this cannot be taken advantage of for the first time in this court., The attempted statement of some essential facts might be found so uncertain or ambiguous as to justify the discarding of the averment altogether. Then it could be said, as appellant contends here, that the pleading fails to state a cause of action. We can conceive of such a case, but the ambiguity would be an extraordinary one. The averment in the complaint which ap pellant points out as objectionable is aided somewhat by that which goes before, namely, that “ on account of defendant not keeping free from dry and dead grass and other such combustible material its right of way aforesaid, .... and on account of not providing suitable spark-arresters,” etc., fire was emitted from defendant’s engine, and “set fire to said dead and dry grass on defendant’s right of way, which fire was then and there communicated to said standing grass in plaintiff’s enclosure, and to said hay and wood.” So we think the fair intendment of the averment as it stands, considered altogether, is that, on account of “the dry grass and other combustible matter” on defendant’s right of way, and the want of proper spark-arresters on the locomotive engine, or thereby, or by reason thereof, the fire was communicated from said engine to said dry grass, and thereby to the standing grass and wood and hay of plaintiff. Although somewhat ambiguous and uncertain, we think that is the fair and reasonable intendment of the averment in question. If such intendment can be reasonably found in the terms used in the averment, we should so construe it. (Code Civ. Proc. § 100; Bliss on Code Pleading [2d ed.], § 314.) An ambiguous averment is also one which may be cured by answer or proof. (Bliss on Code Pleading [2d ed.], §§ 435-442.) In this ease appellant answered and defended at the trial, and the testimony as to how the fire which destroyed the property described was communicated thereto is given in detail by the witnesses. We now pass to the consideration of the assignment of errors alleged to have been committed by the court in giving instructions to the jury, and in refusing to give instructions requested by appellant. Appellant complains that the court erred in instructing the jury as to the effect of section 719, fifth division of the Compiled Statutes. In this regard the court called the attention of the jury to said statute requiring railroad companies to keep the right of way of their roads in this State free from dead grass, weeds, or any dangerous or combustible material; and instructed the jury as to the effect of said statute in the following language: “ It makes it the duty of the railroad company to keep their track and their right of way free and clear from any such dead grass, weeds, or other dangerous or combustible material, and upon failure on tbeir part so to do it makes them liable for any damage that may occur from any fire emanating from operating the railroad. It also makes the fact, if it is shown to be a fact that such dead grass or other dangerous or combustible material is upon the track or upon the right of way, prima facie evidence of negligence'on the part of any railroad company.” This instruction appellant contends is erroneous, because it leaves out of the consideration of the jury the fact as to whether the negligence of the railroad company in failing to keep its right of way free and clear of dry grass, weeds, or other combustible material, was the cause of, or contributed to, the damage complained of; in other words, that such instruction left out of consideration the fact as to whether the dry grass or weeds, negligently allowed to remain on the right of way, was the means of communicating fire to the property alleged to have been destroyed through the negligence of defendant. This assignment of error must be sustained. The court instructed the jury, in the instruction recited above, in effect, that upon a failure of the defendant to keep its track free and clear of dry grass, weeds, etc., as required, the statute “ makes them liable for any damage that may occur from any fire emanating from operating the railroad.” This was plainly error. The full provision of the statute is not stated in said instruction. It provides that “any railroad company or corporation so failing to keep their railroad track free and clear as above specified, and on each side thereof shall be liable for any damages which may occur from fire emanating from operating the railroad, and a neglect to comply with the provisions of this chapter in keeping clear any railroad track, and either side.” It is observed that the court in part used the language of the statute, but stopped short of stating the two elements which the statute declares shall combine to fasten the liability on the defendant; that is, a liability for “damage which may occur from fire emanating from operating the railroad, and a neglect” to keep the right of way clear of combustible material. If these conditions set forth in the statute are relied upon to sustain an action for damages, it must be shown that the damage resulted from the two causes stated — operation of the railroad, and the failure to keep the right of way clear óf combustible matter. This clearly implies that the combustible matter must have operated as an agency in communicating to plaintiff's property the fire emanating from operating the railroad. Counsel for respondent admits that, if the negligence relied on by him to fasten the liability on appellant for the damage alleged was the failure to keep its right of way free and clear of combustible matter as required by statute, then it must be alleged and proved that through such negligence the damage was wrought. Therefore they contend, and we have held, that the fair import and intendment of the allegations of the complaint was that through, or by reason of said dry grass and weeds, which plaintiff alleged was on the right of way of defendant at the time and place, the fire emitted from defendant's engine was communicated to the property of plaintiff, and the same was thereby destroyed. Now, if it was necessary, in order to show the negligence of defendant, and that through such negligence the alleged damage was done, to allege and prove the existence of the dry grass on the right of way, and that thereby fire was communicated from defendant's engine to plaintiff's property, then it was necessary for the jury, in finding their verdict against the defendant, if found upon that ground, to consider whether this alleged negligence was the cause of the damage; that is, whether the fire was communicated from defendant's engine, through said dry grass or combustible material, to the property destroyed. But the instruction above recited leaves out of consideration the question as to whether the dry grass or other combustible matter on the right of way was instrumental in destroying the property, as alleged in the complaint. If it was not instrumental in such destruction, then the negligence of allowing it there had no part in consummating the damage complained of; nor was it thereby that the property was destroyed, but by other cause. The statute provides that the liability follows where the destruction occurs from fire emanating from operating the railroad, “ and a neglect to comply with the provisions of this chapter in keeping clear iie right of way.” The destruction must occur by means of these ivo agencies — the operation of the road, and the presence of aonbustible material on the right of way — in order to make ou a liability on these points of negligence. The instruction ameer consideration assumed that the mere existence of dead grass, weeds, or combustible material on the right of way fastened the liability on the defendant for the damage alleged, without considering whether such combustible material was instrumental in effecting the destruction of the property as alleged in the complaint 'and as provided in the statute. Nowhere in the instructions did the court recur to the subject, and supply the omission apparent in the instruction above quoted. These observations are fully in accord with the case of Diamond v. Northern Pacific R. R. Co. 6 Mont. 580, although the particular point before us was not involved in that case. In that case it is said: “The jury found, as fact, that the fire in question came from one of the defendant’s trains, and was caused by the neglect of the defendant in failing to keep its right of way free from dead grass, and that there was sufficient thereof on said right of way, in the vicinity of defendant’s ranch, to make it apparent to a person of ordinary prudence that there was danger of fire therefrom.....If there was neglect in this regard, whereby the fire occurred, and the damage was done, it was not very material how perfect and complete the road was equipped in other respects, or how faithful and efficient were its officers.” In the case at bar the court refused to give, upon appellant’s request, the following instruction: “ If the plaintiff relies upon the fact that the fire started upon defendant’s right of way, then he must prove that there was such a sufficiency of combustible material, dead weeds and dry grass, upon such right of way at the place where the fire is alleged to have started as to indicate danger from fire to common prudence, and, failing to prove this, no liability can arise therefrom.” The refusal of the court to give said instruction is assigned as error. We are of the opinion that this instruction, or one embodying the ideas therein set forth, should have been given. Bu! no instruction to that effect was given by the court. In addition to the extracts hereinbefore quoted from the Diamond Cas, it was observed by the court in that case that “the statute equiring railroad companies to keep their track and right of way free from dry grass, weeds, or other combustible mate'ial, should receive a reasonable construction. It is a matter of :om mon observation that generally, in Montana, the rig’ht of way of railroads has upon them more or less dry grass and weeds; but if the quantity is not sufficient to indicate danger from fire to common prudence and ordinary care, then no liability could arise therefrom. The instructions as given cover this proposition.” No doubt counsel for appellant predicated the instruction asked for upon the views expressed in the Diamond Case as to the proper construction of said statute. These views are in no way .questioned by respondent’s counsel as not conforming to reason and authority. We fully approve them, and therefore conclude that the court erred in refusing to give the instruction asked as above recited, or one of like effect. That instruction is qualified by its own terms. It states that, “if the plaintiff relies upon the fact that the fire started on defendant’s right of way,” etc. This is proper. It does not assume that those points of negligence are the only ones which may be relied on, but says that, if such negligence is relied on, the fair construction of the statute, as explained iu the Diamond Case, should be the rule in this case. But in the case at bar the court refused to give an instruction covering the very proposition in this regard which had been approved iu the Diamond Case. Judgment, therefore, must be reversed, and the case remanded, with direction to sustain appellant’s motion for a new trial, and it is so ordered. Reversed„ Blake, C. J., and De Witt, J., concur.

Blake, C. J. The complaint contains two causes of action, and alleges that the plaintiff performed work and labor for the defendant between October 26, 1888, and April 10,1891, at the special instance and request of defendant, for the sum of $30 per month, which was the price agreed upon by the parties October 26, 1888, “so long as plaintiff should continue in defendant’s employ;” that “defendant has never been discharged from such services;” that “defendant has paid thereon the sum of $171 for the first five months and twenty-one days, and no more; and that all of said wages due, earned, and owing to this plaintiff from the seventeenth day of April, 1889, to the eleventh day of April, 1891, constantly and without any loss of time, amounting to the sum of $714, is now due and wholly unpaid to this plaintiff.” The second cause of action is founded upon an instrument in writing, a due-bill, which is set forth, and it is alleged that the defendant is indebted to the plaintiff in the further sum of $266 by reason thereof. The answer denies specifically the averments of the complaint regarding the first cause of action, and says that the due-bill has been paid. The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $714 on the first count, and in the sum of $11 86-100 on the second count.” Judgment was entered thereon, and the defendant moved for a new trial upon the ground that the evidence is insufficient to sustain the verdict. The motion was overruled, and the defendant appealed. The evidence will be stated fully. The plaintiff testified? “I know the defendant, Mr. Goughnour. On April 20th, Myron Goughnour had some stock on the island, and Mr. Goughnour hired me to go over on the island and take care of it. I was told that the stock belonged to Myron Goughnour. I took care of it, and helped to brand the stock, and on the 25th of October, 1888, Mr. Goughnour settled up with me. There was about fifty head of stock, and it was sold as soon as possible, as Myron was going to move off the island, and wanted to go away. The stock was sold in October, and Myron moved off, and I moved where Myron was living. On the day of our settlement I asked Mr. Goughnour if I could go over on the island and work for him. He said, ‘Yes, you may go over there and take care of what is left there,’ and he would pay me $30 a month. I saw Mr. Goughnour frequently after that, but had no conversation with him, except to pass the time of day, only when I went to him for $10, or something of the kind. I was to get $30 a month. I commenced work under the new contract on the 26th of October, 1888, after I was discharged, and have been down there continuously. Mr.'Goughnour told me that he was going to sell the island soon. I worked for the defendant twenty-nine and one-half months. It amounted to $700 and something. My services on the island were worth $30 a month. Mr. Goughnour still owes me $980, of which $700 and something is for wages.” Upon cross-examination the plaintiff testified: “Mr. Goughnour hired me to work on the island, and I went over there and took care of about fifty head of stock that Myron Goughnour had there. The first time was in April, 1888, and I remained until the 25th of October. I was getting $30 a month, and was looking after the stock Myron had there. After the stock was sold, and we had a settlement, I was looking after the island and the things left there — some farming implements, rake, plow, and other machinery. The things are there now. I had a pony on the island. Mr. Goughnour hired me to go there on the 25th of October. I asked him if I could go and work for him on the island. He said, ‘ Yes, you can go over there; but I have not much for you to do. You can go over there and take care of what is left there, and Myron Goughnour & Go. will pay you for any extra work you do.’ Mr. Goughnour said if any one put up a shack over there to notify him at once. My services were worth $30 a month. I was taking care of everything that was left there, and I was boarding myself. It was a lonesome place to be, and worth $30 or nothing. Mr. Goughnour owes me since the 25th of October, 1888, $700 and something. I made a demand for it in January of this year. I remained there from the 25th of October, 1888, to January, 1891, without demanding pay for my services. I bought some hay from Mr. Goughnour, and he bought four or four and a half tons of hay from me.” He testified on redirect examination: “I sold Mr. Goughnour $84 worth of hay.” L. S. Owen was called by the plaintiff, and testified: “ In January, 1890, I was in Mr. Goughnour’s office, and he was going to get some one to take care of the teams on the island, and he told me that I could go and take care of them, but that I would have to move in the house with the man. I was not acquainted with Mr. Mattock at the time, and I asked if I could not go in the old house down by the stable. Mr. Goughnour said: ‘ Yes, that’s all right, and will satisfy me all around.’ I said it might not satisfy the man living there, and he said it would have to satisfy him, as he (Mr. Mattock) was working for him (Mr. Goughnour), the same as I would be. I think Mr. Mattock has been living there ever since. I have seen him three or four times on the island. He is still on the island.” Upon cross-examination the witness testified: “I went and remained on the island, taking care of the teams. Mr. Mattock was doing nothing particularly. This was in the winter, and he was looking after the things that were left there.” The plaintiff then rested the case. The defendant testified: “I wish the jury to understand that I had never any interest individually in this island or the property there. In the spring of 1888 I took charge of the affairs of Myron Goughnour, as trustee. The horses and cattle were held distinct. I took possession of them, and had Mr. Mattock to take care of them. Myron was going to move away. He was never in my employ after October 25, 1888. On the 26th of October I perfected a sale of the cattle of Myron Goughnour <& Co. Mattock came in, and we had a final settlement of the whole affair that day, and the due-bill sued on includes my individual account, and the whole business was settled up, and Mattock went away. The next day he came to my office, and asked me if he might return to the island and work for me. I said simply this: ‘I have no further use for you; nothing for you to do particularly; but you can return to the island and take care of what there is there.’ As regards the wages, I told him that I thought Goughnour & Co. would probably pay him for what his time was worth. I never hired Mr. Mattock in the spring of 1888. He did no work for me in 1888. .... There was nothing on the island after the 25th of October, 1888, belonging to me. I know Mr. Owen, who testified in the case. I made no statement to him that Mr. Mattock was in my employ.” Upon cross-examination the defendant testified : “ I had no control over the things that were on the island after the 25th of October. I do not know that I was ever dismissed as a trustee of Myron Goughnour & Co. No person was ever appointed to succeed me. I sent some teams over there, and offered to sell the island, but simply offered it for other parties. I had authority to sell for somebody else. I took charge of the business of Myron Goughnour & Co. in May, 1888. The island was a part of the assets. I have no machinery over there. The property belonged to Myron Goughnour & Co. I had no charge of the machinery. My administration ceased when I settled up the affairs as trustee, and I never had any more management of this business after that. I sold all the property of the company that was salable. I never saw the mowing-machine.” The defendant then rested. The plaintiff was recalled, and testified: “ The firm of Myron Goughnour & Co. was composed of Myron Goughnour, A. L. Love, and Mr. Mund. Myron was superintendent. I went over on the island the same day we had our settlement. In the evening, after we settled our account, I asked him if I could not move in the old house, on account of feeding hay, and he said, ‘Yes.’ I went up and got my key and wagon blankets, and was staying there under the same contract. The only conversation had with Mr. Goughnour about work was with Mr. Goughnour on October 25, 1888.” Upon cross-examination the plaintiff testified, “I had some ponies onjthe island.” We have recited all the evidence relating to the motion for a new trial which appears in the transcript. When the record is examined, it will be seen by the testimony of the plaintiff that he was employed in October, 1888, to perform labor at a stipulated sum per month; and the testimony of Owen, with relation to the admission of Goughnour that Mattock was working for him (the defendant), is contradicted. The attention of the court below seems to have been restricted to these issues in the consideration of the motion for a new trial, and the verdict was not disturbed because there is a substantial conflict in the evidence. But we are of the opinion that the case at bar comes clearly within an exception to this general rule. There is testimony of other matters, which was not controverted by the plaintiff, after he was recalled, and is relevant, and shows that the cause stands upon an improbability. The island and certain personal property were assets of the firm of Myron Goughnour & Co., and the defendant acted as a trustee in the settlement of its affairs, and had no personal interest in the business. The plaintiff knew these facts, and was employed from April 20,1888, to October 25,1888, by the defendant in his fiduciary capacity. The plaintiff was paid in full, and the matters of the firm were closed prior to the making of the contract which is set forth in the complaint. During the period which is covered by the alleged employment of the plaintiff, the defendant was not interested as an individual or trustee in the island, or any property thereon. There was no way in which the services of Mattock could be of any benefit to the defendant. Would any person, under these conditions, agree to pay another wages at the rate of $30 per month ? During the time which is specified in the complaint — twenty nine and one-half months — the plaintiff did not speak to the defendant respecting this labor. He testified: “I saw Mr. Goughnour frequently after that, but had no conversation with him except to pass the time of day, only when I went to him for $10, or something of the kind.” The parties acted like strangers, and this conduct, under the circumstances which. have been narrated by the plaintiff, is contrary to the experience of men. It is always necessary and proper that directions concerning the character of the labor be given by the employer, and that the servant should make reports from time to time touching his duties. Yet such subjects of business of vital importance were never topics of conversation, inquiry, or consultation, and a large indebtedness was incurred before a demand for its payment was made. The plaintiff does not testify that any amount was ever paid by the defendant by reason of his services, although the complaint alleges that a payment of $171 has been made therefor. The jury found that the sum of $11.86 was due on account of the written obligation for $266, which was in effect a finding that the sum of $254.14 had been paid thereon. The defendant never recognized by any act the contract which is sought to be enforced in this action. The fact that he had nothing for the plaintiff to do, when considered with all the evidence, is sufficient to justify the court in holding that this claim is unreasonable and improbable. The doctrine which is applicable has been laid down in Blankman v. Vallejo, 15 Cal. 638, in which it is said: “A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief.” (See Hayne on New Trial and Appeal, § 288, and cases cited; Crook v. Forsyth, 30 Cal. 662; Guerrero v. Ballerino, 48 Cal. 118; Branson v. Caruthers, 54 Cal. 374; Mogk v. Peterson, 75 Cal. 496; Baker v. Fireman’s Fund Ins. Co. 79 Cal. 34; McLennan v. Bank of California, 87 Cal. 569; Landsman v. Thompson, 9 Mont. 182.) We are convinced that the court abused its discretion in overruling the motion for a new trial. It is ordered and adjudged that the judgment be reversed, and that the order appealed from be set aside, and that the cause be remanded for a new trial. Reversed. Harwood, J., concurs.

De Witt, J. This action is upon a promissory note dated November 2, 1886, at 60 days, for $1,021, payable to Edward W. Knight, cashier, or order, at the First National Bank, Helena, Mont., and made by Richter & Co. Judgment was demanded for $919.55, the balance due, and interest. The defendant, Hermann Richter, alone filed a separate answer, on which the ease was tried, and in which he makes the defense that, at the time of the execution of the note, he was not a member of the firm of Richter & Co. A verdict was rendered for the defendant, Hermann Richter. An appeal is taken by plaintiff from an order denying a motion for a new trial, and from the judgment. The error alleged is presented in a statement on motion for a new trial. It seems from the evidence that Hermann Richter had once been a member of the firm of Richter & Co., and had withdrawn before the making of this note. It would seem that all of the evidence is not in the statement, but only that which appellant deemed sufficient to illustrate the point of his exception. T. H. Kleinschmidt was a witness. It seems that he had some connection with some bank. What the relation was does not appear. The bank is spoken of as “the plaintiff bank,” and, in relation to Mr. Kleinschmidt, as “ his bank,” and he is mentioned as the “representative of the bank.” What his office in or relation to the bank was, is not disclosed. What bank it was <does not appear in the pleadings or the evidence. A bank is mentioned in the statement as “the plaintiff bank,” but neither pleadings nor evidence indicate that any bank was plaintiff The complaint is by E. W. Knight, cashier. Nothing whatever informs the court of what he was cashier, whether of a bank, or any other institution, or that a bank was plaintiff in interest, except the little light afforded by the face of the note as set out in the complaint, by which it appears that the note was payable to Edward W. Knight, cashier, at the First National Bank, Helena, Mont., and a statement in one portion of the record that “the matter at issue was whether or not the plaintiff bank had received notice, prior to the execution of the note in suit, of the alleged withdrawal of Hermann Bichter from the firm of Bichter & Co.” As deemed pertinent to this issue, the witness Kleinschmidt was asked whether he did any business himself with the firm of Bichter & Co., and whether he had been rendered statements of account by Bichter & Co. prior to the execution of the note in suit, which statements showed upon their face the names of Henry Bichter and Waldemar Stein as members of that firm, and only them, similar to a bill-head handed to witness. The witness stated that he may have seen such a bill-head, and that he may not. He did not state that he had seen them, and explained why he could not so state. Witness, Henry Bichter, apparently one of the defendants, testified that he thought that none of these bill-heads had been presented to Kleinschmidt. He further said that this bill-head was that of Bichter & Co. after January 1,1886; that Stein had notice of it, and was a full partner. After this evidence, the court admitted the bill-head in evidence, limited to the actual matter of the question of partnership, and refused to admit it for the purpose, as defendants desired it should be, of showing that it was actually presented to Kleinschmidt. Plaintiff’s exception is as to the interrogation of Kleinschmidt as to the bill-head, and his knowledge obtained in personal dealings with Bichter & Co. It is not at all clear from this record how any notice to Kleinschmidt could be material, when we do not know what relation Kleinschmidt had tS the bank, and when it does not appear that such bank was a party either of record or in interest. But even if the bank were the actual party in interest, and Kleinschmidt were an officer of the same, to whom official knowledge of the withdrawal of Hermann Richter from the firm of Richter & Co. could properly be charged, we cannot hold that the evidence admitted was error. If Kleinschmidt were such officer, and the bank were the plaintiff, it was proper to ascertain whether official notice had gone to the bank through such officer, and the court might properly hear evidence to ascertain whether such were the facts; and, having done so, and being of the opinion that such notice had not been communicated, the court, in this case, excluded the bill-head for all purposes except as to the actual matter of partnership. This was competent. The partnership question was material as a proposition independent of notice to the bank, and, upon such independent proposition alone, the court properly admitted the bill-head. The judgment and the order denying the new trial are affirmed. Affirmed. Blake, C., and Harwood, J., concur.

Blake, C. J. This action was commenced originally in the Justice’s Court of Cascade County, and appealed to the District Court. The complaint alleges that the plaintiff was in the peaceable possession of a parcel of land at a certain time, and that the defendant forcibly entered thereon, and continues in the wrongful occupation thereof. The answer contains as a defense this averment: “That on the nineteenth day of July, 1890, in an action then pending before John P. Eyas, a then justice of0the peace in and for the county of Cascade, State of Montana, between the above-named plaintiff, James Weaver, and this defendant, Robert English, involving the same cause of action and issues, and for the possession of the same land as is involved in this action, this defendant recovered a judgment in his favor and against the plaintiff, together with his costs, and that at said time this cause of action was adjudicated.” At the trial, all the papers on file in the action before said justice of the peace, and oral testimony relating to the same, were admitted in evidence. The plaintiff objected to this ruling of the court, and stated this, among other grounds, that “the defendant has failed to establish and prove the jurisdiction of the justice of the peace.” There was no allegation of such jurisdiction in the answer j there was no proof thereof, and the subject was ignored in the instructions. These are the words of the court: “If you believe from the evidence that the case in the Justice’s Court was between the same parties, involving the same land and the same question, as to the adverse possession at that time, and you are satisfied from the evidence that the case was tried and determined, that would end the case right there, and it would be your duty to return a verdict for the defendant. The question as to whether it was adjudicated and tried, and whether it was the same parties and the same land, and all those questions, are entirely for the jury to decide; but if you decide that such is the fact, that is the end of the case, and you need go no further, but should return a verdict for the defendant.” The allegation of the answer does not follow the language of the Code of Civil Procedure. “In pleading a judgment or other determination of a court, or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made.” (§ 103.) This statute, and matters of like nature, were recently reviewed by this court in Harmon v. Comstock Horse & Cattle Co. 9 Mont. 243. Under this authority, we say that, inasmuch as the answer did not state that the judgment had been “duly given or made,” it was necessary for the defendant to allege and prove the facts which conferred jurisdiction upon the Justice’s Court to hear and determine the case, which was pleaded in bar of this action. The court below tried the issues upon an erroneous theory. It is therefore adjudged that the judgment be reversed, and that the canse be remanded, with directions to grant a new trial. Reversed. Harwood, J., and De Witt, J., concur.

Blake, C. J. The complaint alleges that “on or about the twentieth day of May, 1886, the plaintiff advanced, paid, and laid out to the use of said defendants, and for their benefit, and at their instance and request, the sum of one thousand two hundred and ninety-five dollars.” The answer, in addition to the denials, says: “ That at the time plaintiff alleges to have paid, laid out, and advanced said sum of money to the use of this defendant the said plaintiff was the legally elected and qualified sheriff of Silver Bow County, State of Montana; that at about said time the plaintiff, in the exercise of the official duties as such sheriff, called to his aid a large number of citizens for the purpose of preserving the peace and good order of the said county, and then Territory of Montana, which, under the circumstances, it was his duty to do; that said citizens were called by said sheriff, and were in fact employed by him, for the purpose of preventing or quelling a riot within his county, and for protecting public and private property therein; . . . . that the sum of money, .... if the same or any part thereof was actually paid out by said plaintiff, was so paid by him to the citizens thus called to his aid as aforesaid'as compensation for their services while so employed; and defendant says that any contract entered into by and between this plaintiff and any person purporting to represent this defendant, agreeing to bind this defendant to the payment of any money expended by this plaintiff for the purpose of inducing him to more thoroughly perform his duties and the functions of his office, and especially that in preserving the peace and order of his said county, was unauthorized, and beyond the scope of the power and duty of such person, and void.” Upon the trial a verdict was returned for the plaintiff. The answer states fairly the facts and legal position of the appellant. The statutes provide that “each sheriff may appoint such and so many deputies as he may think proper, for whose official acts o ... he shall be responsible; and may revoke such appointments at his pleasure.” (Comp. Stats, div. 5, § 852.) It is further enacted: “It shall be the duty of the sheriff and under-sheriff and deputies to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots, and unlawful assemblies and insurrections, for which purpose, and for the service of process in civil and criminal cases, and in apprehending or securing any person for felony or breach of the peace, they, and every coroner and constable, may call to their aid such person or persons of their county as they may deem necessary.” (Comp. Stats, div. 5, § 856.) “No sheriff shall directly or indirectly ask, demand, or receive, for any service to be by him performed in the discharge of any of his official duties, any greater fees than are allowed by law.” (Comp. Stats, div. 5, § 864.) The authorities, as well as the statute, sustain the defense which has been pleaded in the answer. One of the strongest cases relied on by the appellant is that of St. Louis etc. Ry. Co. v. Grafton, 51 Ark. 504; 14 Am. St. Rep. 66. Mr. Justice Hughes, as the organ of the court, said: “The appellant [the railroad company] offered a reward of five hundred dollars each for the arrest and conviction of any one found interfering with the switches, side-tracks, or railroad property in the county of Miller, in this State. Appellees brought suit to recover six thousand dollars of appellant for the arrest and conviction of twelve persons, alleged to have interfered with a switch on appellant’s road. .... "We think that the evidence in the case shows that the appellees were, at the time of the arrest of the men, for the arrest and conviction of whom they claim the rewards offered by appellant, acting as a part of the posse comitatus of the sheriff of Miller County, called out to aid him in preserving the peace, and in preventing interference with the railroad tracks, engines, trains, etc., in Miller County, and that they cannot be heard to say that in making the arrests they ignored the sheriff, and acted as private individuals. .... The policy of the law forbids a public officer, or those called to aid him in the discharge of a public duty, receiving any reward or compensation for his services outside of that allowed by law. The plaintiffs were assisting the sheriff's deputies — and in fact some of the plaintiffs were his regular deputies — in making these arrests, and they were paid for their services as a sheriff's posse by Miller County. Public policy and the laws forbid that they receive other reward for the same." The doctrines of Railway Co. v. Grafton, supra, are generally upheld. (Greenhood’s Public Policy, 328, and cases cited; Mecham on Public Offices, § 885, and cases cited; Ring v. Devlin, 68 Wis. 384; Brophy v. Marble, 118 Mass. 548.) It will be necessary to examine the testimony upon the issues, and ascertain whether the case at bar comes within the statutes and principles which have been expressed. Eugene Sullivan, the respondent, testified that he was the sheriff of Silver Bow County at the times mentioned in the pleadings; that he went to the depot of the railroad company (the appellant) in Butte at the request of its officers, who wanted him “ to go down there and protect the property, and prevent any riot;" that some brakeman said “they were ordered out on a strike; that they would not do anything until they got orders from headquarters.” Upon the morning of the second day he saw Mr. Leslie, an assistant superintendent. “ There was nothing going on at the depot — nothing between twelve or one — so I went to Mr. Leslie and told him that I was going up lown, and that if he wanted any assistance to telephone up to me. He told me that he wanted the yard protected. I told him that there was nobody going to do anything. There was nobody around there at the time. He said that he wanted me there to see that there would not be any harm done to the property." That the matters of the strike and appointing deputy-sheriffs were talked over with the officers of the railroad. “I told them there distinctly that the county would not pay their expenses. There was no riot there, and if these men were placed there, and really wanted around in different places in their yard, that they would have to pay for those men themselves; that we were able to take care of the yard with our own officers — the regular officers of the sheriff’s office; and when we could not take care of it that we would press men into service. Mr. Word said that the railroad company was able to pay for this work, and were willing to do it, but they wanted those men put on at those places. I went to Mr. Leslie, and wanted to draw a line or yard limit to keep everybody outside of that yard limit, but Leslie told me that he did not want to do anything of the kind. I asked him how it was that he allowed those brakemen in the yard to sleep at night, and he said that they were still considered as employees until they came in or got out entirely. That they had a certain time to come in, and as soon as that time was up they were either to be ordered out or discharged, but until that time they were considered as railroad employees. I told him that under those circumstances the county could not be responsible for paying men down there to watch anything of that kind. That an order was then prepared by Mr. Word, the attorney of the railroad company, and signed by Mr. Leslie, and delivered to Mr. Sullivan. That the order was destroyed by a fire in November, 1887. That “it requested me to put on fifty or more men at the expense of the railroad company, those men to be paid five dollars a day.” That “ it was signed by Mr. Leslie, as assistant superintendent of the Utah and Northern Eailway Company.” That “ at the time we put on the first men there was nobody around there at all but the railroad employees, and those brakemen who were on a strike were right there in the yard in cabooses — all of them.” That “there were thirteen strikers who were out, and would not go to work.” That “ I did not send those men down there that afternoon oi my own motion as sheriff, to preserve the peace of the county. I was requested by Leslie to send them down.” That “ I have not included in this claim in any shape or manner anything for my services or for anything that I furnished — horses, teams, fire-arms, of mine, grub, or anything of that kind. There was nothing included for my services, nor for any of my regular deputies, paid by the county. At that time I had an under-sheriff and one deputy, besides the jailer, paid by the county. I had one more deputy that I paid myself.” That “this claim is entirely for money that I paid out of pocket.” That Mr. Leslie “assumed absolute control of the men.” That the men so employed were sworn in as deputy-sheriffs. That one train of ore cars had been disabled by cutting the air-pipes to the brakes before Sullivan was spoken to by any officers of the railroad. That “ I did not see there, at any time, such a crowd assembled or threatening to assemble that I could not have handled with my regular foree of deputies;” and that “I could have preserved the peace there with my regular force, and told Leslie that I could and was willing to do it.” Sullivan was corroborated by L. P. Smith, F. B. Thomas, J. J. McLeod, and Joseph Burro. Mr. Thomas testified: “I have been employed very nearly-five years as deputy sheriff^ under-sheriff, and in the sheriff’s office of Silver Bow County; I did not see any threatening demonstrations against the railroad company, or in the vicinity of it, by the strikers or anybody else, at any time during the strike, that I would consider more than what the regular officers of the sheriff’s office could attend to. I think the regular officers would have been able to attend to those matters so far as any breach of the peace or open injury to the railroad property was concerned;” and that “I should think that Mr. Leslie was in authority down there at the depot while I was there. I mean this gentleman here in court.” Mr. Burro testified: “I was under-sheriff of the county of Silver Bow at the time of this railroad strike in May, 1886. I was down around the railroad depot during the strike. ..... I did not hear or know of any threats against the railroad com-, pany or its property at any time. There were no - manifestations whatever of any evil designs except that some cars got. loose in some manner; I don’t know how. .... Sofaraspreserving the peace was concerned, or preventing any open attack on the railroad property, there was nothing whatever occurred that could not have been handled by the regular .force of. the sheriff’s office.” . . • The appellant did not produce any witnesses,, .and..did not attempt to controvert this evidence, although Mr. Leslie was present at the trial. The testimony points to one result, and- the contention of the appellant is not sustained by the facts. There was'no riotous or unlawful assembly of persons at the time of the strike of the brakemen, and the respondent was not called upon to preserve the peace, or arrest any party for the violation of a law. The officers of the railroad company were apprehensive that this trouble with its employees might produce serious injury to its property and business, and therefore asked the respondent to furnish a large number of men for its protection. The sheriff was of the opinion that he could perform all the-duties which the law devolved upon him for this occasion without the aid of the posse eomitatus, and wished to exclude the strikers and their friends from the premises of the corporation. The respondent, with a full knowledge of the situation and his official responsibility for the consequences, reiterated his answer that the county would not pay for these services. He did -not demand any compensation for the performance of his grave task, and declared his ability and willingness to command the peace with his regular force of deputies and without the posse eomitatus. The officers of the company were not satisfied with this conduct, and importuned the sheriff to send to its property in Butte the men described in the pleadings. The authority of Mr. Leslie to act in behalf of the appellant is not questioned, and the employment of parties to guard its buildings, rolling stock, and track was within - his power as the assistant superintendent, The respondent yielded to the desires of the officers who controlled the. affairs of the company, and actually hired the watchmen, and exercised their authority in all matters concerning its property. The parties whose presence was represented to be the source of danger and destruction were allowed to remain upon the premises of the appellant when the sheriff insisted .that they should be removed. The respondent decided correctly that there was no emergency which required him to invoke extraordinary force. The duties of the persons who ■syere employed as watchmen were of a private, and not public, 'nature, although they were clothed with a little brief authority as deputy-sheriffs to promote their efficiency. The respondent ■ paid for-their services, for which the county was not liable, and -for which no compensation was fixed by law. “We know of '■no principle of law which forbids a man who is threatened ■with violence, or deems it necessary to his personal security, to employ about him persons capable of rendering him efficient assistance in case of need.” (Succession of Irwin, 12 La. An. 676.) In Hayden v. Souger, 56 Ind. 42; 26 Am. Rep. 1, Mr. Justice Worden, for the court, said: “ It may be conceded that if McDavidson had been a regular constable, with a warrant in his hands for the arrest of said Hewey, it would have been his duty to make the arrest without reward, though he followed Hewey into another county, and there arrested him.....It may be, also, that if McDavidson had accepted an appointment as special constable, to serve a valid warrant properly directed to him, before he had any knowledge that any reward was offered for the apprehension of' the accused person, the appointment being accepted without any view to the reward offered, he would be bound to serve the warrant without reward..... If he accepted the appointment after he had notice that the reward was offered, and with a view to obtain it, we are by no means prepared to say that his appointment as special constable, for the purpose of serving the warrant, would deprive him of the right to the reward. He was under no obligation to accept the appointment or make the arrest.” (See, also, Reif v. Paige, 55 Wis. 496; 42 Am. Rep. 731.) We think, therefore, that the contract referred to in the answer and evidence, which was entered into between the appellant and respondent, can be enforced in this action. Counsel have discussed some important questions of practice, which we do not wish to determine without a full bench, and we have confined our inquiries to the merits. It is ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., concurs. De Witt, J., being disqualified, did not participate in this decision.

Harwood, J. It appears from the record that on the twelfth day of August, 1889, Alphonse Benjamin, of Deer Lodge County, mortgagor, executed and delivered to A. Rocheleau, mortgagee, a chattel mortgage of property, described therein as follows:/‘All the following described property, situate and being in the city of Anaconda, Deer Lodge County, Montana, to wit: One bay horse, branded 44 on the left shoulder; one bay horse, branded P on left hip, and-on left shoulder; one express wagon; two sets of double harness; one bread-box; three show-cases; one counter scale; one milk-shake machine; one desk; four chairs; and baking outfit; stock on hand,” — to secure a promissory note executed and delivered by the mortgagor to the mortgagee of the same date, for the sum of $1,000, payable six months after date, which note was set out in the mortgage. Said mortgage provided for the possession of said property to remain with the mortgagor, and the mortgage was duly filed for record in the office of the county clerk and recorder of Deer Lodge County, as provided by law. There after, while said mortgage was in force and unsatisfied, appellant, Peter Boyle, as constable, seized and sold the property described in the mortgage under and by virtue of certain writs of attachment and execution duly issued in actions at law brought against the mortgagor by other creditors, and this action was brought against said constable and his sureties upon his official bond, to recover the amount due on said promissory note. Appellants admit by answer the execution of said promissory note and mortgage to secure the same, and the good faith of the transaction, but seek to justify the taking of said property under said processes on the ground that the mortgage was void as to said attaching creditors, because it was made and intended to cover by the words “stock on hand” certain merchandise, consisting of canned goods, dried fruits, bread, eggs, cigars, tobacco, etc., and that the mortgagor of such merchandise was left in possession thereof. Under an arrangement, understanding, or agreement of the parties to said mortgage, or with the knowledge and consent of the said mortgagee, the mortgagor was allowed to sell said merchandise, and convert the proceeds arising from such sale to his own use; and that no part of such proceeds were applied to the payment of the debt mentioned in said mortgage. All of which facts relied on in defense were fully set forth by answer. The trial of the action resulted in a verdict by the jury in favor of plaintiff, the mortgagee of said goods, for the principal sum of said promissory note and the interest thereon. The jury also returned special findings to the following effect: (1) That after the execution of the mortgage, the mortgagor remained in possession of the “stock on hand” mentioned in the mortgage, and continued to sell and dispose of the same in the regular course of business; (2) that such sale of the merchandise was not made with the knowledge and consent of the mortgagee, Bocheleau; (3) that the mortgagor did not apply any of the proceeds arising from the sale of the merchandise to the payment of the amount secured by said mortgage; (4) that during the time the mortgagor, Benjamin, was selling said stock on hand the mortgagee, Bocheleau, was not in a position to know, and did not know that such sale was being made; (5) that the property mentioned in the mortgage as ei stock on hand ” was merchandise used by the mortgagor for the purpose ■of carrying on the bakery and grocery business in Anaconda. Judgment was rendered against defendants for the sum mentioned in said promissory note and interest, and they moved the court for a new trial on the grounds: (1) That-the evidence was insufficient to justify the verdict and findings; (2) error of law occurring at the trial, and excepted to by the moving party. Upon the hearing of the motion for a new trial the court made an order overruling the same, from which order and the judgment this appeal was taken. In relation to the first ground stated, upon which motion for a new trial was made, appellants insist that the second and fourth findings of the jury, to the effect that the sale of the merchandise which the mortgagor had in his place of business was not made with the knowledge and consent of the mortgagee, Bocheleau, and that he was not in a position to know of such sale, are not supported by the evidence. That appellants are correct in this proposition admits of no doubt when considered in reference to the conduct of the parties to the mortgage, according to their own testimony. According to the testimony of the parties to this mortgage, the mortgagor, Benjamin, was at the time of the execution thereof engaged in running a bakery at Anaconda. His principal business was that of baking and vending bread, cakes, pies, and such other supplies as are usually made and kept for sale at a bakery. In the sale-room of the bakery, in addition to such bakery supplies as were made and kept for sale, the mortgagor also had in stock some other goods, consisting of various kinds of canned goods, dried fruits, raisins, citrons, spices, teas, coffees, candies, cigars, and other tobaccos. According to the testimony of the mortgagor, the stock of such goods which he had on hand at the time of the execution of said mortgage was of the value ■of from $100 to $200, not including the bakery supplies. The mortgagee testified that at that time such stock on hand was •of the value of $75 or $100. Hamilton, one of the attaching creditors, stated in his testimony that he thought the goods in the mortgagor’s shop were worth $400, but he does not state what time he was speaking of — whether at the time the rnort gage was given, or when the attachment was made, or otherwise. Nor does he indicate whether he was speaking of the stock of merchandise exclusive of the bakery supplies or including the same. The mortgagor testified that a considerable portion of the canned goods, dried fruits, etc., was kept for use and used in the manufacture of bakery supplies, and also for the consumption of himself and three men whom the mortgagor employed to work about his business. It appears that the principal business of the mortgagor was that of operating a bakery, but he also had at his place of business the goods mentioned other than strictly bakery supplies. Such was the state of' the mortgagor’s business and property at the time the mortgage was given. It is shown by the evidence without dispute that at the time the mortgage was executed, and during its existence, the mortgagee, Eocheleau, was engaged in running a butcher shop in the same town, on the same street, and but three or four doors from the bakery and sale-room of the mortgagor, Benjamin; that Eocheleau furnished Benjamin money to the extent of $800 to assist him in setting up and carrying on his bakery business; that about the time the mortgage was executed he borrowed of Eocheleau the further sum of $200, and executed said promissory note and mortgage for the whole amount owing, paid out said $200 to these same creditors who afterwards attached, and continued to carry on his bakery business as before, manufacturing and selling bakery supplies, and from time to time sold at retail and used the other goods mentioned, and used the proceeds of his business to carry the same on, keeping up the stock of goods and supplies as before the mortgage was executed, until the attachments were levied, about six months after the mortgage was executed. After said mortgage was executed Eocheleau continued to carry on the business of running his butcher shop at the place aforesaid, and occasionally called at said bakery and bought small quantities of supplies for the use of his family, and members of his family also obtained supplies at said bakery. Now, the mortgage is conditioned that the mortgagor shall remain in possession of and use the property described therein until default in payment of the debt sought to be secured thereby; and from the facts recited above, shown in evidence, about which there is no dispute, it appears clearly, when considered with the conditions of the mortgage, that the parties thereto contemplated that the. mortgagor should remain in possession and carry on his business as theretofore. This the mortgagor proceeded to do under the eye of, and without remonstrance or interference by the mortgagee, and thereby with his knowledge and consent. The statement of the parties to the mortgage in their testimony, that there was no consent, agreement, or understanding to do what was done, are mere assertions without force, and no support to a finding, when considered in reference to what they proceeded to do. One sold and the other bought of the goods in question, one continued to sell and the other was fully cognizant of the selling and the carrying on of the business openly as before the mortgage was executed, and without objection or remonstrance from the mortgagee ; and this conduct appears to have been by their own volition, because there is no showing that either acted under duress, delusion, or insanity. The finding of the jury that the carrying on of said business by the mortgagor, and the sale of such goods as he did sell, was without the knowledge or consent of the mortgagee, and that he had no means of knowing of such sales, is not only unsupported by evidence, but it is contrary to the evidence. It appears that the attaching creditors of the mortgagor sold him supplies, whereby their claims accrued after the mortgage was given, and finally attached not only the merchandise which the mortgagor had in stock, but all other property mentioned in the mortgage. The attaching creditors regarded said mortgage as wholly void, relying upon the case of Leopold v. Silverman, 7 Mont. 266, wherein it was declared that a mortgage upon merchandise left in possession of the mortgagor with a provision expressed in the mortgage, or with an understanding, permission, or agreement of the parties, although not expressed in the mortgage, whereby the mortgagor is allowed to sell the goods in the usual course of trade, and appropriate the proceeds, or any part thereof, to his own use, “is fraudulent and void as to other creditors, regardless of the good faith of the parties.” The appellants rely upon that case to affirm the proposition that the mortgage in question here is wholly void, not only as to the merchandise, but also as to the property of an entirely different character and description included therein, which was not exposed for sale, and as to which it is not contended there was any understanding or agreement that the mortgagor might sell or offer the same for sale, unless subject to the mortgage. However general and far-reaching may be the conclusions expressed in the case of Leopold v. Silverman, it cannot be regarded as authority to sustain appellants’ position to the extent they contend for, because no point was involved in that case as to property outside of purely a stock of merchandise, which was mortgaged as a whole, and kept on sale; at least no mention is made' in the statement of facts as to property of other character or nature or separate from the stock of merchandise, and as to which there was no provision or permission for the mortgagor to sell or offer to sell the same. It is true, the language held in that case is sweeping, and, if taken literally, and adopted without reference to the facts before the learned judge who prepared the opinion, might be, as general dicta, applied to the case at bar, as it has undoubtedly been applied by appellants, and by the authority of which they expect their action to be sustained, in treating this mortgage as null and void as to all the property therein mentioned. This seems to have been the view of the respondents also in the case of Schwab v. Owens, 10 Mont. 381. In the ease of Leopold v. Silverman it appears that the property mortgaged was a stock of merchandise, upon which the owners thereof executed three several mortgages to three several creditors: (1) The Stockgrowers’ National Bank to secure $3,500. The mortgage was dated November 12, 1886, and contained the following provision: “It is provided, however, that the said parties may continue to sell the said stock of merchandise in the usual course of trade, accounting, however, as often as requested, and at least once a month, to the second party for the proceeds of all such sales; ” and, as said in the opinion, “the bank at once placed an agent in possession of the mortgaged property.” (2) On the 22d of the same month, and while the agent of the bank was in possession, and the goods were being sold in the usual course of trade, the said Isaac and Fannie Silverman executed and delivered to A. Block & Co., of Cincinnati, Ohio, a second mortgage, to secure a promissory note for $3,049.92, upon the same property; and the agent of the bank, one Hedderick, was requested to act also as the agent of Block & Co. That mortgage contained the following provision: “Said first parties may sell said goods, wares, and merchandise in the usual course of trade. This mortgage is intended to be second to that now held by the Stockgrowers5 National Bank, of Miles City, Montana.” (3) On the eleventh day of December of the same year the mortgagors “ executed and delivered to Leopold Brothers & Co. a third mortgage on the same property to secure their promisory note for $3,022.50, which was to fall due on the first day of May, 1887. The agent, Hedderick, who was already in possession under the first and second mortgages, was requested to act also as the agent of Leopold Brothers & Co., and consented to do so, as far as lie could without prejudice to the bank and to A. Block & Co. On the twenty-first day of December, 1886, the respondents, A. Block & Co., for $2,700 cash paid, purchased from the bank the first mortgage, and continued the agent in possession until the twenty-fourth or twenty-fifth day of December, when, it seems, A. Block & Co. put one Newman Borchadt in possession as their agent, and Leopold Brothers & Co. put one T. J. Thompson in possession as their agent. All the while Isaac Silverman was in possession also, and acting as salesman, receiving fifteen dollars a week and his house rent from the proceeds of the sales.” After stating the above facts, and referring to the pleadings in that case, the court, in applying its conclusions as to whether or not the provisions contained in the first and second of said mortgages should be held to render them void, said: “ The case of Robinson v. Elliott, decided by the Supreme Court of the United States in 1874, reported in 22 Wall. 520, must govern us in the disposition of this case. It was held in that case, in effect, that any chattel mortgage upon a stock of merchandise in trade which permits, by its terms, the mortgagor to remain in possession of the goods, and to sell the same in the usual course of trade, at his discretion, and to appropriate the proceeds, or a part thereof, to his own use, until the maturity of the debt purporting to be secured by it, or for an indefinite time, is fraudulent and void as to the other creditors, regardless of the good faith of the parties. It is not a question of intent, but one of effect. Such a mortgage has the effect of hindering, delaying, and defrauding creditors, and all persons are presumed to intend the natural consequences of their own acts, so that the good faith or bad faith of the parties, as it actually existed, becomes immaterial. Such mortgages as this have the fraudulent effect, and the fraudulent intent, if one is necessary, will be presumed by the court from the terms of the mortgage itself. .... From the case of Robinson v. Elliott, referred to above, and from a great many other cases discussed at length in the able monograph of Mr. Pierce on Mortgages of Merchandise, we may deduce the following general principle: A mortgage of a stock of goods in trade, under which the mortgagor is permitted by the mortgagee to sell the goods at his discretion in the usual course of his business, is inherently and essentially fraudulent as to the creditors of the mortgagor; and this is so even though the agreement or understanding between the mortgagee and the mortgagor permitting such sales is not shown upon the face of the mortgage, but is proven by extrinsic evidence.” In the above statement of the effect of the decision in the case of Robinson v. Elliott, the court was supported by Mr. Pierce in his treatise on Mortgages of Merchandise, section 2, page 3. But it will be observed that the “general principle” declared in Leopold v. Silverman is somewhat narrower than the effect of the doctrine of Robinson v. Elliott, as interpreted in the same case. In the general principle laid down it is declared that a mortgage of merchandise “ under which the mortgagor is permitted by the mortgagee to sell the goods at his discretion in the usual course of his business is inherently and essentially fraudulent as to the creditors of the mortgagor; and this is so even though the agreement or understanding between the mortgagee and mortgagor, permitting such sales, is not shown upon the face of the mortgage, but is proven by extrinsic evidence.” It is declared in this general principle that a mortgage which comes within its description is void without reference to what is done with the proceeds in such a case; whereas, in Robinson v. Elliott, the disposition of the proceeds appears to have been an important, and perhaps may be fairly said to be the controlling idea. Now, by later decisions of the Supreme Court of the United States (People’s Sav. Bank v. Bates, 120 U. S. 556; Jewell v. Knight, 123 U. S. 426; Means v. Dowd, 128 U. S. 273; Etheridge v. Sperry, 139 U. S. 266), the intent and meaning of the court in the opinion in Robinson v. Elliott has been fully expounded, by which it appears that the interpretation and application of that case in Leopold v. Silverman and other cases and treatises was erroneous. In the case of Etheridge v. Sperry, supra, the court was considering the validity of two chattel mortgages on a stock of merchandise situate in Knoxville, Marion County, Iowa, where there was an understanding between the mortgagee and mortgagor to the effect that the latter was to remain in possession of the merchandise mortgaged, and “go on selling goods in the ordinary way/’ and receive the money derived from the sales, and out of the same pay the running expenses of the establishment and support his family, and to replenish the stock; and that the surplus received from such sales was to be applied on the debt mentioned in the mortgage. Creditors attached said stock of goods, relying on the cases of Bank of Leavenworth v. Hunt, 11 Wall. 391; Robinson v. Elliott, and Means v. Dowd, supra, as authority for treating said mortgages as void. In the course of the opinion, which appears to have been unanimously concurred in, Mr. Justice Brewer says: “While there are some points of similarity in each of those cases [last above cited] and this, and while there are observations in the opinions filed in them pertinent and correct with reference to the special facts which, if disconnected from those facts and applied here, might seem authoritative, yet there are clear and sufficient reasons why neither the decisions nor the opinions should control this case. .... In Robinson v. Elliott, a case coming from Indiana, the objection to the chattel mortgage appeared on the face of the instrument, in that it permitted the mortgagor not only to retain possession, but to sell and buy as theretofore, with no stipulation for the application of the surplus proceeds to the payment of the mortgage debt, the only stipulation being that the pur chased goods should come within the lien of the mortgage.. Apparently this retained power of sale by the mortgagor was-in no respect for the benefit of the mortgagee, but to enable the-mortgagor to continue in business in defiance of his unsecured creditors, protected by the lien of this mortgage. The conduct of the parties after the mortgage was in harmony with this apparent intent, and removed any uncertainty as to the scope and purpose of the instrument. It was not intended by that decision to hold that a chattel mortgage was void because it provided for a retention of possession by the mortgagor, and a sale by him. On the contrary, Mr. Justice Davis, delivering the opinion of the court, carefully used this language: ‘We are not prepared to say that a mortgage under the Indiana statute would not be sustained which allows a stock of goods to be retained by the mortgagor, and sold by him at retail, for the express purpose of applying the proceeds to the payment of the mortgage debt. Indeed, it would seem that such an arrangement, if honestly carried out, would be for the mutual advantage of the mortgagee and the unpreferred creditors. But there are features engrafted on this mortgage which are not only to the prejudice of creditors, but which show that other considerations than the security of the mortgagees, or their accommodation even, entered into the contract. Both the possession and right of disposition remain with the mortgagors. They are to deal with the property as their own, sell at retail, and use the money thus obtained to replenish their stock. There is no covenant to account with the mortgagees, nor any recognition that the property is sold for their benefit.’ The instrument considered in Means v. Dowd was regarded by this court more in the nature of an assignment for the benefit of creditors than as a chattel mortgage; and the same elements were discovered in that instrument, and in the subsequent conduct of the parties, as appeared in the case in 22 Wall. In neither of those eases is it affirmed that a chattel mortgage on a stock of goods is necessarily invalidated by the fact that either in the mortgage, or by parol agreement between the parties, the mortgagor is to retain possession, with the right to sell the goods at retail. On the contrary, it is clearly recognized in them that such an instrument is valid, notwithstanding these stipulations, if it appears that the sales were to be for the benefit of the mortgagee. What was meant was, that such' an instrument should not be used to enable the mortgagor to continue in business as theretofore, with full control of the property and business, and appropriating to himself the benefits thereof, and all the while holding the instrument as a shield against the attacks of unsecured creditors. Neither was it suggested in either of those cases that this court, in determining the validity of a chattel mortgage, would ignore the settled law of the State in which the transaction took place as established by the decisions of its highest court. On the contrary, there was an intimation that this court would respect such decisions,” Then follows an examination of the law concerning mortgages of merchandise in Iowa, according to the statute and decisions of the Supreme Court of that State, whereby it is found that such a mortgage as the one under consideration would be held valid there; and the Supreme Court of the United States, applying the same construction, holds the mortgages under consideration valid. But the opinion does not stop there; it goes into the discussion of general principles relating to mortgages of merchandise, in which the following observations are made: “We are aware that there is great diversity in the rulings on this question by the courts of the several States; but, whatever may be our individual views as to what the law ought to be in respect thereto, there is so much of a local nature entering into chattel mortgages that this court will accept the settled law of each State as decisive in respect to any case arising therein. (Union Bank v. Kansas City Bank, 136 U. S. 223.) Indeed, if this were an open question, we could not be blind to the fact that the tendency of this commercial age is towards increased facilities in the transfer of property, and to uphold such transfers so far as they are made in good faith; and it is at least worthy of thought whether the rulings made by the Supreme Court of Iowa do not tend to make chattel mortgages more valuable for commercial purposes, without endangering the rights of unsecured creditors. The law now generally requires a record of all such instruments; and that, like the recording of a real estate mortgage, gives notice to all parties interested of the fact and extent of encumbrances. Why should a transaction like this be condemned, if made in good faith, and to secure an honest debt? The owner of a stock of goods may make an absolute sale of them to his creditor in payment of a debt. If an absolute, why not a conditional sale, with such conditions as he and his creditor may agree upon? As between the parties, no court would question this right, or refuse to enforce the conditions. The interests of the general public are not prejudiced by any such transaction between debtor and creditor. Indeed, they are rather promoted by any arrangement under which the mortgagor can continue in business, for in ninety-nine cases out of a hundred the taking of possession by a creditor results in closing the business, and turning the debtor out of employment. The only parties who can claim to be injuriously affected are unsecured creditors. But they are notified by the record of the exact relations between the mortgagor and mortgagee; and surely subsequent creditors have no right to complain if they deal with the mortgagor with full knowledge of such relations. Existing creditors may, of course, challenge the good faith of the transaction; but if they cannot disturb an absolute sale when made in good faith, why should they be permitted to challenge a conditional sale if made in like good faith? The fact that fraudulent relations are possible is hardly a sufficient reason for denouncing transactions which are not fraudulent. So, if the question were open, or a new one, unaffected by any settled law of the State, we incline to the opinion that the question is not one of law so much as it is one of fact and good faith, and that the decision of the Supreme Court of Iowa rests on sound principles.” As far as we are aware, the above is the latest expression of the Supreme Court of the United States on this interesting question, which has engaged so much attention of courts and law-writers in recent years. From these expressions it is seen that the case of Leopold v. Silverman would have been determined otherwise than it was had it been before the Supreme Court of the United States. Not only was the doctrine of Lobinson v. Elliott misunderstood, but in the Silverman Case it was applied to a state of facts in no way resembling the facts in question in Lobinson v. Elliott, and in this appears to be the greatest infirmity of the holding in the Silverman Case. In the latter case, looking at the instruments in question, and facts as recited in the opinion, one is led to inquire in what features did these transactions differ from assignments with immediate delivery of possession of the property to secure and pay the obligations mentioned by conversion into money as far as the property would suffice for that purpose, with preferences according to the order of the execution of said instruments? The instruments were called “ mortgages,” but the labels put upon instruments do not determine their nature. (Marshall v. Livingston Nat. Bank, ante, p. 351.) It appears that the parties entered at once upon the disposition of said goods, with the mortgagees in possession by agent to receive the proceeds. - That the mortgagor, Silverman, was allowed to remain in the store and “act as salesman, receiving fifteen dollars a week and his house rent from the proceeds of the sales,” seems to be the ground upon which the first two instruments were declared void. It appears to have been an arrangement to allow the debtor to aid in the selling of the goods, allowing him a certain fixed stipend for his services; and, had he been entirely excluded, without doubt as much would have been necessarily expended for the services oi other salesmen. And there is no intimation that anything in the nature of actual fraud was done or contemplated through that arrangement; nor that the arrangement was inexpedient or injurious to any party in interest. The same employment is allowed in case of assignments by debtors for the benefit of creditors, where it is done in good faith, and for the beneficial interest of all parties concerned. (See Burrill on Assignments, § 571, and cases cited; O’ Gara v. Lowry, 5 Mont. 427.) For the reasons set forth it is perceived that parties dealing with questions touching mortgages or assignments of chattels, especially such as have merchandise included therein, should not rely upon extending the doctrine of the Silverman Case, nor, perhaps, rely too strongly upon having that case applied to a like state of facts, where, as in that case, everything is admitted to have been done in good faith to secure the debts mentioned and honestly owing; because, while there are many strong cases declaring mortgages of merchandise void under a given state of facts, still we have not found any declaring that instrument void under facts similar to that ease, nor where the mortgagor is so far divested of possession and control, and notice not only given by record, but tbe installation of the mortgagee in possession, either in person or by agent, and where admittedly all conduct respecting the transaction was bona fide. In the ease at bar there are two questions to be determined: (1) Was the mortgage void as to the merchandise which was mentioned, or wholly void, by reason of the possession of such merchandise being left in tbe possession of tbe mortgagor with permission to sell the same in the usual course of trade, and use the proceeds of such sale, without reference to the mortgage? (2) If said mortgage should be held void as to its attempt to cover merchandise under the conditions stated, should it by reason of that fact also be held void in tato; i. e., as to other property mortgaged, and as to which there was no permission to sell or dispose of the same, and where the good faith of the transaction is admitted ? As to the first proposition, our statute provides: “No mortgage of goods, chattels, or personal property shall be valid, as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels, or personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and be accompanied by an affidavit of all the parties thereto; or, in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided.” (§ 1538, div. 5, Comp. Stats.) By this statute it is seen that the possession of the mortgaged property is to be fixed somewhere, and remain subject to the lien, until that lien is released in some proper manner, consistent with the law and nature of the mortgage, or the property is applied to extinguish the debt secured. The possession may be “delivered to and retained by the mortgagee,” or the possession may remain with the mortgagor, and the mortgage be accompanied by the required affidavit of “ good faith to secure the amount named” in the mortgage, and filed in the office of the recorder of deeds, to give notice of the exist ing lien on the property. Now, if a mortgage of goods be made, as provided by statute, leaving possession with the mortgagor, and it be understood, agreed, or knowingly permitted (for, if it is knowingly permitted, it is understood and agreed) to the mortgagor to place the mortgaged goods on sale, not subject to the mortgage, to be sold, carried away, or consumed, and to use the proceeds without reference to the mortgage, this arrangement annuls every vital element of the mortgage so far as concerns the goods to which such arrangement or permission extends. The mortgage, under such circumstances, becomes a mere sham, a mere appearance, a delusion, asserting in form what is not in fact, as admitted by the conduct of the parties. The possession does not remain. Nor does the property remain. It is shifted over to those who will come and buy, and is carried away without respect to the mortgage, and the proceeds devoted to purposes other than answering for the debt mentioned in the mortgage. The parties to such an arrangement have departed from the observance of a statutory requirement as to the property to which such arrangement or permission applies, and we think there ought to be no hesitation in holding the mortgage void as to property so dealt with; or, in other words, that such property is put out from under such mortgage by the conduct of the parties in relation to it. Numerous decisions may be found to support this conclusion. The conclusion is often announced as founded on the idea of “constructive fraud,” or “fraud in law”; and the treating of the question on that theory has given rise to much controversy, for those opposing always point to the fact, usually admitted in the discussion, that there is no element of fraud in fact in the conduct of the parties; and where a statute exists (like § 231, div. 5, Comp. Stats.) providing that questions of fraudulent intent in making conveyances of property shall be deemed questions of fact for a jury, and not questions of law, such statute is pointed to also as forbidding the court from deducing, presuming, or inferring fraud in the transaction, where the jury has not so found. In Brett v. Carter, 2 Low. 458, Lowell, J., of the United States District Court for Massachusetts, has given a most trenchant exposition of reasons opposed to the theory of “constructive fraud” or “fraud in law,” as appli cable to eases like the one at bar. There is much able reasoning on both sides of the controversy. But after much consideration we do not regard the case as involving the question of fraudulent intent, to be found by applying the principle of “ constructive fraud” or “fraud in law,” so much as the question whether or not the parties, by the conditions which they entered into, or sanctioned by their conduct, made or failed to make a valid mortgage as to the whole or part of the property intended to be covered by the mortgage lien; or, having made a good mortgage, so far as shown by the terms of the instrument, by mutual agreement, understanding, or permission, the parties annulled some essential condition of the mortgage as to all or part of the property mentioned. The subject of the mortgage being personal property, such conditions may be entered into, understood, or permitted, which render nugatory some essential condition of the intended mortgage as to the whole or part of the property; or such condition may be expressed in the instrument. And, although such conditions were entered into or permitted in good faith, nevertheless, when all the conditions are shown, the question arises whether or not the parties fulfilled the law as to making a mortgage; and this is a question of law. It may be found without reference to the question of fraud that the parties fell short of making a mortgage, or, that having made one, they nullified it as to the whole or part of the property by other agreement, understanding, or permission touching the same; and this conclusion may be reached on considering the facts without reference to the motive which prompted the acts. There can be no question that the statute mentioned must control, where a conveyance of property is made, and the good faith of the transaction is drawn in question, i. e., the question as to whether or not the conveyance was conceived and made with an intent to hinder, delay, or defraud creditors, or others mentioned in the statute. But that is not the question in the case at bar. The good faith of the parties in the transaction was admitted, and the question was, did the transaction, considering the conditions agreed upon between mortgagor and mortgagee concerning the property, or concerning certain portions of it, amount to a mortgage of chattels under the provisions of the statute? The facts are admitted. The mortgagor remained in possession of the property, and, as to the merchandise, he was permitted, with the knowledge and tacit consent of the mortgagee, to go on dealing with, using, and disposing of his merchandise, and using the proceeds, without reference to the mortgage. When the facts which enter into a transaction are admitted or found, it is a question of law for the court to determine whether the transaction amounted to a mortgage, as provided by statute, or whether it lacked a vital element, touching the whole or part of the transaction. Although parties intended in good faith to make a chattel mortgage, when all the facts are found as to what they did in the transaction, it is a question of law as to whether or not that which was done fulfilled the requirements of statute in the making of a mortgage. We hold that as to the merchandise one of the vital conditions of the mortgage was removed by consent of the parties, and as to that property the mortgage was without force or effect. There is another ground upon which this mortgage should be held void in so far as it attempted to cover merchandise. That infirmity is the want of such description as to indicate with reasonable certainty what goods, wares, and merchandise were intended, and in what place situate. The words of the mortgage attempting to describe this class of property are, “stock on hand.” This may be a convenient phrase to cover a stock of merchandise in some transactions; but it is not such a description as would show to third persons, with reasonable certainty, what particular goods the mortgage applied to. It may well be asked, and asked in vain, what stock of goods was intended? Was it the stock on hand when the mortgage was made, or the stock which might be on hand when the debt to be secured became due? The phrase used is so convertible, capable of such dilation and contraction, and such diversity of construction and application, it is doubtful whether the parties to the mortgage both intended one and the same thing by it. But as to third parties the description must be more certain than is required between the parties to the instrument, and from that point of view the description as to the merchandise is insufficient. (Barrett v. Fisch, 76 Iowa, 553; 14 Am. St. Rep. 238, and cases cited; Stewart v. Jaques, 77 Ga. 365; 4 Am. St. Rep. 86; Golden v. Cockril, 1 Kan. 259; 81 Am. Dec. 510, and cases cited in notes.) Upon the second proposition, in view of the fact that the good faith of the parties to the mortgage is admitted, we can find no just ground for holding the mortgage void as to property mentioned therein, other than merchandise. It is not contended that there was any arrangement, understanding, or permission allowing the mortgagor to deal with such other property as he did with the merchandise and the proceeds derived therefrom. Where fraudulent intent was not the motive which led to the transaction, a defect by which it loses part of its intended effect is not held to vitiate the whole transaction. In the case of United States v. Bradley, 10 Peters, 360, Mr. Justice Story, expressing the opinion of the court concerning this feature of an instrument, says: “That bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine well founded in the common law, and has been recognized from a very early period. Thus, in Pigot’s Case, 11 Coke, 27 b, it was said that it was unanimously agreed in 14 Hen. VIII., 25, 26, that if some of the covenants of an indenture or of the conditions indorsed upon a bond are against law, and some are good and lawful, in this case the covenants or conditions which are against law are void ab initio, and the others stand good. And notwithstanding the decision in Lee v. Coleshill, Cro. Eliz. 529, which, however, is distinguishable, being founded on a statute, the doctrine has been maintained, and is settled law at the present day in ail cases where the different covenants or conditions are severable, and independent of each other, and do not import malum in se, as will abundantly appear from the case of Newman v. Newman, 4 Maule & S. 66, and the other cases hereafter stated; and many more might be added.” The following cases are directly in point, and apply the doctrine to which Mr. Justice Story refers to cases like the one at bar: Hayes v. Westcott, 91 Ala. 143; 24 Am. St. Rep. 875; Jones on Chattel Mortgages, § 351; Barnet v. Fergus, 51 Ill. 352; 99 Am. Dec. 547; Lund v. Fletcher, 39 Ark. 325; 43 Am. Rep. 270; Donnell v. Byern, 69 Mo. 468; In re Kahley, 2 Biss. 383; In re Kirkbride, 5 Dill. 116; State v. Tasker, 31 Mo. 445; Voorhis v. Langsdorf, 31 Mo. 451. It is our opinion that a new trial should be granted, and therein the proceeding should conform to the views herein expressed; and it is so ordered. Reversed. Blake, C. J., and De Witt, J., concur..

Harwood, J. This action was brought to obtain judgment against the Minah Consolidated Mining Company for the sum of $33.35 for labor alleged to have been performed upon its Evening Star Mining Claim by respondent, and to foreclose a lien upon said mine to secure payment for such labor and costs of suit and counsel fees. It is conceded, for the purposes of this case, that plaintiff was employed to work on said mine by one Alexander Swan, and all said labor was performed under his direction and management; and that Swan was in possession of and working said mine under a certain contract, which is fully set out in the record. Appellant contends that, under and by the terms of said instrument, said Swan was a lessee of said mine, and that such labor was employed and rendered to him in working said mine as a lessee thereof; that, therefore, the appellant is neither liable on said account, nor is said mine subject to a lien therefor. Sec tion 3 of “An act to amend an act entitled ‘An act to amend an act relating to liens of mechanics and others/” approved March 9,1887 (Extra Sess. 1887, p. 71). Respondent contends, on the contrary, that said instrument is a contract entered into by said company with said Swan to do certain development work and mining on said mining claim for said company, for which said company is liable, and said mine is subject to a lien. It is therefore necessary to determine whether, by the terms and conditions of said instrument, said Alexander Swan was in possession of and working said mine as a lessee thereof, or otherwise. The instrument in question is in the form of a contract between said company, as party of the first part, and said Alexander Swan, party of the second part; and provides tha+ he shall commence operations on said mine on or before the 1st of April, 1890, and “pump the water out of said mine; strengthen up and repair the shaft where necessary; run levels at the depth of one hundred feet, both east and west from the shaft, so far in either direction as the ore found will justify; properly square the levels and lag the same overhead; to mine the ore from overhead in a good, workman-like manner.” The instrument goes on to further provide that said Swan shall sink a shaft one hundred feet in depth on the vein; that said shaft shall be of certain specified dimensions, and shall be timbered and faced in a certain manner; that at the bottom of said shaft said Swan shall run levels of stated dimensions and distances on the vein, providing in detail how such levels shall be timbered, and that “from over said levels said party is authorized to stope and mine so much of “the ore as he may desire;” that the ore so mined shall be taken at the expense of said Swan to a certain mill for concentration, and the concentrates therefrom delivered by him at his own expense on board the railroad cars at Wickes Station; that said concentrates should be shipped by the appellant to such smelter as would pay the highest price therefor, and whenever the said Swan could find any purchaser of said concentrates at a higher rate than was being obtained by appellant, then, on his request, the appellant should ship to such purchaser as was found by Swan. The contract further provides that said Swan should “have, as full compensation for sinking said shaft, running levels, stoping the ore, furnishing the timber, and hauling and delivering the ore to the cars, eighty per cent of the net returns as paid for said ore, by whichever smelting company the same may be shipped to.” This, and nothing more, was he to receive by the terms of said contract for his operations in working said mine and extracting ore therefrom, except that he was to have the use of certain machinery belonging to the company and buildings on said mining claim, while working the same, and also the use of certain timber to be used in the mining operations. The term during which said Swan was authorized to work said mine under said contract is limited thereby to one year from April 1, 1890. It was further provided that, in case he should at any time during the continuance of said contract fail to keep said mine in active operation for the space of five days in any one month, such delinquency should, at the option of said company, be considered as an abandonment of said contract by Swan. It is further provided in said contract that said Swan should, before the 15th of each month, during the continuance of said operations, pay and discharge eacb and every liability incurred by him during the previous month in prosecuting such mining. In view of all the conditions of said instrument, we cannot hold that said Swan occupied a relation to said company and mine other than that of lessee for the term mentioned in said contract. To hold otherwise would do violence to the accepted and understood meaning of terms. In regard to what conditions constitute a lease, Mr. Justice Thompson, in delivering the opinion of the court in United States v. Gratiot, 14 Peters, 526, said: “ The legal understanding of a lease for years is a contract for the possession and profits of land for a determinate period, with the recompense of rent. The contract in question is strictly within this definition. The business of smelting is a part of the operation of mining, although it may be a distinct branch from that of digging the ore; but the law ought not to be so construed as to require the whole operation to be embraced in the same contract. They are different operations, requiring different qualifications and distinct regulations. This contract is for the possession of land. The work is to be performed at the United States lead mines, and must, of course, be performed within the limits prescribed by law to be attached to such mines. And there is an express permission to use as much fuel as is necessary to carry on the smelting business, and to cultivate as much land as will suffice to furnish teams, etc., with provender; and there is an express reservation of the rent of six pounds of every one hundred pounds of lead smelted, with special and particular specifications for securing the same. It is not necessary that the rent should be in money. If received in kind, it is rent, in contemplation of law.” In Moore v. Miller, 8 Pa. St. 272, Mr. Justice Coulter, in expressing the opinion of the court, says: “In estimating the language which constitutes a lease, the form of words used is of no consequence. It is not necessary that the term Cease’ should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present, they will be sufficient. (Co. Litt. 456; Bac. Abr. tit. ‘ Lease,’ K.) An agreement that Miller should enter and dig for ore, build houses, etc., he to pay, as a compensation to the owner of the land, fifty cents a ton for every ton of ore, was, in substance and in fact, a lease.” Bouvier defines a “lease” to be “a species of contract for the possession and profits of lands and tenements, either for life or for a certain period of time, or during the pleasure of the parties.” (1 Bouvier’s Law Diet.) “A Cease’ is a contract for the possession and profits of lands and tenements on the one side, and the recompense of rent or other income on the other, or it is a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense.” (12 Am. & Eng. Eneycl. of Law, 976.) The instrument before us contains the elements which constitute a lease, of a character and for purposes common to the mining regions of this State, and it contains no provisions or conditions whereby we can hold it to be a contract of any other nature. The statute in reference to liens underwent some amendment by the fifteenth legislative assembly at its regular session. Thereafter, at an extraordinary session of the same assembly, further amendment was made by the passage of the act above cited, whereby it was provided, in effect, that the interests of proprietors in leased premises could not be charged with a lien for labor performed thereon for the use and benefit of tenants or lessees. Therefore, said Swan being a lessee of said premises, we must hold, under the provisions of said statute, that the interests of appellant therein are not subject to the lien sought to be enforced against it in this action; and, said appellant not appearing to be otherwise liable for payment of said account (the proposition of appellant’s liability resting entirely on said contract), the finding of the court that it is liable generally is also unsupported by the evidence. It is therefore ordered that said judgment be reversed, and that judgment be entered in favor of defendant for costs. Reversed. Blake, C. J., and De Witt, J., concur.

Harwood, J. The object of this action was to obtain a dissolution of copartnership; an accounting between the copartners, and also a partition of certain mining claims; but the question of partition was abandoned by the consent of all parties, and the action proceeded as to the other purposes. The evidence introduced at the trial, and the findings of fact by the court, are before us for review on appeal from the judgment, and from an order overruling appellant’s motion for new trial. It appears from the evidence and findings of fact that certain mining claims were owned in equal undivided interests by plaintiff and Chapman and Thompson; that said owners engaged in a copartnership arrangement to do certain development work upon said mining claims, at the expense of said owners in equal proportions. The object of said development work was to put the mining claims in salable condition; but no period of time was agreed upon during which development work was to be prosecuted, nor was it agreed as to what extent such work should be prosecuted. Under said arrangement a large amount of development work was done upon the mining claims in question prior to June 30, 1887. On that date, defendant Lockhart succeeded, through conveyances, to the interest in said mining claims theretofore owned by said Chapman and Thompson, and thereby became the owner of an undivided two-thirds interest in said property, and also succeeded to the position theretofore occupied by said Chapman and Thompson in said copartnership arrangement, as to future operations thereunder. Upon the trial the court found that on said thirtieth day of June, 1887, a full accounting and settlement was made as to the partnership affairs between plaintiff Galigher and Chapman and Thompson, and that Galigher paid his proportion of expenses incurred prior to that date, and that defendant Lock-hart paid for Chapman and Thompson their full share of expenses incurred in developing said mining claims prior to said date, except the compensation claimed by said Galigher for his services. The court further found that on said date plaintiff Galigher was notified by defendant Lockhart that he would not carry on the partnership operations any longer, and that he would not be liable for any debts or expenses contracted by said Galigher in working upon said mining claims. These findings are fully supported by undisputed evidence, which shows that, at the time said notice was given, defendant had examined said property, and settlement of all prior expenses was made as aforesaid, except the claim of plaintiff for services, and plaintiff was then informed by defendant that he was satisfied the property being developed was not worth anything; that defendant advised shutting down work thereon, and declared he would not prosecute the work any further, and would not be responsible for any further expenses. Plaintiff’s reply to said notice was that he proposed to continue work on said claims, and that he would endeavor to make defendant pay his proportion of the expense thereof. Appellant contends that, under said state of facts disclosed by the evidence and findings of the court, it was error for the court to hold, as it did, that defendant was liable, in an accounting between plaintiff and defendant, for two thirds of the expense involved by plaintiff in work upon said mining claims after the date of said notice. "We think appellant’s position upon this point is fully sustained by principles of law, and we so hold. (Carter v. Whalley, 11 Morr. Min. Rep. 262; Slemmer’s Appeal, 11 Morr. Min. Rep. 441; Crawshay v. Maule, 11 Morr. Min. Rep. 223; Vice v. Fleming, 11 Morr. Min. Rep. 241.) Respondent’s counsel cites no cases which support the converse of appellant’s proposition, if, indeed, any cases could be found to support that position. The trial court virtually held as we do, in another conclusion of law, wherein it was held that the partnership was dissolved in January, 1888, by defendant giving “public notice of the repudiation of the said contract and partnership.” The public notice could have had no more potency, as affecting the rights and relations of the partners themselves, than a private notice. It follows that the judgment ought to be so modified as to eliminate therefrom all charges against defendant involved in working said mining claims subsequent to June 30, 1887. Another point insisted upon by appellant is that the court below erred in holding appellant liable for salary to plaintiff for services during a period prior to the time appellant came into said copartnership. This was error for two reasons: First. There was no showing that it was ever agreed in reference to said partnership arrangement that plaintiff, one of the copartners, and an owner in common of an interest in said property, should receive compensation for services which he might render in and about said work. This charge could only be sustained against his copartners, Chapman and Thompson, by virtue of a special agreement to that effect. (2 Bates on Partnership, § 770; Parsons on Partnership [3d ed.], 250; Babcock v. Stewart, 11 Morr. Min. Rep. 447.) Upon this point, it appears that the same rules apply to mining as to other partnership compacts. (Duryea v. Burt, 11 Morr. Min. Rep. 395.) Secondly. The charge for services of plaintiff rendered prior to the time appellant came into said copartnership could not lawfully be maintained against appellant unless he assumed and agreed to pay the same, which is in no way shown. Respondent’s counsel admit in their brief that an incoming member into such a co-partnership arrangement would not be personally liable for indebtedness incurred prior to his coming into the copartnership. ([Babcock v. Stewart, supra.) As to the claim of plaintiff for services rendered by him about said work after June 30, 1887, that falls with all other expenses involved after that date, under the views above expressed. It follows, therefore, that all charges against defendant for services of plaintiff in and about said work, both before and after June 30, 1887, should be eliminated from the judgment rendered against defendant. We do not find reason for disturbing any other findings of fact or conclusion of law made by the court below, which appellant insists were erroneous. According to the findings and conclusions of law not disturbed, the account between plaintiff and defendant stands as follows: Defendant should be charged with two thirds of the $250 paid by plaintiff, or for which he became personally responsible, in defending the title to said property, namely, $166.66; and this is the only item remaining against defendant, according to the findings sustained. According to the findings, defendant should be credited with items as follows: One third of $504.50 paid out by defendant on debts of the firm existing prior to the time he became a member, one third of which, or $168.16, is rightfully chargeable to plaintiff; also with two thirds of $400 worth of goods and provisions of the firm, which plaintiff took and converted to his use in working said claims after June 30, 1887, two thirds of which was the property of defendant, valued at $266.66, and for which defendant should be credited in this accounting. Defendant should also be credited with two thirds of the value of $311 worth of property of the firm taken under attachment for debts contracted by plaintiff after June 30, 1887, two thirds of which, or $207.32, was the property of defendant, and should rightfully be credited to him in this accounting. All these credits in favor of defendant aggregate the sum of $642.14, from which should be deducted two thirds of said $250 expended by plaintiff in defending the title to said property, viz., $166.66. This deduction leaves a balance of $475.48 in favor of defendant. In other words, as the findings show, defendant owes plaintiff $166.66 for moneys properly expended in said partnership matters; and plaintiff owes defendant $642.14 for moneys which defendant properly paid out for plaintiff’s benefit, and for property belonging to defendant, which plaintiff wrongfully took and converted to his use, or caused to be taken by attachment for debts which plaintiff wrongfully contracted against said firm. These accounts being offset against each other, leave a balance of $475.48 in favor of defendant, for which he is entitled to judgment against plaintiff as a result of said accounting. It is therefore ordered that the judgment rendered by the trial court be reversed, and that judgment be entered in favor of defendant and against plaintiff for the sum of $475.48, and costs. Reversed* Blake, C. J., and De Witt, J,, concur.

De Witt, J. The relation and description of the parties in this appeal appear fully in the opinion just rendered in Appeal of Cummings, ante, page 196. The same result was sought to be attained in this case as in the one just referred to; that is to say, the appointment of Henry A. Root as general administrator of the estate of Andrew J. Davis, deceased. This matter was commenced by the filing of an affidavit by Henry A. Root, which affidavit, by reference, incorporated into itself a large amount of matter, which was also brought into the petition in the Cummings’ Appeal. Upon this affidavit, with its incorporated matter, Henry A. Root made an application to the District Court that he be appointed administrator, and, as necessary to such requested action by the court, that the former orders be set aside appointing John A. Davis general administrator and James A. Talbott special administrator. As observed by reference to the facts as stated in the opinion in the Cummings’ Appeal, Davis had not qualified as general administrator, and Talbott was acting as special administrator. Upon this application by Root, Davis and Talbott appeared specially, and moved to dismiss the application, on the ground that such application could be heard only upon petition duly filed, and after citation duly issued and served, which had not been done. Upon this question of practice the District Court dismissed the Root application, and refused to hear it. This was on the twenty-sixth day of February, 1891. On March 19, 1891, Maria A. Cummings filed her petition, which was passed upon by the District Court, an appeal taken, and that appeal has been decided to-day. The application of Henry A. Root, now at bar, and the proceeding of Maria A. Cummings by petition, were based practically upon the same facts, and sought to attain precisely the same result, viz., the appointment of Henry A. Root as general administrator. It is apparent that if that result cannot be attained by the proceedings upon the Cummings’ petition, it cannot be reached by the Root application. If this court were to go into this appeal, and even if it were concluded that the District Court erred in not entertaining the Root application, what result would there be that would be of any value? All that could be done would be to send the case back with instructions to the District Court to hear the application. Upon such hearing the District Court would be controlled by the law as announced in the Cummings’ Appeal, and would deny the Root application, and thus declare that Mr. Root would not be appointed administrator upon the showing. But that is already accomplished in the Cummings’ Case. In our view, nothing whatever can be accomplished by our entertaining this appeal. The inquiry would be wholly fruitless for the court and the parties. It is rendered so by the decision in the Oummings’ Case. That decision disposes of all the merits in this appeal. Let the appeal be dismissed, but without costs. Blake, C. J., and Harwood, J., concur.

De Witt, J. The main controversy in this case is that apparent upon the face of the pleadings, the plaintiffs contending for a judgment for work, labor, and services upon a quantum meruit allegation and proof, and the defendants insisting that there was a special contract, which plaintiffs had failed to perform, and hence they could claim nothing. But other questions are raised, and the best view of the case can be obtained by following appellant’s specification of errors, and treating them in their order. Hon. C. H. Benton, judge of the district, had been counsel in the case before his elevation to the bench. The case was tried before J. P. Lewis, Esq., special judge, under the provisions of the Constitution (art. 8, § 36). 1. The first error assigned is that the special judge set the case for trial, whereas he had no authority, under the Constitution, to do anything but try the case. Who set the case does not appear. If it did, we should not hesitate to say that authority to try a case carried with it the authority to do the necessary and incidental act of setting it for trial, as fully as to adjourn the trial for luncheon. 2. The second assignment of error tabes a view of the law opposite to that held in the first. Defendant challenged the entire panel of jurors, on the ground that the venire for them was issued by Hon. C. H. Benton, judge, who, as appears above, had been counsel in the case. The challenge was overruled. It appears that the regular jurors had been discharged. The clerk was ordered to issue a special venire for twenty jurors. The writ reads: “To the sheriff, etc. You are hereby commanded to summon twenty good and lawful men of Cascade County, etc.” No names are contained in the writ as persons for the sheriff to summon. The sheriff returns that he had summoned twenty men, giving their names in his return. The record states that defendant Wilcox files his written challenge to the entire panel, because the same had been drawn under the direction of Hon. C. H. Benton, the regular judge of the court, who was disqualified, as above set forth. When we consult defendant’s written challenge referred to in the above terms, and which is in the record, we find the following language therein set forth as the ground of the challenge: “ Challenges the entire panel of said jury on the ground that the same was improperly drawn, the said jury being drawn under a special venire issued by Hon. C. H. Benton, judge, who is disqualified from acting as judge therein, having been attorney for the plaintiff,” etc. So far as the jury having been drawn under the direction of Judge Benton is concerned, the facts are simply that he ordered an open venire to issue. He had nothing whatever to do with the selection of the persons summoned, it being left to the sheriff to select them from the body of the county. Section 15 of the Act of March 14,1889 (p. 168,16th Sess.) provides: “If during the progress of any trial of any cause in such court, where a jury has been drawn, as in this section provided, it shall become necessary for any cause to summon additional jurors, such additional jurors shall be drawn and summoned by an open venire in accordance with the provisions of section 255 of the first division of the Compiled Laws of Montana, and the acts amendatory thereto.” Section 255, as amended March 2, 1889 (16th Sess. p. 165), as to an open venire, provides: “If from any cause the names contained in said box .... shall be exhausted without obtaining a competent jury, the court may order a venire to issue, directing the sheriff to summon from the citizens of the body of the county, and not from by-standers, so many qualified persons as may be necessary to complete the jury in the pending trial.” As far as we can learn from the record in this case, it was under the provisions of these laws that the jury complained of was summoned. The judge had nothing to do with the selection of the jurors. He did nothing more than the formal act of ordering the venire to issue. As to the disqualification of the judge, we find section 547 of the Code of Civil Procedure: “A judge shall not act as such in any of the following cases: . . . . When he has been attorney or counsel for either party in the action or proceeding.” This disqualification of a judge now generally obtains by statute. But it is held that such disqualification does not extend to formal and non-judicial acts. The court says in Cock v. State, 8 Tex. App. 666: “It is urged in a motion in arrest of judgment that the Hon. A. J. Booty, the regular judge of the District Court of Panela County, and who was present and presiding, having been of counsel in the case, was disqualified from receiving the indictment or making any order in the case. A district judge is prohibited by the Constitution from sitting in any case (among other circumstances) ‘when he shall have been of counsel in the case.’ What is meant by the phrase ‘sit in any case’ is, we are of opinion, explained by the provisions of the Constitution as to what may be done when a judge is so disqualified. For instance, the parties may by consent appoint a proper person to try the case; or, .upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending. Taking these several passages in connection, it would seem that when it is said the judge shall not sit in any case, it is intended he shall not do what the person chosen or appointed may do, that is, ‘try the case.’ So that, whilst a judge who had been of counsel for either party could not sit in the trial of the case, or make any ruling which would properly arise on the trial, he would not be incompetent to preside in taking incidental orders; as, for instance, an order granting a change of venue, or entering an order appointing the person agreed upon to try the case. The disqualification of the judge to try the case would not prevent him from receiving the report of the grand jury for the term, although there be embraced in the report the return of an indictment in which he would not be qualified to sit in the trial.” (See, also, Heydenfeldt v. Towns, 27 Ala. 423; In re Ryers, 72 N. Y. 15; 28 Am. Rep. 88; Thornton v. Wilson, 55 Ga. 607; State v. Collins, 5 Wis. 339; Underhill v. Dennis, 9 Paige, 202.) We are of opinion that the function of the regular judge in ordering an open venire to issue to the sheriff is one of those formal matters in which he is not disqualified to act, because the case to come before the jury to be summoned on such open venire is one in which such judge had been counsel. It is as formal a matter as receiving an indictment, or granting a change of venue, or entering an order appointing the person agreed upon to try the case (Cock v. State, supra), or executing a special mandate of the Supreme Court to the court in which the alleged disqualified person is judge (State v. Collins, supra), or appointing commissioners to audit claims against an estate in which the judge is interested (Heydenfeldt v. Towns, supra), or issuing a warrant of distress. (Thornton v. Wilson, supra.) We are satisfied that defendant’s challenge to the panel was properly overruled, upon the ground upon which he made it. He now urges, in his brief, in this court, for the first time, that the jury was incompetent to try the case, because a jury commission had not been appointed in the county of Cascade. (State ex rel. Root v. McHatton, Judge, 10 Mont. 370.) But that objection to the jury was never made in the District Court, nor was exception ever taken or saved. 3. It is specified as error that the court allowed plaintiff’s attorney to make certain remarks to the jury upon opening the case alleged to be improper; but no bill of exceptions was made or certified, and the matter is not before this court. 4. It is objected that the court allowed the plaintiff Littrell to testify as to the condition of the well in respect to having water in it, three years after it was dug; but the court allowed that testimony, with the ruling that, if it were not connected with the condition of the well at the time the plaintiffs ceased work upon it, the evidence would be stricken out. It was after-wards, and before the case was submitted to the jury, stricken out. 5. Objections are made to the refusal of the court to give certain instructions requested by the defendant. But the instructions alleged to be refused are not made part of the record, and we do not know that they were requested or refused. 6. It is contended that the court erred in giving the following instruction: “ Whether water was to be reached is not expressed in the contract or arrangement that was had between plaintiffs and defendant, and you are to take that into consideration in passing upon it, and with the other part of the evidence in this case.” Appellant does not inform us what the objection was to the instruction. It appears that the court stated a portion ot the evidence with absolute fidelity, and a portion upon which there was no conflict. There was not a word in the evidence that water was to be reached. The court told the jury that they were to consider that fact along with the rest of the evidence. It was certainly pertinent to the issue made by the pleadings, and no reason is suggested why it is objectionable. 7. We come now, after clearing the way, to the gist of the action. The plaintiffs seek to recover for services, upon a quantum meruit They proved the services and the value, and the jury found with them. The defendant alleges a special contract to sink a well containing water other than surface water, and that plaintiffs left the contract without reaching water. There is a conflict of evidence as to why plaintiffs quit the work. Plaintiff Littrell testifies that, after he had reached two hundred and thirty feet, defendant Wilcox told him not to prosecute the work further. The jury settled this conflict by their verdict, and the District Court refused to disturb their finding. Now, as to the special contract to reach water. It cannot be seriously contended that it appears from the evidence that the plaintiffs ever agreed, in terms, to sink to water. But defendant founds his argument upon his construction of the word “well”; that plaintiffs agreed to drill a “ well ”; that a “ well ” is a hole in the ground, containing water other than surface water; that when plaintiffs agreed to drill a “well” they contracted to furnish an article meeting that definition, and that, if they did not produce a hole in the ground containing water other than surface water, they did not drill a “ well,” and cannot recover. Let it be observed here that nothing was said about price when the work was commenced and the contract made. The defendant himself selected the site for the proposed well. Nothing was said about plaintiffs undertaking to reach water. All that can be gleaned from the conversations of the parties is that plaintiffs were to dig a well. From this contract, and the circumstances, to construe an undertaking on the part of the plaintiffs to reach water or receive no pay, seems to us to do great violence to language, and to the ordinary transactions of sane men. It appears that the services of plaintiffs were worth what they charged. When plaintiffs went to dig a well, when they took a site selected by defendants, when no guaranty of reaching water was made, when no price was fixed for performing the services or reaching water, can a court for a moment regard it as within the contemplation of the parties, as shown from their words or their acts, that they used the word “ well ” as meaning a hole in the ground, containing water other than surface water? We think not. Bouvier’s Law Dictionary defines a “well” as “a hole dug in the ground in order to obtain water.” This is, to our mind, the only practical view. The object of a well is to obtain water. The well may be unsuccessful. The object of a mining shaft is to develop a mine that will pay — an object not always attained. Under the circumstances of the ease, we cannot construe the word “well” as defendant insists; and he must depend wholly upon the construction of that word, for he utterly failed to prove any special contract in terms, and the jury so found. We are of opinion that the judgment and the order denying the motion for a new trial should be affirmed, and it is so ordered. Affirmed. Blake, C. J., and Harwood, J., concur.

Blake, C. J. This action was commenced March 9, 1891, in the District Court of the First Judicial District, in and for the county of Lewis and Clarke; and the complaint alleges that the plaintiffs are, and at the times mentioned were, doing business in Helena, in said county, and that they sold in December, 1889, goods, wares, and merchandise to the defendant. The summons was served personally March 23, 1891, in the county of Silver Bow, upon the defendant, who appeared in the court below and filed a demurrer, and also a motion for a change of the place of trial, together with his affidavit in its support. The following recital in this affidavit is not controverted: “ That he [the defendant] is now, and was at the time of the commencement of this action, a resident of Silver Bow County, State of Montana, and has resided for many years in the said Silver Bow County, and that he is not, and has never been, a resident of the county of Lewis and Clarke.” The affidavit further states that the contract referred to in the complaint “ was to have been executed and performed in the county of Silver Bow.” The plaintiffs filed an affidavit which says that the contract “was to be wholly performed within the county of Lewis and Clarke; . . . . that the plaintiffs will have several witnesses on the trial of said case, all of which witnesses reside within the county of Lewis and Clarke, .... and their convenience will be much greater served by said cause being tried in the county of Lewis and Clarke.” The court made, June 1, 1891, the following orders, and overruled the motion for a change of venue, “without prejudice to renew motion when answer is filed,” and also overruled the demurrer and granted the defendant twenty days in which to plead. Did the court err in this ruling upon the motion? The provisions of the Code of Civil Procedure which are applicable to this question are clothed in this language: “In all other oases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found.....Actions upon contract may be tried in the county in which the contract was to be performed, .... subject, however, to the power of the court to change the place of trial as provided in this act.” (Code Civ. Proc. § 59.) “The court may, on good cause shown, change the place of trial .... when the county designated in the complaint is not the proper county, .... when the convenience of witnesses and the ends of justice would be promoted by the change.” (Code Civ. Proc. § 62.) The complaint does not contain any allegation concerning the place where the contract was to be performed, and the affidavits upon the subject are conflicting. The right of the appellant to a change of the venue must be determined “ by the condition of things existing at the time the parties claiming it first appeared in the action.” (Buell v. Dodge, 57 Cal. 645; Remington Sewing Machine Co. v. Cole, 62 Cal. 311; Ah Fong v. Sternes, 79 Cal. 30.) It should be observed that the appellant filed a demurrer with his motion, and the authorities are harmonious in holding that “ neither a plaintiff nor a defendant can move for a change of the place of trial, because of the convenience of witnesses, until after answer.” (Thomas v. Placerville etc. Min. Co. 65 Cal. 600; Cook v. Pendergast, 61 Cal. 72; Williams v. Keller, 6 Nev. 141.) The conditions of the case of Heald v. Hendy, 65 Cal. 321, are similar to those which confront us, and the court ordered that “ further hearing of defendant’s motion be postponed until defendant files his answer to plaintiff’s complaint, and that plaintiff’s cross-motion be heard at the time when the further hearing of defendant’s motion is heard.” The cross-motion was to retain the cause in the original county “for the convenience of witnesses.” The court said: “This order, in its legal effect, was an order denying defendant’s motion for a change of the place of trial. It effectually deprived him of his right to have his demurrer heard in San Francisco,” (See, also, Ah Fong v. Sternes, supra; Yore v. Murphy, 10 Mont. 304.) It is therefore ordered and adjudged that the order appealed from be reversed, and that the cause be remanded to the District Court, with directions to grant the motion of the appellant for a change of the place of trial to the said county of Silver Bow. Reversed. Harwood, J., and De Witt, J., co

Harwood, J. Action to recover damages for personal injuries alleged to have been sustained by plaintiff through negligence and carelessness on the part of defendant in the operation of its railroad. Defendant is a corporation organized and existing under the laws of this State, and owner of a line of railroad extending from Great Falls, Cascade County, to Lethbridge, together with side tracks, locomotives, and other rolling stock, etc., known as the “ Great Falls and Canada Railroad,” which railroad defendant was operating at the time the injury complained of happened. Plaintiff at that time was in the employ of defendant as car repairer at the terminus of said road at Great Falls, Cascade County. This action was commenced December 4, 1890, and it is alleged in the complaint that plaintiff was employed by defendant as car repairer at the terminus of its railroad in Cascade County; and while so employed, on the twenty-ninth day of October, 1890, by direction of defendant, plaintiff went under •a certain car standing on defendant’s railroad track, detached from any engine, and plaintiff was then and there engaged in repairing said car, and while so engaged at work, pursuant to the directions of defendant, and so situate that he, the said plaintiff, was unable to see any object upon the track, defendant carelessly and negligently, and without any notice or warning to plaintiff, backed or ran an engine against said car in such a manner as to put the same in motion; that said car, while so in motion by reason of said careless and negligent act ■of defendant, “ran upon and over plaintiff, severely injuring him in his shoulders, hips, legs, and body;” “that by reason thereof said plaintiff became lame and ill and wholly unable to •do any kind of manual labor, and has remained lame and ill and wholly unable to do any kind of manual labor ever since, and is, as he believes, permanently injured, so that he will never be as strong to labor as before;” to his damage in the sum of twenty-five thousand dollars, for which sum judgment is demanded. Defendant, by answer, admits its corporate existence; its ■ownership of the railroad named in the complaint, together with cars, locomotives, and other appurtenances thereto belonging ; and admits that plaintiff was employed by defendant on nr about the twenty-ninth day of October, 1890, and that on or about said date plaintiff was engaged at work on one of defendant’s cars; but “denies that while the plaintiff was so engaged at his said work under one of said defendant’s cars, making repairs, defendant carelessly, negligently, and without any notice or warning to said plaintiff, backed or ran an engine against said car, as in said complaint alleged, or otherwise, or at all; ” and further denies “that plaintiff has sustained any injury whatsoever, as alleged in said complaint, by reason of any careless or negligent acts on the part of said defendant, and alleges that any injuries, if sustained by plaintiff,” were sustained from his own carelessness and negligence; denies that by reason of said alleged injuries plaintiff became lame, ill, or wholly unable to do any kind of manual labor since said alleged injuries, or that he has remained lame, ill, or wholly unable to do any kind of manual labor since said alleged injuries; and further denies that plaintiff is permanently injured, as in said complaint alleged, or otherwise, or at all; and denies that by reason of said alleged injury, or by any other reason, as in said complaint alleged, plaintiff has been damaged in the sum of twenty-five thousand dollars, or in any sum whatsoever. The action was tried January 26, 1891, to the court and a jury, and the jury found for plaintiff, and assessed his damage at the sum of seven thousand five hundred dollars; whereupon judgment was rendered in favor of plaintiff for the amount of damages assessed by the jury, together with costs. Defendant moved the court to set aside and vacate the verdict of the jury and grant a new trial on the grounds: (1) Excessive damage appearing to have been given under the influence of passion or prejudice; (2) insufficiency of evidence to justify the verdict; (3) that the verdict is against law; (4) errors in jaw, occurring at the trial and excepted to by defendant. When said motion was first brought on for hearing the court refused to hear the same, from which order refusing to hear said motion a former appeal in this case was taken. (Ante, p. 34.) Upon return of the case to the trial court said motion was heard and determined by an order overruling the same, from which order and judgment this appeal was taken. , Bespondent insists now that the order of the court overruling appellant’s motion for a new trial ought to be affirmed, because of failure to file and serve the statement of the case under the stipulation, in time to bring said motion on for hearing, on or before the date stated in said stipulation. The stipulation was entered into in open court between the attorneys for the respective parties, to the effect “ that defendant have until April 1st to make and serve statement, and bring on motion for new trial.” The record shows that “ on the thirty-first day of March, 1891, defendant filed with the clerk of the court and served on plaintiff’s attorney a statement on motion for new trial in said action,” and on the same date a written motion for new trial was filed, and notice was served on plaintiff’s attorney to the effect that said motion would be called up for hearing on the first day of April, 1891; and on that date said statement on motion for new trial was presented to the court for settlement and allowance, and the court was moved by defendant’s counsel to hear and consider said motion for new trial. Thereupon plaintiff’s counsel objected to the settlement and allowance of said statement and the hearing of said motion for new trial, “on the ground that service was not had upon him within time to bring said cause to a hearing on the first day of April, 1891, as contemplated by said stipulation.” The court sustained said objection, and refused to settle and sign said statement, and refused to hear said motion for new trial, to which action by the court defendant excepted. Defendant then “offered to move the court to extend the time for the benefit of the plaintiff, to enable him to prepare and serve any amendments he-desired to make to said statement of the case, and to extend the time for the settlement of said statement, and for the hearing of said motion for new trial.” The court refused to make any order to the effect suggested in this latter request, and intimated that defendant had failed to comply with said stipulation by reason of having failed to serve the statement of the’ case in ■time for plaintiff to have the ten days provided by statute- (§ 298, Code Civ. Proc.), within which to propose amendments thereto, if he desired, before the 1st of April. Afterwards, on the eleventh day of April, 1891, no amendments having been proposed by plaintiff', defendant presented said statement on-motion for a new trial to the judge of said court for settlement and allowance, and he settled, allowed, and certified the same.. But when the motion for new trial was called up for hearing,, after notice to plaintiff, the court refused to hear said motion, and did not hear and pass upon the same until after the case was remanded by this court in the former appeal, cited swpra. The only question now before us concerning this point of practice will be determined by a construction of said stipulation.. It appears from the record that said stipulation was made in open court, and from the recital it seems that no formal writing was signed by the parties stipulating; but a brief entry appears to have been made in the minutes of the court, to the effect “ that. defendant have until April 1st to make and serve statement and bring on motion for a new trial.” We think that the court ruled correctly in holding that said statement ought not to be settled or allowed, and that the motion for a new trial ought not to be heard on the 1st of April, because the statement was served on the 31st of March, and plaintiff was entitled to ten days within which to propose amendments, if desired. There would be no difficulty in construing the stipulation if the last clause had not been incorporated therein. The provision to “ bring on motion for new trial ” was superfluous, because the law provides what shall be done in that respect as soon as the statement of the case is settled and filed. (§ 299, Code Civ. Proc.) Moreover, the matter of bringing on for hearing the motion for new trial was not entirely within the control of the parties stipulating. The time for hearing said motion was largely within the control of the court, subject to the provisions of the statute; and either party could move the hearing as soon as the statement was settled and filed. The object of the stipulation was evidently to extend the time allowed for preparation and service of the statement of the case. The only date set for this was April 1st, and said statement was prepared and served before that date. We think it is fair to presume that defendant’s counsel understood from said stipulation that they were allowed until April 1st to make and serve the statement. They then sought to comply with the other condition by bringing on the motion for hearing, but at the same time signified their desire that their adversary be granted such reasonable time as he desired to propose amendments. Inasmuch as we regard the clause in said stipulation as to the bringing on the motion for new trial as superfluous matter, not properly within the subject of said stipulation, we shall construe it without reference to that clause. However, whether said clause is considered or not, we think, where parties have entered into a stipulation of this nature, we should apply the rule of construction expressed in section 636 of the Code of Civil Procedure, which provides that, “ when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.” We proceed to the consideration of the grounds assigned upon which appellant insists a new trial ought to be granted. It is contended that the evidence introduced upon the trial is insufficient to justify the verdict, in that there is no evidence to support the allegation of the complaint that “ defendant carelessly and negligently, and without warning to plaintiff, backed or ran an engine against said car, so as to set the same in motion,” and carelessly and negligently ran the same “upon and over plaintiff.” Appellant insists that there was no evidence introduced which proves or tends to prove negligence on the part of appellant in setting said car in motion, or the lack of notice or warning to plaintiff that said car was about to be moved. In order to properly consider this assignment, we will carefully set down all portions of the evidence in the record bearing in any manner upon the question of negligence. George Sweeny, the plaintiff, and the only witness who testified on his behalf in the opening of the case, in speaking of the circumstances in relation to the moving of the car, whereby he alleged he’was injured, testified to the following effect: “I was sent to work under Mr. Williams. He was foreman over the car repairers. Mr. Spry sent me, and told me to do what Williams told me. I was employed on the evening of the 28th. I was sent to work under this man Williams the next morning, about seven o’clock. Mr. Williams gave me a monkey-wrench, and told me to screw up some bolts in the first place. Then he called me over, and showed me a brake that was off the car, and told me to get under there, and put it on. The car was standing in the middle of fifteen or twenty cars on the side track. I saw an engine on the coal track, but no other, except an engine that passed me on the main track while I was under the car. I did not notice any engine attached to the cars on which I was working. I got under the car as Mr. Williams directed. Mr. Williams left me, then came back, got under the car, talking with me while I was on my knees. I was under the car, working at the brakes, screwing up some nuts. The brake is a heavy wooden bar, that has two shoes on it, that set up against the wheels when the brake is turned on. I was sitting on my knees and feet, and this wooden bar was about over my knees, and about six inches from the ground. While I was there, the cars began moving suddenly over me, and this brake-beam caught me and bound me. It seems as though it hit me on the shoulder first, and hit me on the knees. From where I was situated under the car it was impossible for me to see an engine if one came down the track at either end of the cars I was working on. I was working in the middle of the track, screwing up a bolt that runs right through the center of the brake-beam. I was sitting on the ties. The brake-beam was about sis inches above the ties — about up to my hips. The beam probably did not strike my shoulders first, but I seemed to feel the pain there. The brake was not set at the time. I was, just finishing putting it on. I could not describe how the brake-beam is attached to the car. I think it was hung by links. A train passed me on the main track, but I thought nothing about that. I noticed an engine working up at the coal-dump. I did not pay any particular attention to it. The engine at the coal-dump was a little ahead and to the side of me.” Throughout the whole narrative of the plaintiff’s testimony, the only evidence tending to prove that the car in question was moved without timely warning to plaintiff is found in his statement that he was so situate under said car that he could not see an engine approaching on that track from either direction. But, giving this fact full weight, still it does not appear that plaintiff was not warned, by means other than his own observation, of the approach of an engine, or that said car was about to be moved. Plaintiff rested without further proof bearing on the allegation of negligence on the part of defendant in moving said car. At this juncture the defendant moved the court for the nonsuit off plaintiff’s action, on the ground, among others, that plaintiff had failed to prove the essential allegation of negligence on the part of defendant in reference to the acts whereby plaintiff alleged he was injured. This motion was denied. Thereupon defendant introduced certain witnesses, who testified in its behalf. If there is found in the evidence introduced by defendant testimony tending to prove negligence on its part in the matter under inquiry, this evidence will inure to the benefit of the plaintiff. But, pursuing the narrative of the evidence to its close, we find that the required evidence tending to prove that said car was moved without notice or warning to plaintiff is still unsupplied. An engineer, H. Gorham, who testified on behalf of defendant, said he was operating an engine switching cars on the side track of defendant’s road at the time, and in the vicinity where plaintiff was, when the alleged injury occurred; and in this connection he says: “On starting the engine, my bell was ringing in the vicinity where plaintiff claims to have been injured.” George Williams, who directed plaintiff where to work, also testified that he was at the end of the brake on which plaintiff was working when the train pulled in, which, as it appears, moved said car under which plaintiff was working. This witness says he jumped out, and signaled the train to stop. But still it does not appear that Williams and plaintiff both were not given timely notice of the approach of said train. For aught that appears in the evidence, such warning may have been given and not heeded. The evidence in this case is brief, and upon this point of negligence there is, without doubt, a ‘failure in the proof. We therefore must hold that the essential allegation oí the complaint that defendant was negligent and careless in moving the car, whereby plaintiff alleges he was injured, was not supported by evidence; and, inasmuch as negligence on the part of defendant must have been found by the jury in returning the verdict for plaintiff, it follows that the evidence is insufficient to support the verdict. It is contended by the learned counsel who appeared in this court for respondent that the allegation of negligence contained in the complaint is admitted by reason of an imperfect or pregnant denial thereof. The language of the answer to which this criticism is directed has been quoted in the above statement of pleadings. The form of some of the denials contained in the answer is obnoxious to the rulings of pleadings (Bliss on Code Pleading [2d ed.], § 332); but it is apparent from the record that this case was tried on the theory that the denials were sufficient. The answer was so treated throughout the proceedings by both parties and the court. Not only so; the court, in instructing the jury, construed the defendant’s answer as follows : “ The defendant admits that on or about the twenty-ninth day of October, 1890, it employed the plaintiff above named as car repairer, to work in and about its yards at the terminus of its road in this county; and admits that on that day the plaintiff was engaged at his work on one of the cars of defendant. But it puts in issue the allegation of the complaint that the defendant carelessly and negligently, and without warning whatever, backed and ran an engine against said car, as alleged in the complaint. It also denies that the plaintiff sustained any injuries whatever by reason of carelessness or negligence on the part of defendant, and alleges further, as a defense, that if any injury was sustained by plaintiff at the time named, it was caused by the carelessness and negligence of the plaintiff himself.” This question as to the sufficiency of defendant’s answer, being raised here for the first time, comes too late to be considered in determining the question presented in this appeal, relating to issues which were deemed to have been raised by the answer, and tried and found upon by the jury. (Orr v. Haskell, 2 Mont. 225; Fabian v. Collins, 3 Mont. 215; Territory v. Cox, 3 Mont. 203; Russell v. Hoyt, 4 Mont. 414; Beck v. Beck, 6 Mont. 285; Hogan v. Shuart, ante, p. 498.) As to the other assignments of error, there would be no useful purpose subserved by pursuing the consideration of them, inasmuch as the case must be remanded for new trial for the reasons above set forth. It is therefore ordered that the judgment be reversed and the cause remanded, with directions to the trial court to graut appellant’s motion for new trial. Reversed. Blake, C. J., and De Witt, J., concur.

Blake, C. J. This is an appeal from the judgment of the court below, which was entered in the following agreed case: “Whereas, there is a question of difference between the above-named parties which might be made the subject of a civil action; and whereas, the said parties have agreed upon the facts constituting such controversy, and desire to present a submission of the same to the above-entitled court. Now, therefore, in consideration of the premises, and in order to have the said controversy settled by a competent court, the parties hereby submit such controversy to the above-entitled court, and hereby agree upon the following state of facts, to wit: — “First. That John E. Lloyd is the sheriff of Silver Bow •County, Montana, and was elected sheriff of the said county upon the admission of Montana into the Union as a State, and is the first sheriff of Silver Bow County elected under the Constitution, and is still holding the said office under and by virtue of such election, and his term of office has not yet. expired. “Second. That on the twenty-sixth day of February, 1891, and during the said term of office of the said John E. Lloyd, the legislature of the State of Montana enacted a statute entitled ‘An act fixing the compensation for the board of prisoners confined in county jails,’ which act reduced the compensation of the sheriffs of the several counties of Montana, for the board of prisoners confined in jails under their charge, from not more than one dollar per day to not to exceed sixty ■cents per day, thereby reducing the compensation of the said sheriff. “ Third. That on the sixth day of March, 1891, and during the term of office of the said John E. Lloyd, the legislature of the State of Montana passed an act entitled ‘ An act to amend section 944 of the fifth division of the Compiled Statutes of Montana/ and which act reduced the compensation or mileage of the sheriffs and other officers in the several counties of the State of Montana from the sum of fifteen cents per mile to the sum of ten cents per mile. “Fourth. That the board of commissioners of the county of Silver Bow have, since the passage of the said acts, in all claims of the said John E. Lloyd against the county of Silver Bow for board of prisoners and for mileage, made allowances therefor under the provisions of the said several acts. “Fifth. That the said John E. Lloyd has presented his claims and made his demands under the laws which were in force, regulating the board of prisoners and the mileage of officers, at the time that he was elected sheriff of Silver Bow County, which the board of commissioners of Silver Bow County have refused to allow, but have allowed him compensation as provided in the said acts hereinbefore recited. “Now, the questions in controversy, and of difference between the parties to this suit, are as follows: The said John E. Lloyd claims that the several acts oí the legislature hereinbefore recited are unconstitutional, and that the legislature had no authority to pass the same, thereby reducing his compensation during his term of office, and that the said several acts are in contravention of article 5, section 31, Constitution of the State of Montana, and of the Constitutional Schedule. On the other hand, the board of county commissioners of the county of Silver Bow claim that the legislature was authorized to pass said acts, and that the said John E. Lloyd is entitled to only such compensation, for board of prisoners and mileage, as by the said acts is-provided. If the said acts are unconstitutional as to the said John E. Lloyd, and as he contends they are, then it is agreed that he shall receive such compensation for the board of prisoners and for mileage as was allowed by law at the time of his election. If, however, the said acts are constitutional, as is contended by the said board of commissioners of the county of Silver Bow, then the said John E. Lloyd shall receive such compensation as the said acts provide for such services. The amount in difference between the said parties is in excess of one hundred dollars, but the exact amount is not known at this time, but is a matter easily ascertained, upon an accounting between the parties, and the parties hereto only ask the court •for an opinion or decision of the said matters in controversy,, and upon a rendition thereof agree to settle .their differences between themselves.” The court, in the judgment, among other things, said “that the several laws recited in the said agreed case, whereby the compensation of the plaintiff, as sheriff of the county of Silver Bow, had been reduced below the fees or compensation which were allowed at the time of the election of the said plaintiff as sheriff of the said county of Silver Bow, State of Montana, were not applicable to the said sheriff as aforesaid, and that, so far as the laws there recited attempted to reduce the salaries, fees, or emoluments of the plaintiff, as sheriff, the same were in violation of the Constitution of the State of Montana, and that the said laws, as to the said sheriff during his present term of office, are inoperative.” This case involves the interpretation of the following section of the Constitution: “ Except as otherwise provided in this Constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment; provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this Constitution, where such salaries or emoluments are not fixed by this Constitution.” (Art. v. § 31.) The general effect of this language can be comprehended when the doctrines of the courts respecting legislative power are set forth. The consideration of Butler v. Pennsylvania, 10 How. 402, and Newton v. Commissioners, 100 U. S. 548, and the cases therein cited, throws light upon this proposition. In Butler v. Pennsylvania, supra, Mr. Justice Daniel, for the court, said: “The Constitution of Pennsylvania contains no limit upon the discretion of the legislature, either in the augmentation or diminution of salaries, with the exceptions of those of the governor, the judges of the Supreme Court, and the presidents of the several courts of common pleas. The salaries of these officers cannot, under that Constitution, be diminished during their continuance in office. Those of all other officers in the State are dependent upon legislative discretion. We have already shown that the appointment to and the tenure of an office ■ created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error; do not come within the import of the term ‘contracts/ or, in other words, the vested private personal rights thereby intended to be protected.” The court, by Mr. Justice Swayne, in Newton v. Commissioners, supra, said: “ The legislative power of a State, except so far as restrained by its own Constitution, is at all times absolute with respect to all offices withiu its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation.” These principles have been applied by the Supreme Court of the Territory of Montana in People v. Van Gaskin, 5 Mont. 352; Territory v. Carson, 7 Mont. 417. Mr. Justice Galbraith, for the court, in Territory v. Carson, supra, said: “It is the general rule of law that it is competent for the legislature to increase or decrease the duties incumbent upon public officers, and to increase and diminish their compensation, in so far as it is not prohibited by the fundamental law.” In order that the authority of the legislature might be curtailed in this regard, provisions similar to those under review have been adopted in the fundamental charters of many States. The intention of the framers of our Constitution is exhibited clearly in a number of the clauses, which should be noticed: “No member of either house shall, during the ferm for which he shall have been elected, receive any increase of salary or mileage under any law passed during such term.” (Art. v. § 8.) “ The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say, .... creating, increasing, or decreasing fees, percentages, or allowances of public officers.” (Art. v. § 26.) “No bill shall be passed giving any extra compensatiou to any public officer, servant or employee, agent or contractor, after services shall have been rendered or contract made, nor providing for the payment of any claim made against the State, without previous authority of law, except as may be otherwise provided herein.” (Art. v. § 29.) “The compensation enumerated” of the governor, sec retary of State, attorney-general, State treasurer, State auditor, and superintendent of public instruction, “ shall be in full for all services by said officers, respectively, rendered in any official capacity or employment whatever during their respective terms of office, and the salary of no official shall be increased during his term of office.” (Art. vii. § 4.) “The justices of the Supreme Court and the judges of the District Courts shall each be paid quarterly by the State a salary which shall not be increased or diminished during the terms for which they shall have been respectively elected.” (Art. viii. § 29.) “No justice of the Supreme Court nor judge of the District Court shall accept or receive any compensation, fee, allowance, mileage, perquisite, or emolument, for or on account of his office, in any form whatever except the salary provided by law.” (Art. viii. § 30.) Every one of these sections embodies an express restriction upon the powers of the legislative assembly. Counsel agree concerning the construction of the general language in the section before us, but differ as to the effect of the proviso. The contention of the respondent practically ignores this clause, or renders it meaningless. Chief Justice Sanderson, in French v. Teschemaker, 24 Cal. 539, lays down this canon of interpretation: “Constitutions, like statutes and private instruments, must be so construed, if possible, as to give some force and effect to each of their provisions. The legal intendment is that each and every clause has been inserted for some useful purpose, and, when rightly understood, may have some practical operation.” “ The office of a proviso, generally,” says Mr. Justice Story, in Minis v. United States, 15 Peters, 445, “is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.” The office of sheriff and its term of two years has been established by the Constitution. (Art. xvi. § 5.) The Constitution ' also provides for the election of this officer in each county, on the first Tuesday in October, 1889, and that the term “ shall begin upon the admission of the State and end upon the first Monday of January, A. D. 1893.” (Ordinance 2, p. 9.) It is admitted that the respondent was an officer, who was first elected under our Constitution, and we hold that this proviso conferred upon the legislative assembly the power to fix his salary and emoluments if the same had not been “fixed by this Constitution.” It is evident that the expression does not relate to the governor, . secretary of State, judges of the District or Supreme Courts, or any other officers whose salaries are specified in the instrument. The salary and emoluments of the sheriff are not “fixed” in any article of the Constitution. It is maintained that this result has been produced by the following section: “ All laws enacted by the legislative assembly of the Territory of Montana, and in force at the time the State shall be admitted into the Union, and not inconsistent with this Constitution or the Constitution or laws of the United States of America, shall be and remain in full force as the laws of the State until altered or repealed, or until they expire by their own limitation.” (Art. xx. § 1.) We have often commented on this vital sentence, and it is so plain that there is no room for construction. When the respondent entered .upon his official duties, his fees and emoluments were prescribed by the statutes which had been enacted by the legislative assembly of the Territory prior to its admission into the Union, and were then in force. These laws, which are mentioned in the agreed statement of facts, can be amended or repealed, unless such action is prohibited by the Constitution. The proviso under consideration is not an inhibition, but a reservation of the right of the legislative assembly to alter the statutes and fix the salary or emoluments of the sheriff, or any other officers of the same class, who were elected when the Constitution was adopted. If this is not a sound interpretation of the proviso, to whom is it applicable? It is insisted by the respondent that the lieutenant-governor, State examiner, clerk of the Supreme Court, clerk of the District Court, county attorney, and commissioner of labor are affected by its terms. No certain amounts for their compensation are named in the Constitution, and it was needless to make this grant of power to the legislative assembly ip this proviso when ample authority had been already clearly expressed in other sections. “The lieutenant-governor shall receive the same per diem as may be prescribed by law for the speaker of the legislative assembly.” (Art. vii. § 4.) “His compensation [the State examiner] shall be fixed by law.” (Art. vii. § 8.) “His compensation [clerk of the Supreme Court] shall be fixed by law.” (Art. viii. § 9.) “His compensation. [clerk of the District Court] shall be as provided by law.” (Art. viii. § 18.) The county attorney “shall have a salary to be fixed by law.” (Art. viii. § 19.) “His compensation [commissioner of labor] shall be as provided by law.” (Art. xviii. § 1.) There was, then, no necessity for the incorporation of these provisions in the section supra, if their application is to be restricted to the officers for whom provision is made in the Constitution. The respondent relies upon the case of Gross v. Kenfield, 57 Cal. 626. It appears that Gross was elected clerk of the Supreme Court under the clause providing: “ The first officers chosen after the adoption of the Constitution shall be elected at the time and in the manner now provided by law.” The court said: “Before and at the time of the adoption of the Constitution there was a law in force which provided for the election of a clerk of the Supreme Court, prescribed his duties, and fixed his. compensation; and that law, not being inconsistent with the Constitution, should be treated, we think, as it would be if the present Constitution had been in force at the date of its passage. (§ 1, art. xxii.) The same reason exists against increasing or diminishing the compensation of the present incumbent during his term of office as will exist against increasing or diminishing the compensation of his successor during his term of office; and it seems to us that the constitutional prohibition applies as well to the one elected at the first as it will to those elected at subsequent elections, under the present Constitution.” These clauses of the Constitution of California relate to the subject: “The legislature shall provide for the election of a clerk of the Supreme Court, and shall fix by law his duties and compensation, which compensation shall not be increased or diminished during the term for which he shall have been elected.” (Art. vi. § 14.) “That all laws in force at the adoption of this Constitution not inconsistent therewith shall remain in full force and effect until altered or repealed by the legislature.” (Art. xxii. § 1.) This instrument does not have any proviso similar to that under examination, and, while the holding of the court is undoubtedly correct, we are not enlightened upon the question before us. We are of the opinion that the intent of the framers of the ■ Constitution is that the salary or emoluments of an officer like-that of the sheriff, who was elected in October, 1889, shall, be subject to the control of the legislative assembly, and that the-power to “fix” carried with it the implied right to increase or diminish the same by amending the statutes which may be in force. This construction gives full life to the proviso. It appears from the statement of facts that the legislation which is referred to consisted of amendments to the laws, which are recognized in the section of the Constitution, swpra, and were thereby authorized to be made. It is therefore ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to the court below to enter a judgment upon the agreed statement of facts in favor of defendant. Reversed. Harwood, J., and De Witt, J., concur.

Blake, C. J. The complaint alleges that Ormond “is now, and has been since .... the ninth day of May, 1888 .... the owner of, and in the possession of, and entitled to the possession of,” the Dark Cloud Lode Mining Claim; that after Ormond “had become the owner of, and in possession of, the above described mining ground, by virtue of prior discovery, and the due location of the said lode claim,” the Granite Mountain Mining Company “applied for a patent in the United States land office at Helena .... for an alleged claim called by the defendant the Molar Lode Claim, which said pretended lode claim overlaps and conflicts with the area” and title of Ormond to said Dark Cloud Claim to the extent of about ten acres; that Ormond has filed in said land office his adverse claim thereto, and now brings this suit “for the purpose of de termining the right to the possession of said mining ground, and the ownership thereof; .... that the said pretended claim, application, and proceedings of the defendant, as aforesaid, cast a cloud upon the plaintiff’s title.” The prayer is that Ormond “ be adjudged the owner of said Dark Cloud Lode, .... and every part thereof (except as against the paramount title of the United States), and the right to the possession of the premises .... included in the adverse survey to the defendant’s application for patent, and that the defendant be adjudged to have no right, title, or interest therein.” The answer denies that Ormond owned at any time the property described in the complaint, or was entitled to its possession; and alleges that the defendant has been at all the times mentioned in the complaint “the owner of that said portion of said property described as the Molar Lode Claim, and in the possession of the same, and entitled to the possession thereof; and that at the said time named in said complaint, and prior to the time of filing the adverse claim to the same in said land office, .... defendant made application for a patent for the same, to which it has a good right; and that the said plaintiff has no right or title to any of the said property.” The prayer of the answer is that the defendant “be adjudged to be the owner of and entitled to the possession of all the said property described in the said complaint as the said Molar Lode, and that plaintiff have no right to the same.” The averments of the answer are denied by the replication. The following verdict was returned: “We, the jury in the above-entitled action, find the title and right to the possession of the ground in controversy to be in the defendant.” It is stated in the judgment that “the court ordered that a decree be entered herein in accordance with the verdict: . . . . Wherefore it is ordered, adjudged, and decreed by the court that the title and right of possession of the premises described in the plaintiff’s complaint and herein in controversy, . . . . and being the ground in conflict between the Dark Cloud Lode Claim and the Molar Lode Claim, .... is in the defendant, and that defendant is the owner and entitled to the possession thereof, and that the plaintiff has no interest therein or right or claim thereto.” Ormond afterwards filed and served his notice of intention to move for a new trial, and relied upon this among other grounds: “Insufficiency of the evidence to justify the verdict in this, to wit: (a) That it was shown by the evidence that the plaintiff made a discovery within the limits of his claim as afterwards located, in accordance with the instructions of the court, prior to the location of his claim, and prior to the location of the defendant’s claim, (b) In that the evidence showed a discovery by plaintiff within the limits of the Dark Cloud Claim, in accordance with the instructions of the court, prior to the discovery and location of defendant’s Molar Claim.” These were the sole grounds which related to the evidence. The following order was made and entered: “ Motion for a new trial sustained, for the reason that the verdict was not supported by the evidence.” An examination of the record shows that there was only one Issue of fact upon the trial: Did the plaintiff discover within the boundaries of the Dark Cloud Claim a vein of valuable ore prior to the location of the Molar Claim ? The plaintiff testified he found a foot-wall in the discovery, and quartz in place, and mineral in an open cut; the claim was located May 9, 1888; the cut was run after the location, and commenced twenty-five or thirty feet below the discovery; the vein was found four or five feet east of the discovery, and well defined; it was the same lead as in the discovery. E. O. Akerman testified he was upon the premises for the first time in June, 1890, and found quartz in the discovery shaft three and one half or four feet from the surface; the seam is not very wide there, but lower down it runs to eighteen inches wide; he assayed some quartz taken from the discovery, and found silver; found in the open cut a vein of quartz which connected with the discovery; the vein is about one and one-half inches wide inside of the discovery shaft, and about two feet from the surface; have never mined; the vein is eighteen inches wide in the cut, and about two feet from the bottom; the highest assay was four and one-half ounces of silver. This came from ore at the depth of seven feet in the cut. J. E. Babcock testified he was upon the Dark Cloud Claim last winter; found a vein of quartz in the discovery shaft, and assayed it, and got three ounces of silver; the vein is three feet wide at the bottom, and there is about one foot of quartz; the cut and shaft are one open cut; the north part of it may have been a shaft, and four feet from the surface found a vein a foot wide; the vein was nine feet long, and run from the cut into the shaft. Mr. McFadden testified he worked for plaintiff in June and July, 1888; the vein at the discovery shaft was about eighteen inches or two feet thick; made a cut thirty-five or forty feet long, and run into the shaft; the same ledge is in the cut and shaft; started to work the last of June or first of July, and was there two or three weeks; saw a well-defined lead in the shaft before he went to work; the vein was fifteen inches to two feet thick, and was within two or three feet of the surface. Frank Barnes testified he saw the discovery shaft of the Dark Cloud Claim in the spring of 1888, and found a ledge of mineral-bearing rock in. place two or two and one-half feet wide. Mr. Larson testified he saw McFadden at work upon the Dark Cloud Claim, and. the same vein was in the shaft and cut. F. Carey testified he was on the Dark Cloud Claim in June,. 1890, and the shaft, after about fifteen or sixteen inches, had lead matter. The plaintiff then rested, and the foregoing statement is a fair summary of the testimony in his behalf upon the point in controversy. The defendant produced thirteen witnesses, who testified to the contrary. We will not notice what was said by each of these persons, but will present an abridgment of their evidence. The Molar Claim was located July 19, 1888; there was no vein in the discovery shaft of the Dark Cloud Claim; there was no vein in the cut, July 19, 1888; if there had been a vein about ten or fifteen inches wide, those who examined the Dark Cloud Claim for this purpose are positive they would have seen it; the shaft was in the top rock, and not rock in place, or a solid formation; a trace of silver can be found in assaying, with litharge, any kind of rock. No testimony was offered in rebuttal by the plaintiff. It appears from the record that “the jury, under the direction of the said court, proceeded to the premises in controversy, and viewed the same,” before they returned their verdict. The Code of Civil Procedure contains this section: “ Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose.” (§263.) This action of the jury, in pursuance of the order of the court below, makes a radical distinction between the case at bar and the authorities cited by the respondent. In Erhardt v. Boaro, 113 U. S. 527, Mr. Justice Field for the court said: “ It would be difficult to lay down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from She vicinity of the claim will seldom err in their conclusions on the subject.” In deliberating upon their verdict, they had the right to take into consideration their observations in connection with the evidence. (Topeka v. Martineau, 42 Kan. 387; Parks v. Boston, 15 Pick. 198; Smith v. Morse, 148 Mass. 407; Washburn v. Milwaukee etc. R. R. Co. 59 Wis. 364; Thompson on Trials, §§ 893-895.) It must be understood, however, that the verdict under these circumstances is not to be treated as conclusive upon any issue. In this case, the jury apparently found the facts in accordance with the evidence upon the part of the defendant. Upon a review of the record, we think that the verdict was amply supported by the testimony, and that the court abused its sound legal discretion in granting the motion for a new trial. It is therefore ordered and adjudged that the order appealed from be reversed, and that the cause be remanded, with directions to overrule the motion for a new trial. Reversed. Harwood, J., and De “Witt, J., concur.

Harwood, J. This is an action for damages for the alleged wrongful taking and conversion of personal property. The points insisted upon by appellant in this appeal are that the summons issued and served upon him in this action is defective on the grounds set forth in the motion to quash, hereinafter referred to, and that the complaint does not state facts sufficient to constitute a cause of action. The action was brought in the District Court within and for Gallatin County, and the plaintiff alleged, as the facts constituting his cause of action, (1) that “ on the eighth day of May, 1890, plaintiff was, and is now,” the owner and in the possession of certain personal property, to wit, about thirty tons of ice, which was then stored in a building in the city of Bozeman, State of Montana; (2) that said property was then of the value of one hundred and fifty dollars; (3) “that on or about the twelfth day of May, 1890, at Bozeman, Mont., the said defendant took said property from said plaintiff, and converted and disposed of the same to his own use, to the damage of plaintiff in the sum of one hundred and fifty dollars.” The complaint further alleges that plaintiff demanded possession of said property from defendant, but he failed and refused to deliver the same, or any part thereof, to plaintiff; and the complaint closes with a demand for judgment against defendant for the sum of ■one hundred and fifty dollars and costs of suit. It appears from the record that an alias summons was issued and served upon defendant, who, by his counsel, appeared specially for the purpose, and moved the court “to vacate and set aside that which purports to be an alias summons in said action,” on the grounds: “ First, that said summons does not contain the cause or general nature of the action; second, that said summons does not contain the notice required by law.” The portions of the summons which appellant criticises as insufficient, and not in conformity with law, read as follows: “ The said action is brought to recover the sum of one hundred and fifty dollars, the value of thirty tons of ice belonging to said plaintiff, and taken possession of and disposed of by said defendant on or about the twelfth day of May, 1890, at the city of Bozeman, State of Montana; also for all costs of suit. And you are hereby notified that, if you fail to appear and answer said complaint as above required, the said plaintiff will take judgment against you for the sum of one hundred and fifty dollars and costs of suit.” It does not appear from the record what action, if any, was taken on said motion to quash the summons. That portion of the proceedings was probably not brought here, because it is no part of the judgment roll, where judgment is entered on default of defendant. (§ 306, Code Civ. Proe.) Judgment was taken for the sum of one hundred and fifty dollars and costs, upon the default of defendant. This appeal, being from the judg ment, brings up for examination the judgment roll, which in this case should, contain “the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not auswering was entered, and a copy of the judgment.” (Subd. 1, § 306, Code Civ. Proc.) The judgment roll, therefore, should be reviewed on the points of error assigned. 1. We think the summons is sufficient in its statement of the “cause and general nature of the action,” as contemplated in section 68 of the Code of Civil Procedure. But as to the notice contained in the summons, it will be seen, when looked at in connection with the cause of action stated in the complaint,, that such notice is not in conformity with the requirements of said section. The statute (§ 68, Code Civ. Proc.) provides; “Fourth, in actions arising on contract for the recovery of money or damages only, a notice that unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint, stating it. Fifth, in other actions, a notice that unless defendant so appears and answers^ the plaintiff will apply to the court for the relief demanded in the complaint.” Now, it is clear that this is not “ an action arising on contract for the recovery of money or damages.” It is clearly an action for the wrongful or tortious taking and conversion of the personal property alleged to belong to another. The cause of action arose, according to the complaint, not by virtue of any covenant or agreement, or contractual relations existing between the parties, but by the commission of a tort. (2 Sedgwick on Damages, 492; Cooley on Torts, 2.) The remedy for such an injury lies in the application of principles of law, which have been aptly termed, by an eminent and discriminating jurist, “non-contract law.” (Bishop’s Non-Contract Law, 396.) It is true, as argued by respondent’s counsel, that where the goods of one are wrongfully taken and converted by another, the party aggrieved may waive the tort, treat the taking as rightful, and sue as on contract for the value of the goods. (Cooley on Torts, 2; Bishop’s Non-Contract Law, §§ 72-78.) But in the case at bar no such action is brought. This action is for damages for the wrongful taking and conversion of the prop ■erty described. (2 Estee’s Pleading and Practice, §§ 2098-2120.) It follows that, as the action is not one arising on •contract for the recovery of money or damages, the notice in the summons should have substantially followed the provision set forth in subdivision 5, section 68 of the Code of Civil Procedure. This statute has been held to be mandatory, and that it should be substantially complied with. (Dyas v. Keaton, 3 Mont. 495; Sweeney v. Schultes, 19 Nev. 53; Odell v. Campbell, 9 Or. 298; Lyman v. Milton, 44 Cal. 630; Ward v. Ward, 59 Cal. 139.) The distinction between actions arising on contract for the ¡recovery of money or damages only and other actions is so plain it does not require professional knowledge to perceive it. And the distinction made in the notice required by statute appears to be an important one in the mind of the framers of the Code, because by section 245 it is provided that, where no answer is filed within the time required, “in an action arising upon a contract for the recovery of money or damages only, .... the clerk, upon the application of the plaintiff, shall enter the default of defendant, and immediately thereafter enter judgment for the amount specified in the summons, including costs. .... In other actions, if no answer has been filed with the clerk within the time specified in the summons, or such further time as may have been granted, the clerk shall enter the default of the defendant;” and thereafter the plaintiff may apply to the court for the relief demanded in the complaint. It is to be observed that by this statute in the one class of actions the clerk may enter the default and judgment, while in the other the clerk enters the default, but the plaintiff must apply to the court for the relief demanded in the complaint. The notice required to be in the summons is based upon the same distinction, and ought to be observed. 2. It is contended by appellant that the complaint fails to state a cause of action. The complaint might have been held sufficient if the defendant had appeared and answered, and a trial been had, because its defects might have been cured by such proceedings. But it has no such aid, and, standing alone, is fatally defective in not showing by its allegations that the plaintiff was the owner of the property described at the time the same was taken and converted by defendant. The complaint alleges that plaintiff, on the eighth day of May, “ was, and is now,” the owner of the property. It is then alleged that, “on or about the 12th of May,” the defendant took and converted said property. It might be granted, in respect to certain property, that on the 8th of May, and now, i. e., when suit is brought,, the plaintiff owned the property, and still he may not have owned it at all on the 12th of May. It is essential to this action that the ownership of the property be in the plaintiff or his predecessor in interest at the time the conversion took place (Bishop’s Non-Contract Law, 396-408), and this ought to be alleged with certainty. (Boone on Code Pleading, § 136; Smith v. Force, 31 Minn. 119.) If the pleader had referred to such familiar works as Estee’s Pleading for guidance, he would have found that the allegation of ownership is set down as of a certain; date, and the allegation of conversion is laid “on said” date. (2 Estee’s Pleading and Practice, § 2098.) It is ordered that the judgment be vacated and set aside at the cost of respondent, and that he be granted leave to amend his complaint, and otherwise proceed in said action as provided by law. Judgment vacated* Blake, C. J., and De "Witt, J., concur.

De Witt, J. This action is for damages and injunction. It is a companion to the case of Klein v. Davis, ante, page 155 (just decided). The defendants therein are the plaintiffs herein. The plaintiffs herein filed their complaint, praying that the defendants be enjoined from interfering with the construction of the flume described in the case of Klein v. Davis. The same proposition of law will arise in this case as to the extent of the easement in the right to dump tailings. The plaintiffs, upon their complaint, obtained from the district judge a temporary injunction. The defendants did not move to dissolve, or make any showing by affidavits or answer why the injunction should not be granted. They appealed directly from the order granting the temporary injunction. Nothing is before this court but the complaint. Its allegations are undenied, and for the purpose of this review are taken as true. We do not know what may develop when an answer is filed, and evidence introduced, if the case goes that far, denying the alleged equities of plaintiffs. The question of the extent of the easement may be then tried upon a full hearing of the facts on each side. The complaint itself, we are of opinion, sets up a prima facie case for a temporary injunction, and this in consideration of the fact that the district judge examined the premises, and had an opportunity to form a conclusion which is not afforded to this court. We do not,N discover that there was an abuse of discretion by the judge of the court below. (See cases cited in Klein v. Davis.} The order granting the temporary injunction is affirmed. Affirmed. Blake, C. J., and Hakwood, J., concur.

Blake, C. J. This action was commenced by Switzer against R. A. Allen, W. R. Stein, and Mrs. Redding and Mrs. Stein, to recover the possession of “ one frame building, formerly used as a dance-hall.” The answer denies that Switzer has any interest in the property, and alleges that the said Mrs. Redding and Mrs. Stein are the owners thereof. At the trial the court sustained a motion for a nonsuit, and it is proper to state what the testimony proved, and tended to prove. It is admitted by stipulation of the parties that said Mrs. Redding and Mrs. Stein “were the owners of the land known as the ‘ Alhambra Springs property,’ upon which the house sued for stood, and that the legal title to said land was in their names at the time of the erection of the house, and still is.” These persons by a written instrument leased, December 9, 1887, unto W. J. Heber and J. J. Schenck, said property and land for the term from January 1, 1888, to January 1, 1890. It is therein provided that the lessees will quit and deliver up the premises to the lessors “in as good order and condition (reasonable use and wear thereof and damage by the elements excepted) as the same now are or may be put into.” Heber and Schenck were partners, and entered into an agreement in August, 1888, under which they constructed the dance-hall. The lessors were to pay the cost of the materials when the lease was terminated, and the house was to remain upon the land. In October, 1888, Heber sold his interest in the business to Schenck, who abandoned the premises about January 1, 1889, and departed from the Territory without settling the affairs of the firm. It was further provided in the lease that, “should default be made in the payment of said rent when due, and for five days thereafter, the said lessors, their agent or attorney, may re-enter and take possession, and, at their option, terminate this lease.” The sum of one hundred and fifty dollars was payable as rent to the lessors, January 1, 1889, and was not paid, and no part of the cost of said materials was ever received by the lessees. Switzer loaned August 2, 1888, the sum of three hundred dollars to said Heber and Schenck, who made and delivered their promissory note for the same. Afterwards an action was commenced by Switzer, and a judgment was entered April 22, 1889, against Schenck. Such proceedings were had that, under an execution issued in said action, the dance-hall was sold as personal property to Switzer, who thereby asserts his title thereto. The grounds of the motion for a nonsuit are the following; “(1) There is no evidence of ownership or right of possession to the property sued for in plaintiff. (2) The process by which plaintiff claims title was issued on a void judgment, and he could acquire no title thereunder. (3) None of the defendants were parties to the suit by virtue of which plaintiff claims title. (4) The attachment and execution were not levied as required by law. The evidence shows that defendants, Mrs. Stein and Mrs. Kedding, were in the possession of the property at the time of the attempted levy of attachment and execution, and that no notice of attachment or garnishment of any character was served on any of the defendants, and the sheriff never took actual possession j and the evidence further shows that neither plaintiff nor sheriff had any possession of the property sued for. (5) The lease shows that the building sued for, being put on the ground during the period of the lease, would be the property of defendants. (6) The evidence shows that the building sued for became and was a part of the real estate, and that it was the expectation and intention of lessors and lessees that the building should remain on the premises, and be a part thereof. (7) There is no evidence of an approbation in writing of the lessors granting lessees a right to build the house sued for, as required by lease.” The motion was sustained upon the second ground, and the court held that the summons in the action wherein Switzer recovered a judgment was insufficient to confer jurisdiction. We do not intend to consider this important question, and will put our decision upon another point, which was also presented in the court below. The intention of the lessors and lessees is clearly shown in the foregoing lease and agreement, and the said building was not to be removed from the Alhambra Springs property. The mere fact that, under the circumstances which have been disclosed, no actual payment for the lumber and materials of the dance-hall was made by Mrs. Eedding and Mrs. Stein, does not affect the legal relations of the parties. This omission did not occur through any fault of the respondents. The materials did not cost more than the sum of three hundred dollars, and there was due to the lessors from the lessees, at the termination of the lease, the sum of one thousand eight hundred dollars for the rent of the premises. No claim, therefore, can be justly made by Heber and Schenck against Mrs. Eedding and Mrs. Stein for any amount by reason of the construction of the dance-hall. This building was treated as a part of the realty, and, under the authorities, became subject to the statutes regulating this species of property. (Van Ness v. Pacard, 2 Peters, 137, and cases cited; Kutter v. Smith, 2 Wall. 491; Talbot v. Whipple, 14 Allen, 177; Marks v. Ryan, 63 Cal. 107.) Assuming that the process invoked by the appellant is valid, the property was not owned by the judgment debtor, Schenck, and no title could be acquired thereto by virtue of the sale under said execution. It is ordered and adjudged that the judgment be affirmed. Affirmed, Harwood, J., and De Witt, J., concur.

Blake, C.J. It appears from the findings of facts, whicJb. are admitted by the parties, that the Edna Lode Mining Claim was discovered June 4, 1887, and that the boundaries were marked by posts at each corner and the center of each end line. The notice of location was filed June 15, 1887, in the office of the recorder of Jefferson County. The owners of the Edna Lode Mining Claim, including Frank Nelson and Charles Koegel, two of the appellants herein, moved, May 13, 1889, M the two stakes at the west end between five and six hundred feet further south, but did not change the stakes at the east end; and that the old original west end stakes were not removed, but were left standing as they were prior to the said swinging around of the boundaries.” Said Nelson “actually assisted in moving said corners.” Koegel, by his deed, which was executed August 17,1889, conveyed to the grantors of the respondent all his right, title, and interest in and to the Edna Lode Mining Claim. The description of the premises is as follows : “An undivided one-fourth (j-) interest in and to that certain piece or parcel of land known as the ‘ Edna Quartz Lode Mining Claim,’ situate in Cataract (unorganized) mining district, Jefferson County, Montana Territory. Said Edna Lode is fully described in the notice of location thereof, which is recorded in the office of the county clerk and recorder of Jefferson County, Montana. Also an undivided one-fourth interest in all tools, mining improvements, and buildings, together with all the dips, spurs, and angles, and also all the metals, ores, gold and silver bearing quartz, rock, and earth therein; and all the rights, privileges, and franchises thereto incident, appendant, and appurtenant, or therewith usually had and enjoyed; and also all and singular the tenements, hereditaments, and appurtenances thereto belonging or in any wise appertaining, and the rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to said premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular, the said premises, together with the appurtenances and privileges thereto incident, unto the said parties of the second part, their heirs and assigns, forever. It is expressly covenanted that it is intended hereby to convey any and all right, title, interest, and estate which may hereafter be acquired to said premises, or any part thereof, by virtue of any patent, which may hereafter be issued by the United States government therefor, under proceedings heretofore instituted in that behalf.” Nelson, by his deed, which was executed August 21, 1889, also conveyed all his right, title, and interest in the Edna Lode Mining Claim to the grantors of the respondent. The same language is used in describing tlie premises which were conveyed by Koegel, with this exception, that the following recitals appear: “Said claim is recorded on page 488 of Book P of Lode Locations of Jefferson County;” and “Said mill-site is recorded on page 85 of Book H of the Becords of Jefferson County.” What was the intention of said Nelson and Koegel in the execution of these instruments ? What right, title, or interest in the Edna Lode Mining Claim was embraced in the foregoing deeds? The Code of Civil Procedure has prescribed the rule for their interpretation: “ For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.” (§ 632.) “ The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is, nevertheless, admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.” (§ 633.) The statute is a codification of the decisions of the courts upon this subject. The property in controversy is of a peculiar and exceptional character. Parties who comply with the laws of the United States and this State, and the local customs and regulations of a mining district, acquire the right to occupy, possess, and explore a lode mining claim. The discoverers do not usually make an accurate survey of the premises; and the notices of location contain a description in general terms, and by name. When the true course of the vein has been ascertained by development, the boundaries are usually changed to protect the interest of the claimants. The owners of the Edna Lode Mining Claim availed themselves of this privilege, which is valid under certain conditions, and about three months after these boundaries had been changed and restaked, the deeds were executed by Nelson and Koegel. In Phillpotts v. Blasdel, 8 Nev. 70, the court quotes with approval the following extract from the opinion of the district judge, the Hon. W. H. Beatty, who, since that time, has been an honorable member of the Supreme Courts of the States of California and Nevada, viz.: “I agree with the plaintiff that when a man conveys a lode, we have only to ascertain, by the best means in our power, what lode of ore he meant; and, if we can do so, it makes no difference that he has called it by a name illegitimately acquired — a name only applied to it by reason of his ignorance of the truth. Effect must be given to his real intention, and the lode intended must be held to have been conveyed.” The court in Truett v. Adams, 66 Cal. 221, says: “In trying to ascertain that intention, it is the duty of a court to assume, as nearly as possible, the position of the contracting parties, and to question the circumstances of the transaction between them, and then to read and interpret the words which they used in the light of those circumstances.” Chief Justice Wade, in Taylor v. Holter, 1 Mont. 695, recognized this rule for the interpretation of a deed, and said: “ The intent of the parties must be gathered from what is written, rather than from parol evidence; but the language of the instrument may be construed by the light of surrounding circumstances, and, so far as possible, the court may put itself in the place of the parties, and may interpret the language from this stand-point, but nothing can be added to or taken from the written words.” (See, also, Donnell v. Humphreys, 1 Mont. 518, and United States v. Power, 6 Mont. 271.) Let us apply to the instrument before us the principle which . has been established by the authorities and the Code of Civil Procedure. The intention of Nelson and Koegel is clearly expressed in their respective deeds, and they thereby parted with their right, title, and interest in the Edna Lode Mining Claim, as this property was known to them in August, 1889, and for which a patent might be issued by the government of the United States. It is contrary to the words and acts of Nelson and Koegel to say that they intended to sell, and their grantees wished to buy, the Edna Lode Mining Claim, as originally located, when they had abandoned a portion thereof to the public, and were not seeking any patent thereto. In order to obtain this patent, it is essential that a number of acts should be done by the applicants, and the Edna Lode Mining Claim was surveyed according to the boundaries which had been fixed by the change of the lines by Nelson and Koegel and the owners in the month of May, 1889. When the application for patent was made in the United States land office by the respondent, which was then the owner thereof, the appellants filed a protest, for the reason that the parcel in controversy was a part of the Lightning Lode Mining Claim. The following findings of facts by the court should be considered upon this branch of the case:— “ 11. That on October 30,1889, plaintiffs, Nelson and Koegel, bought out all the interest which Watson and Donnelly had in the Lightning Claim. “12. That the plaintiff Shreve derived his title or interest in the Lightning Claim by purchase from Nelson and Koegel.” The court below held that Nelson and Koegel were estopped by their deeds, and prevented from asserting any claim to the area in conflict. The question of ownership of the Lightning Lode Mining Claim, or the validity of its location, is not involved in this inquiry. If the appellants succeed in this litigation, they prevent the respondent from securing the Edna Lode Mining Claim, which they “expressly covenanted ” that its grantors, and “their heirs and assigns forever,” should have and hold. In Van Rensselaer v. Kearney, 11 How. 297, the court, through Mr. Justice Nelson, said: “And therefore, if the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor, and those claiming under him in respect to the estate thus described, as if a formal covenant to that effect had been inserted; at least, so far as to stop them from ever afterwards denying that he was seised of the particular estate at the time of the conveyance.....The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor, and all persons in privity with him, shall be estooped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor, and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not unfreqtiently characterized as odious, and not to-be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood —would be the denial of a previous affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak.” In Smith v. Williams, 44 Mich. 242, Mr. Justice Cooley for the court said: “Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given.” (Long Island R. R. Co. v. Conklin, 29 N. Y. 572; Doe v. Dowdall, 3 Houst. 369.) In Kelly v. Taylor, 23 Cal. 11, the court below instructed the jury “that in the matter of estoppel a different rule applies to mining claims from that applicable to other species of real estate.” But Mr. Justice Crocker in the opinion said: “The first branch of this instruction is erroneous. The rules of law relating to estoppel in pais apply to mining ground, the same as any other real estate claimed under a similar kind of title.” (See, also, Clark v. Baker, 14 Cal. 612; 76 Am. Dec. 449; Fields v. Squires, Deady, 366; Yunker v. Nichols, 1 Colo. 563; Smith v. Moodus W. P. Co. 35 Conn. 400; Karnes v. Wingate, 94 Ind. 594; Dobbins v. Cruger, 108 Ill. 188; Irvine v. Irvine, 9 Wall. 617; Moore v. Crawford, 130 U. S. 122; Ryan v. United States, 136 U. S. 68.) The Code of Civil Procedure provides as follows: “ When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it; and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.” (§ 636.) The language seems to be decisive in its application to the deeds of the appellants. The authorities seem to be in harmony upon this question, and we are of the opinion that the court below construed correctly the deeds of Nelson and Koegel, and held that these parties were thereby estopped from maintaining this action. The appellant Shreve obtained his title and interest to the Lightning Lode Mining Claim from Nelson and Koegel, and being in privity with them, is also in like manner estopped. We concur in the views of Mr. Justice De Witt regarding the construction of the law applicable to the discovery and location of the Lightning Lode Mining Claim. It is ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., concurs.

Harwood, J. This action was brought to recover from defendant the sum of one hundred and thirty-one dollars, said sum having been earned by and was due plaintiff from the Anaconda Smelting Company, and was collected by defendant on or about July 18, 1890, acting as sheriff of Deer Lodge County, under and by virtue of an execution duly issued on a valid judgment in favor of one Menard against Cushing, the plaintiff in this action. Plaintiff made a demand for the release of said money on the ground that the same was exempt from levy under the provisions of subdivision 10 of section 321 of the Code Civil Procedure, alleging that said money represented his personal earnings during the last thirty days prior to said levy, and was necessary for the support of his family residing in this State. The statute cited and relied on for such exemption reads as follows: “ The earnings of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of the execution (or levy of attachment), when it shall be made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of his family residing in this State, supported wholly or in part by his labor.” When the case came on for trial the parties to the action, by mutual admission, stripped the cause of all other issues, save and except the issue as to whether or not said wages were “ necessary for the use of plaintiff’s family residing in this State, supported wholly or in part by his labor.” Upon the-trial of this issue the jury found for defendant, and judgment was rendered in his favor accordingly. Plaintiff moved for a new trial on the grounds: (1) Insufficiency of evidence to justify the verdict; (2) that the verdict is contrary to law; (3) error of law occurring at the trial, and excepted to by the moving party. The motion for new trial was overruled by the court, and plaintiff thereupon appealed from the order overruling said motion and from the judgment. It was shown by the evidence introduced on the trial that plaintiff was at the time of said levy a married man, residing with his family at Anaconda, Deer Lodge County. His family consisted of his wife and seven children. At the time of said-levy, and prior thereto, his wife was engaged in the business of conducting a boarding and lodging house at said place, furnish. ing board to persons varying in number from fifteen to twenty during each month. Plaintiff at the same time was working at his trade as stone-mason for said smelting company. The plaint» iff and his wife and children resided together at said boardinghouse, and the wages earned by plaintiff were delivered to his wife, and used by her in the payment of bills contracted in running said boarding-house business. During the trial defendant was permitted, over the objections and exceptions of plaintiff, to ask plaintiff's witnesses concerning the quantity and value of property held in the name of plaintiff's wife, and used in running said boarding-house business, and by said family in -common as a home. Defendant was also allowed to introduce in evidence a list of separate property and a declaration of sole trader made by plaintiff’s wife, and recorded in the office of the county clerk and recorder of said county. To the introduction of which evidence and documents plaintiff excepted, and assigns the action of the court, in receiving the same in evidence, as error. We cannot concur with counsel for appellant in the proposition that the court erred in the admission of said evidence, because said property was used as the home of plaintiff and said family in common. The family boarded at the table, supported jointly by the business of keeping boarders and the earnings of plaintiff. This property, then, although the title of it was in the name of the wife, was used at the time and enjoyed by the family for their common benefit. The question at issue pertained to the ways and means by which said family received its support at the time in question, and when it was shown that said property was used in the support of said family at the time in question, the evidence as to the kind, quantity, value, and use of said property became material. It appears from the evidence introduced on behalf of the plaintiff that no division was made in the earnings of the members of said family. The earnings of the wife, through the boarding-house business carried on by her, and the earnings of the husband in his employment, were thrown into a common fund, which was used for the support of the family, the carrying on of said business, and the purchase of property; and the property thus used in common for the benefit of the family seems to have been a material factor in its support during the time in question. The theory of appellant’s counsel appears to be that this case should be considered and determined wholly on the question as to whether or not such an amount as was earned during the period in question would be required for the support of the family, and if only sufficient for that purpose the case ought to be determined in favor of plaintiff, on the ground that it is his duty to support his family. This would leave out of consideration the question as to whether or not the family was in fact supported by the earnings of the husband, or from some other source. The earnings might not be more than sufficient to supply the family at the time if the family had no other source of supply, and in that case the exemption would surely apply. But if all other facts were excluded from consideration, the exemption on that theory would prevail, where the wife had a large estate, and it could be shown that she had actually supported herself and child or children therefrom, and that the husband’s earnings were neither required nor used for that purpose, and on that theory the exemption would have to prevail, although it could be shown that the husband had a fund from past earnings or other source more than sufficient to supply all necessaries required for the family at the time in-question; for if the amount of earnings at the time and the wants of the family only were considered, it would probably appear in each of such cases that the earnings were not more than sufficient for the family’s support, while in fact the case might be that such earnings were neither necessary nor used for the support of the family. Again, in case the judgment debtor’s family consisted of one child, for instance, who was wholly supported by some generous relative, in such case, following the theory that we should look only to the amount of the debtor’s earnings and the wants of his family, it might be-made out that his earnings were not more than sufficient to support his child, and, if that concluded the inquiry, the exemption must prevail, although the earnings were not used for that purpose, In our opinion the court adopted the correct rule, and allowed investigation as to the means through which the family aetually received its support during the time in question. The court gave to the jury the following instruction (No. 4): “In determining the question whether the plaintiff is entitled to his exemption, you may leave out of consideration altogether the question of fraud in the gift by the plaintiff to his wife of the money with which the property upon which the plaintiff and his family resided in Anaconda was purchased. The question for you to decide is whether that property furnished a support to the plaintiff’s family, so that he is freed entirely from the necessity of contributing to its support. Creditors cannot rely upon any question of fraud in dealing with or seeking to reach the property exempt to heads of families under the law.” The giving of said instruction is not complained of by appellant, but it appears that the court modified the instruction as originally drawn by eliminating therefrom the following clauses “And though it appear that the plaintiff gives his wages to his wife for the express purpose of defrauding his creditors, but that the same is necessary for the support of his family, in whole or in part, you should disregard the fraud on his part altogether, and still find your verdict in his favor.” Appellant contends that the court committed error in excluding that clause from the instruction before delivering it to the jury. This assignment oí error ought to be considered in connection with other instructions given to the jury. Instructions Nos. 3 and 5, as given to the jury, read as follows:— “ 3. The word ‘ necessary,’ as used in the statutes exempting the wages of the laboring man, ‘when necessary for the support of his family, in whole or in part,’ does not mean that his wages must be absolutely indispensable to the bare subsistence of the family, and that the family could not live without them, but is used in a broader and less rigid sense, looking rather to the comfort and well-being of the family, and contemplates the furnishing to it whatever is necessary to its comfort and well-being, as distinguished from luxuries. If, then, you find that the plaintiff’s wife, by care and economy, could support herself and her children, providing a bare subsistence, but that, by the use of the wages of the plaintiff, she and her family could have a more comfortable support, without luxury and extravagance, then you are warranted in finding that the plaintiff’s wages are necessary for the support of his family, and therefore he is entitled to recover in this action.” “5. If you find from the evidence that in the month of July, 1890, the defendant collected one hundred and thirty-one dollars of wages of plaintiff’s earnings during the thirty days prior to that date, and that the same was partly necessary for the support of his family, either directly or indirectly, you will find a verdict for the plaintiff.” Recurring now to the language struck out of instruction No. 4, on which appellant assigns error, we think that clause was not only unnecessary in view of the other instructions given, but the language of it was incongruous, and not a clear statement of the law. If a man is confronted with two demands for his earnings — (1) to pay the same to his creditors; and (2) to use his earnings for the more pressing and paramount demand of supplying the wants of his family — and he choose the latter, and obey the more sacred and paramount demand, with the sanction of a statute which expressly justifies and guarantees him from interference in carrying out this purpose, we do not think, in such a case, it could be said, in harmony with the conditions which prompted his action, that he may have done this "with the express purpose of defrauding his creditors. ” Nor do we think it would be in harmony with the existing conditions, in such a case, to say to the jury, "You should disregard the fraud on his part altogether.” No such consideration is proper in this connection, because there could be no fraud in such conduct. If it was intended by the language struck out of instruction No. 4 to say to the jury that if the plaintiff delivered his earnings to his wife to be used for the support of his family, and the same were necessary for that purpose, in so doing he could commit no fraud upon his creditors, such instruction would be eminently proper. The court, in instructions Nos. 3, 4, and 5, covered this ground fully, clearly, and fairly, as we believe, without the language which was struck out of No. 4, and which, as expressed in that clause, might have been misleading. Appellant complains that the court erred in giving to the jury instruction No. 8, which reads as follows: “You are instructed that a debtor cannot voluntarily surrender property to his wife, nor can she voluntarily assume the possession and ownership of it, to the prejudice of his creditors. Such transactions are considered in law fraudulent and void as to the creditors of the husband. And if you believe from the evidence that the earnings of the plaintiff in this action were voluntarily used by him in the payment of some of the bills incurred by his wife in «carrying on her business, and thereby the receipts from such business were increased, and such earnings were not necessary for the support of the plaintiff’s family, then you will find your verdict for the defendant.” The first portion of this instruction, if viewed entirely alone, might be found too narrow a statement of law applicable to the case. So it would be with many instructions if one clause or one statement should be taken out and considered entirely alone. But the first part is modified and made applicable to the case in question by the language of the latter part of the same instruction. Instructions are to be considered together, as laying before the jury a statement of the law applicable to the case in question. This instruction must be considered as one among the whole number, suggesting to the jury, when considered as a whole, the view of the law applicable, and to be considered by them in determining this case. In that view of these instructions, we find no error in the giving of instruction No. 8. Lastly, it is contended by appellant that the evidence is insufficient to support the findings of the jury. This assignment of error is based on the theory heretofore adverted to, i. e., that the only question for consideration is the amount earned and the amount necessary to support the family, excluding inquiry as to other resources for support, or the means by which the family was actually supplied. While the wants of the family, and the amount necessary for its supply, and the amount of the earnings in question, are without doubt facts of importance to be inquired into in such a case, still, as we have heretofore shown, in our opinion, that is not the end of the inquiry pertinent It is shown by the evidence in this case (chiefly by the evidence of the plaintiff and his wife) that the earnings and accumulation of funds through the efforts of the plaintiff, by his labor, and of his wife, by her separate business, were placed together and used together; and it is shown by their testimony ■•that while they resided at Anaconda, during the two and a half years prior to and including the thirty days during which ■the earnings levied on were earned by plaintiff, in addition to the support of the family, their property, in which their joint accumulations were invested, was steadily on the increase.. Commencing with one thousand dollars invested in said boarding-house and home property, they had paid from their joint earnings an encumbrance of five hundred dollars which existed thereon, and have expended about seven hundred and fifty dollars for furniture put into said house, besides supporting the family. So that, as shown by their testimony, their earnings and investments during said period, over and above the support of the family, amounted to more than twelve hundred dollars, and their property altogether amounted in value to two thousand five hundred dollars. The jury found on the whole case that the wages levied on, amounting to one hundred and thirty-one dollars, were not necessary, at the time they were earned, for the support of the family; and we think there is ample evidence to sustain such finding. Each case of this character must rest upon its own facts, existing at the time in question. By a slight change in the affairs of this family the earnings of the plaintiff during the next month may have been clearly exempt, notwithstanding one or both members of the family had said property, which was also exempt from execution. But we think in this case the verdict of the jury was fully sustained by the evidence, and in a large degree by the testimony of the plaintiff and his wife. The judgment and order overruling appellant’s motion for new trial will therefore be affirmed. Affirmed,. Blake, C. J., and De Witt, J., concur.

De Witt, J. It appears that the respondent made objections to the time of serving the statement on motion for a new trial, and to the hearing of the motion. The court wholly refused to hear the motion. This was not the proper practice. In Quivey v. Gambert, 32 Cal. 309, the court says: “A party moving for a new trial is entitled to a ruling upon his motion upon the basis upon which he presents it, in order that he may have and enjoy unembarrassed his right of appeal to this court. If his notice or statement has not been served or filed within time, that is a good reason why his motion should be denied when finally brought to hearing, but, under the method of procedure prescribed by the Code, it is not intended that the record upon which the motion is made may be first stricken out, and the motion then denied. Such a course is, in effect, a denial of any hearing upon the motion, and of an appeal to this court where an appeal is given.....If the notice and statement, or either of them, is not filed within time, he [respondent] may safely rely upon such facts as fatal to the motion, when brought to a hearing. If, however, as is generally the case, there is some doubt as to whether they are within time, and he does not desire to take any risk, he may propose amendments without waiving his right to object that they are not within time, by a simple preface that he does so without prejudice to his right to object at the hearing to the notice or statement upon those grounds. By so doing he waives nothing. On the contrary, he preserves all his rights in the premises. The court will then proceed to settle the statement, and at the hearing pass upon the objections so reserved. If the motion is denied, an appeal can be taken to this court, where the whole matter can be reviewed upon the record upon which the court below heard the motion. Such is the plain and obvious course prescribed by the statute, and no departure from it can be indulged, without, as we have seen, mischievous if not absurd results.” In Lucas v. Marysville, 44 Cal. 212, we find: “In the case oí Quivey v. Gambert, it was held that it was not good practice to strike from the files a proposed statement on motion for a new trial, upon the ground that the right to move had been waived or lost, but that objections to the right oí the moving party to be heard upon the motion should be made at the hearing; and the rule in this respect, indicated in that case, has since then been followed in this court.” Mr. Hayne, in commenting upon these cases, adds: “The objection that the proposed statement was not in time must be reserved before proposing amendments; if not, it is waived, and cannot afterwards be made, either on motion to strike out the statement or in any other manner. When reserved, the objection must (if not sustained at the settlement) be incorporated in the settled statement, together with the matter in its support. If it be not so incorporated, the presumption is that the proposed statement was in time, and that all the proceedings in its preparation were regular. This presumption is conclusive; for the statement, when certified and filed like other records, imports absolute verity, and cannot be contradicted or added to by affidavits upon a motion to dismiss, or in any other manner. The objection must therefore be apparent upon the face of the statement itself; and, if so apparent, it is manifest that it may be urged as a reason why the motion for a new trial should be denied, both in the lower court on the hearing of the motion, and in the Supreme Court on appeal from the order granting or refusing a new trial. This being the case, the inauguration of a separate line of proceedings by a separate motion to strike out the statement, or a motion to dismiss the motion for a new trial, is not only utterly useless, but is open to the very grave objection of involving two appeals before the motion for a new trial can get to the Supreme Court.” If it be improper to strike out a statement, or to dismiss the motion for a new trial, and if the moving party is entitled to a hearing of his motion, the District Court in the case at bar certainly erred in refusing to hear appellant’s motion. The court should have heard any objections that the plaintiff might offer to the proposed statement, and incorporated the same in the statement. A record of the whole matter would have then been preserved for the review of this court on appeal. It appears from this record that the judge below settled the statement. It is therefore now ordered that the order of the District Court refusing to hear the motion for a new trial be reversed, and the case is remanded to that court, with directions to hear and determine that motion. There is also before us an appeal from the judgment. We will not pass upon that appeal until the District Court has opportunity to decide the motion for a new trial in accordance with the views above expressed. ■Reversed. Blake, C. J., and Harwood, J., concur.

Blake, C. J. This action was commenced October 17, 1889, by Pendleton, the plaintiff and appellant, against Cowling, Towner, Shober, and Adams, to recover the amount of the principal and interest of certain promissory notes. The court below sustained, December 30, 1890, the demurrer of Shober and Adams to the second amended complaint, and, upon the election of the plaintiff to abide by his pleadings, entered judgment for said defendants for their costs. We are required to review this ruling, and the material facts should be fully stated. It appears that Pendleton owned, April 7, 1887, a certain tract of land in the county of Jackson, State of Missouri, and then sold it to Cowling for the sum of §>91,000, of which the sum of $31,000 was paid in cash. Cowling executed to Pendleton three promissory notes, of $20,000 each, for the remainder of the purchase price, which were due, respectively, in one, two, and three years from such date, with interest at the rate of eight per cent per annum, and were signed by T. F. Sneding, as security for Cowling. Pendleton then delivered to Cowling a warranty deed for the land, which was recorded April 7, 1887, in said county of Jackson. At the same time Cowling executed to W. S. Wells a deed of trust upon the premises to secure the payment of the notes, which was likewise recorded. This instrument provided that if Cowling and Sneding should fail to pay the notes, or any part thereof, when any of them became due, the whole should become payable. The first note matured April 10, 1888, and was not paid. Cowling sold, October 17,1887, this land to Towner, Shober, and Adams for the sum of $201,501, but the deed was executed to Towner alone, and also recorded in the State of Missouri. It is provided in the deed oi Cowling to Towner that the conveyance is subject to the deed oi trust from Cowling to Wells, and that “all oi said notes and interest thereon, the grantee assumes and agrees to pay.” The complaint alleges that “ the payment oi said three promissory notes oi $20,000 each was a part of the consideration” oi this sale. The deed was executed to Towner, who was a resident oi the State oi Missouri, for the convenience of parties who might wish to buy said land, the said Shober and Adams being residents oi this State. On the day of the delivery of the deed by Cowling, Towner executed a declaration of trust, and one copy thereof was delivered to Shober and Adams, respectively. This instrument, which was signed and acknowledged solely by Towner, contains the following recitals: That Towner, Shober, and Adams have purchased of Cowling the land described in the foregoing deeds, “for the price and sum oi $201,500, all of said consideration being paid save the deferred payment of three notes of $20,000 each, secured by a deed of trust executed by Parnell C. Cowling to James Pendleton, . . . . and subject to the conditions of the deed;” that the interest of purchasers is as follows: Towner, three fifths; Adams, one fifth; and Shober, one fifth; that said parties “have consented and agreed that for their mutual benefit, convenience, and accommodation, and for the purpose oi facilitating the sale and management of said real estate, and the transfer thereof in case of sale, the conveyance of said real estate be made to the said Oscar M. Towner, subject to a deed of trust to secure the aforesaid deferred payments: Now, therefore, in consideration of the premises, the said Oscar M. Towner hereby expressly declares that he holds the above-described real estate in trust for himself, and all the parties hereinbefore named, according to their respective interests hereinbefore stated; and the said Oscar M. Towner hereby promises and agrees and binds himself to sell and convey the real estate in accordance with the direction of said parties in interest, and appropriate the proceeds derived from said sale in the manner directed by all of said parties in interest, and to hold said real estate as aforesaid until all of said parties shall direct otherwise.' Iu witness whereof the said Oscar M. Towner has hereunto set his hand and seal the day and year first above written; three ■original drafts of this declaration being executed for use and benefit of said parties in interest. O. M. Towner. [Seal.] Acknowledged, Missouri form, October 20, 1888.” The first paragraph of this instrument is in these words: “ This article of agreement, made and entered into this seventeenth day of October, 1887, by and between Oscar M. Towner, of the county of Jackson, State of Missouri, party of the first part, and I, William Adams, and John H. Shober, both of the city of Helena, Territory of Montana, parties of the second part, witnesseth.” It is not alleged that this agreement was recorded. The complaint sets forth the statutes of the State of Missouri, which require declarations of trust to be in writing, and signed by the party who is legally enabled to declare the same. It is further alleged that Towner, Shober, and Adams jointly assumed the payment of the said notes, and that Shober and Adams accepted the declaration oi trust. Wells, as the trustee, sold August 23, 1888, the land for the sum of $20,131, “ under the provisions of the deed of trust,” and the amount, after deducting the expenses of the sale, was credited upon the first of said notes. Does 'the complaint state facts sufficient to constitute a cause of action? It is conceded that no other written instruments ■were executed by the parties than those which are mentioned in the complaint, and the liability of the respondents to pay the foregoing notes depends upon their interpretation. Counsel have treated the case upon this theory, and we have been governed accordingly, in considering the legal propositions which have been discussed. When, therefore, it is alleged that Shober and Adams “jointly assumed with the said Towner the payment of the aforesaid three notes,” it must be understood that this language refers to the effect of the deeds and declaration of trust, and not to acts which are not set forth in these documents or the complaint. This action was commenced in the courts of the Territory of Montana, and the amount in controversy was sufficient to give to the aggrieved party the right of appeal to the Supreme Court of the United States. If our judgment can be reviewed, the right of the parties must be settled by the decisions of that tribunal, and our field of inquiry would be limited. The Enabling Act of Congress for the admission of Montana into the American Union, approved February 22, 1889, contains this section: “22. That all cases of appeal or writ of error heretofore prosecuted, and now pending in the Supreme Court of the United States, upon any record from the Supreme Court of either of the Territories mentioned in this act, or that may hereafter lawfully be prosecuted upon any record from either of said courts, may be heard and determined by said Supreme Court of the United States; and the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the Circuit or District Court hereby established within the State succeeding the Territory from which such record is or may be pending, or to the Supreme Court of such State, as the nature of the case may require; .... and each of the Circuit, District, and State Courts, herein named, shall respectively be the successor of the Supreme Court of the Territory, as to all such cases arising within the limits embraced within the jurisdiction of such courts, respectively, with full 'power to proceed with the same, and award mesne or final process therein; and that from all judgments and decrees of the Supreme Court of ■either of the Territories mentioned in this act, in any case arising within the limits of any of the proposed States prior to admission, the parties to such judgment shall have the same right to prosecute appeals and writs of error to the Supreme Court of the United States as they shall have had by law prior to the admission of said State into the Union.” (25 Stats. U. S. 682.) This is the sole provision which controls the right of appeal in the case at bar, and it is evident that the same is not ■embraced in the above clauses of the act of Congress. Borne -of these clauses owe their origin to the decisions of the Supreme Court of the United States in causes that were pending during the change of Territories into States. (Hunt v. Palao, 4 How. 589; McNulty v. Batty, 10 How. 72.) It is held in Hamilton v. Kneeland, 1 Nev. 60, that a case which was brought in the District Court, and appealed to the Supreme Court of the Territory of Nevada, and determined by the Supreme Court of the State, cannot be taken to the Supreme Court of the United States upon the ground that the Organic Act of the Territory allowed such appeal when the action was commenced. Chief Justice Waite, in Baltimore etc. R. R. Co. v. Grant, 98 U. S. 398, said: “ It has universally been held that our appellate jurisdiction can only be exercised in cases where authority for that purpose is given by Congress. It is equally well settled that, if a law conferring jurisdiction is repealed without any reservation as to pending eases, all such cases fall with the law.” (See cases there cited, and Gordon v. United States, 117 U. S. 704.) It is alleged in the complaint that the respondents accepted the deed from Cowling, and also the declaration of trust by Towner, but it does not appear that Towner or Shober or Adams ever performed any act concerning this land, or enjoyed the possession thereof. The diligent labor of counsel, and an independent examination upon our part, have failed to produce an authority possessing the remarkable features which have been detailed. The conveyances and deed of trust, which are referred to in the complaint, are not pleaded in hoeo verba, and their effect is not always defined with certainty. It should be borne in mind that this is not an action for the foreclosure ot the deed of trust and the recovery of a judgment against Shober and Adams for the deficiency. The property has been disposed of by the trustee in the State of Missouri, and, according to our view, there is only one question for our solution. Did the respondents, by virtue of the foregoing documents, become liable for the payment of such deficiency ? This is answered by the conditions of the contracts of the parties. The deed from Cowling to Towner contained this clause: “All of said notes and interest thereon the grantee assumes and agrees to pay.” The grantee was Towner and not Shober or Adams, and his assumption of this obligation cannot be disputed. The bare reasons for this transaction are immaterial, but the pertinent fact is that this agreement was not made by Shober or Adams. Chief Justice Shaw, in Huntington v. Knox, 7 Cush. 371, said: “ When a contract is made by deed under seal, on technical grounds, no one but a party to the deed is liable to be sued upon it; and therefore, if made by an agent or attorney, it must be made in the name of the principal, in order that he may be a party, because otherwise he is not bound by it.” The Supreme Court of the State of Missouri, in Worley v. Dryden, 57 Mo. 226, said i “ The deed is always the best evidence, in the first place, of the intention of the parties, and, before it can be altered or changed in its legal import, convincing and satisfactory evidence must be adduced for that purpose.” What, then, is the precise language of Towner in. the declaration of trust ? “ All of said consideration being paid save the deferred payment of three notes of 020,000 each, secured by a deed of trust executed by Parnell C. Cowling to James Pendleton j ” and that the parties thereto have consented that “ the conveyance of said real estate be made to the said Osear M. Towner, subject to a deed of trust to secure the aforesaid deferred payments.” While Towner was the owner of three fifths of this property, he sustained towards Shober and Adams the relation of a trustee for the remainder. (Seymour v. Freer, 8 Wall. 202.) The declaration of trust “ was precisely the instrument which the statute requires to show that the trustee was not the owner of the land by virtue of conveyances to him absolute on their face.” (Wright v. Douglass, 7 N. Y. 564.) “It must also be observed that, if a trust is declared in writing,” says Mr. Perry in his work on Trusts, “ courts never permit parol proof of a trust to contradict an intention expressed upon the face of the instrument itself, for that would be to allow parol evidence to vary, contradict, or annul a written instrument.” (Vol. 1 [2d ed.], §76, and cases cited.) The authorities hold that the above words of the declaration of trust, if inserted in a deed, do not make the grantee liable for the payment of such an encumbrance upon the land. Mr. Jones, the learned author of the work on Mortgages, says s “ A deed which is merely made subject to a mortgage specified, does not alone render the grantee personally liable for the mortgage debt. To create such liability, there must be such words as will clearly import that the grantee assumed the obligation oí paying the debt. It is not necessary that any particular formal words should be used, but that the intention to impose upon the grantee this obligation should clearly appear. A purchaser of land accepting a deed expressly conveying it subject to a rnortgage, and excepting it from the covenants, is not himself personally liable to pay it, unless he covenants to do so.” (Vol. 1 [1st ed.], § 748, and eases citedj Elliott v. Sackett, 108 U. S. 132; Shepherd v. May, 115 U. S. 505.) The litigation in these cases had its origin in the sales of property under a trust deed. The court held in Fiske v. Tolman, 124 Mass. 254; 26 Am. Rep. 659, that a promise to pay the mortgage debt cannot be inferred from the acceptance of a deed containing this clause: “Subject, however, to a mortgage .... of §7,000, which is part of the above-named consideration.” (Wiltsie on Mortgage Foreclosure, §§ 608, 610, 613, and cases cited.) Mr. Wiltsie says: “ Whether a personal liability is assumed in any case is always dependent on the intention of the parties; unless the parties have declared this intention in express words, no liability will be incurred. If the deed merely recites that the land is taken subject to a certain mortgage, there will be no personal liability. Neither will the words ‘under and subject’ to a mortgage, which is specified, import a promise to pay, nor create a personal liability.” (§ 615.) We have consulted numerous cases, and do not hesitate to assert this to be the general rule. These contracts were executed within the State of Missouri, in relation to land therein, and it should be noticed that her courts have reiterated these principles. In Hall v. Morgan, 79 Mo. 47, Mr. Justice Sherwood in the opinion said: “Nor is the view entertained that the words ‘subject to a mortgage,’ contained in the deed last referred to, have any bearing on this controversy, since they were only such words as the law would imply.....Unless there was an express agreement to that effect, he (the purchaser) would not be personally liable for the mortgage debt, even though the deed under which he claims had conveyed the property therein mentioned, ‘subject to an outstanding mortgage.’ (2 Washburn on Real Property, 113.) Unless the deed recites words importing on the part of the grantee a personal liability for the debt, such words as are quoted above will be regarded as a merely descriptive clause, or one inserted as restrictive of the covenants of warranty from the grantor. (2 Washburn on Real Property, 209.)” The Supreme Court of that State has also held that, “if a grantee takes a deed containing a recital that the land is subject to a mortgage, which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to per form it, on which promise, in case of failure, assumpsit will lie,” (Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685.) Whenever a judgment has been entered for a deficiency against the grantee of the mortgagor, the obligation is created by the direct assumption of the debt which has been secured. The terms of the declaration of trust are easily understood, and we must disregard the allegations of the complaint which are inconsistent therewith. The plain inference from this instrument is that the respondents have not undertaken to pay said note to the appellant. Its recitals are of matters which, under the authorities, cannot serve as the foundation of a personal liability upon the part of Shoeber and Adams to satisfy the demand of the mortgagee in this action. The complaint fails to show that either of the respondents manifested the intention to assume the payment of the notes to Pendleton, and the action of the court below in sustaining the demurrer was correct. It is therefore ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., and He Witt, J., concur.

De Witt, J. We will discuss the two points suggested in the above statement of the case. Was the location notice properly admitted in evidence? Did the court properly exclude evidence tending to show that the description in the notice was not sufficient to identify the claim? 1. The Devised Statutes of the United States (§ 2324), under which locations of mining claims may be made upon the public domain, provide: “All records of mining claims .... shall contain .... such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” The description in the location notice of the Kilby Claim is by reference to three alleged adjoining claims, the Marble Heart, the Nine Hour, and the St. Louis. A description by reference to an adjoining mining claim is a sufficient reference to a permanent monument to allow the notice of location to be intro duced in evidence, and it then becomes a matter of proof as to whether the adjoining claim is a permanent monument. In Metcalf v. Prescott, 10 Mont. 283, is the last affirmance which this court has made of a line of decisions to that effect. Therefore, the reference to a permanent monument was sufficient in the Kilby location notice to allow it to be introduced in evidence. Appellant’s counsel, as appears by the records of this court, is not without a share in the labor of establishing this doctrine upon the firm foundation on which it now rests in this court, and in the argument at the bar in this case he cordially assents to its continued stability. But his objection to the location notice goes beyond the principle just cited. Admitting that the three mentioned adjoining claims are permanent monuments, yet he says that the reference to them does not identify the claim. We are prepared to concede that, no matter how permanent and prominent the monument may be, or how conspicuous and certain the natural object is, yet, if there was no intelligent reference to them that would identify the claim, the description would not satisfy the requirements of the United States law. The very object of selecting a natural object, or erecting or referring to a permanent monument, is, in the language of the statute, to identify the claim. As remarked by Judge Hallett in Faxon v. Barnard, in the Circuit Court of the United States for the district of Colorado, 9 Morr. Min. Rep. 515 s "The government gives its lands to those citizens who may discover precious metal ores therein, upon the condition that they will define the subject of the grant with such certainty as may be necessary to prevent mistakes on the part of the government, and on the part of other citizens who may be asking the same bounty. This is reasonable and necessary to justly administer the law, and therefore it must be said that without such description a certificate of location is void.” Now, what are the facts as to the location notice in question? We examine it now upon its face alone, to ascertain whether it should, prima facie, be admitted in evidence, wholly disregarding, for the present, all uncertainties and ambiguities that may be developed by evidence aliunde the notice. We find that the claim is two hundred feet long, running easterly and westerly, and six hundred feet wide. It is in a certain mining district, county, and Territory. A post and notice are set at discovery shaft. There is a substantial post and monument at each corner. The Marble Heart claim is on the southeast, the Nine Hour on the southwest, and the St. Louis on the north. The description begins at the southwest boundary of the Marble Heart, and runs two hundred feet to the Nine Hour, on the southwest side. Appellant argues that, if the Marble Heart is on the southeast of the Kilby, that a corner of the Kilby cannot be on the southwest boundary of the Marble Heart. From the location notice, the court did not know the directions of the surface lines of the Marble Heart, or the superficial shape of the same, or of the other adjoining claims. Mining claims are not always right-angled parallelograms. They are frequently, especially in a district well covered by locations, and in which are many fractions of full claims, very irregular figures, preserving a general parallelism of the end lines. It does not appear from the face of the Kilby location notice that the Marble Heart was of such a shape that there was not a boundary which could be intelligently called a southwest boundary, although the body of the Marble Heart might be properly described as lying southeast of the Kilby. A court could not say from an inspection of the notice that such description was an impossible or uncertain one. And so with the balance of the description by reference to the adjoining claims. The face of the notice does not set forth the corners or figures of the Nine Hour or St. Louis claims. It does not appear from the notice, but the surface lines of these claims were such that the Kilby’s reference to them would have been certain, -when one went upon the ground, and observed their lines, and the Kilby’s conformation to them. The Supreme Court of Colorado in Drummond v. Long, 9 Colo. 539, says: “ That degree of certainty with which the final survey for a patent fixes the focus and boundaries of the subject-matter of the grant is not required in the original location to be made by the discoverer of the lode, nor would it be practicable, without the aid of a professional surveyor.” We are of opinion that there was no error in admitting the location notice in evidence. Its fate, however, when it got into court, and met the attacks of its adversary, is another matter, and brings us to the consideration of the second error assigned by the appellant. 2. It was shown in the evidence and by one of plaintiff’s witnesses, among others, that the three adjoining claims named were situated in directions from the Kilby other than those set forth in the location notice. Witnesses who were skilled engineers were offered to prove that an engineer could not take the description in the location notice, and, by referring to the permanent monuments therein mentioned, find the premises claimed as the Kilby Lode. We do not attach importance to the fact that these witnesses were professional engineers. We mention them as such, for it was in that character that they appeared upon the trial. If, instead of being engineers, they had been any other class of persons, “who, having organs of sense, can perceive, aud, perceiving, can make known their perceptions to others,” the principle involved in the exclusion of their evidence would have been the same. Their offered testimony was not excluded because it was an attempt to set up the technical aud exact rules and methods of applied mathematics as against the common perceptions of laymen. We can understand bow an engineer might say professionally that a description was insufficient for him to find the ground, if he spoke by the principles of the exact science in which he dealt, while, as an ordinary observer, he might be compelled to admit that the description would guide him to the ground, and that, disregarding scientific errors and inaccuracies, he might find the ground intended to be described. But, as remarked, the engineers’ testimony was not excluded because it was offered as conclusive in establishing that the description Avas fatally defective. It was not objected to that it was applying too strict scientific measurements to locations Avhich of necessity are made by men unacquainted with professional surveying, The laAV recognizes that locations of mining claims are generally not made Avitlx mathematical exactness, and much liberality is properly extended to the locator who does the best that the circumstances allow. A surveyor could technically and truthfully say that a certain description would not identity the ground. With scientific exactness, it might not; but a practical miner, familiar with the methods of locating claims, and with knowledge of the neighborhood, might as truthfully testify that he could take the description and find the ground. The question in the case at bar is not between exact science and common knowledge. The engineers’ testimony was excluded on a different ground — a ground that would have applied as well to the witness of common knowledge as to the civil engineer. If the engineers’ testimony was to be excluded on the ground assigned, then all testimony of all witnesses to the same effect is incompetent. The ground was as follows: Respondent took the position that the sufficiency of the description in the location notice was a matter for the court, and this was concluded by the fact that the location notice had been admitted in evidence, and that it could not then be attacked by testimony. On this objection the court excluded the testimony offered. To be sure, it was for the court to determine whether the location notice was sufficient, on its face, to admit it in evidence; and this, as we have shown above, the court properly decided. But did the notice then become infallible? Could it not be shown by engineers, or any competent witnesses who knew the facts, that the description of the notice, when applied to the premises and the alleged monuments, failed to identify the claim? And this is the precise class of testimony that the court had been allowing throughout the trial. The responsibility of its exclusion at this point, we are constrained to remark, is upon the counsel and not upon the court. The objection, as appears, was, quoting the language of the record, “ for the reasons above given.” This was in the course of an examination, in which certain pertinent objections had been made, and the reasons given, and the objections sustained. Then comes the objection in question, “for the reasons above given.” Among those “ reasons above given ” was the one that the description in the location notice was conclusive. This was not called to the special attention of the court, but, in the collection of “reasons above given,” the court must have had in mind other reasons and grounds which were deemed to be good. This is the only explanation of the sudden and single departure of the court from the course which it had theretofore followed. Take the respondent’s position in its extreme results, and it would appear that, if the description upon the face of a notice is good, then it is still good, even if it be made to appear by the clearest evidence that it describes nothing. Take an apparently good description, go upon the ground with it, find the monuments mentioned, then start to run the lines of the claim by reference to the monuments, and find that the monuments so exist, and the lines are so located by reference to them that the description is wholly unintelligible, and, with the description, one cannot find the premises intended to be described. Then we must accept that location description as final, and cannot show by any testimony that it is utterly worthless for the purposes of identifying the claim. We do not understand that to be the law. The reference to natural objects or permanent monuments is for the purpose of identifying the claim. It is, among other purposes, to show the prospector that the ground that he may desire to appropriate has been taken by another. Now, if such prospector reads his predecessor’s notice, finds his monuments, and, tracing the description, finds nothing described, is that notice to him? Or is it a description which enables the government to grant to such locator anything certain? We think not. We do not know what the testimony of these witnesses would have been. We do not speak of its weight. It might have been, in the minds of the jury, wholly overthrown. But the nature of it was competent. It is a matter of proof whether or not an object described in the location notice as a permanent monument is in fact such. Then it is certainly a matter of legitimate proof whether, in fact, there is any reference to the permanent monument which is intelligible, or whether the reference is delusive, meaning nothing, describing nothing, and misleading. Let it be well understood that we pass upon the objection as it was made and sustained. If the question was objectionable upon grounds other than those assigned, and called to the attention of the court, that was not before the District Court nor this court. The court on the trial had received evidence of the errors of the description, that the adjoining claims were not situated as described in the notice, and evidence tending to show that the claim could not be found from the description. Then the question is asked, could a civil engineer take the description and find the ground? In view of the question, and the objection thereto, it would have been the same thing if it had been asked whether the ground could be found from the description? and, if not, why not? going into the same testimony as to errors in the description which the court had already entertained, and the case would have been upon the same ground upon which it had been proceeding. But counsel’s objection threw the case off the track which it had been pursuing. He said the location notice description was conclusive, and it could not be attacked by evidence; and this view the court sustained, apparently inadvertently, because it contradicted the theory upon which the court had theretofore gone. As the objection was made, it was not valid, and we pass upon its validity as made. The logic of Russell v. Chumasero, 4 Mont. 317, and kindred cases, points clearly to this view. The notice in those cases was admitted, not as conclusive. The notice, prima facie good, may go into evidence. Then it may be shown whether the natural object or permanent monument is such. The reference to the permanent monument is quite as material to the description as is the permanent monument itself. A permanent monument, with no intelligible reference to it, would not describe or identify the claim. Then why may it not be shown that there is no reference, as well as that there is no permanent monument? Of this we have no doubt whatever. We are of opinion that the court erred in excluding the pro-offered testimony of Cummings, Keerl, and Bobinson, and on that ground the judgment is reversed and the case is remanded, with directions to grant a new trial. Reversed. Harwood, J., concurs. Blake, C. J., having tried this case when chief justice of the territorial Supreme Court, did not participate in this decision.

Blake, C. J. The complaint alleges: “(1) That on or about the twenty-second day of July, 1890, at the county of Park, in the State of Montana, plaintiffs sold and delivered to defendant, at his special instance and request, the following personal property, to wit, 45 head of bucks, at the agreed price of $5 per head, $225; 1,404 head of lambs, at the agreed price of $1.50 per head, $2,106; 1,469 ewes, at the agreed price of $2.75 per head, $4,039.75, — amounting in all to $6,370.75. (2) That defendant agreed to pay plaintiffs for said bucks, lambs, and sheep, on delivery to defendant, the said sum of $6,370.75. (3) That said bucks, lambs, and sheep were delivered by plaintiffs to defendant on or about the twenty-second day of July, 1890, in compliance with the terms of said contract. (4) That defendant has not paid the same, nor any part thereof, except the sum of $5,600. (5) That there is now due plaintiffs from defendant for said property the sum of $770.75, and interest thereon from the twenty-second day of August, 1890, at the legal rate.” The answer is as follows: “The defendant, for his answer to the complaint of the plaintiffs herein, admits the allegations contained in first, second, third, and fourth paragraphs of plaintiffs’ complaint; and further answering, the defendant denies that there is now due and owing the plaintiffs from the defendant the sum of $770.75, or any other sum.” The defendant, by way of new matter, alleges that at the time of the sale of the sheep, the plaintiffs represented “that the said sheep were of the ages of from two to four years, and that none of said sheep were older than four years — except, possibly, twenty head — and that the plaintiffs had raised and bred said sheep, and knew their ages, and warranted that no more than twenty of said sheep were over the age of four years; that defendant was not sufficiently familiar with the ages of sheep to tell the ages of said sheep, and that the ages of said sheep could not be definitely ascertained except by an examination of each sheep, and that it was not practicable to make such examination; that the defendant relied upon the representations of the plaintiffs, repeatedly made to the defendant, as to the ages of said sheep; that the defendant has since the purchase of said sheep, and before the commencement of this action, ascertained that the said sheep were not of the ages as repre sented by the plaintiffs, but on the contrary thereof, more than 700 head of said sheep are, and were at the time of said sale to the defendant, more than four years old, and that most of the said 700 sheep were over six years old, and some of them as old as eight years; and that nearly all of said 700 sheep are, and were at the time plaintiffs sold them to this defendant, almost worthless, and could not be sold in the market except for a mere nominal sum. Defendant, further answering, says that the plaintiffs made said representations to the defendant to induce the defendant to purchase said sheep, and that at the time of making said representations the same were false and untrue; .... that by reason of the premises and the false and fraudulent representations of the plaintiffs, as aforesaid, the defendant has been damaged in the sum of $1,000.” The replication consists of imperfect denials of this new matter, which would be construed to be admissions of the facts which are pleaded in the answer. Upon the trial testimony was introduced by the respective parties upon these issues, without any objections regarding the form or effect of the pleadings, and all defects of this nature were waived. They cannot be urged for the first time in this tribunal, and will not receive further consideration. The jury returned a verdict for the defendant for the sum of $1,000 as damages; and the court, after deducting the amount demanded in the complaint, entered judgment for the defendant for the remainder. The motion of the plaintiffs for a new trial was overruled. We will attempt to review the assignments of error, which are numerous. The appellants maintain that the verdict is for a greater amount than is demanded in the answer. The prayer of the complaint is “for the sum of $770.75, with interest thereon from the twenty-second day of July, 1890, and for costs.” The answer “ demands and prays that the plaintiffs take nothing by this action; that defendant may have judgment against the plaintiffs for the sum of two hundred and twenty-nine dollars and twenty-five cents ($229.25), being the difference between the defendant’s said damages and the balance of the purchase price of said sheep; for his costs in this action.” The judgment was entered accordingly for the defendant in the sum of $229.25 and his costs. In the cross-examination of the respondent the appellants asked this question, relating to an interview between the witness and one oí the appellants after this property had been delivered: “What did he say?” The respondent interposed an objection upon the ground that it was “ irrelevant, immaterial, and not proper cross-examination.” This was overruled by the court, and an exception was noted by the respondent. As soon as the question was put, the appellants moved to strike out the testimony “as immaterial, and not proper examination, and not proper matter to go to the jury in this case.” The motion was denied, and the appellants excepted, and now urge that the respondent then repeated his story, and thereby enlisted the sympathy of the jury. We are unable to see any reason for complaint upon the part of the appellants, because they insisted upon their right to have the question propounded, and the answer is responsive to the same. The respondent testified upon cross-examination that he sold 747 young ewes, and the appellants then asked: “What did you get for the ewes you sold?” The court sustained the objection of the respondent upon the ground that it was “ irrelevant and immaterial, and not proper cross-examination.” The appellants assert that this action was erroneous. Our attention has not been called to any issue in the case which could be affected by this evidence. The authorities are uniform in stating the principle on which the ruling of the court below is upheld. Chief Justice Bigelow, in Brown v. Bigelow, 10 Allen, 242, said: “The rule of damages for a breach of warranty on the sale of chattels is well settled and familiar. It is the difference between the actual value of the article sold and the value of the same article if it had been such as the vendor warranted it to be. (Stiles v. White, 11 Met. 358; Tuttle v. Brown, 4 Gray, 460.) The application of this rule is not changed or modified by the fact that a purchaser of a warranted article has sold it for the same or even a greater price than that which he paid for it. (Medbury v. Watson, 6 Met. 257; 39 Am. Dec. 726.) .... The disposition which a purchaser makes of property is an independent and collateral fact, having no connection with the bargain by which he acquired his title.” (Hunt v. Van Deusen, 42 Hun, 392; Atkins v. Cobb, 56 Ga. 86; 2 Suther land on Damages, 422; 2 Sedgwick on Damages [8th. ed.], § 762.) The court, at the request of the appellants, gave this instruction: (1) “The jury are instructed that while it is true, if the seller of personal property asserts as a fact anything regarding its qualities, and concerning which the buyer is ignorant, and the purchaser relies upon the statement in making the purchase, the assertion will amount to a warranty of the fact asserted, still it is also true that if the vendor merely states an opinion or gives his judgment upon a matter of which he has no special knowledge, and upon which the buyer might also reasonably be expected to have an opinion and to exercise judgment, this is not a warranty.” The appellants say the court erred in adding thereto the following sentence: “ It is for the jury, however, to find from the evidence whether the statements were matters of personal knowledge on the part of Mr. Hogan, or whether he merely stated said ages of the sheep as an opinion. If you believe that Mr. Hogan knew said ages, and had the means of knowing, you should consider these facts, with all other facts in evidence, in determining whether he stated said ages as his opinion or as facts.” It is maintained that the evidence shows that the respondent reduced to writing his acceptance of the proposition for the purchase of the sheep, and thereby embodied the whole contract, and that the jury should disregard the statements of the parties during the pendency of the negotiations. This is the document which is mentioned: — “Billings, Mont., July 17, 1890. “Mr. Thos. Hogan, Red Lodge, Montana• — Dear Sir: I will take the sheep as per our agreement, viz., the lambs at $1.50 per head, the ewes at $2.75 per head, and payment to be made for them in full on acceptance of them at your place. I will come up Monday, as per agreement. Yours, resp., “B. F. Shuart.” This point was not made in the court below, and was ignored by the appellants in their pleadings, the introduction of the testimony, and their requests for instructions. We cannot permit the appellants to make this radical change of their position upon this hearing, and treat the letter as the statement of the terms of the agreement. The amendment of the instruction was proper. The court, at the request of appellants, further instructed the jury: (2) “The mere expression of an opinion, or representations concerning the qualities or capabilities of an article sold by the vendor, do not, of themselves, constitute a warranty. To amount to a warranty the language used must form a part of the contract of sale, and be such as to import or amount to a promise that the article in question does possess the qualities and capabilities mentioned in the alleged promise or contract; and the expressions or representations must be relied upon by the buyer as a warranty in making the purchase.” At the request of appellants the court gave this instruction: (3) “To constitute a warranty, there must not only be an affirmation by the seller respecting the quality of the article sold, but the affirmation must be made with a view of assuring the buyer of the truth of the fact asserted, and it must be received and relied upon by the buyer in making the purchase. While, to constitute a warranty, the term ‘warrant’ need not be used, nor any precise form of expression employed, still, to constitute a binding warranty, there must be an affirmation as to the quality or condition of the thing sold, made by the seller, at or before the sale, for the purpose of assuring the buyer of the truth of the fact asserted, and of inducing him to make the purchase.” The following clause was added by the court: “And it must be so received and relied upon by the purchaser; and, if so made and so received, then there is a warranty, and it may be so considered by the jury.” The court also instructed the jury at the request of appellants: (4 and 5) “The court instructs the jury that to constitute a valid and binding warranty the agreement to warrant must enter into, and form a part of the contract of sale. If the agreement to warrant the article is not made at the time the trade is consummated or closed up, then it must be made during the negotiations between the parties, and so shortly before the sale, and under such circumstances, that the purchaser was reasonably justified in regarding it as continuing until the bargain was finished and as forming one of the terms of the contract of sale: A representation concerning a matter of fact, both expressed and intended as binding the person making it to its truth, is called a 'warranty/ and produces a legal contract obligation. The representations may be made, not only without any warranty, but also without being accepted as intended to be acted upon without further inquiry. In such cases there is no warranty.” The court gave this instruction at the request of the appellants : (6) “ The jury are instructed that mere praise or boasting indulged in by the owner of personal property, when offering it for sale, does not amount to a warranty of its quality or condition, if such praise or boastful remarks are but expressions of opinion or judgment concerning the property, provided the purchaser has an opportunity to examine the property at the time, and does or does not do so, and where no artifice is used to prevent him making an examination. When parties are negotiating a trade for property which there is an opportunity for examining, the owner of the property has a right to extol the value or desirable qualities of his property to the highest point which the credulity of the purchaser will bear, if he confines himself to mere expression of opinion or judgment. Such boastful assertions or highly exaggerated descriptions do not amount to a warranty. In such cases the parties are upon equal ground, and the purchaser must exercise his own judgment, and abide the consequences.” The court added this sentence: “In this connection, in concluding whether Shuart had an opportunity to examine the sheep, you shall consider all the circumstances of the case, including the statement of Shuart that he was ignorant as to the means of determining the ages of sheep.” The appellants contend that this addition is argumentative; that it gives special prominence to the testimony of one witness; and that it misleads the jury, by conveying the impression that the court believes one party, and discredits the statements of other persons. Before we discuss these matters, we will quote one instruction (7) and the part of another (8), which were given at the request of appellants: “ If, during the negotiation for the sale of the sheep in question, the plaintiff made an assertion that the sheep were not over four years old, except twenty head, which assertion was intended to cause the sale of the sheep to defendant, and was operative or effectual in causing such sale, then such assertion would constitute a warranty; but a mere expression of an opinion is not enough to constitute a warranty.....If the seller of an article of personal property represents what he himself believes as to the qualities or value of an article, and leaves the determination to the judgment of the buyer, there is no fraud or warranty in the case, and the seller would not be liable for any defect in the quality of the thing sold.” The court evidently employed the word “circumstances” as a synonym for “proof” or “evidence.” This is apparent when the language of another instruction (12J) is compared: “ Counsel violate their duty in their argument to the jury when they refer the jury to evidence or circumstances not brought out on the witness stand.....” This definition of the word “circumstances” is correct, and the jury could not have been misled thereby. The court elsewhere instructs the jury upon the question of the credibility of the witnesses]: (13) “You are the sole judge of the credibility of the several parties and witnesses who have testified in this case.” The court did not usurp the province of the jury, and point out the deductions which should be drawn from the circumstances that are referred to. The eases on which the appellants rely make clear the distinction. In Skeggs v. Horton, 82 Ala. 352, the court held that the following instruction “was rightly refused,” to wit: “The declarations of ... . can be looked to by the jury to sustain the presumption of revocation of the alleged will, and his declarations to ... . can be looked to by the jury to rebut the presumption of such revocation.” In Weil v. Paul, 22 Cal. 492, it was held that the court did not err in refusing to give this instruction: “If the jury believes the evidence of A. Strauss, the plaintiff’s witness, that he had the possession of the goods in controversy after the sale to the plaintiff, and was selling and peddling them out, they will find a verdict for defendants.” (See, also, Davis v. Gerber, 69 Mich. 246; Morris v. Lachman, 68 Cal. 109.) In People v. Vasquez, 49 Cal. 560, Mr. Justice Rhodes for the court said: “An instruction is not pertinent, nor in any sense proper, unless given in view of the evidence, as tending or not tending to prove some fact in issue; and it could not be erroneous for the court to state to the jury correctly, as was done in this case, the state of the evidence in respect to which the instructions were given.” In People v. Perry, 65 Cal. 568, the court said: “But if testimony has been introduced to prove a certain matter the court may instruct the jury that testimony has been introduced tending to prove such matter; and such instruction is not an expression of the opinion of the court as to the weight or effect of the evidence, nor as to what fact has been proved.” In Long v. State, 23 Neb. 33, the court held the following instruction to be erroneous: “If you should conclude from the evidence — which includes, not only the sworn testimony of the witnesses who have testified, but all the circumstances surrounding the tragedy — - that deceased was killed,” etc. Chief Justice Reese says in the opinion that “the jury were not warranted in going outside of the testimony and proofs which had been introduced before them,” and “ that the use of the language referred to in the instruction might have had a tendency to call the attention of the jury from the testimony of the witnesses, to which they should have been particularly and exclusively directed.” The learned judge applied Thompson v. State, 30 Ala. 28. The appellants also cite Territory v. Whitcomb, 1 Mont. 363, wherein the court, by Chief Justice Wade, said: “ The jury must believe from the testimony legally produced before them in open court, and from that alone; and any instruction of the court that permits the private belief or private knowledge of a juryman to sway his findings or his judgment is wrong, and beyond remedy.” It is not disputed that Shuart testified in conformity with the tenor of the instructions before us, and upon this point it may be safely declared there is no conflict in the evidence. The credibility of the witness was not passed upon by the court, and the jury were properly instructed thereon. The authorities supra, which afford illustrations upon this subject, are inapplicable to this instruction; and no words were employed which would allow the jury to consider aught except legal testimony. The reference to the term “evidence” in the tenth and eleventh instructions, infra, should be read in this connection. But we think it was improper practice for the court to allude so pointedly to the testimony of Shuart, and this would have been error had his statement related to a material issue, because recovery was sought on a warranty. His knowledge or ignorance of the mode of determining the ages of sheep was not involved in the merits of the controversy. The appellant who conducted the negotiations testified as follows: “I do not deny that I represented to Mr. Shuart that these sheep were, with a few exceptions, four years old and under. I do not deny that I made that statement to the best of my belief. I represented and told Mr. Niekey that these sheep were four years old and under, with the exception of a few head. I do not know what the ages of the sheep were.” It was not controverted upon the trial that the appellants sold and delivered to the respondent 722 sheep which were over the age of five years. The instructions and evidence were directed to this salient question: Did the language of the appellant to the respondent, which preceded the sale of the property, constitute a warranty that the sheep were not over four years old? The jury by their verdict decided in the affirmative upon this issue, and the obnoxious part of the addition to the instructions must be adjudged harmless. The appellants claim that the court erred in adding the following clause: “But if the seller misstated the ages of the sheep, and the defendant Shuart, because of lack of opportunity or ability, was unable to determine whether Hogan was telling the truth, and his misrepresentations were implicitly relied on by defendant, and was induced to make such trade by such misrepresentations, then the defendant would have a right to rely on said statements of Hogan as true, if said statements were made by Hogan as true, and not merely as an opinion.” This amendment to the instruction is criticised as being argumentative. We reiterate what has been said, that the reasons of Shuart for relying upon the warranty of appellants are immaterial. We disapprove this portion of the instruction, but are of the opinion that the appellants were not prejudiced thereby. The instructions, viewed as a whole, stated correctly the law which was applicable to the proof as to warranty. The court below was undoubtedly influenced in its modification of the instructions by the expression of appellants therein concerning “an opportunity for examining” the property. The ninth and eleventh instructions were given at the request <of the respondent: “The jury are instructed that the measure of damages in this case, if you find the defendant has been damaged at all, is the difference between the actual value of the over-age sheep and the value they would have possessed in the market at the time if they had been of the ages as represented by the plaintiff, Thomas Hogan, if you find he represented the ages of the sheep. .... If you find from the evidence that the plaintiffs warranted the sheep to be not over four years of age, with the exception of a few head, and that the sheep were over that age, then you are to find the difference in the value of those over the age of four years and the market value they would have possessed if they had been of the ages as represented, and the difference would be the damages sustained by the defendant.” The contention of the appellants is that the true measure of the damages is not laid down. "While the authorities are not in harmony respecting the rule, we think that the views of the court below are generally supported. (Brown v. Bigelow, supra; 2 Sedgwick on Damages [8th ed.], § 762, and cases cited.) We quote from this section: “From these cases the result is that in an action brought on a warranty the true measure of damages is the difference between the value which the thing sold would have had at the time of the sale if it had been sound, or corresponding to the warranty, and its actual value with the defect; and such is now the almost universally recognized rule.” See, also, section 777, and cases cited, in which an excerpt from Whitney v. Allaire, 1 N. Y. 305, is given, with a comment: “ ‘ The measure of damages in an action upon a warranty, and for fraud in the sale of personal property, are the same. In either case they are determined by the difference in value between the article sold, and what it should be according to the warranty or representation;’ and this has usually been stated as a general rule.” The tenth instruction was given at the request of the respondent : “ If the defendant was not in a position to acquaint himself with the ages of the sheep he was purchasing from the plaintiffs, and was induced to buy them, without making examination with a view to ascertain their ages, by the representations of their ages by the plaintiff, Thomas Hogan, and if you find that defendant did rely upon the representations of the plaintiff, Thomas Hogan, then you are to consider this, in connection with all the other evidence, in determining the question as to whether there was a warranty as to ages.” The twelfth instruction was given by the court upon its own motion: “ In order to constitute a warranty upon a sale, it is not necessary that the representations should have been intended by the seller as a warranty. If the representation is clear and positive as to the kind or quality of the article, and not a mere expression of opinion, and the purchaser understands it as a warranty, and, relying upon it, purchases the property, then the seller cannot escape liability by claiming that he did not intend what his language declared or fairly implied.” The appellants object to these instructions upon the ground that the court assumed the existence of certain facts. After a careful examination of the record, we cannot discover any merit in the suggestion. Granting all that the appellants claim, the court observes a scrupulous regard for its duties and powers, which will be defined. Mr. Hayne says that “the judge may charge with respect to facts which are not controverted.” (New Trial and Appeal, § 121 b, and cases cited.) The court in People v. Welch, 49 Cal. 181, said : “The ‘ matters of fact’ as to which the court is not permitted to charge the jury are the facts contested, or, in some degree, sought to be established by evidence.” We will remark here that similar observations concerning other instructions which have been made by the appellants come within this exception. The appellants have urged in many phases, which need not be depicted, one point, which is, that there is no evidence to prove the value of this property at the time of the sale — July 21, 1890. The sheep were thoroughly inspected September 23,. 1890, by disinterested experts, at the instance of respondent, and their ages were ascertained. It is shown by testimony which is not attacked by the appellants that there were then in this flock 58 toothless sheep, 350 peg-toothed sheep, and 314 sheep over the age of 5 years; that toothless sheep are over-10 years old; that peg-toothed sheep are over 8 years old; that these toothless, peg-toothed sheep, and sheep over the age of 5. years, 722 in number, were worth then, in September, 1890, $928.50; that this amount was computed as follows: Value of the toothless sheep, 50 cents per head; value of the peg-toothed sheep, $1 per head ; value of 314 sheep over the age of 5 years, $1.75 per head — and that the respondent paid therefor $1,985.50, which was the value of the ewes under the age of 4 years at the time of the sale and also this inspection. The contention of appellants is that a verdict for any sum as damages is not supported, because there is no evidence showing the value of the toothless, peg-toothed, and sheep over the age of 5 years, when they were purchased by the respondent. We do not concur in this statement. Shuart was asked this question: “Do you know the market value of sheep last year, about the time you bought these — I mean the band, generally? Answer. Of course, you would have to grade the sheep in order to put a value on them. I know what sheep were selling for. Q,. Did you know what the market value of sheep was? A. Yes, sir. Q. What were sheep over 4 years of age worth at that time ? A. I do not think there would be any fixed price, classified in that way. They might be worthless. A sheep 5 years old would bring probably $1 to $1.50.” In our opinion the testimony of the experts corroborates the respondent. We conclude by asserting that the case has been tried impartially; that the instructions cover fairly the material issues, and that the verdict should not be disturbed. It is ordered that the judgment be affirmed. Affirmed. Harwood, J., and De Witt, J., concur.

De Witt, J, It has been suggested that the District Court made an order refusing to grant the motion for a change of the place of trial, and that this order is appealable (Code Civ. Proc. § 444), and that therefore a writ of mandate will not lie. But we are of opinion that a fair deduction from the record is that the court simply refused to act on the motion, and this is also the view of counsel for the petitioner. They complain of what they call “non-action” by the court, and seek, by this writ, to bring the court into action. The disqualification of the judge “to act as such” in the action is, under the statute, unquestioned. In refusing to act, even upon the motion, the judge below obeyed the mandate of the statute literally and fully (Code Civ. Proc. § 547), although it has been suggested that the granting of a change of venue is a formal act, which even a disqualified judge may perform. (Code v. State, 8 Tex. App. 666, cited in Littrell v. Wilcox, ante, p. 77.) We are then brought to the contention of the parties. Petitioner claims that the granting of a change of venue in this case was not a judicial act, but purely ministerial, in which the court had no discretion, but that the motion should have been granted at once and of course. On the other hand, the respondent contends that the venue should not be changed if the judge of another district will appear and try the action. This is unquestionably correct, and the plain direction of the statute, and so far there is no disagreement between the parties. But the controversy arises as to the procuring of the other judge. Petitioner claims that the disqualified judge cannot call in the judge; that is to say, he cannot select him; that, if he is disqualified to act, he is disqualified to select his substitute. Petitioner admits that there would be no trouble if the other judge were in Judge Durfee’s court by means other than the invitation of the resident judge. Petitioner’s position reduces itself to about this: It is right for him to try his case before a judge who happens to get into Judge Durfee’s court, but not before one who arrives there by the only means by which another judge could ever so arrive. There is no provision of the Constitution or the statute, as in some States, by which the governor, or any other officer, could assign a judge to go to Judge Durfee’s court, for any purpose, in a case of this nature. Such, other judge will never voluntarily go to Judge Durfee’s court, and request the judge upon the bench to vacate his seat for him. Nor is petitioner’s ease helped if he says that he will wait, and the plaintiff must wait, for a trial, until another judge happens to be in the court upon business other than that in controversy; for the other judge will, even then, be there upon the invitation and selection of the resident judge, and the situation is in no manner altered. When the statute says that the place of trial shall not be- changed for disqualification of the judge, when another judge will appear, etc., it must be construed to mean something, if meaning can be extracted from language; and, in our opinion, it does mean that such judge shall appear by the only method by which it is possible for him to appear, viz., by the invitation of the resident judge. When it is argued that to allow this is to allow a disqualified judge to “act as such in the action,” the reply is that, under our law, the whole subject has been made statutory, and the same power that disqualifies a judge can make an exception to such disqualification, and such exception is found in the constitution of the courts, which makes Judge Dureee the judge of the third district, which clothes him with authority in his own court, and the Constitution (art. viii. § 12), which provides that another judge may sit in his place, and the absence of provision, constitutional or statutory, for any other method by which such other judge can occupy Judge Dureee’s seat, except upon the call of the judge presiding upon that bench. The application for the writ must be denied, and it is so ordered. Writ denied. Blake, C. J., and Harwood, J., concur.

De Witt, J. The first ground of the demurrer which we will examine is this: It is contended by the county that the complaint does not allege facts showing that the county clerk of Yellowstone caused to be published in appellant’s daily newspaper the certified copy of the constitution. The allegation of the complaint upon this point, upon which appellant relies, is that “ the county clerk furnished the plaintiff with the said certified copy of the said proposed constitution for publication in the plaintiff’s newspaper.” This complaint is an amended one. The plaintiff, therefore, once attempted to better his pleading. Courts are liberal in allowing amendments to pleadings; and appellant could doubtless have obtained leave to amend again, and could easily have stated in his complaint, in unequivocal language, that the county clerk caused the constitution to be published in his said daily newspaper. He did not do so. Of course, on demurrer, the allegations of the complaint are taken as true. The conduct of the appellant in adhering to his allegation as made, and not amending so as to state his cause of action clearly within the statute, when he could so readily have done so, if such allegation would have been true, gives the court the more reason to hold that we cannot aid the pleading by implication or forced construction. We therefore read the complaint as it is written. If the appellant were authorized to print the constitution in his said daily newspaper as a charge against the county of Yellowstone,, he was so authorized by the county clerk. The county clerk was a public officer. The appellant was charged with knowledge of the official and not personal character of him with whom he dealt; and he should have known whether the county clerk ordered him to publish this constitution, or caused it to be published in appellant’s daily newspaper, or whether the county clerk furnished it to him as a matter of general news, for his accommodation, or for publication in some other newspaper of his than his daily newspaper, or for any other purpose. (Lebcher v. Commissioners, 9 Mont. 320.) It cannot be contended that this publication by the appellant would be a charge against the county if the county clerk did not cause it to be published, or order or request it, and if it was done voluntarily by the appellant, even if it were furnished by the clerk, knowing that it was to be published. Public officers constantly furnish to newspapers matters of public interest for publication because the newspapers, in their ambition for news and the service of the public, want them. But it cannot be said that publications so made are on the order or request of, or caused by such public officers. If it were the fact that the county clerk furnished this copy of the constitution to appellant under the precise circumstances last above suggested, the allegátions of the complaint would describe just such a transaction; and such transaction would not constitute a charge against the county under the law and the other facts alleged. Again, assume for the moment that the county clerk did cause the copy of the constitution to be published in appellant’s daily newspaper — not that the complaint alleged it, but assume that it was a fact. Then the language, as it is found in this complaint, would not be untrue. It would be consistent with the fact that the clerk caused the publication. But, because the language of a pleading is not inconsistent with a state of facts, that is not alleging such state of facts. The complaint must allege the cause of action, and not simply set up matter which happens not to negative a cause of action. The cause of action must be found in the words of the complaint. Again, even if it were considered that the allegation of the complaint should® be construed to the effect that the county clerk caused the publication to be made by appellant, the complaint does not state that it was to be made in appellant’s daily newspaper named in the complaint, or in what newspaper of appellant. It was such a simple matter to allege these facts constituting a cause of action — the appellant had such abundant opportunity to allege them, if they were true — and as he refused to do so, apparently with deliberation, it would seem that the pleader considered that he had set out his alleged cause of action as fully as the facts warranted; and those facts, as disclosed by the complaint, we are of opinion, for the reasons above expressed, were not sufficient. The demurrer was properly sustained and the judgment is affirmed. Affirmed„ Blake, C. J., concurs.

Harwood, J. The bill of exchange sued on in this action was drawn for the principal sum of four thousand dollars, and provided for interest at six per centum per annum after maturity until paid, and that “the parties hereto agree to - pay all attorney’s fees in case of suit on this paper.” The defendants, one of whom is appellant, were, according to the allegations of the complaint, both acceptors and indorsers of said bill of exchange. Judgment was rendered against appellant, G. W. Crutcher, one of the alleged acceptors and indorsers, for the said principal sum of four thousand dollars, together with four hundred dollars for attorney’s fees for services in prosecuting the action, and costs of suit. This appeal is from that portion of the judgment relating to attorney’s fees allowed in said action. Respondent contends that an appeal from part of a judgment is not proper practice, and cites in support of his position the case of Barkley v. Logan, 2 Mont. 296, determined at the August term, 1875, and the case of Plaisted v. Nowlan, 2 Mont. 359, determined at the January term, 1876, of the Supreme Court of Montana, in which latter case the former was again considered on motion for rehearing, and affirmed. These cases would support respondent’s position but for the fact that since the determination of them the statute under which they were determined has been so amended as to provide for an appeal from the judgment, “or any part thereof.” The sections of the statute (369 and 380) referred to in the cases cited are as found in the Civil Practice Act, enacted by the seventh session of the legislative assembly, convened in 1871. Now, in 1877, about one year following the announcement of the decisions cited ■supra, the Code of Civil Procedure was revised by the legislative assembly at the tenth session thereof, and the same sections again appear in the Code as sections 408 and 431 (10th Sess. Laws), and in the latter section appears the additional words, “ or any part thereof,” making the section read: “ An appeal may be taken to the Supreme Court in the following cases s First, from a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other courts.” The statute has since remained in that form. We therefore hold that an appeal may be prosecuted from part of a judgment. (See In re Davis’ Estate, ante, p. 1.) In California, under statutes very similar, the practice is to entertain an appeal from part of a judgment. (Hayne on New Trial and Appeal, § 185, p. 562.) Appellant, G. W. Crutcher, as a defendant in said action, appeared, and answered said complaint, and, among other averments, set forth two paragraphs as follows: — “4. This defendant, for answer to the seventh paragraph of said plaintiff’s complaint, alleges that said attorney’s fees in said suit provided for were not due at the time this suit was filed. “5. And for further answer to said seventh paragraph he alleges that the bill herein sued on was, as alleged in said complaint, made in the- State of Kentucky, and payable in that State, and said contract was to be wholly performed in that State, and that by the laws of the State of Kentucky the sum of two dollars and fifty cents, and no more, is provided for by the statutes of the said State of Kentucky in such cases, and that any contract for a greater sum as attorney’s fees is by the laws of said State of Kentucky illegal and void, and that no greater sum than two dollars and fifty cents can be recovered in said State under the contract set out in the complaint herein.” These paragraphs plaintiff’s counsel moved the court to strike out of said answer, on the ground that the averments therein contained were sham and irrelevant allegations, and constituted no defense to plaintiff’s complaint. The court sustained said motion, and struck from the answer said paragraphs 4 and 5. The said motion and order appear in the record, and the appellant complains that the court erred in said proceedings; but respondent interposes the objection that said proceedings of the court below are not properly before this court for review on appeal from the judgment, because, as he contends, said motion and the order of the court thereon are not part of the judgment roll. This objection leads into a region of practice much debated by the profession and bench in this jurisdiction, commencing with the case of Noteware v. Sterns, 1 Mont. 314, and running through a number of decisions, which discussion, perhaps, as intimated by the learned judge in Barber v. Briscoe, 8 Mont. 214, has tended rather to entangle and obscure the region than to trace plain paths through it. If this be true, it warns us to look well to our bearings from the stand-point of statute and principle when we enter here. It may have so appeared, with much reason for it, to Justice Liddell, in treating that case; but with the opinion in that case and the statute we do not view the point with so much embarrassment, nor need we dwell long upon it. In the opinion just cited, section 290 of the Code, which prescribed what matters shall be deemed excepted to — i. e., what proceedings of the court the law reserves an exception to in favor of the party desiring to have the same reviewed — was first considered. It is then observed: “When v^e come to examine the matters which are deemed excepted to it will be seen that there are two kinds — those orders, decrees, and rulings which appear upon the face of the pleadings; and the other is of that class where the decision, order, or ruling is based upon evidence dehors the pleadings.” And again: “ The mere fact that the law has reserved an exception will not avail a party any more than if he had not excepted, unless the grounds and reasons, with so much of the evidence as is necessary to explain the point, be embodied in a bill of exceptions properly settled and signed, as is required by the Code of Civil Procedure. .... We have two lines of authorities .... founded upon the distinction above stated, perfectly in accord with the strict letter of the statute, and in conformity with the California authorities on the same subject. The second paragraph of section 306 of the Code of Civil Procedure defines what shall constitute the judgment roll, specifying the summons, pleadings, verdict, or findings of the court, commissioner, or referee, all bills of exceptions taken and filed in said action, and copies of orders sustaining or overruling demurrers.” The Montana cases are then reviewed, and it is further said: “From these cases it appears that when the order, decision, ruling, or other matter deemed excepted to by law is apparent upon the face of the pleadings, no formal bill of exceptions is necessary in order to have the ruling reviewed on appeal based upon the judgment roll.” The correct distinction upon this point of practice appears to be there expressed, and, in our view, that case goes far towards reconciling the two lines of Montana cases which are mentioned as being wholly at variance. In the case at bar the judgment roll is brought here on appeal from the judgment, and we are asked to review an order striking out a portion of appellant’s answer. This order is deemed excepted to by the provisions of section 290 of the Code of Civil Procedure. It is provided by section 308 of the Code that the judgment roll shall include, among other papers, all pleadings and copies of orders sustaining or overruling demurrers. Now, a motion to strike out a portion of a pleading is in fact and in substance a demurrer to that portion attacked. This motion is used to trim off and cast out improper matter inserted in a pleading which contains proper averments, while the demurrer is made use of to root up and cast out the whole pleading at which it is directed. (Bliss on Code Pleading [2d ed.], § 423.) Such a motion being of the nature of a demurrer, which is part of the judgment roll, and the order sustaining the same being deemed excepted to, it is held reviewable on appeal from the judgment. In the case of Dodson v. Nevitt, 5 Mont. 518, a motion was made to strike out a counter-claim set up in the answer, and sustained. This proceeding was held ■ reviewable on an appeal from the judgment, on the ground that such motion was in the nature of a demurrer. Was the action of the court in striking out said paragraphs 4 and 5 erroneous? As to paragraph No. 4, we unhesitatingly deem it sham, and without force as a defense. The language of the clause in the bill of exchange as to attorney’s fees is: “The parties hereto agree to pay all attorney’s fees in case of suit on this paper.” Appellant reasons that this is a promise of a certain sum upon the happening of a contingency, and until that contingency happens, and the attorney’s fee is earned, by prosecuting the action to judgment, there is nothing to pay, and that such fee cannot be recovered in the same action. It seems to us that the contingency for the employment of an attorney arose when default was made in the payment of said bill, at the time and place of payment expressed therein; and that the attorney’s fee, if lawful to be charged, was earned when judgment was obtained, and was proper to be allowed therein. It was incidental to the enforcement of said debt by suit, and was a proper part of the collection to be made in the same suit, if lawful at all. , Paragraph No. 5 of the answer is an attempt to plead a statute of the State of Kentucky, and also, as we are informed by appellant’s counsel, the construction of such statute by the courts of that State. Does that paragraph accomplish the purpose intended? It is a rule of the law relating to contracts, with but few exceptions, not applicable in this case, that, if a contract is void by reason of the laws of the place where the same is made and is performable, the same rule will be applied by the courts of another State where such contract is sought to be enforced, although such contract is not obnoxious to the laws of the latter jurisdiction. (2 Parsons on Contracts, 582; 2 Parsons on Notes and Bills, 317; Story on Bills, § 129; 1 Story on Contracts, § 802; Bishop on Contracts [enlarged ed.], § 1390.) But in order to have such foreign law applied in another jurisdiction it must be brought to the attention of the court by setting out so much thereof as is applicable, and proving the same. This is the rule at common law (1 Chitty on Pleading, 239); and it does not appear to have been changed by the Codes. (Bliss on Code Pleading, 183, 184, 304.) The case of Throop v. Hatch, 3 Abb. Pr. 23, being directly in point, and the language so appropriate to this subject, we quote a few observations therefrom. The court, by Allen, J., says: “If the plaintiff is driven to the statute laws of the States of Ohio and Michigan to maintain this action, and bound to show that by the statutes of those States the trusts which he seeks to enforce are valid, he should have set out, at least substantially, the statutes upon which he relies. The laws themselves are to be averred and proved in the same manner as other facts, and their existence is to be proved by copies of the statutes, properly exemplified, as other documents are. The averment that the trusts are, by the laws of the States in which the lands are situated, valid and subsisting trusts, is therefore nothing more than an averment of the conclusion of the pleader, based (1) upon his knowledge of the existence of certain statutes; and (2) upon his construction of those statutes.” The following cases hold to the same effect: Phinney v. Phinney, 17 How. Pr. 197; Carey v. Cincinnati etc. R. R. Co. 5 Iowa, 357; Devoss v. Gray, 22 Ohio St. 159; Swank v. Hufnagle, 111 Ind. 453; Central Trust Co. v. Burton, 74 Wis. 329; Sells v. Haggard, 21 Neb. 357; McLeod v. Conn. etc. R. R. Co. 58 Vt. 727.) In the case at bar the pleader alleged that by the statute of Kentucky two dollars and fifty cents only is allowed as a fee to an attorney in such a case, and “that a contract for a greater sum as attorneys’ fees is by the laws of said State of Kentucky illegal and void.” This is an allegation of the pleader’s conclusion as to what the statute of Kentucky provides in this respect, but what that law is in terms is not set forth. The court, therefore, properly granted the motion to eliminate from the answer that averment. And the party, having failed to avail himself of the opportunity offered by the court to amend his pleading, has lost the benefit of the provision of the law of Kentucky (if there is such a law) applicable to the bill of exchange, which it appears was made there, and was by its terms payable there. Independently of the question as to what the law of Kentucky is, and its effect upon the stipulation in said bill for the payment of attorney’s fee, appellant contends that said provision ought to be held invalid here, on the ground that such a stipulation in a contract is obnoxious to sound public policy, and in support of this position cites cases from certain States, and also the case of Merchants’ Nat. Bank v. Sevier, 14 Fed. Rep. 662, decided in the United States District Court for the eastern district of Arkansas, by Judge Caldwell, and concurred in by McCrary, J. Respondent meets this proposition by the citation of a line of cases from the courts of last resort in other States of the Union, and also finds support for his side of the proposition in the Federal Courts, in the case of Wilson S. M. Co. v. Moreno, 7 Fed. Rep. 806, decided by the Circuit Court for the district of Oregon, per Deady, J.; and also the case of Howestein v. Barnes, decided in United States Circuit Court, Kansas district, in 1879, per Foster, J., cited and commented on in note to Witherspoon v. Musselman, 29 Am. Rep. 406; also, the case of British Bank v. Ellis, 6 Sawy. 96, decided by Judge Deady in the Circuit Court, district of Oregon. We are also cited to 1 Randolph on Commercial Paper, § 205; 1 Daniel on Negotiable Instruments, § 62; the able notes by Mr. Hamilton, appended to the case of Merchants’ Nat. Bank v. Sevier, supra; and also the valuable note by Mr. Brown, reporter, appended to the case of Witherspoon v. Musselman, 29 Am. Rep. 406. We deem it unnecessary to cite the cases which can can be collected in support of the different views of this subject, because this has been ably done by the commentators, editors, and annotators referred to, whose works are readily accessible to those desiring to investigate the subject. It will be seen by a study of the cases that during the past twenty years a vigorous examination of this interesting question relating to commercial law has been going on in the courts of this country, which has resulted in no harmony of conclusions. The subject has been so critically and thoroughly treated from every point of view there remains very little original to be said thereon. In the fourth edition of Daniel on Negotiable Instruments, published this year, the author divides the cases upon this subject into four classes, as follows: First, those which sustain the validity of the stipulation and the negotiability of the instrument. The second class of cases enforces the stipulation, but denies the negotiability of the instrument. The third class maintains the negotiability of the instrument, but denies validity to the stipulation, because, as those cases hold, it amounts to a penalty, tends to encourage litigation, is oppressive to debtors, and is against the policy of the law, and therefore void. The fourth class of cases holds that the stipulation renders the transaction usurious, and subjects the instrument to the operation of the statutes against usury. Under each of these heads a group of cases will be found noted by the author. We will briefly refer to the grounds upon which the stipulation in the bill before us would, under any group of such decisions, be held void, or held to otherwise affect the instrument as negotiable paper; and herein we commence with the fourth class, and follow in order back to the first, where it would be held valid, and in no way vitiate the character of the obligation as a negotiable instrument. The fourth class treats the stipulation as a condition which renders the transaction usurious. While in this State there is at present no law which would be infringed on that particular ground, we do not subscribe to the reasoning whereby it is assumed that the stipulation is a device to evade the law against usurious interest. We are inclined. rather to adopt the reasoning of Judge Deady upon this point. He says: “The ruling that such stipulation makes the note usurious is founded upon the unauthorized assumption of fact that the sum agreed to be paid as an attorney’s fee in case the note is not paid at maturity is not what it purports to be, but illegal interest in the disguise thereof. Of course, where it appears that such is the real nature of the transaction, it should be treated accordingly. But the fact cannot be assumed, any more than that a like sum of the alleged principal is illegal interest in disguise. Accordingly, the tendency of the decisions hostile to this stipulation is to leave these untenable grounds, and hold it void upon the ground that it is a convenient device for usury, and tends to the oppression of the debtor.” In the case at bar the stipulation is to pay attorney’s fees in the event of suit “ on this paper,” and from that point of view we are considering the objection that a court where usury laws prevail might assume that the provision was a device to evade such laws. Now, how would a creditor obtain, through such stipulation, a greater sum for the use of money than the law permits? The debtor in such a case may pay the amount of the principal and the lawful interest, and then the stipulation would be null, for no suit could be maintained on the obligation, and of course no sum collected from the debtor by way of attorney’s fee. But, in order to carry out the scheme to evade the law against usury, and enable the holder of the paper to collect more than the law allows for the use of money, the debtor must collude against his own interest in a case where he is in no way bound so to do, and default in the payment of the obligation, so as to give effect to the stipulation for attorney’s fees, and suffer such fees and other costs of suit to be enforced against him. Moreover, the creditor, in order to profit from this proceeding, must obtain from the attorney a portion of the fee allotted to him for his services, at the end of the suit; and, where the stipulation is such that reasonable compensation only is allowable, this method to avoid the law against usury involves the further proposition that the attorney will divide the reasonable fee allowed for his services with the would-be usurer. If that would be the practical working of this method to evade the laws against usury, the assumption that the stipulation is made for that purpose, or could be used for that purpose, involves the assumption that human nature is so changed that men will connive against their own interests, and aid and abet the perpetration of wrongs against themselves, without the slightest coercion, and voluntarily use the law which was made for their protection to work to their injury. It has been a maxim sanctioned by the experience of men from olden time that the presumption is that when a man acts voluntarily he will not act against what he knows to be his own interest. If the stipulation was for a certain sum or per centum for attorney’s fees, which was grossly out of proportion to the value of the services, it might well be looked upon with suspicion in connection with laws forbidding usurious charges for loan of money. But where a reasonable attorney’s fee is provided for, dependent on the event of suit for collection of the debt, and such fee is allowed for such services actually performed, where judgment is recovered, we cannot perceive how the usurer could profit by it. So in cases, where the stipulation is that the debtor will pay expenses of collection, without making it dependent on the event of a suit, the whole proposition is changed. Under such a condition demands might be put forth which a court might look upon as incompatible with the provisions of law against usury. But as remarked by Judge Deady, is it not an unauthorized assumption for a court to presume that the stipulation is made to evade the law against usury, without any showing to that effect? As he says, it would be as proper to presume that part of the principal is usury in disguise, without any showing to that effect. (Wilson S. M. Co. v. Moreno, supra.) The third class of cases on this subject as classified by Mr. Daniel maintains the negotiability of the instrument, but holds that the stipulation is penal and void. This group of cases is closely allied to those cited under the fourth class, and the reasons affirmed in both are very much alike, except that some cases of the third class do not proceed upon the ground that statutes against usury are infringed by the stipulation, but without the aid or supposed aid of statutes declare it void on the ground that it encourages litigation, is oppressive to the debtor, and is therefore against the policy of the law. These, with other considerations, were summarized in the case of Merchants’ Nat. Bank v. Sevier, supra, as ground for holding the stipulation, on general principles, without reference to statute, void. In considering the question from this point of view, it should be borne in mind that it is a stipulation of contract between parties which the court is asked to declare void, and, as one ground therefor, the obligor urges that it is oppressive. Now, courts of equity, even, do not declare a contract void merely because it is inexpedient or improvident. (2 Pomeroy’s Equity Jurisprudence, § 928.) Nor do we find this provision of the instrument bearing a likeness to those contracts which the law generally condemns as against public policy (Bishop on Contracts [enlarged ed.], §§ 467-549), unless it be considered champertous, and we have-not seen that view seriously urged. If this stipulation could be referred to any class of contracts which have been held contrary to public policy by a long line of decisions, and fit to the principle carried out in such cases, there would be more support to that view. It is not against public policy nor against the spirit of the law in these times that attorneys should receive just and reasonable compensation for services. Nor is it in principle unlawful for one to contract with another to re-imburse the latter for a lawful expenditure caused by the default or wrong committed by the promisor. If the main obligation is valid, and the obligor can pay it, without question he should do so at maturity; and it would seem merely stubborn denial of another’s right to compel the obligee to go into court to enforce payment, and suffer the delay, inconvenience, and expense of such proceeding. Now, the parties have provided for this condition of things in part by a stipulation in the instrument that in such event, if the obligee is driven into court by the default of the obligor, the latter shall pay a reasonable attorney’s fee for the prosecution of the action. This has been held void as against public policy, because it is oppressive to the debtor. We cannot see on what principle it should be so held. In such a case,as just stated,the oppression is the other way — it proceeds from the party who has borrowed the other’s money or got his goods, and refuses to pay for the same when he is able so to do. But it may be said that, in the event the debtor’s circumstances are such that he cannot repay the debt when due, it would be oppressive to have judgment recorded against him for the amount and attorney’s fees. In such a case a judgment against one, which cannot be enforced, will be poor satisfaction for what the obligor received in consideration for the note; and in such case he may offer to confess judgment without action, at the maturity of the note, and then it is not at' all likely judgment would be given for attorneys’ fees, if that was shown. It is not uncommon to allow reasonable attorney’s fees in case of foreclosure of mortgage. (See cases cited in note to Merchants’ Nat. Bank v. Sevier, supra, to which we add the case of Clark v. Nichols, 3 Mont. 372.) And such a condition does not appear to have received the attacks upon it which have been aimed at the same condition in a negotiable obligation without mortgage. It is hard to see why, viewed from the stand-point of public policy, the stipulation is not as obnoxious in one kind of an obligation as another. Besides, the mortgage is only collateral to the obligation to insure the payment thereof; and its enforcement is sometimes more oppressive to the debtor than a naked promise to pay, because the mortgage often takes property otherwise exempt from execution. But will the stipulation encourage litigation? Viewed from one side it will not.- The debtor will not do anything to encourage the bringing of an action against himself, which involves his payment of a greater sum than would be called for without action. He will discourage that result, and to do so lie will see that his obligation is satisfied or extended. Is there-any real motive for the creditor to unduly hasten into court with his note or bill of exchange, simply because his debtor would be required to pay the attorney’s fee — a matter from which the creditor could personally gain nothing? Would he decline to grant reasonable extension to a solvent debtor, who was at the time unprepared to meet his obligation, and hurry into court for the sole purpose of wrenching from the debtor an attorney’s fee? We do not believe that experience shows that these results follow. The bill before us found its way into court several months after its maturity, and the complaint avers that the payees had often been requested to pay the same, and this is not denied. We come now to the second class of cases, which enforces the stipulation, but denies negotiability to the instrument. (See cases cited under this head in 1 Daniel on Negotiable Instruments, § 62.) It is already perceived that those opposed to the stipulation are much divided among themselves in their views of its effect. The cases in this second class proceed upon the ground that, although the stipulation is valid as a condition, it is a condition incompatible with the nature of negotiable instruments, because it introduces an element of uncertainty as to the amount to be called for thereon. It has been pointed out by the commentators cited supra that, where the stipulation for an attorney’s fee is dependent on the event of an action to enforce payment, the amount demandable at maturity is not at all affected thereby; and that, when suit is brought, and it is sought to enforce the stipulation along with the principal and interest of the note or bill, it is past due, and has ceased to be a negotiable instrument,, in the full meaning of that term. This is readily perceived by every jurist, and this suggestion seems to take away much of the force of the idea that the stipulation introduces an element of uncertainty into the instrument, which, as a negotiable instrument, it is unable to carry. In the case of Merchants’ Nat. Bank v. Sevier, supra, Judge Caldwell, in touching upon this view of the stipulation, says: “If a stipulation for an attorney’s fee can be upheld upon the ground that it is a valid agreement upon sufficient consideration for the payment of a liquidated sum, it is not perceived why a stipulation to pay the taxes of the payee, or his office rent, or the salary of his collector, or all of these and as many more as the genius of a rapacious creditor may devise, should not be upheld and enforced by the same mode of reasoning. Mr. Justice Sharswood, in Woods v. North, 84 Pa. St. 407; 24 Am. Rep. 201, following Chief Justice Gibson, characterizes such a provision as ‘ luggage,’ which negotiable paper is unable to carry, and pertinently inquires: ‘If this collateral agreement may be introduced with impunity, what may not be?’ In Daniel on Negotiable Instruments, 49, it is said this inquiry is answered by the assertion that such provisions facilitate rather than encumber the circulation of such instruments; they are not ‘ luggage,’ but ballast. Mr. Daniel’s assertion is in the teeth of many adjudged cases, among which are well-considered judgments of such eminent jurists as Chief Justice Gibson, Mr. Justice Sharswood, and Mr. Justice Cooley.” With great deference to these able jurists, for whose opinion we entertain profound respect, we think there is a difference between the stipulation for attorney’s fee in the event of suit and a stipulation to pay taxes, office rent, collector’s salary, horse hire, etc. The first stipulation depends upon the event of a suit after default of payment, and after the paper has ceased to be currently negotiable. While the paper is negotiable, and up to the very moment of instituting suit the amount demandable thereon is exact and certain. The other class of demands mentioned would be of a character which in their nature would render uncertain the sum to be demanded by the holder at maturity, and therefore an instrument containing such stipulations, by reason of the uncertainty of the sum to be called for at maturity, may well be held not to be a negotiable instrument. But no such stipulations are in the instrument before us, nor did the instrument sued on in the case last cited contain them. We think, on the whole consideration, that the cases cited in the first class by Mr. Daniel, which sustain the validity of a stipulation for attorney’s fee in the event of a suit and the negotiability of the instrument, are the most consistent with the principles of law in general, and with those special rules governing negotiable instruments. And we approve the view of Judge Deady, in Wilson S. M. Co. v. Moreno, supra, that the attorney’s fee, under such stipulation, in the event of suit, is incidental thereto, in the nature of costs, and as such is just and proper; and that the stipulation should be such as to leave the question of the reasonableness of the demand for services actually rendered within the supervision and control of the court. Judgment is affirmed, with costs. Affirmed. Blake, C. J., and De Witt, J., concur.

De Witt, J. Jurisdiction is conferred upon the courts of the State by the Constitution. The Constitution is the charter of their existence and their powers. The District Court has original jurisdiction to try such criminal cases as the Constitution provides that it shall. If that court is not given jurisdiction by the Constitution over a certain criminal case, that jurisdiction does not exist in that court. The District Court has not original jurisdiction over all cases of misdemeanor. It has original jurisdiction over cases of misdemeanor of a certain class. That class is described in the Constitution as “all cases of misdemeanor not otherwise provided for.” The misdemeanor in question in this case was that of assault and battery. Is jurisdiction of that misdemeanor provided for otherwise than in the District Court? The Justice’s Court shall have jurisdiction “in criminal matters, not of the grade of felony, as may be provided by law.” Assault and battery is not “of the grade of felony.” (§ 61, Crim. Laws, and § 4, Crim. Prac. Act.) Is its jurisdiction “provided by law” to be in the Justice’s Court? By virtue of article xx., Schedule, section 1, the Constitution adopted as a law of the State section 6 of the Criminal Practice Act. That section became a law of the State contemporaneously with the Constitution. It is congenital with it. That is to say, it became a law so far as it was not inconsistent with the Constitution. A portion of that section is: “Justices of the peace shall have jurisdiction of all misdemeanors committed in the county in which they shall be qualified to act, when the punishment therefor does not exceed a fine of one hundred dollars, or imprisonment for three months in the county jail, or both such fine and imprisonment.” This paragraph just cited is not inconsistent with the Constitution, and therefore became, and, as it has not been repealed or altered, is the law. Assault and battery is such a misdemeanor as described in that paragraph. (§ 61 Crim. Laws, and § 4, Crim. Prac. Act.) It is therefore “provided by law” (§ 21, art. viii. Const.) that Justices’ Courts shall have jurisdiction of the offense of assault and battery. The jurisdiction of the offense of assault and battery is therefore “ otherwise provided for” (§ 11, art. viii. Const.), and consequently the District Court has not original jurisdiction of that offense. Now, we encounter the argument made by the State’s counsel. The first paragraph of section 6 of the Criminal Practice Act is: “The District Courts shall have exclusive jurisdiction in all cases of felony, and of all offenses not cognizable in the Probate Courts, or courts of justices of the peace, and jurisdiction concurrent with said courts of all other offenses.” The words last used, “all other offenses,” would include, of course, assault, and battery. It is contended by the State’s counsel that this paragraph of section 6 was adopted by the Constitution as the law of the State, and that, therefore, the District Court has concurrent original-jurisdiction with the Justice’s Court of the misdemeanor of assault and battery. But that paragraph was not adopted, if it is inconsistent with the Constitution. It is inconsistent with the Constitution in this. The Constitution says that the District Court shall have original jurisdiction “in all cases of misdemeanor not otherwise-provided for.” This is equivalent to declaring that the District Court shall have jurisdiction only in those cases of misdemeanor “not otherwise provided for,” for the reason that the District Court obtains its life and jurisdiction only from the Constitution, and takes only that which the Constitution gives it by express words or necessary implication. Therefore it is declared by the Constitution that the District Court has jurisdiction- only of misdemeanors “not otherwise provided for.” Now, jurisdiction of the misdemeanor of assault and battery is “otherwise provided for.” (Const, art. viii. § 11; Crim. Prac. Act, §§ 4, 6; Crim. Laws, § 61.) Its jurisdiction in the Justice’s Court is “provided by law.” (Const, art. viii. § 21.) Therefore the first paragraph of section 6 of the Criminal Practice Act was not adopted by the Constitution for the following reason: For said paragraph of section 6 to give to the District Court concurrent jurisdiction with the Justice’s Court of the misdemeanor of assault and battery would be inconsistent with the provisions of the Constitution, for the reason that that instrument declares that the District Court shall have jurisdiction only of a certain class of misdemeanors, viz., those “not otherwise provided for.” It further declares that jurisdiction of assault and battery shall be in the Justice’s Court, if such juris diction be “provided by law”; and furthermore, the Constitution adopts (art. xx. Schedule, § 1) a law (§ 6, Crim. Prac. Act) which provides (with § 4, Crim. Prac. Act, and § 61, Crim. Laws) that the jurisdiction of assault and battery shall be in the Justice’s Court. Such are our views of the construction of the Constitution. We observe that they are in accord with the decisions of the Supreme Court of California. (Ex parte McCarthy, 53 Cal. 413; Ex parte Wallingford, 60 Cal. 103; Gafford v. Bush, 60 Cal. 149; Green v. Superior Court, 78 Cal. 558; People v. Joselyn, 80 Cal. 544; People v. Lawrence, 82 Cal. 182; People v. Hamberg, 84 Cal. 472.) The conclusion that we have reached seems to us as simple and inevitable as a mathematical demonstration. The State’s counsel contend that California decisions are not in point, because they were rendered in construing legislation enacted subsequently to the adoption of the Constitution of California, and for the purposes of carrying it into effect. We can cheerfully admit that these decisions are not in point in this discussion, and still our conclusion is not in the least affected, for there is not a line in those decisions that conflicts with our views in the case. But the fact is that the California eases are wholly in point. Our legislation, as well as that of California, was enacted to carry out the provisions of the Constitution of this State. What matters it, in construing the legislation, whether it was enacted by a legislative assembly convening after the adoption of the Constitution, or whether it was enacted by the same vote of the people that adopted the Constitution? The will of the whole people declared by their-vote adopting the Constitution, which Constitution adopted the-legislation referred to, is quite as conclusive as the act of the; people’s representatives in legislative assembly. "1 V We are of opinion that the judgment of the District Court is correct, and that the District Court has not original jurisdiction to try a case of assault and battery, but only appellate jurisdiction (Const, art. viii. § 11) to try such case as has arisen in the Justice’s or lower court. Where we have spoken of the Constitution adopting the laws of the Territory, it will be understood, of course, that we mean adopted until altered or repealed, etc. (Const, art. xx. Schedule, § 1.) Again, where we have spoken of the Constitution conferring jurisdiction, we are speaking only from the point of view of this case, and are not to be understood as excluding constitutional legislation giving jurisdiction. The judgment of the District Court is affirmed. Affirmed. Blake, C. J., and Harwood, J., concur.

Blake, C. J. This action was tried by the court without a jury, and the findings of facts were, in substance, as follows? The respondent was the sheriff of Jefferson County, Territory of Montana, during the years 1885 and 1886. Two writs of attachment issued October 15, 1885, out of the District Court, of Lewis and Clarke County, in two actions, then commenced,. respectively, by tbe said appellants, as tbe plaintiffs, against tbe McGregor Mining Company, and were forwarded by mail to the respondent by their attorneys, with directions to this officer to levy upon and attach all the real and personal property of said company in said Jefferson County. By these writs the sheriff was commanded to attach and safely keep all of such property, in one case to answer the sum of $4,806.99 and costs, and in the other to answer the sum of $2,807 and costs. The respondent returned, October 27, 1885, to the District Court of Lewis and Clarke County, said writs of attachment, whereon he certified that certain property had been levied upon, and that the amount of his fees under each writ was $30.45. The respondent hired, October 19, 1885, Edward Weimer, at the request of the attorneys of the appellants, and placed him as custodian in charge of the attached property, and agreed to pay him for his services at the rate of four dollars per day. The appellants and their attorneys were “aware from the start of Weimer’s said employment, and of his acting thereunder,” a period of 465 days. The respondent, prior to December 5, 1885, notified the parties of the charge for the custodian, and requested payment thereof; but the appellants were dissatisfied therewith, and sent, December 10, 1885, one Taylor, as their agent, to take t possession of the property. The respondent refused to relinquish the custody thereof, and was informed in February, 1886, by said attorneys that this matter “ would have to be settled upon the taxation of costs in the attachment suits when the judgment was rendered; when upon presentation of his claim, the court would determine what keeper’s fees he was entitled to charge.....Upon the proper order of plaintiff, McDermott, drawing on the defendants herein, and the plaintiffs in said attachment suits, the said defendants on the first day of July, 1886, paid to said Weimer, upon his claim for services, the sum of $200; and upon the twenty-second day of August, 1886, the further sum of $100; and that they thereafter refused to further pay any of said claim.” Judgment was entered December 7,1886, in each of said suits, in favor of the respective appellants, and against said company, for said sums and costs. No claim of fees or costs for the expense of the custodian was filed by the respondent until he learned through the newspapers of the entry of the judgments, when he sent by letter, postage prepaid, a copy of his bill therefor to the clerk of the District Court of Lewis and Clarke County, and also to each of the appellants; The costs which were taxed did not include any part of the amount in controversy. The following were the conclusions of law: “ (1) That considering the nature and character of the property attached, to wit, among other things, machinery and fixtures, it was necessary and proper for the sheriff, to wit, the plaintiff, to employ Weimer, or some other proper custodian, to take care and protect said property. (2) That the amount agreed to be paid said Weimer for his services per day is reasonable. (3) That the plaintiff has sent by mail, postage prepaid, to the clerk of the proper court of Lewis and Clarke County, and to the defendants, a statement of said claim for Weimer’s services; . . . . that said statement was received by said clerk, and also by said plaintiffs; and that, unexplained, it was the duty of the plaintiffs’ attorneys to have filed said statement with said clerk in due form, in order that the proper court might take proper action thereon. (4) That said attorneys, as a matter of law, had full power and authority to bind said clients, to wit, Murphy and Clarke, by their said action, touching the employment by this plaintiff of said Weimer as custodian.” Judgment was entered thereon for the respondent. This appeal has been taken from the order overruling the motion for a new trial. We are satisfied, from an examination of the evidence, that the findings of the facts should not be disturbed, and it is our province to draw the legal deductions. The appellants deny the authority of an attorney, by virtue of his employment, to bind his clients for the payment of the services of said Weimer as the custodian. The respondent asserts that this is like any other case of agency, and that the acts of the attorney, which are unauthorized, can be ratified by the principal. It is shown by the findings that the appellants knew “from the start” of the employment of Weimer, and made partial compensation therefor, and a discussion of these points is rendered useless. We shall deal with the action as if it were based upon an agreement which had been made by the appellants and respondent. It has been stated that the services of "VYeimer were necessary for the protection of the attached property; that the amount which was paid for the same by the respondent was reasonable; and that a statement of the costs and fees embracing this item should have been filed by the appellants in the proper court for taxation. The sole question is whether, under the statutes prescribing the duties and fees of sheriffs, which were in force during the aforesaid times, this action is prohibited. Our attention has not been directed to. any law of this nature. The respondent was liable for the preservation of the property, and had the power to appoint his agents, and could lawfully reject Taylor as a custodian. The appellants by this conduct recognized the necessity for the services of 'Weimer or some person in this respect. The respondent did not live in the county in which the judgments were entered against said company, and had no opportunity to be heard in relation to his compensation in the District Court of Lewis and Clarke County. It was not his fault that the promise of the attorneys for the appellants for the settlement of this controversy at the time of the entry of the said judgments was not fulfilled. The authorities are controlled by statutes to such an extent that we derive from them slight aid, and content ourselves with these references: Crocker on Sheriffs [2d ed.], § 824; Smith on Sheriffs, pp. 524-526; Mecham on Public Offices, § 889. It is therefore ordered and adjudged that the judgment be affirmed. Affirmed. Haewood. J., and De “Witt, J., concur.

De Witt, J. We will examine the points made by appellants in the order in which they have presented and discussed them. 1. The court refused to give the following instruction requested by the defendants: “ Fourth. The plaintiff is required to prove any damages claimed to a reasonable certainty; the jury cannot give damages on mere speculation. That, to entitle the plaintiff to damages for loss to his garden, it is necessary that there should be proof of the amount of vegetables he would have raised with a supply of water, and the value of such vegetables, after deducting the cost of planting and raising the same; that is, he can recover for only the net profits thereof; and, unless the above facts have been proven, the jury must disregard all evidence as to damages to his garden and crop of vegetables.” The plaintiff asked damages in the amount of one thousand dollars. The jury gave him twenty-five dollars. We have said in Carron v. Wood, 10 Mont. 508: “ If witnesses testify as to what amount of damage resulted from the destruction of a certain thing, measuring the damage in money, the witnesses are subject to all proper inquiries as to how they arrive at the value stated; as to whether or not expenses involved in connection with the subject have been considered in arriving at the value or damage stated, and all other pertinent inquiries would be proper; and, if a witness states a fact which is the result of considering several conditions to arrive at a truthful statement, is it not to be presumed that such conditions have been considered by the witness? At any rate, as before observed, the witness may be questioned as to whether or not he has considered in detail the conditions or circumstances which affect the fact stated.” The plaintiff in the case at bar testified that the market value of the water as it was being sold was five cents per inch. This was not disputed. At this rate, the witness said that the damage would amount to about one hundred and fifty dollars per year for two or three years that he was deprived of the water. He testified as to the destruction of his garden, and describes in detail the crops that he had planted, and what they were worth, and that he was wholly deprived of them by the want of the water for two or three years. The defendants had opportunity to cross-examine. The defendants asked that all of the plaintiff’s evidence as to damages be stricken out, and their instruction refused practically asked the same thing. Again, it is to be observed that the verdict for twenty-five dollars, under the circumstances, is more of the nature of a verdict for nominal than special damages. The damages sought to be proved amounted to some four hundred dollars, and, as alleged, to one thousand dollars. Under these circumstances, twenty-five dollars would seem to be nominal damages. If plaintiff’s rights were invaded, he was entitled to nominal damages. This seems to be the view that the jury took of the matter of damages. In consideration of the fact that defendants had opportunity to cross-examine as to the details of the damages claimed, and that the verdict seems to be for only nominal damages, we are of the opinion that it appears that the defendants were not injured by the court’s refusal to give instruction No. 4. 2. In the chain of title of plaintiff to the ditch and water right which he claims (the China Ditch), appear the names of some alleged Chinamen as grantees from the older owners of the ditch, and as grantors to the plaintiff. Defendants claim that, under the doctrine of Tibbitts v. Ah Tong, 4 Mont. 536, and Wulf v. Manuel, 9 Mont. 279, Chinamen cannot take real estate, and therefore that the grant of this water right and ditch to the Chinamen was an abandonment by the original owners, and hence plaintiff took no title from the Chinamen. In those cases the real estate in question was mining claims upon the public domain of the United States. In Wulf v. Manuel we endeavored to make it clear that such mining claims were a class of real estate sui generis, and the doctrine of those cases was placed upon the peculiar character of the real estate in question, by virtue of the provisions of the United States statutes which opened the mineral lands of the United States to exploration and purchase by citizens of the United States and those who had declared their intentions to become such. We said in Wulf v. Manuel, 9 Mont. 285: “No other persons may apply to purchase [such mineral lands] from the United States. The mineral lands of the government are not open to exploration, occupation, or purchase by aliens. An alien may not even take or hold real estate of this class. Let it be conceded, in the case at bar, that the Chinamen who were a link in the chain of plaintiff’s title were aliens. Let it be conceded that the ditch and water right were real estate. It was not real estate of any such nature as are possessory rights to mining claims upon the public domain of the United States. Its possession, or its right of possession, was not restricted, as are said mining rights, by a special statute of the United States, declaring that none should, occupy or purchase it but citizens of the United States, and those who had declared their intention to become such. The inapplicability of the doctrine of Tibbitts v. Ah Tong and Wulf v. Manuel to real estate not clothed with the peculiar characteristics of possessory rights to mining claims is apparent. Therefore we have simply this proposition: The chain of title is A to B to C to D. D is in court with his title attacked because C was an alien. The real estate is not a possessory right to a mining claim. All that is to be considered is, therefore, whether an alien may take real estate, and hold the same until office found, against collateral attacks by third persons other than the sovereign, and whether such alien, in the. absence of forfeiture by office found, may convey title to his grantee. Of this there is no doubt. We subjoin a few of the leading cases: Cross v. De Valle, 1 Wall. 8; Osterman v. Baldwin, 6 Wall. 121; Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 619; Phillips v. Moore, 100 U. S. 208; Craig v. Radford, 3 Wheat. 594; Mooers v. White, 6 Johns. Ch. 360; 1 Washburn on Beal Property (5th ed.), 79, and cases there cited. 3: The defendants complain of instructions numbered 4 and 5 given at the request of plaintiff. They are as follows: “ (4) You are instructed that an appropriator of water in a stream has no right to or control over any waste or surplus water over and above the amount of his own appropriation, and has no right to prevent the same from running in its natural channel to the prejudice of any one lower down the stream having a right to use or divert such surplus or waste water, and any one interfering with or preventing the use of such surplus water by one lawfully entitled thereto is liable for any damage resulting from such interference. (5) You are instructed that if there were at any season surplus or waste water, running past the head of defendants’ ditch, to which the latter had no right by virtue of possession or ownership, or of any prior appropriation, defendants had no right to interfere with such surplus or waste water, or prevent the same running into the ditch claimed by the plaintiff; and if defendants thereby deprived the plaintiff of any water to which he is entitled, and if you further find that the plaintiff was the owner or entitled to the possession of and enjoyment of a ditch situated below the head of the Tiger Ditch, and constructed for the purpose of conveying the water from- said creek, and the defendants interfered with or prevented the running into said ditch of any surplus or waste water running down said creek, then the plaintiff would be entitled to recover from the defendants any damages which he may have suffered by reason of their acts.” These instructions abstractly read like good law. The defendants’ complaint is this s That defendants’ water right was prior to plaintiff’s; that, in order for the defendants to exercise their right, it was necessary to raise their gate, and allow a rush of water to carry out the tailings accumulated in their dam; that this could not be done without opening plaintiff’s gate at the same time, for, if plaintiff’s gate remained closed, the tailings would not run off, but would back up against defendants, gate, and clog it with tailings, so that the slumming operation could not be carried on; and that, therefore, these instructions 4 and 5 impliedly informed the jury that defendants were not entitled to slum their dam at all, and that, therefore, the enjoyment of their water right was destroyed. But the acts that plaintiff complained of were not the momentary raising of the gate of plaintiff in order to successfully slum defendants’ dam. That seems to be the slumming right that defendants claim. But plaintiff’s alleged injury was that defendants tore out his gate altogether, and finally let it float off down the creek, and so deprived plaintiff of the water which would accumulate in his reservoir, and so be thrown into the head of his ditch, and this for some three years. That was the injury that plaintiff complained of, and it was that which these instructions met. We understand that this slumming right of defendants was conceded by the parties. It was recognized by the court in another instruction. But it was not admitted or successfully contended that defendants might unnecessarily exercise the slumming right to the extent of keeping plaintiff’s dam always open, or tearing out his gate and keeping it out, and thus destroying wholly plaintiff’s enjoyment of his water right, and keeping the water for all the time from going into the head of his ditch.. We see no error in these instructions, taken in connection with the rest of the case. 4. One of the findings of the court is that the defendants have a prior right to two hundred and fifty inches of the water of Ophir Creek. The judgment restrains the defendants from interfering with the water right of plaintiff to the extent mentioned in the complaint. The complaint admits the right of the defendants to only two hundred inches. The judgment is open to criticism in not stating the facts in itself instead of referring to something in a pleading. The judgment gives the defendants only two hundred inches, whereas the court found that they were entitled to two hundred and fifty. This seems, to have been an error in the preparation of the judgment, which should be corrected. Respondent himself admits that it should be corrected to conform to the findings. 5. This case was tried October 21, 1890. On January 19, 1891, the court made its findings. Between these dates, on November 22d, the defendants presented to the judge an affidavit of one of the defendants setting forth the facts of additional evidence material to the rights of the defendants, and requested the court to hear their testimony. This affidavit was never filed in the case, or served on the plaintiff’s attorneys. The jury had found their verdict and been discharged. This affidavit was embodied in the affidavit of defendants filed March 6, 1891, on which defendants based their motion for a new trial on the ground of newly discovered evidence. The substance of the affidavit on which defendants asked for a new trial is as follows: That, in addition to the Tiger Ditch, the-defendants owned, and had owned since 1872, what was called the “Illinois Ditch”; that the Illinois Ditch was dug in 1865; that the rights of the Illinois Ditch owners and the China Ditch owners were litigated in 1867, and on July 19th of that year a judgment was rendered adjudging the Illinois Ditch. people to be the owners of the waters of Ophir Gulch, to the extent of one hundred and twenty-five inches, as against the China Ditch owners, and enjoining the China Ditch people accordingly; plaintiff herein is the successor in interest of the China Ditch owners; defendants are the successors in interest of the Illinois Ditch people, who were the successful litigants in the action above mentioned, in 1867; that on the trial of this case the defendants did not make proof of their rights under the Illinois Ditch title, for the reason that the deed conveying said ditch to them was not on record, and there was no evidence of the same except the deed itself; that a deed had been executed by the Illinois Ditch owners to the defendants in July, 1873; that affiants believed that they had given this deed to their counsel, and the office of said counsel had been destroyed by fire, with all its contents, and affiants believed that said deed had been destroyed in said fire; that on the trial of this case defendants intended to prove said destruction of the deed, but that their said counsel informed them that the said deed was not in his office at the time of said fire; that defendants made diligent search for the deed, but were unable to find the same, and for the want of said deed were unable to prove the ownership in said ditch and water; several weeks after the trial the defendants found the deed; that the rights of the Illinois Ditch to one hundred and twenty-five inches of water are prior to the rights of the plaintiff'. It may be observed that this was the second trial of this case. How the Illinois Ditch matter fared on the first trial does not appear. But the fact that this was a second trial is pertinent to the matter of diligence in providing for the proof of the matter in the alleged lost deed. Such was the showing of newly discovered evidence. Any right or claim to the waters of Ophir Creek by virtue of the Illinois Ditch and water right was never mentioned on the trial. Defendants relied wholly upon the Tiger Ditch. They claim that they thought that the deed to them of the Illinois Ditch had been destroyed by a fire in the office of their counsel. Before the trial their counsel informed them that the deed was not in his office when the same was destroyed by fire. Defendants further say that they have made diligent search for the deed, and could not find it. They say nothing about how they did find it after the trial, as explanatory of their not being able to find it when they made their diligent search for it. If what they say is true, they had ample foundation, or, if they did not have the foundation, they had. the means of laying it, for proving the grant to them of the Illinois Ditch by secondary evidence. They could have shown the destruction or loss of the deed, and their diligence in endeavoring to find it, if it were lost, and then proved, or at least endeavored to prove, the contents of the deed by secondary evidence. If they had attempted to make such proof, and unavoidably failed, and in addition thereto if they had, on the trial, made any claim of rights under the Illinois Ditch title, or sought to establish any, we should regard with more favor their claim of newly discovered evidence. On the trial they had evidence of their alleged rights under the Illinois Ditch title. They had evidence of the loss of the deed, and they had the grantees present in court to prove, or attempt to prove, the contents. They made no such effort. The deed now would prove no more than the secondary evidence of its contents would have proved on the trial. We are of opinion that no meritorious showing of newly discovered evidence is made. 6. Appellants also specify that the evidence is insufficient to sustain the verdict of the jury or the findings of the court. As we recently observed in Leonard v. Shatzer, ante, page 422, the appellants collate the evidence that was favorable to them, and the respondent makes the same sort of showing. Appellants say that they do not insist that they are supported by a preponderance of testimony, but that there is no testimony at all contrary to their view. We are of opinion that the record does not support their claim. We can say here, as we said in Carron v. Wood, 10 Mont. 506: “ As often occurs in controversies, there is considerable difference in the statements of witnesses for the respective parties. .... It was the province of the jury to pass upon the credibility of witnesses and the weight of testimony, and make a finding. It has often been announced by this court that, where there is evidence to support the verdict, the same will not be disturbed because there is conflicting testimony upon the subject;” citing cases from this court. We are satisfied that the evidence supports the verdict and the findings in this case. We have now examined all tbe points presented by appellants, and determine them all adversely to them, except as to the matter of the modification of the judgment. We pause to remark upon one matter. It seems that a plat of the premises was in evidence. Some of the witnesses constantly refer to this plat to explain the situation. The evidence of the witnesses referring to the plat is all given, and the plat is omitted. The plat would have been of great assistance to this court. When the parties concluded to omit it from the record, they might as well have omitted the useless testimony in regard to it. ( Upton v. Larkin, 7 Mont. 449.) Let the judgment be modified so that it will adjudge that the defendants are entitled to the prior right to two hundred and fifty inches of the waters of Ophir Creek, instead of two hundred. The District Court is directed to make that modification, and as modified the judgment is affirmed; also the order denying the motion for a new trial. This at the cost of appellants. (Palmer v. Murray, 8 Mont. 319.) Modified and affirmed." Blake, C. J., and Harwood, J., concur.

Blake, C. J. The complaint alleges that the plaintiff, “on the twenty-third day of May, 1887, . . . . was peacefully possessed of and had enclosed the following described property: [Description.] That while plaintiff was so peaceably possessed of said property the defendants, on or about the fifth day of June, 1888, unlawfully entered upon, turned the plaintiff out of same, and still unlawfully detains the same, to plaintiff’s damage in the sum of three hundred dollars.” These allegations are denied by the answer. The action was tried by the court without a jury, and the following findings of facts were made:— “1. That on the fourth day of June, 1888, the plaintiff was in the actual, peaceable, and quiet possession of the premises described in the complaint, and which had continued for a number of years; and which possession consisted in having the premises partially enclosed with a fence, in having a cabin on the ground, in cutting the hay which had grown upon it for the year previously, and in wintering his sheep there, and in keeping one or two employees living on the premises in the cabin, and in exercising general control and dominion over the premises. The plaintiff did not reside upon the premises, but visited them every two or three months. The premises were unsurveyed public domain. “2. That on the fourth day of June, 1888, the defendant, John Boyde, entered upon a portion of the premises, and with the assistance of his co-defendant erected a cabin thereon. This was without the knowledge or consent of the plaintiff, and in his absence. But the said John Boyde had been invited to go upon the premises, and locate and take up the same, by one Frank Waite, who was then residing upon the premises as a servant and employee of the plaintiff, but which invitation was without the knowledge or consent of the plaintiff, the said Waite acting in fraud of the plaintiff’s rights. The defendant, John Boyde, entered the premises under the belief that they had belonged to one Boswell, who had recently died, but who had occupied them as the employee of the plaintiff. “3. That subsequently, about the 10th of June, 1888, the plaintiff went to the premises, and demanded the possession of the said defendants, and objected to their retaining the possession of the premises, or any part thereof. “4. That the defendant, John Boyde, refused to deliver the premises, or any part thereof, to the plaintiff; and, in reply to the plaintiff’s demand of the possession, replied that he intended to hold the possession; that plaintiff had no right thereto; and that he would like to see how plaintiff would put him out of the possession, and gave the plaintiff to understand that he would hold possession. “ 5. That the defendant, John Boyde, has ever since said time held the possession of the said premises in controversy against the will and wish and consent of the plaintiff, and was so holding the same at the time of the commencement of this action. “As conclusions of law, the court finds, from the foregoing facts, that the defendants are not guilty of either forcible entry or unlawful detainer on or of said premises, and are entitled to judgment for costs.” The statute upon which the complaint is claimed to be founded reads as follows: “No person or persons shall hereafter make any entry into lands, tenements, or other possessions .... in the temporary absence of the party or parties in possession, or by entering peaceably, and the turning out by force, or frightening by threats, or other circumstances of terror, the party or parties out of possession, and detain and hold the same.” (Code Civ. Proc. § 716.) It will be observed that the complaint does not contain any allegations showing a forcible entry or a forcible detainer, which are necessary to bring the case within the statute. It appears from the evidence and findings that the plaintiff was attempting to prove an unlawful entry and a forcible detainer of the premises. The case of McEvoy v. Igo, 27 Cal. 375, is directly in point, and the complaint alleged that the defendant “ unlawfully entered upon the said described premises, and took possession of the same, and the said defendant has ever since illegally and unlawfully detained possession of the same from the plaintiff, against the form of the statute in such case made and provided, to her great damage, to wit, the sum of fifty dollars.” Mr. Justice Sawyer said: “This is the en tire averment with respect to the character of the entry and detainer. The facts alleged are sufficient to authorize a recovery in the action formerly denominated ejectment — nothing more.” (See, also, Holland v. Green, 62 Cal. 67; Peacock v. Leonard, 8 Nev. 84; Febes v. Tiernan, 1 Mont. 179, 182.) The complaint is fatally defective, and cannot support a judgment in favor of the appellant. It is ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., and He Witt, J., concur.

Blake, C. J. This is an appeal from the order of the court overruling the motion for a new trial. The action was commenced to recover the possession of a tract of land under the provisions of the act concerning forcible entry and unlaw ful detainer. The jury found for the defendant, and the errors complained of, which are supported by argument or authority, will be reviewed. The court overruled the objection of the plaintiff to the following question, which was propounded to the defendant: “At that time, what, if anything, did you do in furtherance of your possession or claim to the land?” A declaratory statement of Servoss, and a letter from the receiver of the United States land office, and a receipt on account of a survey, were admitted in evidence for the defendant. The brief states that the court erred in these rulings, and that this testimony was not admissible under the pleadings. No objection of this character was made at the trial, and passed upon by the court, and for this reason the exceptions based thereon will not be examined. It is urged that the comments of the court upon the evidence in this instruction are erroneous: “There has been considerable evidence introduced here in the way of letters and certificates, applications to file, and other evidence that would ordinarily tend to show right of possession or such title as a man could acquire to unsurveyed land. But the question of right of possession and title is not in the case. That evidence was admitted before you for the purpose of throwing such light as it might upon the question of the possession of the plaintiff in this suit; it was not introduced or admitted by the court upon any other theory, except to give you such light as it naturally would give upon the question as to the possession of the property. You will therefore be careful to discriminate in this case, and recollect the fact that it is simply the question of the possession of this property — the actual, peaceable possession of the plaintiff at that time, September 1st — and not any right of possession nor any title at law.” The learned judge applied the law which has always prevailed in our courts. (Parks v. Barkley, 1 Mont. 514; Boardman v. Thompson, 3 Mont. 387; Sheehy v. Flaherty, 8 Mont. 365.) The appellant does not maintain another position, but contends that “ the court had no right to say what any portion of the evidence tended to establish.” It is the duty of courts to give a proper construction to statutes, writings, and instruments. In the trial of causes testimony is often adduced which is competent for one purpose and incompetent for any other, and jurors might reasonably be misled as to its application to the issues. In the instruction, supra, there is no opinion regarding the weight of the evidence, and the jury are properly informed respecting the subject of controversy and the proof. The last assignment of error is that the court erred in the following instruction: “There has been evidence introduced before you of the fact of a declaration such as is prescribed by section 1663 of our statute, and prior sections, having been executed and filed by one of the parties to this suit. So far as that declaration is concerned, it is not necessary that a person in possession of land should make and file such a declaration, but where a person takes advantage of that statute, the paper is presumptive evidence of the regularity of the paper itself.” What is the language of the section, supra? “In all legal or equitable proceedings hereafter instituted in any court in this Territory, the record of any declaration .... shall be received .... as presumptive evidence of the regularity of the paper itself.” (Comp. Stats, div. 5, § 1663.) It is the contention of the appellant that this declaration was “presumptive evidence of the peaceable possession of the plaintiff.” The statute has proclaimed the effect of this instrument, which was embodied in the instruction, supra. No error appears in the record, and it is ordered that the judgment be affirmed. Affirmed. Harwood, J., and De Witt, J., concur.

De Witt, J. (dissenting). — I am of opinion that the District Court committed no error in declining to hear and determine the disputed question of fact as to whether the defendant in the action in the Justice’s Court had in fact ever appeared in that court or confessed judgment therein. The province of the writ of certiorari is to review the record and not to originally try and determine facts dehors the record. I am not to be understood as holding that the reviewing court may not consider evidence which was before the Justice’s Court, and upon which that court rendered its decision, and which evidence is certified up with the record. Upon that matter I reserve an opinion. But the evidence proposed to be used in this matter in the District Court — that is to say, the evidence as to whether or not the defendant in the Justice’s Court did appear or confess judgment — • was offered, by affidavit, originally in the District Court, and that court was asked in this respect not to review the judgment of the Justice’s Court upon an inspection of the evidence on which that judgment was rendered, but rather to hear and determine a question of fact presented originally to the District Court. Such is not the province of the writ of certiorari, and in so holding the District Court committed no error. The statute of California is similar to ours. (Code Civ. Proc. Cal. § 1067, et seq.) The Supreme Court of that State has said in Fraser v. Freelon, 53 Cal. 645: “ The transcript which is required to be certified to the court for review [on certiorari] is a transcript of the record and proceedings in the action, if it be an action, in which it is alleged that the court has exceeded its jurisdiction, and a transcript of such record and proceedings constitute the return, and the only return, that can be considered under the writ.” (See, also, People v. Board etc. 14 Cal. 479; Garretson v. Board etc. 61 Cal. 54; Commissioners etc. v. Supervisors of Carthage, 27 Ill. 140; Rutland v. County Commissioners, 20 Pick. 71; In re Borough of Quakertown, 3 Grant Cas. 203; Independence v. Pompton, 9 N. J. L. 209; Graecen v. Allen, 14 N. J. L. 74; State v. Mayor, 32 N. J. L. 365; Redmond v. Anderson, 18 Ark. 449; Miller v. McCullough, 21 Ark. 426; Ross v. Ellsworth, 49 Me. 417; Frederick v. Clark, 5 Wis. 191; Gervais v. Powers, 1 Minn. 45; People v. Mayor, 2 Hill, 9; People v Soper, 7 N. Y. 428.) While I am of opinion that the District Court properly declined to try the proposed question of fact upon affidavits on certiorari, as an original investigation, yet, if it be true, as the petitioner desired to show, that he had never appeared in the Justice’s Court, or confessed judgment therein, it cannot be that he is without a remedy for such alleged flagrant violation of the rights of a citizen. Perhaps the case of Foster v. Hauswirth, 5 Mont. 566, and the case growing out of it, Hauswirth v. Sullivan, 6 Mont. 203, look towards some such remedy. I will inquire whether the District Court erred in annulling the judgment of the justice of the peace upon the record. The Justice’s Court never obtained jurisdiction over the defendant Hunter, by service of a summons. That appears clearly from the justice’s record. We need not consider the copy of the summons alleged to be served. The service was made less than four days before the return day thereof, as set forth in the summons (§ 743, Code Civ. Proc.), and less than four days before the judgment was rendered. This brings us to the last consideration. Does the justice’s docket sufficiently show that the defendant voluntarily appeared, and did that which authorized the justice to enter judgment against him? The respondent seems to contend that, to authorize such judgment, the confession of judgment should be in writing. (Code Civ. Proc. § 465, et seq.) But those sections of the statute provide for a judgment by confession without action, and do not purport to prescribe procedure in an action of the ordinary character. But in the matter at bar there was an action. It was not the proceeding of confession of judgment without action. Nor is section 797 of interest in this inquiry. That section provides for an offer in writing to allow judgment in a specified sum. If the offer be accepted, judgment follows. If it be declined, and the trial proceeds, the offer controls the disposition of the future accruing costs. The whole intent of this section, it is perfectly apparent, is to allow a defendant to submit to a judgment for what he admits to be due, and to save him further costs if his admission is found to be a just allowance of the plaintiff’s claim. There is nothing in the section to indicate that the defendant may not confess, and have entered against him, judgment for- the whole amount claimed by his oral confession or statement in court. Again, the statute provides (§ 740) that, in lieu of service of summons, there may be a voluntary appearance and pleading of the parties without summons. I treat this case with the matter of service of summons wholly out of consideration. I rely entirely upon whether the defendant voluntarily appeared, and, upon that appearance, did that which authorized the court to enter judgment against him. He certainly appeared voluntarily (§ 739); that is unquestioned upon the record. "When he appeared he “confessed judgment for the amount sued for and costs.” (See justice’s record.) Defendant’s pleadings in a Justice’s Court may be oral. (§ 769, Code Civ. Proc.) They need not be in any particular form, but shall be such as to enable a person of common under standing to know what is intended. (§ 770, Code Civ. Proc.) They are generally informal. I am of opinion that if a defendant voluntarily appears in a Justice’s Court, and confesses judgment for the amount sued for, such oral pleading is sufficient to enable a justice’s understanding to know what is intended. The Supreme Court of Illinois says (Hopkins v. Walter, 11 Ill. 543): “ We entertain no doubt as to the authority of a justice of the peace to render a judgment by confession, when the party was before him, and acknowledged an indebtedness to an amount within his jurisdiction. A confession between the parties to a suit furnishes the most satisfactory evidence of indebtedness.” In Bouvier’s Law Dictionary, among the definitions of “judgment,” we find the following: “The conclusion of law upon facts found, or admitted by the parties, or upon their default in the course of the suit.” “Judgment by confession is a judgment entered for the plaintiff in case the defendant, instead of entering a plea, confesses the action, or at any time before trial confesses the action, and withdraws his plea and other allegations.” In Reed v. Hamet, 4 Watts, 441, we find the court saying: “The power of the prothonotary to sign judgment rests on a statutory grant of it, when that officer was ex officio a judge of the common pleas, which has not been revoked. The question, then, is simply whether a defendant may appear before him and confess judgment in person — a question that will not bear a moment’s consideration, for he certainly may do in person whatever he can by deed authorize another to do for him; and judgments in vacation by confession, on warrant of attorney, have been recognized as valid since the foundation of the province. But judgments by confession, on the appearance of the party in the office, though not universal, have from time immemorial also been frequent, and their validity has never been contested.” The opinion was per curiam, of which Gibson was chief justice. The case of Crouse v. Derbyshire, 10 Mich. 479; 82 Am. Dec. 51, is so entirely in point that I cannot forbear citing therefrom somewhat at length. In addition to its reasoning, the opinion is commended by the concurrence of those eminent jurists, Campbell and Christiancy, who so long adorned the supreme bench of Michigan. The opinion says (Martin, C. J.): “The judgment upon the justice’s docket in the case of Derbyshire v. Church was properly admitted and read in evidence. In cases regularly commenced by process, the parties may appear and plead either orally or in writing, and the defendant may as well admit as deny the action. The legislature never contemplated so great an absurdity as to require proof by the sworn statements of a by-stander that the defendant had confessed the action in the presence of tho justice, and in open court, in order to authorize the rendition of a judgment upon such admission. When the action is commenced by process, as in the case before the justice, and the parties appear, and the plaintiff declares, and the defendant pleads, either by denial or confession of the action, there is technically an issue joined; and the jurisdiction of the justice to render a judgment is coextensive under either plea. In the one case, he hears the proof from the mouths of witnesses; in the other, from the defendant. What the legislature meant by authorizing a justice of the peace to render judgment upon an issue joined between the parties was simply that it should be upon pleadings ; and any pleading known to the law which authorizes a finding and conclusion by the court, whether upon or without evidence, is within the spirit and letter of the statute; and he hears the proof and allegations of the parties as much upon a declaration and cognovit as though he received the sworn testimony of witnesses upon a declaration and plea denying the action. And there is no reason for any other construction of the statute; for no benefit can result from a departure from this common-law method, and requiring a denial of that which the party is willing to acknowledge, in order to confer the authority to render a judgment. As the law now stands, parties may be witnesses in their own behalf as well as for their adversary. How absurd would it be to refuse the confession of the defendant, made in the progress of a trial, unless he should make it upon oath! If the admission of a party or his attorney, made in the progress of a trial, is binding, why should it not be equally so, when made in open court, at the forming of an issue, to prevent expense and liti gation? In my opinion, an oral admission or cognovit is within the statute, and confers upon the justice as ample jurisdiction to enter judgment as would be the sworn statements of witnesses. But when judgment is rendered without process, or the publicity and formality of a trial, the statute requires that the confession of the debtor shall be in writing, signed by himself in • the presence of the justice. In this case, the jurisdiction is obtained from the written confession, as in others it is from process and appearance. And it is to cases of voluntary appearance of the debtor only, without process, that the requirement of a confession in writing is limited.” This decision is so thoroughly satisfactory that little remains to be said. In Michigan the statute requires that, upon a voluntary appearance without process, a confession of judgment in a Justice’s Court shall be in writing — a salutary provision, and one that is absent from the statute of this State. In the Michigan case it seems that the defendant appeared in obedience to process. In the case at bar the defendant appeared and pleaded voluntarily, which, under our statute, places him in the same position as if he appeared by process. This fact renders the applicability of the Michigan case and its reasoning complete. Upon a confession of judgment in writing, in Michigan, the jurisdiction of the court is acquired by the written confession, as it is in other cases by process and appearance. But in this State jurisdiction in a Justice’s Court is obtained by the voluntary appearance of the parties without summons. (§ 739, Code Civ. Proc.) Written confession of judgment is not required when there is an action and a voluntary appearance. It is required to obtain jurisdiction only, without action. (Code Civ. Proc. § 465, et seq.) Therefore, the Justice’s Court had jurisdiction over the defendant Hunter when he appeared voluntarily in the action. That court had jurisdiction over the person and the subject-matter. That being true, may defendant, when he is in court, confess judgment? It would seem so, from the decisions from Michigan, Pennsylvania, and Illinois, which I have cited. It seems to be conceded by respondent that, if the justice’s record had set forth that the defendant “consented to” or “admitted” judgment, it would have been sufficient. But I cannot discover anything magical in the words “confession of judgment.” They are used in section 465, et seq., in defining how a judgment may be entered without action. There is nothing in that section which declares, and there is nothing in general principles that indicates, that if a word, as “ confession,” in this instance, is used in one connection, to describe something technical, when such word leaves that particular company in which it is found, and goes out into the world of language again to be used by men, it is to retain, for all time and in other places, the technical signification that it had in the society where it was temporarily doing service. Under the provisions of section 465, et seq., the term “confession of judgment” means a confession in writing. The statute so declares. But when that expression is found elsewhere, and used to describe something else, I am of opinion that it has not been branded with a meaning which it must carry into all other associations in which it may be found. The word “confession,” both in its derivation and uses, is a plain one. It is an every-day sort of word, and is well understood. The first definition in the Century Dictionary is: “The acknowledgment of a fault or wrong, or of an act or obligation adverse to one’s reputation or interest.” To my mind, the entry of the justice of the peace makes it entirely clear what the defendant did. He “acknowledged an obligation adverse to his interests;” that is to say, he acknowledged the indebtedness. He confessed judgment for the amount sued for. This is so clear to my perceptions that I am of opinion that the justice’s record sufficiently shows a rendition of a judgment against the petitioner, and that, therefore, the judgment of the District Court upon the writ of certiorari should be reversed. But my associates do not agree with my conclusion, and hereafter express their views, upon which the judgment of this court will be rendered. Blake, C. J. The facts are stated in the opinion of Mr. Justice De "Witt. The determination of this appeal depends upon the legal effect of the following entry and judgment of the justice of the peace, Eddy: “December 11, 1890, at two, p. m., defendant appeared’ in court, and confessed judgment for the amount sued for, and costs of suit. Judgment is therefore herein entered for the plaintiffs, A. A. McMillan and E. K. Leggatt, and against the defendant, John Hunter, for the sum of two hundred and fifty dollars, and costs.” The statute prescribes the duties of justices of the peace respecting these matters: “Every justice shall keep a book denominated a ‘docket/ in which he shall enter: .... Fourth. The time when the parties, or either of them, appear, or their non-appearance if default be made; a minute of the pleadings and motions, if in writing, referring to them, if not in writing, a concise statement of the material parts of the pleadings, and of all motions made during the trial by either party, and his decisions thereon.....Ninth. The judgment of the court, specifying the costs included, and the time when rendered. .... Twelfth. A note of any other proceedings taken in the action or proceeding.” (Code Civ. Proc. § 805.) “Such entries in a justice’s docket, or a transcript thereof certified to by the justice or his successor in office, shall be primary evidence to prove the facts so stated therein.” (Code Civ. Proc. § 806.) “When the pleadings are oral, the substance of them shall be entered by the justice in his docket; when in writing, they shall be filed in his office, and a reference to them made in his docket. Pleadings shall not be required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended.” (Code Civ. Proc. § 770.) It is the general principle that the authority of a justice of the peace to enter a judgment must affirmatively appear. What is the meaning of the foregoing term, “confessed judgment?” The Code of Civil Procedure gives a satisfactory definition: “Judgment upon confession may be entered up in any Justice’s Court.” (§ 738.) “A judgment by confession may be entered without action .... in the manner prescribed by this chapter.” (§ 465.) “A statement in writing shall be made and signed by the defendant, and verified by his oath, to the following effect: First, it shall authorize the entry of judgment for a specified sum.” (§ 466.) “If the defendant, at any time before trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judg merit therefor, with the costs there accrued; but if he do not accept such offer before the trial, and fail to recover in the action a sum larger than the one mentioned in the offer, he shall not recover any costs accruing after the offer was made.” (§ 797.) A majority of the court is of the opinion that the words “confessed judgment” refer necessarily to those statutory provisions which require the action of the defendant to be evidenced by a written document. It is admitted that said Hunter did not execute any papers of this nature, and the jurisdiction of the justice to enter the judgment is not founded upon them. If the entry in the docket can be treated as the record of an oral pleading on the part of Hunter, the language is so ambiguous and unintelligible that we are unable to ascertain what was said or done or pleaded. Viewed from any stand-point, we are not informed concerning the grounds upon which the justice, Eddy, exercised jurisdiction in the manner complained of. It is conceded that the summons is fatally defective, and that the service thereof did not confer jurisdiction of Hunter. It is, if possible, more essential in this class of actions than any other that the docket of the justice should recite the facts on which the judgment is predicated. In Lowe v. Alexander, 15 Cal. 296, Mr. Justice Cope for the court said: “In respect to the service of the summons, it is contended that the docket of the justice, in which it is recited that the summons was ‘ returned duly served,’ is conclusive. We do not see upon what principle the recital is entitled to any weight whatever. The return of the officer is as much a part of the record as the docket itself; and if such return fail to show a sufficient service, the recital in the docket, based upon the return alone, cannot be relied upon as giving validity and effect to the judgment. Such recital amounts to nothing more than the opinion of the justice as to the legal sufficiency of the return, it neither embraces, nor professes to embrace, the determination of any question of fact.” (Dick v. Wilson, 10 Or. 490; Scorpion S. M. Co. v. Marsano, 10 Nev. 370; Kane v. Desmond, 63 Cal. 464.) In the last case the court said: “ There was no appearance by the defendant; the judgment purports to have been rendered by default; and the mere recital in the docket, viz: ‘September 17th. Return served summons’ — affords no proof of the jurisdictional facts necessary to support the judgment — it is of no weight as proof of the proper service of the summons.” It is evident that the bare statement in the docket that Hunter “confessed judgment” is a conclusion of the justice, and not the assertion of a jurisdictional or any other fact. There is no statement of the material parts of the answer of Hunter, and this conclusion is not the pleading which is required by the statute. The docket does not disclose the proceedings that were actually taken in the action by Hunter. The lack of jurisdiction in the Justice’s Court appears upon the face of the record, and the court below rightfully nullified the judgment. It is ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., concurs.

Blake, C. J. The appellants filed, January 10, 1891, in the District Court of Yellowstone County, their petition for the probate of the last will and testament of Charles E. Barney, deceased, and alleged that said Barney died October 3, 1890, in the State of Vermont; that he left real and personal estate in said county of Yellowstone of the value of twenty thousand dollars; that he left a will dated June 15, 1889, which was filed October 11, 1890, in the court below, and presented for probate; that the court by an order made December'!, 1890, refused to probate the same, and the petitioners appealed to this court; that they were informed in January, 1891, that the said Barney had executed a codicil to said will in August, 1890, and thereupon dismissed their appeal without prejudice; and that said will and codicil are the last will and testament of said Barney. The petition complies with the statute, and a full recital of the facts is not necessary at this time. The material part of the will, which was published June 15, 1889, is as follows: “I do give and bequeath to my mother, Mary E. Barney, the sum of one thousand dollars. I give and bequeath to my daughter, Ida L. Barney, the sum of one hundred dollars, which said bequest of one hundred dollars shall be paid to my said daughter, Ida L. Barney, out of my estate, first, before the payment of any other bequest herein made. I give, devise, and bequeath to my three brothers and one sister, namely, Rufus H. Barney, Leonard L. Barney, Ward H. Barney, and Ella Barney, all the rest, remainder, and residue of my estate, all and singular, both real and personal, remaining after payment of my just debts, and the first two bequests above made, which remainder of my estate shall be divided amongst my said three brothers and one sister equally.” The appellants were appointed the executors of said will. The deceased person was not married in June, 1889, and had one child, the said Ida L. Barney. ■ Afterwards, in the month of August, 1890, the testator intermarried with Ellen C. Brodie in the State of Vermont, and she is the surviving wife. The codicil above mentioned consists of the following letter, which was written in the State of Vermont in the year 1890, although it purports to be dated in the year 1880: — “Keller’s Bay, Aug. 18, 1880. “ Hon. JE. N. Harwood, Helena, Mont.: — “ I have not strength to write much, so I will pitch right into my subject, which is somewhat important. I was married nearly two weeks ago.....So much explanatory; will enlighten you further on the subject, if you wish, when I see you. Now, what I want is for you to change my will so that she will be entitled to all that belongs to her as my wife. I am in very poor health, and would like this attended to as soon as convenient. I don’t know what the laws are in Montana. I suppose Babcock and Rowley will have to witness the change or codicil. I don’t know what ought to be done, but you do. .... Let me hear from you soon on this subject, as soon as you can make it convenient. With best wishes, I am truly yours, Charles E. Barney.” Said Ida L. Barney filed, February 10, 1891, her written objections to the probate of said will and codicil, and alleged that she is the daughter and only child of the deceased; that, at the time of the execution of the will and codicil, “ the said Charles E. Barney was of unsound mind and memory, and not capable of making a will or bequest,” and “ was acting under duress, menace, and undue influence, and signed the same under such undue influence, duress, and menace;” that the said will was revoked August 9, 1890, by said Charles E. Barney in his lifetime, by his marriage to Ellen C. Brodie, “ who thereafter, and up to the time of the death of said Charles E. Barney, was his wife;” that the deceased made no provision for his said wife “by marriage contract, or otherwise, nor has said surviving wife in any manner been provided for in said will, nor is she mentioned therein so as to show an intention not to provide for her; ” that said will was presented December 1, 1890, to the said District Court for probate, and by an order the same was refused admission to probate; that said Hayes and Rowley appealed to the Supreme Court of this State, and “ on their own motion dismissed said appeal;” that said order made December 1, 1890, ■“is now in full force, and has never been reversed or modified;” that said District Court “has no jurisdiction to hear said petition for the probate of said will a second time, and while its order made as aforesaid is in force, and is not reversed or modified.” There is a denial that the said Charles E. Barney ever made or executed any codicil to said will. It is further alleged that said writing, which has been filed as a codicil, “is a positive revocation of said alleged will.” “Plaintiff further alleges, on her information and belief, that said paper writing was not signed or written by said deceased; . . . . that by reason of the said alleged will being made by said deceased before his marriage with said Ellen C. Brodie as aforesaid, and by reason of the foregoing letter written as alleged by said deceased, said alleged will became and is revoked, null, and void;” that said Ida. L. Barney and Ellen C. Barney are the only heirs at law of the deceased. Said Hayes and Rowley filed, February 20, 1891, their answer to the objections of the said Ida D. Barney, and denied that, at the times specified aud aforesaid, “ the said Charles E. Barney was of unsound mind and memory,” or “ was not capable of making a will or bequest, or a codicil thereto,” or “was acting under duress, menace, and undue influence of any one,” or that “ he signed the said will or the said codicil thereto under undue influence, duress, or menace.” They further denied that the will was revoked by the marriage of said Charles E. Barney with said Ellen C. Brodie, or in any other manner, or that “deceased made no provision for his surviving wife by marriage contract or otherwise,” or “that said surviving wife has not been provided for in said will; but the defendants allege affirmatively that the said surviving wife of deceased was expressly provided for in the said codicil to said will.” Said Ida L. Barney then filed a demurrer, upon the ground that the answer did not state facts sufficient to constitute a defense to said objections, which was sustained by the court. The defendants elected to stand on their answer, and judgment was entered “that the objections of plaintiff' to the probate of said alleged will and codicil are well taken, and that said alleged will and codicil are not, nor is either of them, the last will and testament of the said Charles E. Barney, deceased.” A preliminary question has been suggested by the respondent, who contends that the first decree of the court refusing to admit to probate said will is binding upon all parties until it has been reversed, and that this issue cannot be again litigated. There is no controversy about the correctness of this legal proposition. (Castro v. Richardson, 18 Cal. 478; State v. McGlynn, 20 Cal. 233; 81 Am. Dec. 118; Redmond v. Collins, 4 Dev. 430; 27 Am. Dec. 208; Schultz v. Schultz, 10 Gratt. 358; 60 Am. Dec. 335.) “The execution of a codicil referring to a previous will has the effect to republish the will, as modified by the codicil.” (Prob. Prac. Act, § 448.) Chief Justice Field in Payne v. Payne, 18 Cal. 302, said: “The codicil refers to the will, and operates as its republication, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil.” To the same effect is the statute. “Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” (Prob. Prac. Act, § 477.) It is evident that the contest, which involved solely the probate of said will in the former proceedings, could not be an adjudication of the matters which are before us. It will be seen from the foregoing statement that the answer of the appellants to the objections of the contestant raises the following issues of fact: Was the decedent of sound mind and memory, and competent to make said will ? Was the decedent at the time of the execution of said will and codicil free from duress, menace, or undue influence? Did the decedent sign or write said codicil? We are not aware of any statute or authority which recognizes the practice of interposing a demurrer to said answer. On the contrary, the duty of the court is declared in definite language in the Probate Practice Act: “ The petitioner and others interested may jointly or separately answer the contestant’s grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving (1) the competency of the decedent to make a last will and testament; (2) the freedom of the decedent, at the time of the execution of the will, from duress, menace, fraud, or undue influence ; (3) the due execution and attestation of the will by the decedent or subscribing witnesses; or (4) any other substantial grounds affecting the validity of the will must, on request of either party in writing, filed three days prior to the day set for the hearing, be tried by a jury. If no jury is demanded, the court must try and determine the issues joined.” (§ 20.) “When a jury is demanded, .... the trial must be conducted in accordance with the provisions of the Civil Practice Act for trials of issues of fact. A trial by the court must be conducted as provided in said Civil Practice Act in cases of trials by the court.” (§ 21.) “ The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court; upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it.” (§ 22.) These provisions are strictly pursued, and the Supreme Court of California holds that, “in such a proceeding, the position of the petitioner, and the person who opposes the probate of the will, is different from that of parties to an ordinary civil action — the contestant is the plaintiff and the petitioner is the defendant.” ' (Estate of Wooten, 56 Cal. 325.) Upon the trial, the contestant is limited to the matters which are presented in the written grounds of opposition. (In re Kile, 72 Cal. 131.) “The jury are to find upon all the issues of fact raised by the contest, and none others.” (Estate of Learned, 70 Cal. 141; Estate of Dalrymple, 67 Cal. 444.) A general verdict rendered by the jury in lieu of a special finding will not support a judgment denying the probate of a will. (In re Langan, 74 Cal. 353.) The respondent claims in this court that these instruments, when examined and construed, are not of a testamentary character ; that the issues which have been commented on are irrelevant and immaterial, and therefore there was no error in denying the probate of said will and codicil. It is obvious that the statute, supra, and authorities, preclude such a view of the subject. Why did the contestant deliberately file objections embracing matters of this serious nature, if she had in them no confidence? She assumed voluntarily the statutory burden of proving her allegations, which had been made under the sanctity of an oath. In Estate of Cobb, 49 Cal. 604, Chief Justice Wallace said: “ The instrument offered being evidently of a testamentary character, upon application to admit it to probate the inquiry is only as to the mental condition of the testatrix; whether she was acting under duress, menace, fraud, or undue influence; whether the will was duly executed; and the like. The other questions attempted to be raised by the objections filed in the case concern the construction to be placed upon the will, and cannot be considered until it shall have been admitted to probate.” The court in Estate of Sanderson, 74 Cal. 208, said: “In cases of contests of a will, the issues must be such as that the determination of them will leave to the court no office except to enter a judgment admitting the will to probate or rejecting it.” The court below overlooked these plain requirements of the statute, supra, and deprived the appellants of their right to a trial by the mode which has been pointed out. It would be improper for us to express an opinion upon the interpretation of said will and codicil until the issues of fact have been tried and determined according to law. It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with instructions to the court to proceed in accordance herewith. Reversed. De Witt, J., concurs. Harwood, J., being disqualified, did not participate in this decision.

Harwood, J. It appears that the petitioner was proceeded against in the court of the police magistrate of the city of Butte, upon a charge of having committed contempt of said court, in that the petitioner, on the 28th of June, 1891, caused to be printed and published in the Daily Miner, a newspaper printed and published in said city, a certain article in terms as follows: — “Card from J. W. Shannon. Butte, June 26. To the editor of the Miner: In this morning’s Miner an article on the local page recites, animadverts, and moralizes upon a case in the District Court which was appealed from a lower court, and in the determination of which the local government was put to cost of more than two hundred dollars, to save the defendant from paying the paltry fine of five dollars, when, according to a jury of his peers, he had done no wrong. I grant you that this is a representative case, and illustrates a flagrant and frequent abuse, with the emphasis on ‘frequent.’ But it is to the remedy proposed that this deponent would demur. ‘Fix a limit to appeal eases.’ Never. The right of appeal should be neither limited nor abridged. The right of vindication is cheap, at any cost. Why not correct the necessity of such appeals? Why not modify our ordinances so that the court and prosecuting attorney shall not be interested in their own convictions? Ray them fixed salaries, and free them from the imputation of running ‘ a cost shop,’ and waxing fat at the expense of victims who get into their toils. They would not then find it necessary to reject the res gestee, which would fix the blame where it belongs. There would then be no inducement to make a double case and a double set oí costs, yielding double fees in every case of breach of the peace. Now, it will not be denied by any well-read attorney that in all well-regulated police courts the practice in such cases is that where an investigation shows both parties to be guilty, and equally guilty, the court then and there, having both parties present, fines the defendant on the complaint, and summarily fines the complaining witness. Such practice, however, would not subserve the mercenary purposes of a prosecutor, who regards a public office, not as ‘a. public trust/ but as ‘a private snap.’ It is time that in the city of Butte the Statute of Limitations should run on a certain kind of high-handed practice. J. W. Shannon.” This publication was alleged in the proceedings to be “ a contemptuous and insolent article, concerning the proceedings of said court, and the practice therein.” Upon the hearing, the petitioner raised the question of the jurisdiction of the court to proceed against him as for contempt upon the matter set forth, and insisted that the facts set forth did not constitute a contempt of court, and therefore that the court had no jurisdiction to entertain the proceeding. The police magistrate, however, found the petitioner “guilty as charged, and ordered and adjudged that he pay a fine of fifty dollars, and costs of this prosecution, amounting to the sum of ten dollars, and stand committed to the county jail until such judgment is satisfied.” The proceedings of said court in the matter under consideration, and files and records concerning the same, duly authenticated by certificate and seal, are made a part of this application, to show wherein the imprisonment is “alleged to be illegal,” and “in what the alleged illegality consists.” (Comp. Stats, div. 5, § 1165.) And upon the showing it is insisted here by counsel for petitioner that the imprisonment is illegal, because the judgment and commitment proceeded upon a charge which ■in law does not constitute a contempt of said court, and hence the court was without jurisdiction to assess such punishment. The act of incorporation of the city of Butte grants to the police magistrate “exclusive jurisdiction to try and determine all actions arising under the ordinances of the city, and, in addition, the same jurisdiction conferred by law upon justices of the peace.” (Comp. Stats, div. 5, § 371.) The statute of this State, defining the jurisdiction of a justice of the peace, provides that “a justice may punish any person guilty of a contempt of his court, as defined by this act, by fine or imprisonment, or both; but the fine shall not exceed one hundred dollars, nor imprisonment shall not exceed one day. The acts for which the person is convicted shall be particularly specified in the justice’s docket, and the judgment entered thereon.” (Comp. Stats, div. 1, §§ 816, 817, Code Civ. Proc.) Section 584 of the Code of Civil Procedure defines certain “acts or omissions in respect to a court of justice, or proceedings therein,” which constitute “contempts of the authority of the court.” There is some controversy in the reports and authorities as to whether a statute defining what shall constitute contempt operates to take away common-law jurisdiction of courts of record in such proceedings, and leaves the court with only statutory-jurisdiction and power to punish only where the act or omission comes within the express provisions of statute, or whether such statutes are only declaratory of the- common law in part, or supplemental to it, and leave the court free to exercise common-law jurisdiction upon this subject, in eases not provided for by statute, where such case was formerly cognizable at common law. (Clark v. People, 12 Breese, 340; 12 Am. Dec. 177, and note; State v. Galloway, 5 Cold. 326; 98 Am. Dec. 404, and note, and cases cited.) That question was touched upon by the learned judge in delivering the opinion of the court in Territory v. Murray, 7 Mont. 251, although that case was declared to be within express provisions of our statutes. But such questions do not concern this inquiry. The Justice’s Court is not one of general or common-law jurisdiction. Its jurisdiction is restricted to the limits prescribed by statute. In cases of contempt, the statute provides that such courts “ may punish any person guilty of a contempt, as defined by this act.” Therefore the power of a justice of the peace to punish for contempt is confined to the acts or omissions prescribed in section 584 of the Code. The jurisdiction of the police magistrate in question to punish in cases of contempt rests upon the same provisions, by reason of the statute investing him with the jurisdiction of justice of the peace. If, then, the police magistrate has power to visit punishment upon the petitioner for contempt of his court, for the publication of said article, it must be found that such act is one defined in section 584, Code of Civil Procedure. By consulting that section, it is readily seen that no such act is within its terms. The first and ninth subdivisions of said section contain the only provisions under which it could be contended that this proceeding is authorized. These provisions are as follows: “First, disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceeding;” “ninth, any other unlawful interference with the process or proceedings of a court.” The power of inferior courts to punish persons for contempt, in cases where the act for which the punishment is adjudged did not occur in the presence of the court, is questioned by some authorities, and denied altogether by others. Mr. Bishop, in his work on Criminal Law, states the result of his investigation of the subject as follows: “ Contempts against justices of the peace — distinguished from Superior Courts of record. What has been said thus far refers particularly to contempts against higher courts of record. But there is an opinion, which may, perhaps, be well founded, that the authority of justices of the peace is somewhat more limited. They may commit for con-tempts in their presence while holding their court; but Mr. Gabbett observes that ‘courts of inferior jurisdiction cannot attach or commit a party for any contempt which does not arise in the face of the court.’ And there are many expressions in the English books apparently sustaining this general proposition. Thus, though the present County Courts are of record, and by the statute are permitted to commit only for contempts in court, still, being of inferior jurisdiction, it is strongly intimated that the same result would proceed from common-law principles. It is also held in England that the sessions cannot proceed in this way against a man for disobeying an order of filiation, but only on his recognizance; and we have some American dieta limiting the power of justices of the peace to contempts in court. In reason, this power does not extend as far as that of high tribunals, still there may be circumstances in which it should be permitted some scope beyond this narrowest limit.” (2 Bishop on Criminal Law [7th ed.], § 263, and cases cited.) Undoubtedly, the statute of Montana extends the power of justices of the peace beyond the narrowest limits referred to by the learned author. But that power cannot be extended beyond the statute. Its exercise must be confined to acts mentioned in the statute, occurring in the presence of the court, or so near as to “interrupt the due course of a trial or other judicial proceeding; or, when exercised in reference to acts done out of court, the act must be one expressly defined by statute; such, for example, as unlawful interference with the legal execution of processes. None of these would include power to punish for the expression of sentiments through the medium of the public press or otherwise regarding the practice of the court, or of results or abuses alleged to flow from the past administration of such court. A power to punish for such utterance, or to silence the voice of comment upon such matters, would be the discovery of an unknown quantity in jurisprudence, and the exercise of it would be a menace to a free and spirited people. The constitutional right of freedom of speech, written in the tenth section, article iii. of our Constitution, would be set at naught by the exercise of such a power, whenever that freedom of speech happened to be directed to the action of public courts. There is no such exception. We speak now of the discussion of matters pertaining to courts, or the practice therein, which have no tendency to affect the merits or result of particular cases pending, which class of discussion is entirely distinguished from publications which are designed and put forth for the purpose and have a tendency to influence the result of particular cases. So far as the article in question refers to any particular case, it refers to one determined in the District Court. "Viewing the contents of this publication alone, free from any knowledge of local events, which might possibly direct the course of imagination, we are struck with surprise that the honorable police magistrate entertained an affidavit which declares that the publication was a “ contemptuous and insolent article concerning the proceedings and practice” in his honorable court. The article says the case in point was “ appealed from a lower court.” We have judicial knowledge, and no doubt every well-informed person in this jurisdiction who reads the newspapers has knowledge otherwise, that the police court is not the only court there lower in rank than the District Court. But it is said that the reference in said article to “ ordinances,” and ((to the city of Butte,” might fairly be taken as referring the remarks to the police court. Granting all such inferences, still it may be asked, what is there in the article to indicate that the •case in point was adjudicated in, or appealed from said court, as administered by the present incumbent, or that the abuses mentioned occur under his administration? The article is directed against a system, and avers that abuses have prevailed under such system, and proposes a change to remove temptations which invite abuse. But it does not follow that there may not be as pure an administration of justice in said police court under the present police magistrate as ever will, or could be, under any other system, although the present system may not be the best, or even tends to invite abuse. We are therefore surprised that the magistrate so readily adopted the conclusion that the article referred to the “ practice and proceedings ” in his court. Nevertheless, if the article had expressly referred to past proceedings and practice of said court under the present magistrate, this proceeding and summary punishment would not apply. If the article was libelous, there are other remedies, and it may be observed, moreover, that summary punishment for contempt in such a case is no vindication of past practice and proceedings of courts; no more than lashes vindicate the cause relied on to justify the chastisement. It is ordered that the writ of habeas corpus issue, and if the imprisonment is found to be based upon the proceedings set forth in the application, the prisoner will be summarily discharged. Blake, C. J., and De Witt, J., concur.

De Witt, J. We note the following authorities: An order discharging a defendant from imprisonment is a special order made after a final judgment. (Wells, Fargo & Co. v. Anthony, 35 Cal. 696.) In proceedings supplemental to execution an order to apply specific property to the satisfaction of a judgment is appealable. (McCullough v. Clark, 41 Cal. 303.) This view may be obiter in the opinion, but, as it is stated as a proposition “ too plain for argument,” we have a positive expression of the view of the California Supreme Court upon the subject. In Sperling v. Calfee, 7 Mont. 514, an appeal was taken from an order made in proceedings supplemental to execution, requiring certain persons to appear and answer concerning certain property. The appealability of the order was taken for granted, and was not discussed. In Barber v. Briscoe, 9 Mont. 347, the court remarks that an order denying a motion to set aside an order for the examination of the defendant is appealable. So the tendency of the authority, we observe, is to the effect that these orders, made in proceedings supplemental to execution, are appealable. Counsel for petitioner cite Foster v. Prince, 8 Abb. Pr. 407, and Joyce v. Holbrook, 7 Abb. Pr. 338, but neither of these cases review a provision of the statute allowing an appeal from a special order made after final judgment, and the former of the cases went upon the ground that the party complaining was not aggrieved. In the matter before us the order complained of was made after final judgment. If sections 421 and 444, as cited, do not refer to such an order as the one in question, we would be wholly at a loss to define the application of that law. We are of opinion that an appeal lies in this matter, and it is accordingly ordered that the application for a writ of certiorari be denied. Writ denied. Blake, C. J., and Harwood, J., concur.

Blake, C. J. This is an appeal from an order overruling the motion of Henry A. Boot and Maria Cummings for a change of venue upon the following grounds: — “First. There is reason to believe that an impartial trial can not be had in said county of Silver Bow. Second. The citizens, inhabitants, and tax-payers of said county are interested in said proceedings, are biased and prejudiced against contestants, and in favor of proponent; and because the ends ot justice will be promoted by said change.” The order was made May 2, 1891. The body of one notice of appeal recites “that the contestants .... appeal from the order of the court overruling their motion for a change of venue on account of the prejudice of the judge of said court, .... and from the whole thereof, to the Supreme Court of the State oí Montana.” In another notice this language is used: “ The contestants .... appeal from the order of the court overruling their motion for a change of venue on account of the prejudice of the inhabitants of the county, and for the reason that an impartial trial cannot be had therein, .... and from the whole thereof, to the Supreme Court of the State of Montana.” The issues which are to be tried in this proceeding should be considered before we discuss the questions which have been raised. Andrew J. Davis died March 11, 1890, in the county of Silver Bow, in this State. John A. Davis filed July 24, 1890, in the court below, his petition, and alleged that the deceased had left a will which first came to his knowledge and possession upon the fifteenth day of July, 1890. He therein stated the value oí the estate to be about four and one-half millions of dollars, and the heirs to be fourteen persons, who, with the exception of the petitioner, are non-residents. The entire estate, subject to a life maintenance of three parties, was devised by this instrument to said John A. Davis. The will, according to the record, was executed in the State of Iowa in the month of July, 1866. Said Boot and Mrs. Cummings, who are two heirs of the deceased, filed in writing their objections to the probate of this instrument, and averred in substance that the same was a forgery, and, if ever executed, was revoked by the deceased during his lifetime by the making of other wills. John A. Davis in his replication denies that the deceased ever executed another will, and alleges that if he had, the instrument which was made in the year 1866 was republished. The contestants demanded a trial by a jury of these issues. The affidavits, pleadings, and documentary evidence, which were submitted upon the hearing of the motion, relate to the grounds which are specified in the notices of appeal. It is claimed by John A. Davis, who is the respondent, that this court has no jurisdiction to review the action of the court below. The contention is that this order is not enumerated in section -324 of the Probate Practice Act, concerning appeals from the Probate Court, and that there is no other legislation upon this matter. These proceedings recently received the careful investigation of this court in the Estate of McFarland, 10 Mont. 445, and were adjudged invalid; and it was further held that appeals in the District Court in “ matters of probate ” must be regulated by section 421 of the Code of Civil Procedure. Under its terms, an appeal may be taken “from an order granting or ■refusing to grant a change of the place of trial.” We are thereby expressly empowered to inquire into the merits of this appeal. But the respondent insists that each of the notices is of an appeal from a part of the order before us, and that such practice-is without legal sanction. The transcript contains one motion for a change of the venue, which sets forth two grounds, and one order overruling the same, and two distinct notices of appeal and undertakings on appeal. We confess that we do not understand the reasons for bringing into this tribunal more than one appeal in this matter. The judge of the court below, however, seems to have treated the subject in like manner, and employs in the order these words: “The motions of contestants for a change of venue herein, having come on regularly to be heard .... it is now ordered and adjudged that said motions for a change of venue be, and the same is denied and overruled.” Thé counsel for the appellants may have been controlled by this peculiar phraseology. The Supreme Court of California allows an appeal to be taken from a portion of an order. (Dimick v. Deringer, 32 Cal. 488; Estate of McCauley, 50 Cal. 544.) The cases of Barkley v. Logan, 2 Mont. 296, and Plaisted v. Nowlan, 2 Mont. 359, on which the respondent relies, are easily distinguished. When they were decided, the statute relating to appeals was as follows: “An appeal maybe taken to the Supreme Court from the District Courts in the following cases: First. From a final judgment entered in an action or special proceeding commenced in those courts, or brought in those courts from other courts.” (Civ. Prac. Act, 7th Sess. § 380.) This section was subsequently' amended and now reads: “ An appeal may be taken to the Supreme Court from the District Courts in the following cases: First. From a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other courts.” (Code Civ. Proc. § 444.) Aside from this radical difference between the statutes, swpra, it is obvious that a judgment, which is the final settlement of the rights of the parties to an action, cannot be placed upon the same level with an order respecting the place of a trial. In the case at bar, each appeal is from the whole order, as well as a specified part thereof, and the transcript embodies without any omission every act of the court and the testimony which was adduced. If we regard as irregular the taking of two appeals, when one is sufficient, the fact does not in this instance deprive the contestants oí any substantial right. We will now consider the first ground on which the motion for a change of the place of trial is founded: “There is reason to believe that an impartial trial cannot be had in said county of Silver Bow.” It is contended that this subdivision includes the ground that the judge of the court below is biased and prejudiced against the appellants, and our attention is directed to the following statutes: — “If an action or proceeding is commenced or pending in a •court, and the judge or justice thereof is disqualified from acting as such, or if, for any cause, the court orders the place of trial to be changed, it must be transferred for trial to a court the parties may agree upon by stipulation in writing, or made in open court, and entered in the minutes; or if they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist, as follows: .... If in the Probate Court, to some other Probate Court.” (Code Civ. Proc. § 63.) “The court may, on good cause shown, change the place of trial in the following cases: , . . . When there is reason to believe that an impartial trial cannot be had therein.” (Code Civ. Proe. § 62.) “ When a petition is filed in the Probate Court, praying for admission to probate of a will, or for granting letters testamentary or of administration, or other proceedings are pending in the Probate Court for the settlement of an estate, and the presiding judge of the court is disqualified to-act from any cause, upon his own or the motion of any person interested in the estate, he must make an order transferring the proceeding to the Probate Court of an adjoining county, ...» and thereafter the Probate Court to which the proceeding is transferred shall exercise the same authority and jurisdiction over the estate, and all matters relating to the administration thereof, as if it had original jurisdiction of the estate.” (Prob. Prac. Act, § 110.) Under the Constitution, the judge of the-District Court possesses the jurisdiction which was formerly lodged in the probate judge, and it is argued that a broad and liberal construction must be given to the clause, “disqualified to act from any cause.” We think there are other statutes-which should be examined in this connection. “ A judge shall not act as such in any of the following cases: In an action or proceeding to which he is a party, or in which he is interested ; when he is related to either party by consanguinity or affinity within the third degree; or when he has been attorney or counsel for either party in the action or proceeding.” (Code Civ. Proc. § 547.) This number of disqualifications has been enlarged in the following section: “No Probate Court shall admit to probate any will, or grant letters testamentary or of administration in any case where the judge thereof is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or as a witness thereto, or is in any other manner interested or disqualified from acting.” (Prob. Prac. Act, § 109.) The bias or prejudice of the judge is not referred to as a disqualification, or as a cause for the change of the place of trial, in any statute affecting the District or Probate Courts in civil or probate proceedings. But in the title regulating the procedure in the courts oí justices of the peace, we find the mandatory provision that “ if either party make affidavit that he has reason to believe, and does believe that he cannot have a fair and ; impartial trial before such justice, the action shall be transferred to some other justice of the same county; and in case of a jury being demanded, and affidavit of either party is made that he cannot have a fair and impartial trial on account of the bias or prejudice of the citizens of the precinct or township against him, the action shall be transferred to some other justice of the peace in the county.” (Code Civ. Proc. § 780; People ex rel. v. Hubbard, 22 Cal. 34.) In the Criminal Practice Act, it is provided as follows: “Any defendant, in any indictment or information, may be awarded a change of venue upon a petition setting forth that he has reason to believe that he will not receive a fair trial in the court in which such indictment or information may be pending, on account that the judge is interested or prejudiced, or is of kin to, or shall have been counsel for either party, .... or that the inhabitants of the county are prejudiced against the applicant, so that he cannot expect a fair trial.” (§ 226.) The intention of the legislature is uttered plainly and directly with relation to the bias or prejudice of justices of the peace and the judges of the courts where an indictment or information is pending. "What legal inference can be drawn from the comparison of the statutes supra? One potent fact in the history of this legislation during the territorial period is very useful and important in expounding the will of the law-makers. We allude to the question which arose in Godbe v. McCormick, 1 Mont. 105. When the fourth legislative assembly convened in November, 1867, section 21 of the Civil Practice Act was in effect the same as section 62, supra, of the Code of Civil Procedure. By an act approved December 6, 1867, this section was amended in some particulars as follows: “Second. When there is reason to believe that an impartial trial cannot be had in said cause by reason of the bias or the prejudice of the judge before whom the same is pending, or by reason of the bias or prejudice of the citizens of the county where said action is pending.....Provided, however, that when an affidavit is made by any party to said action or proceeding, or by his or their attorney, that the party making the application, and on whose behalf the affidavit is made, cannot have a fair and impartial 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 said Territory, outside of his judicial district. ; . . . This act shall apply to all actions now pending or that may hereafter be brought in the Territory of Montana.” (Stats. 4th. Sess. 68.) McCormick filed December 7, 1867, his motion and affidavit for a change of the venue of the action by reason of the bias and prejudice of the judge. The court sustained a motion to strike from the files these papers and tried the cause. It was held in Godbe v. McCormiok, supra, that this act was upon a rightful subject of legislation, and did not divest the District Courts of their common-law jurisdiction. The judgment was reversed upon the sole ground that the court was required to obey the statute and change the venue. The same legislative body passed the Civil Practice Act, which was approved December 23,1867, and repealed the amendment, supra, and section 21 was re-enacted without any modification. The law upon this subject has remained in force since that date. The following statute has existed from its approval, January 11, 1865: “That the common law of England, so far as the same is applicable and of a general nature, and not in conflict with special enactments of this Territory, shall be the law and rale of decision, and shall be considered as of full force until repealed by legislative authority.” (Stats. 1st. Sess. 356.) In Turner v. Commonw. 2 Met. (Ky.) 626, the court said: “At common law there were but two objections that went to the disqualification of a judge to try a cause, to wit, interest in his ■own behalf in the result, or being of kin to others interested therein. (2 Bacon’s Abridgment, title ‘Courts.’)” In Peyton’s Appeal, 12 Kan. 407, the court said: “ It will be admitted that at common law prejudice did not disqualify a judge.” In the opinion in Conn v. Chadwick, 17 Fla. 439, by Mr. Justice Westcott, it is said: “ In the time of Bracton and Fleta, a judge might be refused for good cause; but at the common law as administered in England and the United States for centuries, judges and justices could not be challenged. There were disqualifying causes, such as interest, and being of kin to the party.” We will comment upon the decisions of States in which similar statutes are enforced. A leading case upon this branch of our inquiry is McCauley v. Weller, 12 Cal. 500, and Chief Justice Terry in the opinion says: “ The application for a change of venue was made upon affidavits setting up that defendants could not have a fair and impartial trial in the court below, on account of the bias of the presiding judge.” The statute, which is in substance section 547, supra, of the Code of Civil Procedure, is cited, and the court proceeds: “ These are the only causes which work a disqualification of a judicial officer. The exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of a controversy, though exceedingly indecorous, improper, and reprehensible, as calculated to throw suspicion upon the judgments of the court and bring the administration of justice into contempt, are not under our statute sufficient to authorize a change of venue on the ground that the judge is disqualified from sitting.” The additional reasons, which are presented in support of this rule, appear to be unsound, and we concur with Mr. Hayne in the following observation: “The true reason of the rule, in McCauley v. Weller, that bias does not disqualify a judge, is that such ground is not specified in the statute as a ground of disqualification.” (New Trial and Appeal, § 32.) This authority has been followed in many cases. (People v. Williams, 24 Cal. 31; People v. Shuler, 28 Cal. 490.) The case of McCauley v. Weller, supra, was heard at the January term, 1859, and Bulwer Con. Min. Co. v. Standard Con. Min. Co. 83 Cal. 589, was determined at the April term, 1890, and it is said: “As to the appeal from the order denying defendant’s motion to change the place of trial, it is to be observed that the only ground of the motion alleged or attempted to be proved was, that the ‘judge of said court is disqualified from acting in said case on account of his bias and prejudice against the defendant and A. Pettibone, its president and resident manager,’ which is not one of the grounds of disqualification enumerated in section 170 of the Code of Civil Procedure, and therefore not a ground of disqualification.” The commissioners of the State of California with reference to this section say in their reports “ The three causes stated in the text are the only ones which work a disqualification of a judicial officer.” In Allen v. Reilly, 15 Nev. 452, the court said: “Defendant then moved for a change of venue, on the ground that he' could not have a fair and impartial trial before the judge presiding, because he and defendant had been, and then were, bitter personal enemies. The motion was supported by the defendant’s affidavit setting out the facts just stated, but it was denied by the court. The judge was not disqualified under the statute. (Comp. Laws, 950.)” The statutes of California and Nevada, which are relied on in the opinions supra, are identical in their provisions with section 547, supra, of our Code of Civil Procedure. Let us weigh the authorities with which the appellants sustain their position. In Peyton’s Appeal, supra, a motion was made that the venue be changed on the ground of the bias or prejudice of the judge. It was held that the proceeding before the court was criminal in its nature, and the defendant had the right to have the same removed under this provision of the Criminal Code: “Where the judge is in any wise interested or prejudiced.....” The fourth section of the act relating to the District Courts provides for the selection of a judge pro tern, in certain cases. “ When the judge is interested, or has been of counsel in the case or subject-matters thereof, or is related to either of the parties, or otherwise disqualified to sit.” In ascertaining the meaning of the expression, “ or is otherwise disqualified to sit,” the case of Turner v. Commonw., supra, is approved, and it was decided that the change of venue should have been granted, or the trial should been had before a judge pro tern. The appellant, in Turner v. Commonw., supra, filed affidavits, and asserted that the presiding judge was his personal enemy, and that he believed that he could not and would not do him justice upon the trial. He asked that some impartial lawyer be substituted in the place of this judicial officer, and the application was refused. It is stated in the opinion of the court by Mr. Justice Stiles that the statute of 1815 “provided that in all suits cognizable in any of the Circuit Courts of the State where either party should conceive that he or she would not receive a fair trial in the court in which such suit might be pending, owing to the interest or prejudice of any judge or judges of said court, .... such party might, upon the terms and in the manner therein prescribed, apply for and obtain a change of venue. Thus making the prejudice of the judge a ground for •change of venue.” In order that another remedy might be obtained by the election of a special judge under these circumstances, the framers of the Constitution of the State of Kentucky inserted this section: “ The general assembly shall provide, by law, for holding Circuit Courts, when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside.” In pursuance of this power, the legislature enacted a statute which reads as follows: “ When, from any cause, the judge of the circuit fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, the attorneys of the court who are present shall elect one of its members then in attendance to hold the court for the occasion, who shall accordingly preside.” The court construed the phrases, “any cause” and “properly preside,” and concluded that the framers of the Constitution by the section, supra, “ must be presumed to have referred to the laws then in force prescribing what was a legal cause to prevent a circuit judge from trying a case,” and that said Act of 1815 specified among other such causes the prejudice of a judge. It was therefore adjudged improper for the circuit judge to preside in the case, after the objections of the appellant were presented, and try and determine the issues. It is pertinent to notice at this time a sentence from the American and English Encyclopaedia of Law: “ Bias or prejudice on the part of the judge is generally held to be a sufficient ground for a change of venue.” (Vol. 3, p. 93.) We have examined all the cases which are referred to in the accompanying note, and comprise the appellate courts of the States of Illinois, Indiana, Iowa, Wisconsin, Minnesota, and Kansas. The corner-stone of every decision is a statute, which defines in express terms the bias or prejudice of the judge to be a disqualification. Some of the acts which are quoted are as mandatory as the foregoing law in Godbe v. McCormiok, supra. The solitary authority for the principle which is upheld by the appellants is Williams v. Robinson, 6 Cush. 333. The statute establishing the police court in Taunton provided that the special justice “shall have power, in case of the absence, sickness, interest, or any other disability of the standing justice,” to hear and determine the case, “ the said cause being assigned on the record.” The following entry appears in this book: “ This action is tried by the special justice, the standing justice having, before the action was commenced, heard the facts in the case, as stated by the plaintiff, and being therefore somewhat interested in the plaintiff’s favor.” The eminent jurist, Mr. Justice Metcalf, in the opinion said: “Conscious bias or prejudice in favor of one of the parties, or against the other, caused by hearing an ea; 'parte statement of the facts of the case, is an inability or disability to try the case, within the just meaning of the statutes.....It was not necessary that the statutes should enumerate all the disqualifications of the standing justice. The rules of the common law and the principles of natural justice are to be applied in the construction of these statutes.” It was held that the special justice lawfully tried the action. We are not aware of any other decision which entertains these views. We have declared that the bias and prejudice of a judge did not constitute disqualifications according to the common law. In Commonw. v. McCloskey, 2 Rawle, 369, Mr. Justice Rogers for the court says: “If the legislature should pass a law in plain, unequivocal, and explicit terms, within the general scope of their constitutional power, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative an4 judicial departments, dangerous to the well being of society, or at least, not in harmony with the structure of our ideas oí natural government. Justice is regulated by no certain or fixed standard, so that the ablest and purest minds might sometimes differ with respect to it.” We also cite from Potter’s Dwarris on Statutes, 81: “The legislature possesses, certainly an equal, if not a superior right, to the courts, to determine, by their opinion, what laws are consistent with the abstract principles of natural justice.” From this review, the deduction is clear that there is no statute which authorizes the change of the place of trial of this proceeding by reason oí the bias or prejudice of the judge of the court below. This is the rock on which our judgment stands. We have seen that the legislative assembly has spoken in emphatic tones of the rights of suitors in Justices’ Courts, and deiendants in certain criminal proceedings, to procure a change of the venue on account of the bias or prejudice of the judge, but it has been silent for decades upon this cause with regard to parties in the District and Probate Courts. The court below did not have the power to grant the motion for this ground, and it is needless to look at the evidence thereon. We reiterate our criticism concerning the reasons which have been given by some courts which have reached the same results. We disapprove every suggestion and claim that a judge, who is swayed by personal bias or prejudice, is powerless to injure his foes, or render aid to his friends, because his errors can be corrected upon appeal to a superior tribunal. There are presumptions in favor of 1ns rulings which cannot be ignored, and he can make orders which cannot be disturbed, unless there has been a gross abuse of his discretion. It is admitted that the place of the trial of this proceeding can be changed under section 62, supra, of the Code of Civil Procedure, if the people of the county of Silver Bow are biased and prejudiced against the appellants so that there is reason to believe that an impartial trial cannot be had therein. There are no legal questions for our determination. An order refusing the application for a change of venue will not be set aside in the absence of an abuse of judicial discretion. (Territory v. Corbett, 3 Mont. 50; Kennon v. Gilmer, 5 Mont. 257; Territory v. Manton, 8 Mont. 95.) In these cases the affidavits were adjudged insufficient to support the grounds which had been alleged in the motion. The court points out accurately in Kennon v. Gilmer, supra, the character of the proof which is required, and the form of the affidavit, which purports to narrate the language oí the witnesses. These matters are essential, and should be observed to enable the court to decide whether there is bias or prejudice in the community. This application is accompanied by the affidavits of George O. Freeman and said Boot. They also embrace nine clippings from two newspapers, which were published in Butte, the county seat of the county of Silver Bow. Freeman deposes that he is a resident of Helena, in this State; that he went to Butte March 21,1891, for the purpose of inter viewing the residents and property owners of the county concerning the sentiment respecting the contest of said will; that he remained there until March 30,1891; that he interviewed in the neighborhood of fifty prominent men of Butte, and asked them what they thought the chances were for a fair and impartial trial; that with two exceptions each of these persons advised him that there was a strong sentiment in the county, and particularly in the town of Butte, in favor of John A. Davis and Andrew J. Davis, Jr., his son, and against said Boot and Mrs. Cummings; that these persons said that John A. Davis was an old resident of Butte, and the favored brother of the deceased; that the deceased made most of his money in Butte and said county, and that the people of Butte would get the benefit of it in preference to some outside place; that Andrew J. Davis, Jr., was entitled to have the First National Bank of Butte; that if John A. Davis was successful in said contest, he would respect the wishes of the people of Butte, and keep the money there, and that Butte would get the benefit of it; that if said Boot and Mrs. Cummings were successful in said contest, the money of the estate and the proceeds of the property would be turned from Butte, and that Butte would be the loser. That affiant at each interview had severally requested these persons to make an affidavit setting forth in substance the above facts and opinions, “ but that in each and every instance, with but two exceptions, said persons refused so to do, giving as their reasons for such refusal that they did not desire to get mixed up in said matter, unless they were compelled to; that they would not do so willingly. That affiant interviewed one Julian, a reporter upon the Butte Mining Journal, and that Julian made the same statements as the other persons; that Julian refused to make an affidavit, but said that “he did not wish to willingly get himself mixed up in the case; but that if called into court, and made to do so by the judge, he would tell the truth, just as he had told affiant. That affiant visited during this time the following places in Butte: “ Lynch’s Saloon, the Silver Bow Club, the Mint Saloon, Beal Estate Office of W. McC. White, Gamer’s Boot and Shoe Store, D. M. Newbro Drug Co. Store, and the several hotels in the city of Butte; ” and that he met “ a great many people,” who in conversations uttered the above facts and opinions; that the questions about the Davis estate and said contest were matters of general comment; and that “only two persons expressed themselves otherwise than as against the said Koot and Cummings, and in favor of John A. Davis and Andrew J. Davis, Jr.55 Said Koot deposes that he is a resident of said Helena, and, in addition to some of the facts in the affidavit of said Freeman, says that said bank has a large portion of the money and assets of said estate; that said bank with the exception of a small interest belongs to said estate; “and that said bank does a general, large, and extensive business in accommodating the merchants and businessmen of said city and county;55 and that the newspapers of Butte have been trying to mold the minds of the community generally in favor of John A. Davis and against said contestants and non-residents. The respondent files the affidavits of John A. Davis, W. McC. White, Luther C. White, Fred Wey, James Lynch, Kobert Grix, Victor E. Goldsmith, James W. Forbis, George W. Irwin, Koderick D. Leggat, and Henry G. Valiton. ( The said clippings were published in the Inter-Mountain and Butte Mining Journal, and are confined chiefly to comments upon the action of the court below in appointing John A. Davis to be the general administrator of the estate. These articles, however, viewed as a whole, express in positive and forcible terms the same facts and opinions which are stated in the affidavits of Koot and Freeman. One of them, which was printed April 30, 1890, assumes to give the views of fifteen citizens of Butte, who are named by the reporter of the Mining Journal, of the appointment of John A. Davis. The affidavits of the respondent are made by residents of Butte, and deny that any bias or prejudice relative to the contest of said will exists in Butte or the county of Silver Bow. John A. Davis deposes that the articles were published in the newspapers without his knowledge or wishes; and that said bank “ transacts only a portion of the banking business of said city; and that only a portion of the business men of the city of Butte, and of the county of Silver Bow, are customers of, or have any business with said bank, there being four or five other banks doing business in said city of Butte.55 The parties who were engaged in business at the aforesaid places have contradicted in their affidavits, respectively, the above statements of Freeman. Forbis deposes that he had an interview with said Julian, and then narrates a conversation which differs materially from the report of Freeman. It is significant that said Julian is the only person who is designated in the affidavit of Freeman to corroborate his testimony, and that no excuse is offered for the failure to attempt to secure the presence in court of a number of the citizens of Butte, and especially of the two men who seem to have been friendly to the contestants. In Territory v. Manton, supra, Chief Justice McConnell in the opinion referred to the practice in deciding upon the proof of the grounds in an application for a change of venue, and said: “ The court should determine the question from the facts shown, upon a procedure for that special purpose, either by testimony taken by affidavits,, or witnesses called and examined, in open court, or before the judge at chambers, as the case may be.” It would have been the proper mode in this proceeding, when about fifty persons were found who refused to furnish their affidavits, and one party was apparently testifying upon both sides, to have invoked the process of the court and compelled all of them to attend the hearing and give their evidence. There might have been added to this list of witnesses the names of the editors and reporters of the said newspapers who could be questioned as to their source of information, and the citizens who were interviewed April 30, 1890, according to the Butte Mining Journal. But no effort of this nature has been made. John A. Davis is shown to have had no relation to the articles in the said newspapers, and this application rests upon the affidavits of Root and Freeman, who are non-residents of the county of Silver Bow. Upon the entire evidence, and under the practice which has prevailed in the courts of the Territory and State, we must hold that there has been no abuse of judicial discretion in refusing to grant the motion upon the second ground. It is therefore adjudged that the order of the court below be-affirmed. Affirmed. Harwood, J., and De Witt, J., concur.

Blake, C. J. This action was commenced by Honaker, the respondent, to recover the possession of the Lone Star Lode Mining Claim. The answer alleges that “ no work or improvements were done or performed upon said Lone Star Mine or claim in the year 1889, and in consequence thereof said claim was forfeited if it ever existed.” The court instructed the jury that the evidence “shows that the plaintiff Honaker did not do the required amount of work on said claim in said year 1889, and that, therefore, said claim was open to relocation, by any proper person, on the 1st of January, 1890. .... But to this the plaintiff replies, and says that he resumed work upon said claim after his failure to do said work, and before the time (April 25,1890) of the location of said claim by the defendants.” The jury were further instructed that there was only one question for their consideration, to wit: “ Did the plaintiff Honaker, in good faith, honestly and in fact, resume proper work upon said claim prior to said location thereof by the defendants?” The following instructions were also given: “If, from all of the evidence in the case, you shall be satisfied that the question .... should be answered in the affirmative, then you should find for the plaintiff; otherwise for the defendant. .... In this case the plaintiff affirms and asserts that he did resume work upon the Lone Star Claim before the date of the location thereof by the defendants, and therefore the burden of the proof is upon him.” The verdict was in favor of Honaker, and the defendants moved for a new trial, which was refused. The issue of law in this case depends upon the construction of this section of the Revised Statutes of the United States: “On all claims located after the tenth day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year; .... and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.” (§ 2324.) The contention is practically limited to the words “ resumed work,” and most of the authorities furnish definitions which do not satisfy the case at bar. Judge Sawyer, in North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 314; 1 Fed. Rep. 522, said: “The statute nowhere authorizes a person to trespass upon or to relocate a claim, before properly located by another, however derelict in performing the required work the first locator may have been, provided he has returned and resumed work, and is actually engaged in developing his claim at the time the second locator enters and attempts to secure the claim.” The learned judge repeated this doctrine in Jupiter Min. Co. v. Bodie Con. Min. Co. 7 Sawy. 115; 11 Fed. Rep. 666, and Lakin v. Sierra Buttes G. Min. Co. 11 Sawy. 241; 25 Fed. Rep. 337. In Gonu v. Russell, 3 Mont. 358, it was held that the locator of a lode mining claim “ had the right to defeat the forfeiture of his interest in the property by resuming labor thereon before a location thereof had been made by another;” and that “the resumption of labor in good faitb,” by one who had failed to comply with the statute, supra, and perform the work thereby required, before the completion of a new location which had been commenced, nullified the acts of the second locator. Gonu posted his notice, but did not mark out his boundaries until Russell had resumed work. The case of Pharis v. Muldoon, 75 Cal. 284, is to the same effect, but an additional fact appears: “ At one o’clock A. M. of that day (January 1, 1886) plaintiff posted his notice, but did not mark out his boundaries until January 5th. In the mean time, that is to say, at the usual hour of commencing work of that kind, on the first day of January, 1886, the defendant resumed labor on his claim; did ten dollars’ worth of work on it up to the 5th of January, 1886; and afterwards, during that year, performed labor upon it to the amount of two hundred dollars more.” (See, also, Lacey v. Woodward, 25 Pac. Pep. 785, New Mexico, Jan. 1891; Belk v. Meagher, 3 Mont. 65; affirmed, 104 U. S. 279.) In the last case Chief Justice "Waite said: “As we think, the exclusive possessory rights of the original locator and his assigns were continued, without any work at all, until January 1, 1875, and afterwards if, before another entered on his possession and relocated the claim; he resumed work to the extent required by the law. His rights after resumption were precisely what they would have been if no default had occurred.” This opinion seems to give a meaning to the amount of labor demanded by the statute, supra, and it must be “to the extent required by the law.” Judge Hallett instructed the jury in the United States Circuit Court for the District of Colorado, in Little Gunnel Gold Min. Co. v. Kimher, 1 Morrison, 536, that a party, who fails to work his claim according to the statute, supra, has the right, before the new claimant has perfected his location, “to re-enter,” and, upon doing the annual work required by law, he “ would become reinvested with” his “first estate.” We think that the foregoing authorities establish general and consistent principles. The ease of Belcher Con. G. Min. Co. v. Deferrari, 62 Cal. 160, cannot be deemed sound in its construction of the statute, supra. The question is so important in its consequences that we quote at length from the opinion of Mr. Justice MeKinstry: “The court found that in the year 1880 plaintiff expended, in labor on the two claims, one hundred dollars; that in January, 1881, plaintiff resumed work upon the claims, and expended in labor twenty-four dollars. Defendants entered and located in August, 1881. As the plaintiff had resumed work upon the claims ‘after failure, and before location,’ his rights were not forfeited when defendants entered. (Rev. Stats. U. S. § 2324.) It is urged that the resumption of work was not such as is required by the Act of Congress; that, if so, one may fail to perform- the work required by the act during any year, and yet keep alive his right indefinitely by doing any work during the January following. In other words, that, by such construction, while the act requires one hundred dollars’ worth of work ¡each year, a party may keep his claim good by doing one dollar’s worth each year, provided he shall succeed in doing it before a relocation can be accomplished. It is not necessary to decide that an attempt to assert a continuous right may be based upon a pretense of work, so plainly a sham as that it will be disregarded. ' But here the work done was actual and valuable. The letter of the statute upholds the view, as to resumption of work, taken by the court below, and forfeitures and denouncements are not to be favored by basing them upon language which does not plainly and unmistakably provide for them.” Of this cáse Mr. Morrison says: “Such a decision is only trifling with- the law, and the rights of parties based on the- ■ law.” (Mining Bights in Colorado [6th ed.], 61.) The proposition relating to forfeitures and denouncements cannot be questioned, but another rule appears to be considered more important by the courts. In Erhardt v. Boaro, 113 U. S. 535, Mr. Justice Field says: “ In all legislation, whether of Congress or of the State or Territory, and by all mining regulations and ruj.es, discovery and appropriation are recognized as the sources of title to mining claims, and development by working, as the condition of continued ownership until a patent is obtained.” The-learned judge in O’Reilly v. Campbell, 116 U. S. 418, says:. “It is a rule among miners on the public lands, so often brought to our attention and so often declared that we may speak of it as part of our judicial knowledge, that discovery and appropriation are the source of title to mining claims, and that development by working is the condition of their continued possession. (Jennison v. Kirk, 98 U. S. 453, 457; Jackson v. Roby, 109 U. S. 440.) This was the rule before Congress by its legislation sanctioned it.” In Remmington v. Baudit, 6 Mont. 138, Chief Justice Wade said: “The purpose of requiring one hundred dollars’ worth of work or improvements on a mining claim each year is to so develop the mine as that a patent may issue for the claim. It is .not the policy of the government to issue patents for the mineral lands until there has been a discovery, and sufficient work done upon the claim to demonstrate its value.....A liberal construction should be given to the Mining Act of 1872, but it should not be so liberal as to authorize a claim to be held without representation, or a patent to be procured before any work has been done on the claim.” The result of the holding in Mining Co. v. Deferrari, supra, is to defeat the real objects of the statute, supra, which are the exploration and development of mining claims. Every person who continues in the possession of such property upon the public domain of the United States, without performing annually the labor that has been specified, violates' the conditions of the grant from the government. .The resumption of work by-the original locator, whose rights are subject to forfeiture, without the expenditure, with reasonable diligence, during the year of the sum of one hundred dollars for labor or • improvements upon the mine, is an evasion of the. statute, supra. If we comprehend the language of Chief. Justice Waite, supra, and Judge Hallett, supra, the courts will not legalize such overt acts of omission as are stated in Mining Co. v. Deferrari, supra. The question, which is embodied in the instructions of the court below, was submitted without any explanation of the words “resumed work,” and would have a tendency to mislead the jury. They could "reasonably infer that any labor showing the intention of Honaker to re-assert his claim to the property was a sufficient compliance with the law. When the testimony is compared, there can be no doubt that this was the effect. It is shown by the evidence upon the part of Honaker that he did not represent the lode in the year 1887, and relocated it January 1, 1888 ; that he' did not go upon the property from this date until the month of May, 1890, when the defendants were in possession; that about December 20, 1889, he made a contract with Bichard Berriman to represent the same for the year 1889; that Berriman labored from December 22, 1889, until January 12, 1890, under the contract, and received from Honaker one hundred dollars; that logs, slabs, and lumber of the value of sixty-three dollars were conveyed to the premises, and never used; that these materials were for a shaft-house or ‘any necessary purpose on the mine; that Berriman testified he drifted “perhaps five or six feet,” and did not haul any dirt from the mine; that he cut in the woods “about half a dozen” logs, and put them in the mine; that he carried there a rope, bucket, and shovels and picks, and removed them when he quit work; that there was no windlass upon the mine; and that he did not know how much he earned in January, 1890, but there was “ over fifty dollars of it.” The testimony for the defendants tended to prove that no work was done for Honaker upon the property in the years 1889 and 1890; that the logs, slabs, and lumber were hauled there, and not used; that tools, buckets, and wire rope were taken to the premises by Berriman, and carried away; that there were no timbers in the mine; and that the property was examined carefully to see what labor had been done upon it, and located by the defendants, April 25, 1890. It is clear that the respondent has not acted honestly and in good faith, and that, during the years 1887, 1888, 1889, and 1890, when the lode should have been developed by the expenditure of the sum of four hundred dollars for work or improvements, there is a conflict in the testimony upon the point as to whether labor of the value of one cent has been expended thereon. When, therefore, he availed himself of the statutory privilege of resuming work to preserve his estate from forfeiture, we hold that he should have prosecuted the same with reasonable diligence, until the requirement for the annual labor and "improvements had been obeyed. The tools, rope, and windlass were taken from the premises about January 12, 1890, and the logs, slabs, and lumber have not been used in any manner, although nearly two thirds of the money which was paid by Honaker to Berriman have been therein invested. What is the fair presumption from this conduct? Can it be maintained that it is the intention of the statute, supra, that, under these circumstances, the respondent shall be adjudged to have “resumed work?” If it be insisted that the instruction by the clauses, “in good faith, honestly and in fact, resume proper work,” was designed to lay down the law in accordance with these views, then the verdict is contrary thereto. It is therefore adjudged that the judgment be reversed, and the case be remanded, with directions to grant the motion for a new trial. Beversed. Harwood, J., and He Witt, J., concur.

De Witt, J. An important question has been presented by-counsel; that is to say, whether the right to dump tailings being granted to defendants, such grant included the right to run a bed-rock flume across the dumping ground; such flume, it being claimed by defendants, was necessary to the exercise of the right to dump tailings. This question is interesting, and largely the gist of the case, and, as it seems to us, should be determined upon a full investigation of the facts, and the nature, character, and proposed uses of the flume. This could be done upon a trial. The matter is now before us only on the complaint and affidavits, on an appeal from an order dissolving a ■temporary injunction. Aside from the point just referred to, we find that all of plaintiffs’ alleged equities are denied by the defendants’ affidavits. The question of law that we have noticed, we do not feel impelled to investigate at this stage of the case, as it is before us upon a pleading and affidavits only, which are, each in itself, ex parte in character; and the allegations are not subjected to cross-examination, which would bring out all the facts as upon a trial. It occurs to us that a clear and full knowledge of the facts in relation to the flume would greatly aid a court in finally determining whether its proposed use was within the grant of the easement to dump tailings. We leave that matter for the investigation of the lower court, for the reason that the question of the dissolution of the temporary injunction can be decided upon other grounds. The proposed flume was a considerable enterprise. It extended seven hundred and fifty feet. It had been in construction for a year and a half. Only twenty-eight feet remained to be built. Plaintiffs stood by for a year and a half, and offered no objection to the prosecution of the work, until only three or four per cent of the whole remained to be done, and they then concluded that irreparable injury was about to be done them by the completion of these twenty-eight feet. An injunction would not apply to the past work. It was only a matter of restraining the completion of a few feet of a large work. It is noticed above that all the allegations as to taking out gold and tearing down the dam are denied. Therefore, the only question is whether the district judge abused his discretion in dissolving the temporary injunction as to completing the twenty-eight feet of flume. The judge went upon the premises and made a personal examination. “The granting or refusing of an injunction is a matter of discretion in the court below.” (Blue Bird Min. Co. v. Murray, 9 Mont. 475, citing the early cases of Nelson v. O’Neal, 1 Mont. 284, and Atchinson v. Peterson, 1 Mont. 561.) We are of opinion that there was no abuse of discretion by the district judge, and his order dissolving the injunction is affirmed. Affirmed. Blake, C. J., and Harwood, J., concur.

Harwood, J. This case stands for review, upon appeal from the judgment and an order overruling appellant’s motion for a new trial. The object of the action was to obtain a decree of cancellation of a deed of conveyance of an undivided one-fourth interest in a certain quartz lode mining claim, situate in Jefferson County, known as the “ Ida Mine,” for alleged gross inadequacy of consideration paid for said property, and acts of fraud and deceit in the procurement thereof. It appears that the deed of conveyance in question was made and delivered March 22, 1890, in consideration of one thousand and twenty dollars paid to the grantor, and on the twenty-fifth day of that month he commenced this action for cancellation of said deed. In the complaint an offer is made to restore to defendant the sum of money paid plaintiff as such consideration, with interest thereon, or to pay the same into court for the use of defendant, or to make such disposition thereof as the court may direct; but it is not shown by the complaint that plaintiff had, prior to the commencement of the action, tendered or offered to return to defendant said sum of money. Defendant’s counsel moved the court for judgment on the pleading, on the ground that an action for cancellation of a contract cannot be lawfully commenced and maintained unless it is shown by plaintiff that he has first tendered back to defendant that which was received as consideration for the execution of the contract, and that the same does not appear in this case. The motion was overruled, and the action of the court in that respect is the first alleged error assigned by appellant. We do not perceive why, in reason, the doctrine contended for should apply in cases of this nature. The very object and purpose of the action is to compel an undoing of what has been done ; to compel a mutual restoration of each party to the position he occupied before the fraudulent transaction was consummated. Neither the relief nor the right to relief is predicated upon the tender back of what was paid in procuring the contract. In this case the relief, if granted, proceeds upon the ground that some circumstances or conditions exist in relation to the parties which in law amounts to constructive fraud, or that actual fraud has been practiced in procuring the execution of the conveyance or contract. (Willard’s Equity Jurisprudence, 302; 1 Story’s Equity Jurisprudence, § 694, et seq.; 2 Pomeroy’s Equity Jurisprudence, §§ 922-928.) As a matter of course, in granting such relief the court requires equity at the hands of the complaining party, as well as from the party guilty of fraud; that is, the restoration of everything of value received in the transaction. The precise point has been under consideration in numerous well-considered cases of this nature, and it has been held that a court of equity will proceed with the action for cancellation without requiring, as a condition precedent to commencing the action, that the complaining party shall have tendered back what he had received; that an offer in his complaint to restore the same is sufficient; and,.if a case is made out which moves the court to grant relief, it carries into effect the maxim that he who seeks equity shall do equity. (1 Story’s Equity Jurisprudence, § 693; Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75; 99 N. Y. 337; Allerton v. Allerton, 50 N. Y. 670; Vail v. Reynolds, 118 N. Y. 302; Shuee v. Shuee, 100 Ind. 477; Hopkins v. Snedaker, 71 Ill. 449; Whelan v. Reilly, 61 Mo. 565; Thomas v. Beals, 154 Mass. 51.) We think the rule is sustained by the greater weight of authority as applicable in cases like the one at bar. If such were not the rule, fraud might, in its manifold resources, frequently contrive to so shape the conditions and circumstances that the defrauded party could not make an offer to restore, prior to invoking the power of the court for relief; and relief would then be denied by reason of the rule. However, the rule seems not to be applied to all cases where rescission is sought, as will be seen by consulting the cases cited supra. Where a party defrauded is so situated in respect to the subject-matter that he can return to the guilty party that which the lattdr parted with in the transaction, and nothing more is necessary to effect a rescission, in such ease the rule seems to be, that the complaining party must first restore, or offer to restore, what he received, & before he can maintain his suit or defense; as, where a party has been induced through fraudulent representations to buy chattels, he may rescind the contract by a return or a tender back of such chattels, and resist payment therefor on the ground of fraud in the inducement to purchase, or recover back money or other valuable things given in payment; but it must appear that within a reasonable time after discovery of the fraud restoration or offer thereof was made. The ease of Gifford v. Carvill, 29 Cal. 589, and the cases therein cited, are illustrations of that class of cases. It will be observed, however, in the illustrations brought to view, that the action or defense through which relief is sought is an action at law, or a defense to such an action. In the one case the action is to recover back money paid out in the transaction induced by fraud, or, on the other hand, a defense against an action brought to enforce the contract, which was procured through fraudulent representations. Occasionally a case will be found where the true distinction seems to have been lost sight of, and the rule requiring a return or offer to return, as a condition precedent to maintaining the action, is applied to an action in equity for cancellation, rescission, or annulment. This seems to have been done in the case of Herman v. Haffenegger, 54 Cal. 161, cited by appellant. That was an equity case for the rescission of a contract on the ground of fraud in procuring it, and for recovery of property claimed to,have been parted with by the complaining party through fraudulent representations. The court denied relief on the ground that it did not appear that the plaintiff had, prior to commencing his action, returned or offered to return what he had received in the transaction. The only authority cited was Gifford v. Carvill, supra, which was not an equity action for rescission or cancellation, but was an action at law in all its attributes. The latter case was brought to enforce payment of certain promissory notes, and the defense set up was fraudulent representations made and relied upon in the sale of mining stock, for which the notes were given. Fraud, as a defense in such a case, does not belong exclusively to equity jurisdiction. We find no error in the action of the court in overruling defendant’s motion for judgment on the pleadings. This cause was tried by the court, sitting with a jury impaneled to aid in finding the facts. All other specifications of error urged by counsel for appellant relate to the admission of evidence and finding of facts. It was alleged in the complaint that one George La Point, by prearrangement, conspired with defendant to aid him in procuring a conveyance of said property from plaintiff for a grossly inadequate consideration; and that in furtherance of such design said La Point did a series of wrongful acts, and made certain false representations, specifically set out and alleged, calculated to aid, and which did aid defendant in procuring a conveyance of said property. During the trial the court permitted plaintiff to introduce testimony tending to prove that, two days prior to making the conveyance to defendant, said La Point sought out and introduced himself to plaintiff, and inquired about his present circumstances, means of support, and intentions; and finding that he was without money, and looking for employment, told plaintiff that he (the said La Point) would furnish plaintiff money for his present expenses; told plaintiff he ought not to seek employment; that La Point had been told plaintiff was the best prospector that could be found, and proposed that plaintiff should enter into a partnership arrangement with La Point to go prospecting for mines; and that they agreed upon such partnership arrangement; and that said La Point induced plaintiff to go about the town of Anaconda with La Point to look for, and arrange to purchase, certain supplies to use in such prospecting business ; that during this time, and from the first meeting of said parties, plaintiff was encouraged by said La Point to drink -extensively of intoxicating liquors furnished by the latter; that plaintiff became intoxicated, and while in that state said La Point procured a deed from plaintiff conveying to La Point a one-fourth interest in said Ida Mine, in consideration of one hundred and four dollars in money, and two promissory notes made by said La Point for two hundred dollars each, payable to plaintiff. The introduction of all such evidence relating to the conduct of said La Point prior to the time of executing the deed of conveyance to defendant was objected to, and exception reserved to the admission thereof, on the ground that the same was irrelevant and incompetent because defendant Berkin was in no way connected with said acts of La Point, and that said acts were not in any way connected with the transaction whereby defendant Berkin obtained the deed sought to be canceled by this action. The same objection was also urged in a motion to strike out said testimony, made at the time the plaintiff rested in the proof of his case; which motion was overruled, and defendant excepted thereto. This testimony related to alleged acts done in the absence of defendant by one alleged to be a conspirator co-operating with him to accomplish the purpose in question. Such testimony was permissible only on the ground that such prearrangement, conspiracy, or relation of principal and agent between said La Point and defendant had been shown. What evidence was there before the court tending to prove the existence of such agency, prearrangement, or conspiracy? The answer of the defendant in the action admits that “the defendant went to Anaconda for the purpose of purchasing said interest, and took with him for that purpose the draft referred to, upon information sent him by La Point;” and again admits “that defendant, being a stranger, had La Point find plaintiff, and bring him to defendant, as a matter of convenience to him;” and, again, defendant’s answer “ avers that this defendant went to Anaconda upon information received by him from La Point that he could purchase said property.” It is true these admissions are innocent enough in themselves, but they do show some co-operation by said La Point with defendant in reference' to the object sought to be consummated. In addition to those admissions in defendant’s answer, prior to the admission of the evidence under consideration, testimony had been introduced to the effect that on said 22d of March, said La Point sought and found plaintiff in a saloon at Anaconda, where he had been engaged at card-playing and drinking intoxicating liquors; that plaintiff was invited by said La Point to go to his house in Anaconda, and La Point accompanied plaintiff there; that plaintiff understood from La Point’s invi tation that the object of this visit to La Point’s house was to see his folks; that when the two entered said house, defendant Berkin was there, and La Point seemed surprised to see defendant, and inquired where he came from, and defendant replied that he had come from Ore Pino mining district, where he had been prospecting (which mining district is situated at a distance from the section where the Ida Mine is located); that La Point then introduced plaintiff to defendant Berkin; that La Point then explained to defendant that plaintiff and La Point had entered into an arrangement to go prospecting, and thereupon defendant expressed a desire to enter into such arrangement with them; that defendant and said La Point then went into another room, and held some conversation together; that defendant returned shortly afterwards to the room where plaintiff was, and again said he would like to get into the prospecting business mentioned; that La Point then mentioned the subject of the Ida Mine, saying he had a fourth interest therein, and thereupon defendant proposed to La Point to buy the interest which he owned in said mine, and also the fourth interest owned by plaintiff, offering one thousand dollars each for said interests; that La Point called plaintiff’s attention to said offer, and asked what he thought of it, and that plaintiff replied, saying, “We are partners, and whatever you do is satisfactory to me; ” that La Point thereupon accepted the offer, and defendant immediately paid to La Point and to plaintiff the sum of twenty dollars each to bind the bargain. The court, having before it evidence of that character, allowed inquiry to be made as to the representations and conduct of La Point in relation to the formation of said partnership arrangement for prospecting, and the acquisition by La Point of said fourth interest in the Ida Mine, which occurred two days before the transaction of defendant in question. In view of such testimony before the court, tending to prove the co-operation of La Point with defendant in his effort to procure the deed in question, we cannot bold that the court erred in allowing the introduction of said testimony objected to and urged as error. We think an ample foundation was laid to sustain the introduction thereof. (Code Civ. Proc. § 642; Wharton on Evidence, § 1205; Lincoln v. Claflin, 7 Wall. 132; Nudd v. Burrows, 91 U. S. 438.) Among other matters assigned as ground for a new trial is a-specification that the finding of the jury to the effect that defendant and said La Point conspired together to obtain plaintiff’s interest in said mine “for a consideration far below its-value” is not supported by the evidence. In addition to admissions in the answer of defendant and the evidence above-referred to, it was disclosed by the testimony of both La Point and defendant Berkin that, about a week before the interest was obtained for defendant, he went to Anaconda in search of plaintiff, and not being able to find him, as defendant testified,, he “told La Point to look for Maloy, and let defendant know at once if he could find him, and that if he could buy in, or buy his interest in the Ida Mine for four or five hundred dollars, to-do so; he was to buy the interest for me; ” and that La Point “ said he would do it.” And, notwithstanding the fact that La Point first procured a conveyance of one-fourth interest in said mine to himself, it does not appear that he at all relinquished his effort to aid his brother-in-law, Berkin, in obtaining a deed from plaintiff for the remaining fourth interest in said mine j and that it was obtained for a consideration grossly out of proportion to its value does not admit of doubt, if the value oí said mine was forty thousand dollars, as found by the jury and court. This brings us to the point raised by the counsel for appellant, that the court erred in admitting certain testimony as to the value of said mine, and that the finding that the value of said mine was forty thousand dollars is unsupported by evidence. Appellant’s counsel have not explained wherein the evidence introduced as to value does not conform to the views-expressed in Montana Ry. Co. v. Warren, 6 Mont. 275, and in the opinion of the Supreme Court of the United States affirming the same case, 137 U. S. 348. Neither is it explained wherein the witnesses were not shown to be fully competent to testify as to the value of said mine. In this case the mine was developed to such an extent as to have produced valuable ores, from which valuable returns had been derived. Not only so, the property appears, at the time, to have had a market value. About the-time in question a one-eightli interest in said mine had been sold for five thousand three hundred dollars, and a one-fourth interest for ten thousand dollars; and other interests were sought for, and contracts made to pay proportionate sums therefor. So much was shown concerning the market value of the property $ and the witnesses who testified to the value were first shown to be fully qualified to speak upon that subject, according to the views expressed in the case last above cited. In the brief of counsel for appellant it is urged that the court erred in allowing witness Mclntire to testify on behalf of plaintiff that defendant’s father, William Berkin, worked a few days in said mine prior to the transaction in question. This point was not specified to the court below as error, on the motion for new trial, as appears by the record, and the same is therefore passed without consideration. In this case it appears that defendant obtained the interest in question by paying about one tenth of its market value. From the evidence set forth in the record, there is scarcely room for a reasonable doubt, that when defendant undertook to find plaintiff, and obtain a deed for said property, defendant had knowledge of the value of the property which he sought to obtain for so small a consideration, and also had reason to believe that plaintiff was ignorant of the present value of the same. Defendant’s testimony convinces us of that, notwithstanding his great effort to conceal the fact that he had such knowledge. He admits that he heard it rumored that Al. Sheed had sold his eighth interest in said mine for four or five thousand dollars. This was the person from whom defendant borrowed the money with which to purchase plaintiff’s interest. Defendant says in his testimony that the fact which led him to make an effort to find plaintiff was that he (defendant), “like a good many others, was excited about this property.” “That is, ” he says, “my curiosity was excited. A good many were hunting for him, and I thought I had the same right, and that I would do the same. I thought there might be something in it, by reason of the inquiries that were being made about him. There were a good many around here hunting for him, and one man told me he would give me three hundred dollars if I could find him.” Defendant further testifies that the subject of this mine “ was in everybody’s mouth; ” that it had been reported to him that the plaintiff was lost; that plaintiff had been ad ver tised for in the local newspapers. It appears without dispute that plaintiff had neither seen nor received any information concerning said mine for about eighteen months, and in the mean time the mine had been developed from an unpromising “ prospect” to a paying mine, and had a present value in the market, as above set forth; that plaintiff was supposed to have been lost; and that defendant had been consulted about administering on plaintiff’s estate. However, as counsel for appellant correctly argue, inadequacy of consideration alone is not sufficient cause for cancellation of a conveyance, except, perhaps, in extreme cases. Inadequacy of consideration is one strong element of the cause, and, if accompanied by circumstances which amount to fraud, the cause for relief is made out. Mr. Pomeroy, in his work on Equity Jurisprudence, states forcibly and succinctly the principles applicable to this subject, and accompanies his text with a multitude of authorities, bringing his research down to a recent date. We quote some of his observations. He says: “The rule is well settled that where the parties were both in a situation to form an independent judgment concerning the transaction, and acted knowingly and intentionally, mere inadequacy in the price or in the subject-matter, unaccompanied by other inequitable incidents, is never of itself sufficient ground for canceling an executed or executory contract. If the parties, being in the situation and having the ability to do so, have exercised their own independent judgment as to the value of the subject-matter, courts of equity should not, and will not, interfere with such valuation. In some of the earlier decisions, mere inadequacy, either in the price or the value of the subject-matter, was held to be a sufficient hardship, which might defeat the specific performance of an executory contract when set up as a defense. The doctrine, however, is now settled that mere inadequacy — that is, inequality in value between the subject-matter and the price — is not a ground for refusing the remedy of specific performance. In order to be a defense, the inadequacy must either be accompanied by other inequitable incidents, or must be so gross as to show fraud. In short, inadequacy as a negative defense, and as an affirmative ground for a cancellation, is governed by one and the same rule. Although the actual cases in which a contract or conveyance has been canceled on account <of gross inadequacy merely, without other inequitable incidents, are very few, yet the doctrine is settled by a consensus of decisions and dicta that even in the absence of all other circumstances, when the inadequacy of price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for canceling a conveyance or contract, whether executed or executory. Even then, fraud, and not inadequacy of price, is the true and only cause for the interposition of equity and the granting of relief. If there is nothing but mere inadequacy of price, the case must be extreme to call for the interposition of equity. Where the inadequacy does not thus stand alone, but is accompanied by other inequitable incidents, the relief is much more readily granted. But even here the courts have established clearly marked limitations upon the exercise of their remedial functions, which should be carefully observed. The fact that a conveyance or other transaction was made without professional advise or consultation with friends, and was improvident, even coupled with an inadequacy of price, is not of itself a sufficient ground for relief, provided the parties were both able to judge and act independently, and did act upon equal terms, and fully understood the nature of the transaction, and there was no undue influence or circumstances of oppression. When the accompanying incidents are inequitable and show bad faith, such as concealments, misrepresentation, undue advantage, oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecuniary necessities, and the like, on the part of the other, these circumstances, combined with inadequacy of price, may easily induce a court to grant relief, defensive or affirmative. It would not be correct to say that such facts constitute an absolute aud necessary ground for equitable interposition. They operate to throw the heavy burden of proof upon the party seeking to enforce the transaction, or claiming the benefits of it, to show that the other acted voluntarily, knowingly, intentionally, and deliberately, with full knowledge of the nature and effect of his acts, and that his consent was not obtained by any oppression, undue influence, or undue advantage taken of his condition, situation, or necessities. If the party upon whom the burden rested should succeed in thus showing the perfect good faith of the transaction, it would be sustained; if he should fail, equity would grant such relief, affirmative or defensive, as might be appropriate.” (2 Pomeroy’s Equity Jurisprudence, §§ 926-928.) The conclusion which we have reached, after mature consideration of the case, and the points, authorities, and arguments of counsel, is that none of the errors assigned ought to be sustained, and that the findings and decree are fully supported by the evidence. We are satisfied from the evidence that, when defendant set out in his endeavor to obtain said property, he knew full well the value thereof; yet if, with such knowledge, he had sought and obtained a transfer of the property for such small consideration compared to its value, and, to do so, hurried to take advantage of plaintiff’s ignorance of the late development of said property and the greatly increased value thereof, still the transaction might not have been set aside had defendant taken care to keep himself free from the use of means and agencies which tended to place the victim of his covetous design at a still greater disadvantage. Having a knowledge of the value of said property, it clearly appears that defendant contemplated and undertook the procurement thereof for a grossly 'inadequate consideration. Yet with only those facts in view, in a case like this, where no infirmity or weakness of plaintiff is shown, the law is slow to move, and often remains dormant when appealed to for the undoing of the transaction, “provided the parties were both able to judge and act independently, and did act upon equal terms, and fully understood the nature of the transaction,.and there was no undue influence or circumstances of oppression.” (Pomeroy, supra.) But, when gross inadequacy of consideration is shown, the law requires of the defendant the strict avoidance of all false, deceitful, or unfair means calculated to advantage his design; and therein the defendant’s conduct does not stand the test. When we speak of defendant’s conduct, we have in view not only what he personally did, but also what he did through the agency of La Point, Avhom defendant commissioned to “ buy in, or buy the interest ” of Maloy in, said property for defendant, and who aided defend ant in his transaction. The facts shown to the satisfaction of the court as to the conspiracy, or relation of principal and agent, between defendant and La Point in the consummation of the-transaction; as to the intoxication of plaintiff, from the influence of which the court found he was not free, when the conveyance was made to defendant; as to the use made of the partnership scheme to gain the trust and confidence of plaintiff, and distract his attention from the real object to be achieved; and as to the said La Point pretending to sell his fourth interest in said mine, for the same price, and at the same time, — each and all of those facts were potent elements in this case to taint with fraud and vitiate the transaction, when looked at in connection with the fact that defendant commenced his efforts to obtain said property, with the intention to, and did acquire it for a grossly inadequate consideration. It is therefore ordered that the judgment and the order overruling appellant’s motion for a new trial be affirmed, with costs,. Affirmed. Blake, C. J., and Be Witt, J., concur.

Blake, C. J. This action was brought to recover a judgment for the sum of fifteen thousand dollars on account oí the sale of certain lode mining claims to Thomas Couch, and for the sale of property which had been conveyed by Couch to the Boston and Montana Consolidated Copper and Silver Mining Company. No general verdict was requested by the court or any of parties, and the jury returned the following special findings:— “The jury in the above-entitled action will find a special verdict by answering the following questions: (1) Were the plaintiffs and the defendant, John Lloyd, engaged jointly in working and developing the mines mentioned in the complaint, known as the c Harris and Lloyd tunnel property,’ from the year 1879 or 1880 to on or about the month of March, 1888? Answer. Yes. .(2) It you answer the foregoing question yes, were they working the said mines with a view of extracting ores and selling the property? A. Yes. (3) Did the owners interested in said property, while so jointly interested, do and perform work and labor and expend money of the total value and amount of about twenty thousand dollars? A. Yes. (4) Did they each contribute a proportionate share in the expenses incurred in the working of such mining property? A. Yes. (5) Did they share proportionately in the profits and losses incurred or accruing from said work? A. Yes. (6) Did the defendant Lloyd aud the defendant Couch enter into an agreement by which the defendant Lloyd was to receive thirty thousand dollars, in addition to the one hundred thousand dollars mentioned in the contract, lease, and deed? A. Yes. (7) Did the defendants Lloyd and Couch, or either of them, conceal from the plaintiffs the fact of the making of such agreement for the payment of thirty thousand dollars ? A. No. (8) Did the plaintiffs know of such agreement for the payment of thirty thousand dollars to Lloyd until after said property was accepted and sold and the deed delivered? A. Yes. (9) Did the defendants Lloyd and Couch, or either of them, by acts or words, represent to or conceal from the plaintiffs during the negotiation for the sale of said property that the sum of one hundred thousand dollars was the entire consideration or purchase price of same? A. No. (10) Was said sum of thirty thousand dollars, mentioned in the agreement between defendants Lloyd and Couch, a part of the consideration and purchase price of said mining property? A. Yes. (11) Did the defendants Couch and the Boston and Montana Consolidated Copper and Silver Mining Company have notice of the claim of the plaintiffs to one half of said thirty thousand dollars before twenty-two thousand dollars of said thirty thousand dollars was paid to said defendant Lloyd, or any other person ? A. Yes.” The following findings were submitted by the court on its own motion: “ (1) Did John E. Lloyd, before or at the time that the contract and deed for the property were signed, inform the plaintiffs that he was to receive the additional thirty thousand dollars on the sale? Answer. No. (2) Did John E. Lloyd, in his negotiations with Couch, offer the entire property “to him for the sum of one hundred and thirty thousand dollars or one hundred and fifty thousand dollars, and did Couch accept his proposition of sale and agree to pay one hundred and thirty thousand dollars for the entire property? A. Yes. (3) If you find that John E. Lloyd negotiated and effected a contract of sale of the entire property, then answer if he had any agreement with the plaintiffs to sell their interest for them, and, if so, at what price. A. No. (4) Did the plaintiff and defendant, John E. Lloyd, and the other owners in the mining property mentioned in the complaint at any time before the contract for the sale of the same, enter into an agreement between themselves to sell the same for the benefit of all in proportion to their respective interests? A. No. (5) Did all the owners of the mining property in question have an agreement or understanding and consent between themselves by which all were to consent and agree together with reference to all matters touching their interest in the property before any action was done by any or all of them with reference to said property? A. No.” The two following special findings were requested by defendant, and also submitted to the jury: “ (5) Did the defendant, John E. Lloyd, in any manner whatever, induce the plaintiffs to accept at the rate of one hundred thousand dollars for their interest in the property described in the complaint? Answer. No. (6) Did the defendant, John E. Lloyd, at any time or at all, make any false representations to the plaintiffs whereby they were induced to sign the contract with Thomas Couch for the sale of the property described in the complaint? A. No.” The court afterwards made its findings of fact and conclusions of law therein as follows: “This cause having been tried to a jury, which has returned special findings of fact in answer to requests submitted therefor, and having been submitted to the court, on motion of plaintiffs, for judgment and decree on the pleadings, evidence, and findings herein, the court, as chancellor, makes the following findings of fact, and accepts, confirms, and approves the findings of the jury in so far as their findings are embraced and herein iueluded, and rejects and sets aside such of the findings of the jury as are not embraced herein; and any findings herein made which are not supported by the findings of the jury are made by the court of its own motion.’7 Facts found: — "1. That the plaintiffs and defendant, John E. Lloyd, were for a period of more than eight years prior to the month of March, 1888, co-owners and tenants in common, in the proportions mentioned in the complaint, of the mining property described in the complaint, and known as the ‘Harris and Lloyd tunnel property.’ (2) That during all of said time they were engaged jointly in working and developing said property, with a view of extracting ores, and of selling said property, and the owners did during said time jointly perform work and labor and expend money of the total value and amount of about twenty thousand dollars ($20,000) thereon. (3) That they each contributed a proportionate share, according to their respective interests, in the working of said mining property during said time, and shared proportionately in the profits and losses incurred or accruing from said work. (4) That the above relations of the parties to each other regarding said property continued up to and existed at the time the contract of lease and sale mentioned in the complaint was entered into, although they had ceased work on said property some two or more weeks before that time. (5) That the defendant, John E. Lloyd, did, on or about the nineteenth day of March, 1888, and before the thirty-first day thereof, make a proposal to, and enter into an agreement with the defendant, Thomas Couch, to sell to him all of the said property, and by which agreement the defendant Lloyd was to receive thirty thousand dollars ($30,000) in addition to the one hundred thousand dollars ($100,000) mentioned in the contract, lease, and deed, as he claimed, for signing the deed for his share and that of his brothers; which agreement for the additional thirty thousand dollars ($30,000) was without the knowledge or consent oí the plaintiffs, and which agreement he concealed from them. (6) The defendant Lloyd never informed either of the plaintiffs of the existence of said contract for thirty thousand dollars ($30,000) additional at all j and the defendant Couch never informed either of them until the property was accepted and sold and the deed delivered, and they had no knowledge of the ■same until after said time. (7) That the defendant Lloyd represented to the plaintiffs, by signing the deed with them for the sum of one hundred thousand dollars ($100,000), and the contract with Samuel J. Reynolds for two thousand dollars ($2,000), that the sum of one hundred thousand dollars ($100,000) was the entire consideration for the sale of said property. (8) That the defendant Lloyd effected the sale of said property, and the thirty thousand dollars ($30,000) mentioned in the agreement between the defendants Lloyd and Couch was a part of the consideration and purchase price of said mining properties, and that the contract of sale executed to Couch by the owners was not made on behalf of the plaintiffs by Samuel J. Reynolds. (9) That the defendant Lloyd had no agreement with the plaintiffs whereby he was to receive any consideration for making a sale of said property, or receive or retain said thirty thousand dollars ($30,000) for his own use. (10) That the defendant Lloyd induced the plaintiffs to accept at the rate of one hundred thousand dollars ($100,000) for their interests in the property described in the complaint. (11) That the defendant Lloyd, by signing the deed and contract, selling for the entire consideration at one hundred thousand dollars ($100,000), and concealing the fact that he had an agreement for the payment of an additional thirty thousand dollars ($30,000), induced the plaintiffs to sign the contract and deed with Thomas Couch for the sale and conveyance of the property described in the complaint. (12) That the defendants Couch and the Boston and Montana Consolidated Copper and Silver Mining Company knew of the interests and titles of the plaintiffs in and to said property at the time of the contract and purchase of the same, and had notice of the claim of the plaintiffs to one half of said thirty thousand dollars ($30,000) before twenty-two thousand dollars ($22,000) of said thirty thousand dollars ($30,000) was paid to said defendant Lloyd or any other person. (13) That the findings requested by defendants, and not herein specifically found or passed upon, are found against them.” Conclusions of law: “From the findings of fact the court finds the following conclusions of law: (1) That at the time of the contract for the sale of the property described in the complaint by Lloyd and others to Couch a partnership existed between the parties owning the property with reference thereto ■ — that is to say, between the plaintiffs and Lloyd et al. — and they are entitled to share proportionately in the proceeds thereof. (2) That, being the co-owners and tenants in common thereof) they were entitled, under the circumstances, to share proportionately in the proceeds of the sale thereof, and such sale was for the benefit of all the owners. (3) That the plaintiffs are entitled to a judgment and decree as prayed for in their complaint or bill herein.” All the parties upon the trial conceded the right of the judge to treat the findings of the jury as advisory, and adopt or disregard any of them according to his conscience. Upon this hearing, however, the appellants contend that this power cannot be exercised under the Constitution and laws of this State; but under these circumstances we decline to enter this field of research. We shall assume, for the purpose of this investigation, that the court below had the jurisdiction to act independently of this verdict, and make its own findings of fact. We are therefore compelled to ignore the action of the jury and •confine our inquiry to the proceedings of the court. In Stockman v. Riverside etc. Irrigation Co. 64 Cal. 57, Mr. Justice Ross for the court said: “It is insisted on behalf of the appellants that, as the findings of the court upon some of the material issues are contrary to the findings of the jury upon the same issues, this court should, notwithstanding a substantial •conflict of evidence upon those issues, proceed to weigh the evidence, and decide whether it preponderates in favor of the findings of the court or of the jury. To this we cannot assent. The findings of fact by the court are as conclusive here as they would be if no jury had been impaneled in the case. The question for us is whether there is sufficient evidence to sustain .the findings of the court upon the material issues. .... It has often been held here that the verdict of a jury in an equity • case is but advisory to the court, and in this case it appears to have been the understanding between the parties that it was to be regarded in that light only.” (Hayne on New Trial and Appeal, § 234; Freeman v. Stephenson, 63 Cal. 499.) It is our duty to review the testimony, and determine whether the findings of the court are supported. After a careful examination of the record, we assert that the findings on which the judgment is founded cannot be upheld; and that, at the time of the sale of the property, there was not a partnership between the owners by which the plaintiffs were entitled to receive their respective shares of the sum of one hundred and thirty thousand dollars. The mining property which is described in the pleadings was owned and developed by the parties as tenants in common for the period of eight years prior to March 31, 1888. Each of these persons during this time paid his share of the debts which were incurred, and said John E. Lloyd was never the agent of any of the respondents, and had no authority to control or dispose of their interest. About two weeks after they had completed the work thereon, in March, 1888, and settled the expenses thereof, there was no contract for further mining or exploration. The owners then executed an agreement, whereby they covenanted to sell the property in consideration of the sum of one hundred thousand dollars. There is not a word in the testimony which tends to prove that the relations of these parties were of a fiduciary or any higher character than that of tenants in' common of the property when this agreement was entered into. The court below finds that said John E. Lloyd, by his fraudulent conduct and misrepresentations, induced the respondents to execute the instruments which have been referred to, and take their respective portions of the consideration of the sum of one hundred thousand dollars. When we weigh the' opinion of the court as well as the facts in connection with the evidence, it is apparent that these deductions have been drawn, not from direct and positive testimony, but from the-action of said Lloyd when signing, with his co-owners, said instruments, and his silence respecting his contract with Couch, whereby he was to receive the sum of thirty thousand dollars; in other words, the court has stated legal conclusions in the-form of the facts arising from its view of the obligations of the parties as mining partners and tenants in common. A leading case is that of Matthews v. Bliss, 22 Pick. 48, and Chief Justice Shaw, as the organ of the court, says: “The gist of the action was the conspiracy of the three defendants, after- having agreed upon a sale of the brig at a large price, to induce the plaintiff's agent, by a concealment of the fact that the vessel could be sold for such price, and by false and fraudulent representations, to sell the plaintiff's quarter part of the vessel at a price much below that which they had so agreed to sell for. The court are of opinion that the direction of the judge who tried the cause was correct in stating to the jury that the mere non-disclosure of the fact, within their own knowledge, that they could sell and had agreed to sell the brig for a higher price, would not be sufficient to support the action, and that they were under no legal obligation to disclose that fact, and that withholding was not such a fraudulent concealment of the truth as would of itself maintain the action. The court are of opinion that the tenants in common of a vessel, who are not engaged jointly in the employment of purchasing or building ships for sale, do not stand in such a relation of mutual trust and confidence towards each other in respect of the sale of such vessel that each is bound, in his dealings with the other, to communicate all the information of facts within his knowledge which may affect the price or value. A different rule may prevail in respect to any contract for the use or employment of the common property, in which relation, perhaps, they may be deemed to place confidence mutually in each other; but, as in common cases of tenants in common of a vessel, they are independent of each other in all matters of purchase and sale, and may deal with each other in the same manner as owners of separate property. Each may act upon the knowledge which he has, without communicating it. But aliud est tacare, aliud celare.” This doctrine is approved by Mr. Bigelow in his work on Fraud (vol. 1, p. 368). There are some cases concerning the rights of tenants in common which do not affect the case at bar, although the respondents rely upon them. It is generally held that the purchase of a tax or outstanding title or encumbrance, or claim on the property by one tenant in common, inures to the benefit of all, although the decisions are not uniform in announcing the ground upon which this principle is founded. In Hurley v. Hurley, 148 Mass. 444, Mr. Justice Holmes cites many authorities to illustrate these distinctions, and says: a It wilí be found in most of the cases that the party setting up the tax-title was under an obligation to pay the taxes.....There are strong grounds for saying that there were no special fiduciary relations between the petitioner and the respondent Daniel T. in this ease. Their titles were in part derived from different sources.” In Barnes v. Boardman, 152 Mass. 391, Mr. Justice Devens said in the opinion: “ The rule that, when tenants in common are actually in possession, or are entitled to immediate possession, a purchase of an encumbrance on the common property will generally be deemed to have been made for the benefit of all ii they shall consent to pay their proportional shares thereof, and that to this extent a certain fiduciary relation exists between the tenants in common, is one that is sustained by many authorities. (Van Horne v. Fonda, 5 Johns. Ch. 388; Flagg v. Mann, 2 Sum. 486; 4 Kent Com. [13th ed.] 371, and cases cited; 1 Washburn on Beal Property [5th ed.], 430, and eases cited.” See, also, the cases cited in the note to Barnes v. Boardman, supra, in 9 Law Rep. Ann. 571; Venable v. Beaudhamp, 3 Dana, 321; 28 Am. Dec. 83, and notes.) The respondents insist that each of the cotenants in lode mining property must labor for his and their interests in the same degree, and that what he does for himself is for the common good. This position is not sustained by the courts, and the cases we have examined do not modify the doctrine oi Matthews v. Bliss, supra, relating to the rights oí tenants in common in the sale of their interests in property. Their fiduciary relations are not created or enlarged ii they become mining partners. (Bissell v. Foss, 114 U. S. 252; Kimberly v. Arms, 129 U. S. 512.) In Bissell v. Foss, supra, it is held that “there is no relation of trust or confidence between mining partners which is violated by the sale and assignment by one partner of his share in the company assets and business to one or more of his associates, without the knowledge of the other associates.” The statement of facts is lengthy, and must be omitted. In the opinion Mr. Justice Woods said: “ The contention is that these three parties were in such relations to each other that, if one bought a share in the common property and business, it inured in equity to the benefit of all, subject to the payment by each of the associates of his share of the purchase money. The relations from which this result springs are stated to be those, first, of joint tenants, and second, of partners; and that, by reason of these relations, Foss and Hunter became trustees for themselves and Bissell in purchasing the share of the Missourians. It is true that one ©f two or more tenants in common, holding by a common title, cannot purchase an outstanding title or encumbrance upon the joint estate for his own benefit. Such a purchase inures to the benefit oí all, because there is an obligation between them, resulting from their joint claim and community of interest, that one of them shall not affect the claim to the prejudice of the others. (Rothwell v. Dewees, 2 Black, 613; Van Horne v. Fonda, 5 Johns. Ch. 388; Lloyd v. Lynch, 28 Pa. St. 419; 70 Am. Dec. 137; Downer v. Smith, 38 Vt. 464.) But this rule cannot apply to Hunter and Foss. They purchased no outstanding title or encumbrance to the prejudice of the other tenant in common. They did what any tenant in common with entire goood faith might do, namely, purchased the interest of some of their cotenants without consulting the others. The title which they purchased of the Missourians was not antagonistic or hostile to the title of Bissell. Their purchase did not in any degree tend to injure or damage his interest. His share was just as valuable after as before the purchase, and his rights were the same. In such a purchase no trust or confidence is violated. Nor do we think that the relations of the parties as partners prohibited Foss and Hunter from making the purchase in question for their own benefit, to the exclusion of Bissell. The association of Bissell, Foss, Hunter, and the Missourians was not an ordinary partnership. It is what is known as a 4 mining partnership/ which is a partnership sab modo only. «... It follows from these propositions that one member of a mining partnership has the right, without consulting his associates, to sell his interest in a partnership to a stranger, and that such a sale injures no right or property of the other associates. Much less does a purchase by one associate of the share of another inflict any wrong upon the other members of the partnership. There is no relation of trust or confidence between mining partners which is violated by the sale and assignment by one partner to a stranger, or to one of the asso ciates of his share in the property and business of the association. It results as a conclusion from these premises that Bissell has suffered no wrong at the hands of either Hunter or Foss on the ground that they were his tenants in common or partners, by reason of any contract made between the latter in reference to the purchase of the share of the Missourians in their joint enterprise. There has been no violation of any trust and confidence arising from the relations existing between Bissell, Foss, and Hunter.” The same views were reiterated in Kimberly v. Arms, supra, by Mr. Justice Field: “The case of Bissell v. Foss, 114 U. S. 252, does not seem to us to have any bearing on the subject under consideration. There the question was whether a member of a mining partnership — that is, a partnership formed for the development and working of a mine — could acquire the shares of an associate without the knowledge of the other associates, and hold them on his own account; and the court held that it was lawful for him to do so. Mining partnerships or associations, whilst governed by many rules relating to ordinary partnerships, have some rules peculiar to themselves. One oí such rules is that a member may convey his interest or shares to another person without dissolving the partnership, and thus bring into it a new member without the consent of his associates; and may purchase interest in the same, or any other mines, for his own benefit, without being required to account to the partnership for the property. (Kahn v. Smelting Co. 102 U. S. 641.) The partnership between Arms and Kimberly was not a mining partnership, in the proper sense of that term. It was not a partnership for developing and working mines, but for the purchase and sale of minerals and mining lands, and in that respect was subject to the rules governing ordinary trading or commercial partnerships. It can no more be called a mining partnership than a partnership for the purchase of the products of a farm, and the lands upon which those products are raised, can be called a partnership to farm the lands.” We have quoted extensively from the foregoing cases by reason of the eminence of the jurists who delivered the opinions, and the clearness with which the law has been expounded. Their applicability to the case before us can be seen without difficulty. They establish the proposition that, in the absence of a special contract, there is no relation of trust or confidence between tenants in common, who had been partners in the development of lode mining claims, which prevents one of them from demanding and receiving a higher sum for his interest in the property than is paid therefor to his co-owners. The court finds as a fact that the parties during a period of more than eight years were “engaged jointly in working and developing said property with a view of extracting ores and of selling said property; ” and also that these relations “ existed at the time the contract of lease and sale mentioned in the complaint was entered into.” The legal conclusion is that “ at the time of the contract for the sale of the property .... by Lloyd and others to Couch, a partnership existed between the parties owning the property with reference thereto, .... and they are entitled to share proportionately in the proceeds thereof.” These findings of fact are not within the issues, and cannot support a judgment. The court in Dutro v. Kennedy, 9 Mont. 101, said: “Had the judge found and so decreed otherwise, the findings would have been disregarded as being outside of the issues. (Marks v. Sayward, 50 Cal. 57; Gregory v. Nelson, 41 Cal. 279.)” The court in Marks v. Sayward, 50 Cal. 60, said: “ The plaintiff contends that these facts are not within the issues, and we are of the opinion that this position must be sustained. There is nothing in the proceedings pointing to the existence of a partnership.” (See, also, Morenhout v. Barron, 42 Cal. 605; Devoe v. Devoe, 51 Cal. 543; Green v. Chandler, 54 Cal. 626.) The complaint alleges: “ The plaintiffs, the defendant, John E. Lloyd, and their other said co-owners and tenants in common in the premises hereinbefore described, obtained and acquired title thereto a number of years ago, to wit, on or about the first day of September, A. D. 1881, with the intention and for the purpose of prospecting, developing, working, and mining the same, and to that end and purpose they then agreed among themselves and with each other to associate themselves together, and they and every of them did then enter into and form an association, company, and mining copartnership, whereby they agreed and undertook to develop, work, and mine the said premises, and to bear, share, and divide the expenses, issues, profits, and losses oí and incident to such venture and undertaking among themselves, in proportion and according to the interest, part, and moiety claimed and owned by each of them, respectively, therein; and that, in pursuance of said agreement, they, about the date last above named, jointly entered upon, and for a long time, to wit, for more than six years, prior to the execution o 1 the contract of sale, lease, and deed hereinafter-mentioned, actually engaged in developing and mining upon the said premises, by sinking shafts, driving and running tunnels, levels, and cross-cuts, and stoping therein and thereon, at great outlay and expense to said cotenants and mining copartners, to wit, about the sum of twenty thousand dollars, which expenses so incurred were borne and paid proportionately by each and every ox them, as aforesaid, and the proceeds of the minerals and ores extracted therefrom in the prosecution of said work and mining were divided and shared by each of them in the ratio aforesaid.” There is no allegation in any of the pleadings- that this development work was done for the purpose of selling the property, or that there was any copartnership organized for this object. The averment of the complaint is that the mining copartnership agreed and undertook “the development work and mining of said premises,” and paid therefor according to their respective interests. The contract with Couch devolved upon him this responsibility at his own expense. There is a broad distinction between the partnership which is described in the complaint and that which is created by the court. (Kimberly v. Arms, supra.) The court also finds that said John E. Lloyd, “by signing the deed and contract, selling for the entire consideration at on hundred thousand dollars ($100,000), and concealing the fact that he had an agreement for the payment of an additional thirty thousand dollars ($30,000), induced the plaintiffs to sign the contract and deed with Thomas Couch for the sale and conveyance of the property described in the complaint.” What are the allegations of the complaint concerning this part of the case? That John E. Lloyd and Couch, “ and each of said defendants, falsely and fraudulently, with the intent to deceive, cheat, and defraud the plaintiffs, suppressed the truth, and represented to the plaintiffs that the entire consideration and purchase price to be paid for the sale and conveyance of said premises was only the sum of one hundred thousand dollars, when they, the said defendants, very well knew that the said representation was false and untrue, and that in truth and in fact the real and actual consideration to be paid therefor was at least the sum of one hundred and thirty thousand dollars. That on or about the thirty-first day of March, 1888, the plaintiffs having been deceived and misled by the said false and fraudulent concealments and representations, which they then believed to be true, were inveigled and induced thereby to join the defendant, John E. Lloyd, and their other said co-tenants in making and executing a written lease and contract of sale, which the defendant Lloyd first signed, upon certain terms and conditions therein specified, to the said defendant and Couch.” It will be remarked that there is a conflict between these allegations and the findings, and the court does not justify its action by any declarations of Couch, John E. Lloyd, or any of the appellants. According to the complaint, the false representations were made by Couch, John E. Lloyd, and each of the defendants before, and caused the respondents to join in, the execution of the instruments. The court reverses this order of conduct, and deduces from the act of John E. Lloyd in signing the papers, and silence of John E. Lloyd and Couch, the fraudulent statements. We may observe that the jury found for the appellants upon these issues, and we repeat two of the special findings: “Did the defendant, John E. Lloyd, in any manner whatever induce the plaintiffs to accept at the rate of one hundred thousand dollars for their interest in the property described in the complaint? Answer. No. Did the defendant, John E. Lloyd, at any time or at all make any false representations to the plaintiffs whereby they were induced to sign the contract with Thomas Couch for the sale of the property described in the complaint? A. No.” The court virtually approved this part of the verdict, and upon another ground has inferred its facts. When, therefore, we divest the findings by the court of all the matters which are outside of the issues, the relations of the owners of said property, wben tbe instruments were executed, were those of tenants in common and no more. Prior to that time they had been mining partners within definite limits, which did not embrace the business of selling their claims or interests therein. Upon this hearing, and in the opinion of the court, which is contained in the transcript, there has been no serious controversy with reference to any fact, and counsel differ respecting the application of the legal principles. The court erred in its conclusions of law upon the findings as they stand when corrected in accordance with this opinion. "We have endeavored to ascertain the true guides for the settlement of these issues, and it is not necessary or proper to remand the case for a new trial. It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to enter judgment for the defendants. Reversed. Harwood, J., and De Witt, J., concur.

De Witt, J. Counsel have argued in this case upon the question of offsetting one judgment against another. But we understand that the question presented is a different one. The money in this case was in court, belonging to the defendant, as the order of the court recites, with no claims of any class of third persons upon it, as far as we are informed. The plaintiff, as a judgment creditor, asked an order of the court that de fendant’s money in that court be applied to its (plaintiff’s) unsatisfied judgment. No rights of any third persons were concerned. The matter of the disposition of this fund was a question solely between plaintiff and defendant, judgment creditor and judgment debtor. As we understand the doctrine of exemption of money in custodia legis from levy, it is on the ground, among others, “that otherwise a conflict must arise between different officers seeking, in the performance of their duties, to seize the same property.” (Freeman on Executions, § 130.) Despondent cites many authorities in his brief, in reference to money being in the hands of receivers or other officers of the court, upon the point that he makes that such money can be disposed of only by an order of the court, and that the order of the court in this case was authorized by the general powers of a court. Those cases are in point generally, but we observe two cases wherein the facts are practically the same as those at bar, except that the money was in the hands of the sheriff instead of the clerk. (Ex parte Fearle, 13 Mo. 467; 53 Am. Dec. 155, and Dolby v. Mullins, 3 Humph. 437; 39 Am. Dec. 180.) In the Missouri case, the syllabus states the case thus: “A sheriff having in his hands an execution against A, and having received money for him under an execution in which he was plaintiff, although the money before being paid over to A cannot be levied upon, the court may direct it to be paid over upon the execution against him, unless the legal and equitable right to it has passed to some third person.” We mention this statement of the syllabus as a succinct presentation of the point that was decided. Napton, J., in the opinion says: “ The case of Turner v. Fendall, 1 Cranch, 116, seems to hold the doctrine that money in the hands of the officer is not subject to levy, as it is in the custody of the law, and not the property of the plaintiff in the execution. Judge Marshall, however, observes that it is the duty of the officer to seize it the moment it is paid over into the hands of the creditor, and as the payment, under these circumstances, would be a vain ceremony, no court would hesitate to justify the payment in satisfaction of the second execution, or, if the money was brought into court, to direct it to be so paid, unless the legal and equitable right was in some third person. The officer did right, we think, in waiting for the directions of the court, and the court was clearly authorized to direct the whole amount to be paid over, unless the assignee, Shepard, had a legal and equitable right to such proceeds.” In this case, the person named as Shepard was claiming as an assignee of the judgment debtor in the second execution, the judgment creditor in the first execution. But in the case at bar no assignee is claiming anything. Judgment debtor and creditor are the only persons in court. Note Judge Napton’s remarks as to Chief Justice Marshall’s views: “No court would hesitate, if the money were brought into court, to direct it to be so paid;” that is, paid to the judgment creditor. And in the case at bar the money was in court, and the court did order it to be so paid. The Tennessee case, in a more elaborate opinion, holds the same views; but that case goes to the extent of holding that the sheriff, with an execution against A, may levy upon A’s money in his (the sheriff’s) hands, collected upon another execution in favor of A. The facts before us do not require us to pass upon that proposition. "We cite the Tennessee case simply as showing that, if that court would hold that the sheriff might make such a levy, then a fortiori a court, with its judicial powers, could order the disposition of the fund, as it did in the case at bar. In Turner v. Fendall, supra, Chief Justice Marshall says: “ But the money becomes liable to such execution the instant that it shall be paid into the hands of the creditor; and it then becomes the duty of the officer to seize it. It appears unreasonable that the law should direct a payment under such circumstances. If the money should be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony, which might well be dispensed with; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach property rendered by law liable to his execution, and which, of consequence, the law made it his duty to seize.” Notwithstanding the remarks of the court in Turner v. Fendall, quoted above, it was held in that case that the sheriff could not levy upon money already in his hands, made by a levy of an execution in favor of the debtor against whom he held the second execution. But the case before us is different» The money of the defendant Hayes was not levied upon by the sheriff, by virtue of the execution in favor of the bank. The money had been paid into and was in court. The matter was not left to the sheriff, or any ministerial officer, to determine its disposition at the peril of such officer. A hearing was had before the court analogous to a hearing on proceedings supplemental to execution. (Code Civ. Proc. § 350, et seq.) All persons interested in the fund were present. No meritorious reason appeared why the money of the judgment debtor, which was in court, should not be paid to the judgment creditor, and no reason at all, except, perhaps, that the debtor preferred to put the money into his pocket rather than pay his debt with it. We conceive that there is a great difference between a sheriff deciding upon the disposition of a fund in his hands, and a disposition being made by a court, of money in court, upon a hearing of all the parties interested. (Ex parte Fearle, supra.) So the facts of Turner v. Fendall are distinguished from those of the case at bar, as they were from those of the Missouri case. The question before us is not of a sheriff levying, but rather of a court determining; and the remarks of Chief Justice Marshall, quoted above, become very pertinent. It is the principle and policy of the law to subject all property of the judgment debtor, not specially exempt, to the payment of his debts. (Sperling v. Calfee, 7 Mont. 529.) Then why may not the District Court have made the order that it did? It had the defendant Hayes before it. It had the money in court. No third persons claimed it. There was no clash of rival officers attempting to get it. There was no collision between two courts as to the money. No person was interfering with the conduct of the court’s business, as might occur if the court’s receiver were garnished, or property in his hands levied upon. The reasons of the doctrine of exemption of money in custodia legis wholly disappear from this case. It was eminently just that defendant’s unencumbered and unexempted property should be applied to satisfy a judgment against him, when it could be done with prejudice to no one, and without disturbing the proceedings of any court, and without interfering with the officer •of any court in the performance of his duty to the court or litigants therein. We are of opinion that the order of the District Court was properly made, and the same is affirmed. Affirmed, Blake, C. J., and Harwood, J., concur.

Harwood, J. It appears from the record on appeal in this case that the action was commenced on the twenty-third day of December, A. D. 1887, in “the District Court of the Third Judicial District of the Territory of Montana, sitting for the .trial of causes arising under the Constitution and laws of the United States, at Bozeman, Mont.” The action was brought to recover damages for the alleged killing of two hundred and fifty and the injury of fifty head of sheep belonging to plaintiffs, by the alleged careless and negligent running of an engine against and upon said sheep. On the twenty-ninth day of May, 1889, the cause was tried in said District Court, sitting for the trial of causes arising under the Constitution and laws of the United States, and the jury impaneled therein returned a verdict in favor of the plaintiffs in the sum of twelve hundred dollars. The record of the trial and determination of the .action in said court, so far as determined by that court, is evidenced by certain record entries certified to this court in a supplemental transcript thereof, as follows: — “May term. Wednesday, May 29, 1889. Third day. Court opened pursuant to adjournment. Present: Honorable M. J. Liddell, judge; Geo. W. Irvin, Esq., U. S. marshal; T. A. Garrett, clerk. John F. Work and John F. Locke, plaintiffs, v. The Northern Pacific Railroad Company, defendant. 740. This cause coming on regularly for trial the plaintiffs appear by their attorney, Allan E. Joy, Esq., and the defendant by its attorneys, Messrs. O. F. Goddard and Charles S. Hartman, whereupon the following jury was duly sworn and impaneled to try the issues in said cause, to wit: A. Jones, J. A. L. Snyder, Geo. E. Stover, Wm. Blaiu, John Smith, Geo. L. Danford, T. H. Walters, David Simpson, W. W. Livingston, Joseph Clancy, Joseph Seright, L. J. Sypes — twelve good and .lawful men. Thereupon the plaintiffs proceeded to introduce their evidence, and there were sworn on their behalf J. F. Locke, Joseph Brinton, James Martin, Joseph Koruntz, and John F. Work, witnesses. And the plaintiffs having closed their evidence, there was sworn, on behalf of the defendant, J. S. Foley, witness. The defendant .at this time, and before the introduction of its evidence, and before said witness was sworn, filed a motion for judgment of nonsuit; and the jury having withdrawn, said motion was argued by counsel for both parties, and after due consideration it was ordered by the court that the motion for nonsuit be overruled. Thereupon the jury returned into court, and the evidence being closed, after argu ment by counsel, tbe court charged the jury in writing, and' thereupon the jury retired to their room to consider of their verdict. The jury returned into open court, both parties being present by their counsel, and rendered the following verdict, to wit: ‘ John F. Work and John F. Locke, pl’ffs, v. The Northern Pacific Railroad Company, defendant. We, the jury, find for the plaintiffs in the sum of twelve hundred dollars. [Signed] G. R. Stover, Foreman/ — which said verdict the court ordered to be recorded. And after said verdict was recorded the same was read aloud to the jury by the clerk of said court,, and they were asked if that was their verdict, and made answer that it was. It was then ordered by the court that the jury be discharged from the case.” And the further record entry of said trial court is as follows: — “May term. Monday, June 24, 1889. Twenty-third day. Court met pursuant to adjournment. Present: Hon. M. J. Lid-dell, judge; D. C. Campbell, Asst. U. S. atty.; Geo. W. Irvin, U. S. marshal; T. A. Garrett, clerk. John F. Work and John F. Locke, plaintiffs. The Northern Pacific Railroad Company, defendant. No. 740. In this action, judgment is hereby entered in accordance with the verdict of the jury heretofore entered on the twenty-ninth day of May, A. D. 1889; and it is-ordered, adjudged, and decreed that the plaintiffs recover from the defendant the sum of twelve hundred dollars damages, together-with the costs of this action, taxed at the sum of $-. “M. J. Liddell, Judge.” The case remained in that condition until the State of Montana was created, and the functions of said trial court, ceased by operation of law. After the organization and admission of the State of Montana into the Union, the question as to what court succeeded to jurisdiction of this and some other cases pending in said trial court seems to have been a matter of .some uncertainty until the provisions of the act of Congress, commonly known as the “ Enabling, Act,” relating to this question, were construed. (Strasburger v. Beecher, 44 Fed. Rep. 209; Nickerson v. Crook, 45 Fed. Rep. 658; Johnson v. Bunkerhill & S. M. & C. Co. 46 Fed. Rep. 417.) It appears that after the creation of the State of Montana,, and the establishment of United States courts therein, as pro vided in the act of Congress mentioned, the case at bar, and the records, papers, and other matters pertaining to it, were transferred to the United States Circuit Court in and for the District of Montana; and afterwards the same was returned to the State District Court of the Sixth Judicial District of Montana, within and for the county of Gallatin. No doubt this was done in consequence of the construction put upon section 23 of said act of Congress, entitled “An act to provide for the division of Dakota into two States; and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and State governments, and to be admitted into the Union on an equal footing with the original States; and to make donations of public lands to such States,” approved February 22, 1889, in the cases cited supra. On the 9th of December, 1890, after the case was returned to the State court, a judgment nunc pro tuno was also rendered by that court in favor of plaintiffs and- against defendant on the same verdict above set out, as of the date of said verdict, May 29, 1889. This latter judgment appellant appealed from, by perfecting its appeal February 25, 1891, and it contends that said judgment is the only judgment ever entered in said action, while respondents contend that the entry of the latter judgment was a “useless formality,” and that the entry by the trial court made on the twenty-fourth day of June, 1889, as above recited, was a final judgment in said action, and that this appeal ought to be dismissed for the reason that the same was not taken within one year after the entry of such iudgment. (§ 421, Code Civ. Proc.) If the entry purporting to be a judgment made on the 24th of June, 1889, in the record of the trial court, amounts to a judgment in this case, then there is no doubt that this appeal is too late and should be dismissed on the determination of that fact. The practice in the trial and determination of actions at law in that department of the District Court of the Territory, exercising the jurisdiction of a Circuit or District Court of the United States, would, in general, be conformed to the practice provided for the territorial courts under the Code of Civil Procedure of the Territory of Montana. (§ 914, U. S. Rev. Stats.) The Code of Civil Procedure of Montana (§ 304) provides that “the clerk shall keep among the records of court a book for the entry of judgments, to be called the 'judgment book/ in which each judgment shall be entered, and shall specify clearly the relief granted or other determination of the action.” Now the judgment of June 24,1889, “ specifies clearly the relief granted.” It is a clear, concise, and certain expression of the conclusion of law declared by the court as a determination of the action. (Black on Judgments, §§ 1 — 3.) The only objection that is urged as a reason why the entry of June 24, 1889, should not be held to be a judgment entered, is that it appears by the certificate of the clerk that such entry was made in a record of said court which is termed the “journal of proceedings,” whereas, section 304 of the Code of Civil Procedure provides that the judgment should be entered in a record of the court to be called the “judgment book.” The certificate of the clerk attached to the copy of the record of said judgment entered June 24, 1889, certifies that “the above and foregoing is a true and correct copy of the judgment entered in the above entitled cause, as the same appears on page 189, volume No. 5, journal of proceedings, District Court of the Third Judicial District of the Territory of Montana, sitting as a court for the trial and determination of causes arising under the Constitution and laws of the United States, as the same appears on said records now in my possession.” Whether another record book was kept by the clerk of said court entitled “judgment book,” or whether, if such record was kept, the entry of this judgment was or was not made therein, or whether the journal of proceedings was also known or called the “judgment book,” are questions upon which this court is not informed. But assuming that it was the practice of the District Court of the Territory of Montana, in and for said district, when exercising its jurisdiction ás a District or Circuit Court of the United States, to enter its judgments only in a book known as the “journal of proceedings,” we have not been cited to any authority for holding that a judgment so entered should be disregarded, especially where the question arises between the parties to the action, who are presumed to have knowledge of all the proceedings. While by the provisions of section 914 of the United States Revised Statutes that court would conform generally to the practice provided for the territorial courts, “as near as may be,” still in many particulars such practice is not conformed to in every detail. (See cases cited under that section in Gould & Tucker’s Notes on the Eevised Statutes of U. S.) And if this was a question of practice pertaining to our own courts, or the District Court of the Territory of Montana, exercising its jurisdiction as such, and not as a United States Circuit or District Court, we think the entry of the judgment would be held sufficient as between the parties to the action, although such entry was made in a book designated “journal of proceedings” of the court in question instead of “judgment book.” This irregularity would not be sufficient to invalidate or impair the effect of the judgment as between the parties to the action. Such was the effect of the holding in Thompson v. Bickford, 19 Minn. 17. (See, also, Black on Judgments, § 111, and cases cited.) We hold that said record entry of June 24, 1889, was the entry of judgment in said action, so as to set running the time within which an appeal may be taken, and this appeal, which was not taken until more than one year had expired after said judgment was entered, is too late (§ 421, Code Civ. Proc.), and therefore must be dismissed. Wherefore, it is ordered that this appeal be dismissed at the «costs of the appellant* Dismissed. Blake, C. J., and De Witt, J., concur.

Blake, C. J. Roach, the appellant, and other parties were indicted for the crime of robbery. Separate trials were de manded, and Roach was convicted, and appeals from the order denying his motion for a new trial. The appellant claims that the verdict is contrary to the evidence; that he had no part in the perpetration of the offense; that none of the money which is described in the indictment was found in his possession; and that there is no testimony that he took any money from the injured party. "We have examined the record, and are convinced that every fact constituting the offense was proved by the testimony. It appears from the evidence on the part of the State that the prosecuting witness, Astasena, and his friend, Petruri, were in a saloon in the city of Butte, and that Astasena offered a bill of the denomination of ten dollars in payment for some liquor; that Roach and other persons made an assault upon Astasena, and knocked him down, and robbed him while he was upon the floor; that Astasena and Petruri were strangers to Roach and his companions; that Astasena had in his pocket-book about two hundred dollars; that Astasena and Petruri immediately went out at the front door, while Roach and his aiders left by the back door; and that Astasena testified : “Roach and three or four others threw me down on the floor, and as soon as they threw me down I put my hand in my pocket, but they got my hand off, and stole my money. .... I could not say who it was put his hand in my pocket, because they had me down, holding me by the throat, and I could not see. When I got down on the floor this defendant [Roach] and two or three others were top of me.” The testimony of Roach and his co-defendants is that Astasena was the assaulting party, and that no other crime was perpetrated, but the jury did not believe their statements. All the circumstances tend to corroborate the evidence for the State. No complaint is made in the argument of the instructions which were given by the court, and there does not appear to be any error in the record. It is therefore ordered and adjudged that the judgment be affirmed, and that the same be executed as directed in the court below. Affirmed. Harwood, J., and De Witt, J., concur.

De Witt, J. Appellant makes six specifications of particulars in which he claims that the decision is not supported by the evidence. But in his brief he relies upon one main proposition. If he fails in his support of that, the rest of his structure falls. If it be true that the spring, the waters of which are in controversy, was not one of the sources of Burt Creek, then the plaintiff, by his appropriation and use of the waters of Burt Creek, did not appropriate and use the spring, and has no claim upon it, and the defendant has not invaded the plaintiff’s rights by his appropriation and use of the water. We will therefore first turn our attention to that inquiry, and if we conclude that there is not a successful attack upon the finding of the District Court, that the spring was not one of the sources of Burt Creek, we need go no further. It cannot be questioned that the evidence shows these facts i That the spring lies on high ground between the forks of the creek; that before the spring was turned by a ditch the tendency of the movement of the water was towards the west fork; that in freshets, and when stimulated by melting snows, the water, perhaps, flowed overground to the west fork; that in the summer, which is the irrigating season, the water did not flow on the surface to the west fork or elsewhere, it sank. These facts are not all stated in the findings, but we mention the evidence to that effect as explanatory of the situation and the findings. Now, the plaintiff contended that the direction of the flow of the waters of the spring, so far as it was observable, was towards the west fork; that the west fork lay lower than the spring; and that the water of the spring must go to the west fork, and did go to that fork. No witness pretended to know, from any actual observation, the course of any subterranean flow of the spring water. The evidence upon the point, as to whether the waters oí the spring reached the west fork, was of this character; that is to say, plaintiff claimed and undertook to establish by evidence, that when the water of the spring was gathered up and carried off in defendant’s ditch, and thus diverted from its natural destination, wherever that might be, the flow of water in the creek, below where plaintiff contended that the waters of the spring reached the creek, was appreciably diminished. Defendant controverted this claim of plaintiff, and introduced evidence to show that, when he carried away and used the waters of the spring, the flow in the creek was not diminished. This was the sort of testimony upon which the District Court was obliged to find whether or not the spring was a source of supply of the creek. The court found that it was not. It is idle to contend that there was not a sub stantial conflict in the evidence on this point. The appellant cites in his brief everything that was testified favorable to his view. The respondent then refers us to all the evidence sustaining his position. We have examined all this testimony. We shall not restate it, as that would be practically a recital ■of a great portion of the record. Nor shall we weigh it fui’ther than to enable us to say, with confidence, that the conflict in the evidence upon this vital matter was thoroughly substantial, and the preponderance was in fact as the District Court found it. The District Court found that the preponderance was with the defendant, the respondent. The court below heard the evidence and personally examined the premises. This is just such a case in which the Supreme Court will not disturb the finding. The suggestion of appellant’s brief that the court below found that the water will not flow down hill is not a statement of the District Court’s finding. The District Court found that this water did not flow down hill to the place where appellant desired to have it. That finding is not inconsistent with the fact that the water obeyed the law of gravitation; that it went downward somewhere, but did not appear at the point where it was to the interest of appellant that it should appear — that is, in Burt Creek. Strickler v. City of Colorado Springs, 16 Colo. 61, cited by appellant, has no application. That case simply announces a general principle, in regard to which there is no contention in this action, that the rights of a junior appropriator of water from a tributary stream are subject to the rights of a prior .appropriator from the main stream below. But the controversy in the case at bar is as to the fact whether the water in litigation is a tributary, not what the rights should be, if it were ■conceded to be a tributary. Nor is Strait v. Brown, 16 Nev. 317; 40 Am. Rep. 497, cited by appellant, in any manner in point. The case at bar does not raise any distinction, of law ■or fact, as to percolating water and channel water, subterranean or superficial; but the matter on this appeal is simply the fact of whether or not the water of the* spring in its natural flow reached the creek at all — a fact which the court found in favor of the defendant, upon a substantial conflict of the evidence, a finding which there is not precedent for our disturbing. The judgment and the order denying the new trial are affirmed. Affirmed„ Blake, C. J., and Harwood, J., concur.

Blake, C. J. This action was commenced to restrain the defendant from diverting the waters of Boulder Creek, and depriving the plaintiff of the use thereof in a flume. The case was tried by the court without a jury, and during the trial the following notice of the appropriation of the water was introduced:— “Territory oe Montana, \ oe j “ To all whom these presents may concern: — “Be it known that John Floyd and John Brannagan, of -, in said county and Territory, do hereby publish and declare, as a legal notice to all the world: — “ I. That they have a legal right to the use, possession, and control of, and claim two thousand five hundred (2,500) inches of the waters of Boulder and Lowland Creeks, in said county and Territory, for irrigating and other purposes. “II. That the special purpose for which said water is intended to be used, and the place of intended use, is the fluming of wood, milling, and other useful purposes. “ III. That we have taken said water out of, and diverted it from said streams by means of a ditch and flume, which said ditch and flume is forty-eight inches (48) by sixty (60) inches in size, and carries or conducts two thousand five hundred inches oi water from said streams. Said ditch taps and diverts the water from said stream at a point upon its north bank near the junction of Boulder and Lowland Creeks; thence running, or to run, to and upon said described land (and through said land, if so desired, to any requisite point of final discharge). “IV. That we appropriated and took said water on the eighth day of October, A. D. 1888, by means of said ditch and flume. “V. The names of the appropriators of said water are John Floyd and John Brannagan. “VI. That we also hereby claim said ditch and right of way therefor, and for said water by it conveyed, or to be conveyed, from said point of appropriation to said land or point of final discharge; and also the right of location upon any land, of any dams, flumes, reservoirs, constructed or to be constructed, by us in appropriating and in using said water. “VII. That we also claim the right to keep in repair and to enlarge said means of water appropriation at any time, and the right to dispose of the said right, water, ditch, or said appurtenances, in part or whole, at any time. “Claiming the same, all and singular, under any and all laws, national and territorial, and rulings and decisions thereunder in the matter of water rights, and specifically under sections 731 to 735, inclusive, and 738 and 741 of the Revised Statutes of 1879, or as amended, and under an act of the legislative assembly of the Territory of Montana entitled ‘ An aet relating to water rights/ approved March 12, A. D. 1885. “ Together with all and singular the hereditaments and appur tenances thereunto belonging or appertaining or to accrue to the same. “Witness our hand at Butte, Montana Territory, this eighth day of October, 1888. John Brannagan.” “ Territory oe Montana, \ County oe Silver Bow. “ John Brannagan, having first been duly sworn, deposes and says that he is of lawful age, and one of the appropriators and claimants of the water and water right mentioned in the foregoing notice and statement of appropriation and claim, and the persons whose names are subscribed thereto as the appropriators and claimants; that he knows the contents of said notice and statement foregoing; and that the matters and things therein stated are true. John Brannagan. “ Subscribed and sworn to before me this tenth day of October, A.D, 1888. [seal.] “Charles S. Warren, “Notary Public, Silver Bow County, Montana Territory. “Recorded October 11, 1888.” It is maintained by the appellant that the court erred in admitting this notice, for these reasons: It did not show by what means the waters of said Boulder Creek were diverted, or the quantity or the purpose of such diversion, or the date of the appropriation thereof. No briefs have been filed. The court in Osgood v. Eldorado etc. Min. Co. 56 Cal. 579, observed that, “by all the authorities, the notices are to be liberally construed.” This notice is drawn in uncertain terms, but, in the light of the testimony, the objections to its introduction cannot be sustained. It is admitted that the respondents diverted the water from both Lowland and Boulder Creeks, and used the same in a certain wood flume, and that the points of diversion, respectively, are about four miles apart, and are above the confluence of the streams. The first is a tributary of the last. The notice is ambiguous respecting the quantity of water of Boulder Creek which is claimed, because both sources are specified. The court finds that the respondents are •entitled to an amount of said water not exceeding five hundred inches, which was appropriated October 8, 1888. The date of the appropriation of the water of Boulder Creek by the appellant is April 6, 1889. The notice was sufficient to put all parties upon inquiry concerning the rights of the respondents to use for a common purpose the waters of both creeks, which are branches of the Boulder River. We think, however, that the respondents should be required to divert all the water which is available in the Lowland fork before they convey the remainder of the quantity to which they are entitled from Boulder Creek. This action will make the rights of the parties certain, and cure the obscurity in the notice. It is ordered and adjudged that the judgment be modified in accordance with this opinion, and that when so modified it be affirmed. Modified and affirmed,. Harwood, J., and De Witt, J., concur.

Harwood, J. The facts constituting the cause of action in this case are as follows: On the 10th of September, 1890, defendant, by deed of conveyance duly executed and delivered to plaintiff, conveyed to him certain real estate situate in the town of Castle, Meagher County, Mont. Said deed contained a covenant in the following words: “ And the said party of the first part, and his heirs, do héreby covenant that he will forever warrant and defend his right, title, and interest in and to said premises, and the quiet and peaceable possession thereof, unto the said party of the second part, his heirs and assigns, against the acts and deeds of said party of the first part, and all and every person and persons whomsoever lawfully claiming or to «claim the same.” At the time said deed was made and delivered, the real estate conveyed was subject to a tax theretofore duly assessed and levied thereon, which tax was then due and unpaid, and, at the time of the delivery of said deed, was a lien and encumbrance on said premises. That by reason thereof plaintiff paid out the sum of §60.59 to extinguish such tax and satisfy said lien, which sum of money defendant has not repaid the plaintiff. Upon these facts averred in the complaint plaintiff demanded judgment for the recovery of said sum of money. Defendant demurred that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and, on default of answer or further defense by defendant, a judgment was entered against him for the recovery of said sum, from which judgment this appeal is prosecuted. ' The contention of appellant is that the covenants carried by the words “grant,” “bargain,” and “sell,” by virtue of section 285, division 5 of the Compiled Statutes, do not apply to the conveyance in this case, because the deed contained express cove nants and warranties by the grantor. In support of this proposition appellant cites the case of Douglass v. Lewis, 131 U. S. 75, and other cases therein cited. That is to say, appellant contends that, by reason of the warranty expressed in said deed (as above quoted), the grantor is presumed to have expressly warranted by the terms of the deed, as far as was intended by him, and the warranties fixed by statute to the words “ grant,” “bargain,” and “sell” are not incorporated in said deed. It clearly appears, when the complaint is carefully looked at, that counsel have carried the contention in the case at bar outside of the averments of the complaint, and that the doctrine laid down in Douglass v. Lewis, supra, does not apply at all to the case at bar, because it does not appear from the complaint that said deed contained either the words “grant,” “bargain,” or “sell.” The only covenant of the deed set forth in the complaint is the one quoted above. It is true that in the first paragraph of the complaint it is alleged, as matter of inducement, that on the tenth day of September, 1890, defendant granted, bargained, sold, and conveyed to plaintiff the described premises; but this is merely introductory matter, and can in no way be considered as an averment of a covenant, or of the words contained in the deed. The judgment in this action was rendered on the pleadings and the covenant of warranty, set out in paragraph 2 of the complaint, being the only covenant of the deed in view of the court, such judgment must rest entirely upon that express covenant, and not upon a covenant implied, by provision of statute, from the words “grant,” “bargain,” and “sell” — words not shown to have been used in, the deed in question. Looking now at the covenant of the deed pleaded in the complaint, we find it contains two distinct propositions of warranty: (1) To warrant and defend plaintiff’s “right, title, and interest in and to said premises;” and (2) “the quiet and peaceable possession thereof.” To what extent? “Unto the said party ' of the second part, his heirs and assigns, against the acts and deeds of said party of the first part, and all and every person and persons whomsoever lawfully claiming or to claim the same.” "We have no doubt that this warranty was sufficient to com pel the grantor to answer for the taxes lawfully levied on said lands, and existing as a lien thereon at the time he made and delivered the deed in question. By his failure to answer the allegations of the complaint, he stands in view of the law as having confessed that said tax was lawfully levied, and constituted a lien and encumbrance upon the lands conveyed by said deed at the time he made said conveyance. (Estabrook v. Smith, 6 Gray, 572; 66 Am. Dec. 445; Reed v. Pierce, 36 Me. 455; 58 Am. Dec. 761; Huyck v. Andrews, 113 N. Y. 81; 10 Am. St. Rep. 432; Daggett v. Reas, 79 Wis. 60; Pierce v. Herrold, 75 Iowa, 504; Foley v. City of Haverhill, 144 Mass. 352.) It is our opinion that judgment ought to be affirmed, and ife will be so ordered, at the cost of appellant. Affirmed. Blake, C. J., and De "Witt, J., concur.

Blake, C. J. This action was brought to recover damages for injuries to a cow, in the month of December, 1889, through the negligence of the agents and servants of the appellant, a railroad corporation. There is only one question for our consideration. At the con-= elusion of the evidence for the plaintiff “the defendant moved the court that plaintiff be nonsuited because he -had introduced and offered no testimony tending to show any negligence on the part of the defendant.” The motion was overruled, and, no evidence being introduced by the defendant, judgment was entered in favor of the plaintiff. All the testimony upon this point is given in the transcript. The plaintiff testified that he was acquainted with W. B. Green ; that he went to see him to settle for the cow; that Mr. Green was acting as claim agent at the time of the defendant; that Mr. Green “said he was on the train at the time, and ordered the cow killed, and he ordered the beef shipped to Helena to be sold for the benefit of the company. He said that he ordered it to be killed, or killed it himself, but as to which I can’t say now. He said nothing more as to how the cow was killed, but that she had one leg broken, and he ordered it killed — either killed it himself, or ordered it billed; that the train had knocked her off the track. .... I was told that this cow was killed on the Montana Central road. Mr. Green told me that, and he also told me that he was on the train at the time.” This testimony concerning the conduct of Mr. Green can be easily understood by observing this section of the statutes: “ In every case of the wounding and killing of any such cattle or sheep, the price of the damages [for which] is fixed by this chapter, the body of such animal shall belong to such company, unless the owner thereof shall elect to take the same in lieu of said damages, or part thereof, within twenty-four hours after said wounding or killing; but in every other case the railway or railroad company may proceed to take care of and preserve the body of said animal; and it shall be the duty of said company to preserve the hide of such animal for at least thirty days after such killing, for inspection, by said railroad or corporations at the station-house nearest to the place where such killing occurred.” (§ 717, Comp. Stats, div. 5.) Green was upon the train which inflicted the injury upon the animal, and availed himself of the provisions of the law for the benefit of railroad companies when they are liable to be mulcted in damages for the killing of live stock. The action of this agent of the corporation, within the scope of Ms duties, and the receipt of the proceeds of the sale of the beef, are sufficient to establish a prima facie case of the admission of negligence against the defendant. It is conceded by the appellant that the respondent has the right to bring an action for the conversion of the animal, and therefore it is contended that the appropriate remedy has not been pursued. But this officer of the corporation was acting rightfully, under a statute which authorizes these proceedings, and hence there was no conversion of tb > property. His conduct, and that of the appellant, were admissions as potent as words, and were entitled to be weighed by the jury. It is ordered and adjudged that the judgment be affirmed. Affirmed.

Per Curiam. Upon the authority of State v. Schultz, ante, page 429, it is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to grant the motion for a new trial.

De Witt, J. The Probate Practice Act (§ 22) provides: “The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it.” It is not disputed that the original will was properly executed, .and was, before the marriage of the decedent, a good and valid will. It is conceded that the marriage of decedent revoked that will. (§ 459, p. 384, Comp. Stats.) It is clear that, if the letter of the decedent is a codicil to said will, it republished the will, and that the will and codicil together constitute the last will and testament of the decedent. (§ 448, p. 382, Comp. Stats.) The letter referred to the previous will. The whole gist of the case, therefore, is whether said letter was a codicil; that is, whether it was testamentary in character. The court submitted to the jury a great number of questions, which seem to have included all matters of fact in the case. The court also required the jury to determine whether said letter was a codicil. The jury said that it was. The court set aside this finding, and held that the letter was not a codicil. The respondent now contends that this finding of the jury was a conclusion of law, and that the court was not bound thereby, and that such finding was practically a nullity. Appellant contends that the court was bound by all the findings of the jury, and that it was error to set them aside. The court certainly submitted all the facts to the jury. It looks as if a large portion of the law as well had gone to the jury for determination, and that the court was then dissatisfied with the jury’s view of the law. But passing this anomalous condition of affairs, and disregarding the submission of law to the jury, we will decide this appeal upon the following view: The facts are all found. The findings have never been attacked. We take them all as true. On these facts, did the court correctly construe the letter from the deceased to his attorney? That is to say, we will proceed to determine whether the said letter was, under the established facts, a codicil, and testamentary in character. It is claimed that the letter is an holographic will or codicil. The statute provides as follows: “ Sec. 439. An holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this Territory (State), and need not be witnessed.” “Sec. 19. An holographic will may be proved in the same manner that other writings are proved.” It is perfectly clear from the findings that this letter fulfills every requirement of the statutes, supra, as to the execution and proof. The only question remaining is whether it is testamentary in character. A decision of this point was reserved on the former appeal of this case. “A will is an instrument by which a person makes a disposition of his property, to take effect after his decease.” (1 Jar-man on Wills, 26, and notes.) " A last will and testament may be defined as the disposition of one’s property, to take effect after death.” (1 Bedfield on Wills, 5.) “Swinburne defines a 'testament’ to be a'just sentence of our will, touching that we would have done after our death.’ ” (Turner v. Scott, 51 Pa. St. 132.) Woerner, in the American Law of Administration, expresses the same views. (Ch. 5.) The decedent in this case, in the letter in question, announces his marriage, and then writes: “ What I want is for you to change my will so that she [his wife] will be entitled to all that belongs to her as my wife. I am in very poor health and would like this attended to as soon as convenient. I don’t know what the laws are in Montana. I don’t know what ought to be done, but you do.” Do these words disclose an animus testandif The writer expresses his wish that his wife shall have something. The reasonable construction of the letter is that he-wished her to have a certain portion of his estate after his-death. His intent may be expressed by the word “want,” which he uses, or “wish,” or “desire,” as well as by the words “command” or “direct.” . (Busby v. Lynn, 37 Tex. 150.) To-be sure, what the decedent wrote was that he “wanted his will changed.” It is argued that it was not changed. But did not this letter change it? The original will was the expression of his intention, on June 15, 1889, as to the disposition of his property after death. That was his “ will,” using that word in its original sense of “intent,” “desire,” or “command.” Now, on August 18, 1890, he had another “will” or “intent” or “desire.” That later “will” or “intent” or “desire” he clearly expressed in his letter of that date. That letter was, using the old definition, “ his just sentence of his will touching what he would have done after his death.” Can any one read the decedent’s letter and be in any doubt as to what he intended should be the disposition of his property as to his wife? We think not. Such holographic will need not be in any particular form. (§ 439, Prob. Prac. Act.) If the decedent’s intention is clear, that intent must not be ignored because the language is not technical. The expression of decedent’s intention is as clear as that in the case of Estate of Wood, 36 Cal. 75; or in the case of Succession of Ehrenberg, 21 La. An. 280; 99 Am. Dec. 729. In the latter case the holographic’will was as follows:— “New Orleans, September 15, 1859. “Mrs. Sophie Loper is my heiress. G. Ehrenberg. “ The legatee’s name is correctly spelled Loeper. “G. Ehrenberg.” On the back of this instrument is written the following: “ Ehrenberg’s will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in the hands of the heiress.” (See, also, Clarke v. Ransom, 50 Cal. 595, and authorities cited; also Robnett v. Ashlock, 49 Mo. 171; Morrell v. Dickey, 1 Johns. Ch. 152, opinion by Chancellor Kent; Cowley v. Knapp, 42 N. J. L. 297; Byers v. Hoppe, 61 Md. 206; 48 Am. Rep. 89.) No motion for a new trial was made in the case at bar. The findings of fact were not attacked. Whatever the jury may have found as to the law we do not consider. But we are of opinion that when the District Court had before it the facts found, the court should have concluded that those facts established the letter in evidence to be a codicil. The judgment is therefore reversed, the cause is remanded, and the District Court is directed to admit to probate the will of June 15,1889, with the said letter of decedent as a codicil: the two writings together constituting the last will and testament of said Charles E. Barney, deceased. Reversed. Blake, C. J., concurs; Habwood, J., being disqualified, did not sit in this ease.

Harwood, J. Appeal from an order of the Second Judicial District Court within and for Silver Bow County, refusing to appoint Henry A. Boot administrator of the estate of Andrew J. Davis, deceased, upon the petition of Maria Cummings, an alleged sister and heir at law of decedent, filed March 19,1891. The record presents for review said petition, the answer of John A. Davis in resistance of such appointment, and all evidence, documents, and records introduced and used in the hearing; all of which are brought up in a statement of the case on motion for new trial, which motion was overruled by the said court. The facts involved in this case at the time said petition was presented, heard, and determined, pertinent to the questions to be considered and determined herein, areas follows: The decedent died at Butte City, ia this State, March 11, 1890, leaving an estate, situate there and elsewhere, valued at about five million dollars. Thereupon several persons, among whom were John A. Davis, a brother, and Henry A. Boot, a nephew of decedent, petitioned said court for appointment as general administrator of said estate; and, among other facts set forth in such petitions, it was averred that decedent died intestate. Upon the filing of said petitions, a contest was instituted by said Henry A. Boot against the appointment of John A. Davis as such administrator, on certain alleged grounds of disqualification. A hearing was had in said court of said petitions and contest, which was determined April 28, 1890, by the court overruling the objections made to the appointment óf John A. Davis, and ordering that letters of administration of said estate be issued to him. Before letters of administration were issued pursuant to said order, however, an appeal was taken therefrom to this court, which appeal was filed and placed on the calendar of the July term, 1890, for hearing. When said appeal came on for hearing in this court at said term, counsel for respondent, John A. Davis, suggested to this court that an instrument in writing purporting to be and alleged to be the lást will and testament of decedent had been found since said order appealed from was made; that respondent, John A., had petitioned the lower court for the admission of said alleged will to probate; and that, upon the admission thereof to probate, the order theretofore made for the issuance of general letters of administration to him be vacated and set aside, and that letters of administration with the will annexed be issued to him; a copy of which petition, together with a photographic copy of said alleged will, was filed in this court to substantiate such suggestion. It was further suggested at the same time that a contest of the validity of said, instrument alleged in said petition for probate to be the last will and testament of decedent, and of the admission thereof to probate, had been instituted by Henry A. Root and other heirs at law of decedent, which contest was then pending undetermined in the court below. In view of that state of facts shown by such suggestions, it was ordered by this court at said July term, 1890, that the hearing of said appeal from the order directing general letters of administration of said estate to issue to John A. Davis be continued until the first Monday in October of the same year; and it was further ordered that in the mean time, until the determination of the appeal from the order directing letters of administration to issue to said John A. Davis, he should not qualify and take charge of said estate under said order appealed from. Under these conditions respecting said estate it appears the court below deemed it proper and necessary to appoint a special administrator to take charge of and preserve said estate as provided by statute in such cases. (Prob. Prac. Act, § 95.) Accordingly the court made an order of date August 12, 1890, appointing a special administrator of said estate, which order reads as follows: — “It appearing to the court by the records and proceedings and evidence herein that the said Andrew J. Davis died in Silver Bow County, Montana, on the eleventh day of March, 1890,. then being a resident in the said county, and having both real and personal property therein, and that letters of administration were afterwards ordered to issue upon said estate by this court to John A. Davis; and whereas, an appeal was taken from said order of this court to the Supreme Court of this State, and is now pending and undecided therein; and whereas, on the twenty-fourth day of July, 1890, the said John A. Davis filed herein his petition for probate of an instrument purporting to be the last will and testament of the deceased, and for the appointment of the said John A. Davis as administrator with the will annexed; and whereas, objections to said probate have been filed by several parties interested in said estate, and it is evident that there will be delay in granting letters of administration on said estate, and that it is necessary for the preservation of said estate that a special administrator thereof be appointed by this court; and whereas, the said John A. Davis has heretofore filed herein his petition to be appointed special administrator, and James W. Murphy, public administrator of said Silver Bow County, has also filed his petition herein to be appointed such special administrator; and whereas, objections to the appointment of each of the said persons have been filed herein; and the court having considered the said petitions and all matters therein, and being advised in the premises, and finding that it is necessary that a special administrator of said estate should be appointed, and finding it to be to the best interests of the estate that neither of said petitioners should be appointed special administrator, denies each of their applications, and upon its own motion it is ordered by said court, this twelfth day of August, 1890, that James A. Talbott, a suitable and competent person, and a resident of said Silver Bow County, State of Montana, be, and he is hereby appointed special administrator of the said estate of Andrew J. Davis, deceased, with full power and authority to collect and take charge of the estate of the said Andrew J. Davis, deceased, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of said estate, and to have such powers and perform such duties as are by law given to and imposed upon special administrators; and that letters as such special administrator shall issue to said James A. Talbott, upon his giving bond in the sum of three million dollars, with sureties to the satisfaction of the judge of this court, and conditioned for the faithful performance of his duties as required by law. “ Dated August 12, 1890.” Pursuant to that order said James A. Talbott qualified and took charge of said estate, and entered upon the discharge of his duties as such special administrator. The appeal pending in this court from said order of April 28, 1890, to grant letters of administration of said estate to John A. Davis, was finally heard and determined November 24, 1890, by an affirmance of the order of the court below (Root v. Davis, 10 Mont. 228); and thereafter, on the twentieth day of December, 1890, said John A. Davis made and filed in the court below an offer to qualify and take charge of said estate as administrator thereof under said order for letters to issue to him, which offer is in terms as follows: — “John A. Davis respectfully represents and shows to the court: That by an order of this court heretofore made he was appointed administrator of said estate, it being then supposed that said deceased died intestate; that before he qualified as such administrator an appeal was taken from the order of this court appointing him, to the Supreme Court of the State, and said order was affirmed by said Supreme Court in November, 1890; that, pending said appeal, petitioner discovered that there was a will of said deceased, and presented the same to this court for probate, and asked that he be appointed administrator of said estate with said will annexed; that the probate of said will is opposed and contested by Henry A. Root and others, claiming to be interested in said estate, and said opposition and contest is now pending and undetermined in this court; that under said will petitioner is the main party in interest in said estate; that, pending the appeal to the Supreme Court above mentioned, James A. Talbott was by this court appointed special administrator of said estate, and has qualified, and is now acting as such special administrator, and has charge of the property of said estate; that petitioner believes that said estate will be properly and honestly cared for and preserved by said special administrator, and that it will be for the interest of all persons who have or claim any interest in said estate to allow such estate to remain in the hands of such special administrator for the present, or until the matter of the contest of said will is determined, and petitioner upon his part is willing that it should so remain, but that petitioner is now and will at all times be ready and willing to qualify and perform the duties of administrator of said estate, to which he has been appointed by the court, whenever the court shall consider it for the best interests of the parties interested in and claiming said estate that petitioner should so qualify and act as administrator; and petitioner offers now so to do if the court requires it, and does not waive or relinquish any right or claim to said administration by this statement to the court, or otherwise. Petitioner asks that this statement be filed in the matter of said estate. “Dated December 20, 1890.” When that offer was made by John A. Davis to qualify as administrator, said alleged will of decedent was before the court on a petition for the probate thereof, and the contest thereof was still pending undetermined, and said estate was in charge of the special administrator. No action was taken on said offer of John A. to qualify, but the estate was allowed by the court to remain in charge of said special administrator. With these conditions existing in reference to said estate, these proceedings for the appointment of Henry A. Root as general administrator thereof on the petition of Maria Cummings were instituted, and her petition re-asserts or undertakes to revive the petition of Henry A. Root for appointment as administrator of said estate, filed in said court in the first instance. The petitioner expressly brings before the court for consideration, by allegations and references in her petition as parts thereof,'and by introduction in this proceeding, all the petitions for appointment of various persons as administrator of said estate, and all evidence introduced and proceedings had therein in the first instance, together with all evidence, records, and documents introduced, and all proceedings had in regard to the contest of Henry A. Root against the appointment of John A. Davis as administrator of said estate. In addition to those matters, it is alleged in said petition that John A. Davis has never qualified as administrator of said estate, nor discharged any of the duties required by law of an administrator. It is further alleged in said petition and shown to the court that on the twenty-third day of June, 1890, an assignment was obtained from Thomas Jefferson Davis of all his right, title, interest, and claims in and to said estate to John A. Davis, which instrument was recorded in the office of the county clerk and recorder of Silver Bow County; and that said Thomas Jefferson was the same person referred to and mentioned as “Jeff” and the “Iowa boy” in the evidence and proceedings in the case of contest between Henry A. Root and John A. Davis for the administratorship of said estate, and determined as reported in 10 Mont. 228. It was further alleged in said petition of Maria Cummings, and shown, that during the month of April, 1890, John A. Davis, jointly with his brother, Calvin P. Dávis, and his sisters, Diana Davis, Eliza beth Bowdwin, and Harriet Woods, entered into an agreement with their brother, Erwin Davis, evidenced by writings, whereby said parties first mentioned agreed with their brother Erwin, in consideration of his furnishing all necessary funds wherewith tolj empioy counsel and pay all other expenses incurred, not exceeding two hundred thousand dollars, to prosecute and defend all such actions as might be necessary in order to establish the claims of said parties as heirs to the estate of decedent against the suits, demands, and claims of said Thomas Jefferson, or other claimants of said estate, adverse to the rights of the brothers and sisters, nephews and nieces, of decedent; then the parties to said contract first named agreed to pay to said Erwin Davis one half of all such sums of money and property as the first-named parties to said contract should ultimately derive as heirs of said decedent, which contract was recorded in the public records of said county of Silver Bow, in the office of the clerk and recorder thereof. It is further alleged in said petition of Maria Cummings for the appointment of Henry A. Boot as administrator of said estate that said Erwin Davis is indebted to said estate in the sum of five hundred thousand dollars; and that, as said petitioner was informed and believed, said Erwin was in failing circumstances; that two hundred thousand dollars of principal and interest on said indebtedness was due and unpaid; that no effort had been made to collect or obtain security for said indebtedness; and “that, in the opinion of petitioner, there is great and serious danger in delaying the collection or security of said debt.” Upon the matters set forth in said petition the petitioner predicated a demand that the order of April 28, 1890, for letters of administration on said estate to issue to John A. Davis, be vacated and set aside, and that an order be made appointing Henry A. Root administrator of said estate, and that, upon his qualifying, letters of administration be issued to him; and that thereupon said special administrator, Talbott, be ordered to deliver over to Henry A. the effects belonging to said estate. Upon full hearing of said petition the court entered an order refusing to grant the same, and from that order this appeal is prosecuted. It is urged by counsel for respondent, John A. Davis, as the first point for consideration, that this court has no jurisdiction to entertain this appeal, for the reason that no appeal lies from said order, as they contend. They insist that this is an appeal from an order refusing to vacate an order for the appointment of an administrator, and refusing to remove the special administrator in charge of said estate; and that no appeal lies from such an order of the lower court. The purpose of this proceeding was to obtain the appointment of an administrator of said estate. The final determination of the proceeding was an order denying such appointment. Such an order, we think, is without doubt appealable to this court. Our views upon the state of the statute and the Constitution in reference to this question of jurisdiction and practice are so fully set forth in' Re McFarland’s Estate, 10 Mont. 445, we see no reason to further amplify them. Did the court err in refusing to appoint Henry A. Root administrator of said estate on the showing made on the hearing of this proceeding ? It is not contended that, when the appointment of said special administrator was made, the circumstances and conditions existing as to said estate did not authorize and sanction such appointment under the following statute: “When there is delay in granting letters testamentary or of administration from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies or is suspended or removed, the probate judge must appoint a special administrator to collect and take charge of the estate of the decedent in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate, or he may direct the public administrator of his county to take charge of the estate.” (§ 95, Prob. Prac. Act.) But in the demand for the appointment of Henry A. Root as general administrator of said estate it is assumed that the fact that John A. Davis had not qualified, and letters of administration had not been issued to him, left the way clear for the appointment of another administrator, and that Henry A. Root was entitled to such appointment. One of the facts which must be proved to the court before it is authorized to grant letters of administration on an estate is that the decedent died intestate. The statute provides that “letters of administration on the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned.” (§ 55, Prob. Prac. Act.) Again, it is provided: “ Before letters of administration are granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others, and the court may examine any other person concerning the time, place, and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left a will, and may compel any person to attend as a witness for that purpose.” (§ 68, Prob. Prac. Act.) Now, in the case of this estate no general letters of administration were issued prior to the discovery of the alleged will. There had been merely an order that letters issue to John A. Davis, which' order was prevented from taking effect by the appeal and other proceeding above mentioned; and in the mean time said alleged will was offered for probate, and the contest thereof initiated. "With this state of facts existing regarding said estate, and in view of the statute above quoted, the petitioner demands the appointment of Boot as general administrator. By this proceeding the petitioner asks the court to ignore the fact that an instrument purporting and alleged to be the will of decedent is pending for probate subject to contest, and to entertain proof upon the question as to whether decedent left a will, and find that the proofs show that he died intestate, and grant letters of administration in advance of the determination of that question by the trial of the contest over said alleged will offered for probate. It is said by the Supreme Court of North Carolina in Slade v. Washburn, 3 Ired. 557, that such a proceeding while a paper purporting to be the will of decedent is before the court for probate, and a contest thereof is pending, involves an absurdity, and that an order appointing an administrator, “made at the same moment when the court entertains a contest respecting the alleged will of decedent, and has an issue made up to try that contest,” must be held null and void. That is a case directly in point, although stronger than the one at bar, for there general letters of administration upon said estate had actually been issued once; the administrator died, and subsequently an alleged will was brought forward for probate, and an issue of contest framed for trial; whereas, in the case at bar, no letters of administration on said estate were ever issued prior to propounding said alleged will and the forming of the issue to contest the same. (See, also, Ryno v. Ryno, 27 N. J. Eq. 522, and Landers v. Stone, 45 Ind. 404.) Mr. Sehouler, in his work on Executors and Administrators (§ 91), says: “Intestacy fundamental to the grant of general administration: To the grant of general and original administration upon the estate of a deceased person, intestacy is a prerequisite. Such allegation should be made in the petition, and the court should have reason to believe the statement true. Letters of administration granted during the pendency of a contest respecting the probate of a will, or after a probate, regardless of the executor, are null and void. And local statutes interpose reasonable delay as to such grants of administration, in order to give full opportunity for the production of a will, so that the estate may be generally committed, if possible, according to the last expressed wishes of the deceased.” The author cites in support of this doctrine the cases cited supra, and also the case of Bulkley v. Redmond, 2 Bradf. 281, which latter ease we have not had opportunity to examine. The same doctrine is also laid down by Mr. Woerner in his work on the American Law of Administration (vol. 1, p. 402). Counsel for appellant do not dispute the force and effect of the above quoted statutes and the authorities referred to, but they seek to avoid the application of them to this case, by asserting that before any alleged will of decedent was found and presented for probate the court had, on such evidence as was presented on the original applications for appointment of an administrator, and in the order that letters of administration issue to John A. Davis, found and adjudged that decedent died intestate; and hence the court is bound by such finding and judgment until the same is set aside. We do not understand with what consistency that position can be assumed by counsel for appellant, inasmuch as they demand that said order to grant letters of administration to John A. Davis be vacated and set aside. If that order should be vacated and set aside, how can petitioner rely upon it to support the grant of letters of administration to Henry A. Root? Not only so, but John A. Davis has asked that said order be set aside and vacated for the reason that an alleged will has been found and offered for probate. Appellant’s counsel lay great stress upon the fact that in the order of April 28, 1890, directing letters of administration to be issued to John A. Davis, the court, on the evidence then before it, found and adjudged that decedent died intestate. They point to that order, which they ask to be vacated and set aside, and ask also that it be used to estop the court from making any inquiry into the fact which the statute declares shall be inquired into “before letters of administration are granted.” But appellant’s position in this respect is untenable for other reasons. It is first to be observed that, while the statute requires the court to demand proof that decedent died intestate before granting letters of administration, it does not require that the court shall find and adjudge in that inquiry that decedent died intestate. Schouler says: “ Such allegation should be made in the petition, and the court should have reason to believe the statement true.” (Schouler on Ex’rs & Adm’rs [2d ed.], § 91.) The proof of that fact should be by the best known and obtainable evidence at the time, and should negative the proposition that decedent left a will; and it should be shown that such proof was made before grant of letters of administration. While the law requires inquiry to be made as to whether decedent left a will, and makes the right to grant letters of general administration dependent on the fact that according to the proof attainable decedent left no will, it does not require that the court shall solemnly determine by judgment that decedent died intestate. For the statute leaves the question open for the propounding of a will at any time (§ 9, Prob. Prac. Act), and the admission of a will to probate, ipso facto, supersedes and vacates the grant of letters of general administration. (§ 102, Prob. Prac. Act.) Secondly, it should be observed that, if the way was clear from any cause for the appointment of an administrator, as petitioner assumed when this proceeding was commenced, then the court, in making such appointment, must pursue the same course therein “as is directed in relation to original letters of administration.” Section 105 of the Probate Practice Act provides : “ If all such executors or administrators die or become incapable, or the power and authority of all of them is revoked, the Probate Court must issue letters of administration with the will annexed, or otherwise, to the widow, or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration.” So that, if time has developed the fact (at first unknown) that decedent left a will, or if a paper purporting to be his will is propounded for probate, and a contest thereof is instituted, how can it be reasonably contended, in view of the statutes just quoted, that the court, in considering the question of the appointment of an administrator, shall not look to the fact as to whether decedent died intestate? The statute provides that the court shall proceed in the same manner and order as is directed in relation to the grant of original letters of administration. If this statute is to he followed, then the court must look to the conditions existing in relation to the estate at any time when it is called upon to appoint an administrator; and the court is not confined to such evidence as parties may bring to its attention concerning the question of testacy or intestacy of decedent. The statute provides that the court may send for witnesses, and examine them upon this question (§ 68, Prob. Prac. Act), and the court may always take judicial notice of proceedings pending before it. (§ 643, Code Civ. Proe.) “Every court,” says Mr. Chitty, “is bound to take judicial notice of its own course of proceedings and of those of other Superior Courts.” (Chitty on Pleading, 242.) If the rule were otherwise, endless absurdity would be committed in judicial proceedings. It is just as incumbent upon the court to notice the fact that an alleged will is pending before it for probate under contest, and that thereby the fact as to whether decedent died testate or intestate is in issue, to be determined by proceeding in the manner provided by law, as it is for the court to notice the fact that, on the first occasion when letters of administration were petitioned for, evidence was produced to the effect that decedent died intestate, and that on such showing the court ordered letters of ad ministration to issue. Counsel for appellant, however, contend in this case that, notwithstanding the statute and precedents, the court should notice one proceeding and blindfold itself as to the other. "We observe that in the petition in this proceeding for the appointment of Henry A. Root, the petitioner invokes the court to take notice of the proceedings theretofore had in reference to said estate, and the papers, files, and records theretofore made therein; and especially brings to the attention of the court the proceedings offering for probate an alleged will of decedent, and the contest thereof set up by other heirs at law. Now, if it was proper for the court to take notice of these proceedings, and there is no doubt of it, then the court would at once, in considering this petition, and the law applicable, be confronted with the fact that it was asked to inquire into the question as to whether decedent died testate or intestate, while that question was pending in an issue framed for trial in that court to contest an alleged will propounded for probate; and, moreover, that in granting the prayer of this petition the court would be assuming that it was proved that decedent left no will, while at the same time the court entertained a petition for the admission to probate of a document purporting and alleged to be the last will and testament of decedent. We are of the opinion that the order and judgment of the court denying said petition and the motion for new trial ought to be affirmed, and it is so ordered. Affirmed. De Witt, J., concurs.

De Witt, J. Relator is the reporter of the decisions of the Supreme Court, appointed and acting under the provisions of chapter 114 of the Complied Statutes as amended by the Act of the legislature of March 8, 1889. The law is quoted fully in the ease of the same title, 10 Mont. 533. The respondent is the State auditor. Relator has completed volume 10 of the Supreme Court Reports, and complied with the provisions of the law above referred to. There is due him from the State $2,274. There is no dispute about these facts. The respondent declines to draw his warrant in payment of this amount, on the ground that there is no appropriation for that purpose. But from the decision in State v. Kenney, 10 Mont. 485, it follows that the Act of March 14, 1889, was an appropriation of the money required for the compensation of relator. So far, relator and respondent are agreed. But the act requiring the reporter to publish the reports of the Supreme Court, and making appropriation for his payment, was passed March 8, 1889, by the territorial legislature. The State and the State Constitution came into life November 8, 1889. The Constitution provides (§ 12, art. xii.): “No appropriation of public moneys shall be made for a longer term than two years.” The respondent contends that whatever appropriation was made by virtue of the Act of March 8,1889, had no validity after March 8,1891. The question at bar, then, is whether section 12, article xii. of the Constitution is prospective only, and refers to appropriation legislation to be passed by the State legislature after the adoption of the Constitution, or whether it is retrospective as well, and operates upon appropriations made before the adoption of the Constitution. The Act of March 8, 1889, was a law of the Territory when the State was admitted into the Union, and remained in force as a law of the State, unless it were inconsistent with the Constitution. (Schedule, art. xx. § 1.) It is inconsistent with the Constitution only in the view that section 12 was intended to operate retrospectively, and set aside the said act of the legislature. We understand that it is perfectly well settled that a statute will be construed to operate prospectively, and not retrospectively, unless the retrospective intention is clearly expressed. (See a long list of cases in 3 Am. & Eng. Encycl. of Law, p, 758, n.. 1.) Tills is also tbe rule as to constitutions. In Constitutional Limitations, Judge Cooley says: “We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect.” (p. 76,4th ed.) In Shreveport v. Cole, 129 U. S. 43, Chief Justice Fuller, in the opinion, remarks: “Constitutions as well as statutes are construed to operate prospectively only, unless on the face of the instrument or enactment the contrary intention is manifest beyond reasonable question.” No authorities are cited, and the court lays down the proposition as of course, and not meriting discussion. (See, also, cases cited by relator in his brief.) The language of section 12, article xii. of our Constitution is prospective in terms, and the words are future in tense. They are: “No appropriation . . . . shall be made.” There is nothing to indicate that a retrospective operation was intended. We therefore hold that this section of the Constitution is to be prospective in its application, and does not affect the appropriation made by the Act of the legislature of March 8, 1889. Respondent has filed no brief, nor has he referred us to any decisions tending to a contrary view. Let the writ of mandate issue as prayed for by relator, commanding the respondent to draw his warrant in favor of relator for the sum admitted to be due. Writ granted. Blake,- C. J., and Harwood, J., concur.

Blake, C. J. This is an appeal from the order of the court below in granting a motion for a new trial. The action was commenced by McCauley to recover damages for the unlawful diversion of water, and obtain a decree enjoining six persons from further interference with his prior rights. The case was tried by the court without a jury, and a judgment for defendants was entered upon the finding of facts. McCauley filed a motion for a new trial, which was granted, and the following memorandum by the judge appears in the transcript: “Judgment was rendered for the defendants upon the ground that the plaintiff had failed to use due diligence in constructing his ditch, but, upon examination of the evidence, I am of opinion that it is not sufficient to justify such judgment.” Three of said defendants have united in this appeal. No question of law is involved, and the grounds of the motion and order are the insufficiency of the evidence to support the decision of the court. A review of the testimony, which need not be repeated, leads to the conclusion that the learned judge performed his duty in this matter. As early as the year 1863, the Supreme Court of California, in Quinn v. Kenyon, 22 Cal. 82, said: “ It is only in rare instances, and upon very strong grounds, that this court will set aside an order granting a new trial.” In expressing this view of the evidence, we refrain from making any statement which would have the effect of determining finally the issue respecting the diligence of the respondent in the construction of his ditch. It is maintained by the appellants that the finding of facts from the testimony is like the verdict of a jury, and must stand if there is evidence to support it. Although the verdict and finding are upon the same footing for this purpose, this rule does not apply to the judge of the court below. (Dickey v. Davis, 39 Cal. 565; Sherman v. Mitchell, 46 Cal. 576; Curtiss v. Starr, 85 Cal. 376.) It is said in the last case that “the rule as to conflict of evidence does not apply in the trial court.” It is therefore adjudged that the order be affirmed. Affirmed. Harwood J., and De Witt, J., concur.

Blake, C. J. The complaint alleges that Fish was, on and before the twenty-third day of October, 1888, seised and possessed of a certain tract of land which is described as lot No. 14, in block L, of the Blake addition to the city of Helena, in this State. That Fish and Marcy H. Randall entered October 23, 1888, into the following written contract respecting said land; — “Know all men by these presents that I, Frederick S. Fish o . . . am held and firmly bound unto Marcy H. Randall .... in the sum of thirteen hundred and fifty dollars, o ... to be paid to the said Marcy H. Randall, his executors, administrators, or assigns, for which payment well and truly to be made, I bind myself, my and each of my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated the twenty-third day of October, A. X). one thousand eight hundred and eighty-eight. The condition of the above obligation is such that if the above-bounden obligor shall, on or before the twenty-third day of October, A. X). one thousand eight hundred and eighty-nine, make, execute, and deliver unto the said Marcy H. Randall (provided, the said Marcy H. Randall shall, on or before that day, have paid to the said obligor the sum of six hundred and seventy-two dollars [§672], in installments as follows, to wit: The sum of three hundred and thirty-six dollars [$336] cash at the date of execution and delivery of this bond, and the remaining sum of three hundred and thirty-six dollars on or before the twenty-third day of October, A. D. 1889, together with interest on said remaining sum at the rate oí ten per cent [10% ] per annum from date until paid, interest payable semi-annually j and together, also, with all taxes that may be levied or assessed against said premises during the term of this bond, the price by the said Marcy H. Randall agreed to be paid therefor) a good and sufficient conveyance in fee-simple, with full covenants of warranty of [description of lot]. Then this obligation to be void j otherwise to remain in full force and virtue." This instrument was signed, sealed, acknowledged, and delivered by Fish, and recorded December 16, 1889, in the office of the county recorder of the county of Lewis and Clarke. And it is further alleged that Randall paid upon the execution of this contract to Fish the sum of $336; that Randall, in consideration of the sum of $375, sold, transferred, and assigned toThornburgh, the plaintiff, his interest therein; and that the assignment was indorsed January 3, 1889, upon the contract. The complaint contains similar averments concerning lot No. 13, in the same block, but different amounts of money are named, and also alleges that the plaintiff has owned the contracts since the third day of January, 1889; that the plaintiff tendered October 25, 1889, to Fish, the sum of $728.25, being the amount of the unpaid purchase money of both parcels oí land, and interest thereon, together with the taxes and assessments against the premises during the term of the contracts, and demanded from Fish the conveyance of the same; that Fish refused to receive said money and execute any deeds; that the' plaintiff tendered January 24, 1890, to Fish the sum of $750, as such unpaid purchase money and interest, and also a deed, and requested him to execute the same; that Fish refused to receive the money or execute the deed. It is further alleged that Randall received October 23,1888, from Fish the possession of the lots, and that Randall, immediately after the purchase oí said contracts by the plaintiff, surrendered such possession; that the plaintiff sold, in the year 1889, the lot No. 13 to A. H. Nelson, and delivered the possession thereof; and that Nelson has erected thereon a residence and other buildings of the value of $3,500, and is living in the same, and holds the obligation of the plaintiff for a warranty deed to the land. It is further alleged that plaintiff sold September 12, 1889, to George H. Pew, said lot No. 14, and immediately delivered the possession thereof; and that Pew has erected a dwelling-house and other buildings thereon of the value of $6,500, and holds the obligation of the plaintiff for a warranty deed to the land; and that Pew sold, in the year 1890, the premises to Dr‘. Baldwin, who is now residing in said house, and in possession of the lot. It is further alleged that Fish has the title in fee-simple to said tracts oí land, and is able to make deeds thereto. The prayer of the complaint is for specific performance of said contracts, and that Fish be compelled to sell and convey said parcels of land to the plaintiff by good and sufficient deeds, upon the payment of said purchase money; and also for damages in the sum of $1,000. Copies of the contracts between Fish and Randall, and the assignments from Randall to Thornburgh, and the deeds which were prepared by the plaintiff for execution by the defendant, are annexed to the complaint as exhibits. The answer admits that Fish signed the contracts, and that Randall made the written assignments of his interest therein to Thornburgh. It is averred that the plaintiff is a member of the firm of Wallace and Thornburgh, and that the defendant made September 15, 1888, the said Wallace and Thornburgh his agents to sell these parcels of land, with special instructions, to wit: Not less than $18 per front foot on Broadway for lot No. 13, and $17 per front foot on Broadway for lot No. 14; and that this agency was to continue until November 1,1888. That the consideration in “the bonds for deeds” was below the amount named in the instructions, to wit, $17 per front foot on Broadway for lot No. 13, and $16 per front foot on Broadway for lot No. 14. That the defendant received October 23, 1888, at the city of Ann Arbor, State of Michigan, the contracts, with the following statement by the firm of Wallace and Thorn-burgh : “We consider this a most excellent sale, as the chances are that the remainder of the money will be paid within a few months, as the purchaser is thinking of building upon one oí the lots.” That the defendant “ was not then in a position to know, and did not know” the value of the lots, “but relied upon the representation of his agents aforesaid, and under a mistake oí material facts signed said bonds for deeds.” It is further alleged that “the mistake of facts aforesaid were that defendant, relying on said agents’ representations, believed the sale of said lots to be a most excellent sale, and defendant at that time believed that the sale was bona fide and to the grantee in said bonds, and not for the benefit of his agents; feared that, if he repudiated said agents’ action in selling said lots contrary to instructions, the grantee in said bonds would sue his agents aforesaid.....That said representations were false, and . . . . were knowingly, falsely, and fraudulently made by said "Wallace and Thornburgh.....That said purchase of said lots was made for the benefit of said firm of Wallace and Thornburgh, and that said Marcy H. Eandall knew nothing of the alleged sale of October 23, 1888, aforesaid, at the time it was made.....That said assignment was made in violation of the trust and confidence reposed by defendant herein in said firm of Wallace and Thornburgh, and in breach of the fiduciary relations existing between said firm and defendant as principal and agent, and without defendant’s knowledge or consent.....That said firm of Wallace and Thornburgh, and the plaintiff herein, in violation of the fiduciary relations existing between them as principal and agent, kept said assignment to them secret, and concealed from defendant herein, although frequently interrogated by defendant in reference thereto, until the twenty-fourth day of October, A. D. 1889, at about the hour of two o’clock in the afternoon of said day, when the defendant for the first time discovered that said assignment had been made, and that the representations made by said firm at the time said bonds were signed were false, and that defendant had signed said bonds under the mistake of facts aforesaid, when defendant immediately rescinded said bonds.” The prayer of the answer is that “ the bonds for deeds ” be declared invalid, and that the cloud upon the title of the defendant caused by the record thereof be removed. The replication denies all the new matter in the answer which is inconsistent with the complaint. At the commencement of the trial the defendant “ objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action.” The objection was overruled, and the appellant contends that the foregoing bonds are identical in terms with the instruments which were construed in Kleinschmidt v. Kleinschmidt, 9 Mont. 477. While intelligent criticism of the rulings of courts is always proper and desirable, we respectfully remind the counsel for the appellant that his language is unsuitable to the occasion, in stating in his brief that he “is even at a loss to advise the court upon what ground the trial judge disregarded the solemn adjudication that ‘such relief (a decree of conveyance) could mot be granted on the bond.’ ” When the case at bar is compared with Kleinschmidt v. Klein schmidt, supra, the difference between the acts of the parties in relation to their respective agreements can be readily perceived» It appears in Kleinschmidt v. Kleinschmidt, supra, that the plaintiffs were husband and wife, and executed a deed to certain real estate, and delivered the possession thereof to the purchasers, with the intent to hinder and delay the creditors of the husband; and that there was an agreement in writing to reconvey the premises upon the payment of a specified sum. The court below held that the facts which are stated in the report of the case constituted an absolute sale, and not a mortgage; that no legal tender had been made of the amount which was stipulated in the bond; and that the plaintiffs, by reason of their attempt to hinder and delay such creditors, were not entitled to equitable relief. When the case was appealed to this court, our attention was directed by counsel for all the parties to these fundamental propositions, and we concurred therein, and for these reasons the judgment was affirmed. There are, however, observations in the opinion upon the effect of the bond which are not necessary to the decision, and cannot be approved. It is proper to remark that this part has been detached by the appellant, and made the ground-work of his argument. An inspection of the pleadings, which are fully presented, will show that the material issues which were tried in Kleinschmidt v. Kleinschmidt, supra, were not raised in this case. The authorities seem to be harmonious in holding that the respondent, under the facts which are stated in his complaint, is entitled to a decree for the specific performance by the appellant of the contracts of sale or bonds for a deed. In Plunkett v. Methodist etc. Society, 3 Cush. 561, Mr. Justice Metcalf in the opinion said s a It was objected by the defendant’s counsel that the bond is not a contract in writing to convey real estate; that the condition neither sets forth an agreement to give a deed of the estate mentioned, nor recites any agreement whatever, but merely is that, if the obligors shall convey when requested, the bond shall be void, and therefore that the court have no jurisdiction oí the case; that the plaintiffs have an adequate remedy at law; and that the form oí the bond shows that Brown relied on its penalty only, if the obligors should refuse to convey the land.” The contention of the appellant herein is a repetition of these positions. What was the reply of the court? 4‘ All these objections are answered by the decision in Ensign v. Kellogg, 4 Pick. 1, made twenty-three years ago, in this county, after a full argument.” The opinion in the last case was delivered in the year 1826; and, while the statement of the facts is incomplete, this defect was cured by the report of Plunkett v. Methodist etc. Society, supra. The counsel maintained in Ensign v. Kellogg, supra, that “this is a case in which the damages are liquidated, and the defendants have an option to pay those damages or convey the land.” It was said per curiam: “We are satisfied that no subject is more proper for the power of a court of chancery in decreeing specific execution than a contract for the sale of real estate; for what is agreed to be done ought in conscience to be done.....Nor is the remedy at law for damages complete or adequate; for the thing contracted for is wanted, and the value in money may often be an unsatisfactory compensation.” The doctrine of Ensign v. Kellogg, supra, has been repeatedly applied. Equity regards the intention of the parties, and the nature of their acts; and the form of the instrument concerning the sale of lands, which is to be enforced, is immaterial. The right to a rescission or specific performance of such contracts is not absolute, but is a matter of sound judicial discretion, which is controlled by the circumstances of each controversy. (Fitzpatrick v. Beatty, 1 Gilm. 454; Dooley v. Watson, 1 Gray, 414; Whitney v. Stone, 23 Cal. 275; Fisher v. Shaw, 42 Me. 32; Barnard v. Lee, 97 Mass. 92; Ewins v. Gordon, 49 N. H. 444; Stuyvesant v. Mayor, 11 Paige, 414; Seymour v. Delaney, 3 Cowen, 445; 15 Am. Dec. 270; Johnson v. Hubbell, 2 Stockt. Ch. 332; 66 Am. Dec. 773; Young v. Daniels, 2 Iowa, 126; 63 Am. Dec. 477; Brewer v. Herbert, 30 Md. 301; 96 Am. Dec. 582; Walker v. Douglas, 70 Ill. 445; Brix v. Ott, 101 Ill. 70; Hennessy v. Woolworth, 128 U. S. 438; Cheney v. Libby, 134 U. S. 68; 1 Story’s Equity Jurisprudence, §§ 715, 742, 751, and cases cited; 1 Pomeroy’s Equity Jurisprudence, § 446, and cases cited; Baumann v. Pinckney, 118 N. Y. 604.) What excuse is urged by the appellant for his refusal to execute the deeds which were promised upon the payment of the consideration which is specified in the bonds? The jury found “that Wallace and Thornburgh, at the time lots 13 and 14 were sold to Marcy H. Randall, had no understanding or agreement with said Randall, or his brother, W. W. Randall, that the said lots were to be purchased by him [Randall] for Wallace and Thornburgh;” and “that the price paid for lots 13 and 14, at the date of the safle to Marcy H. Randall, was the value of said lots at the time of said sale.” The other findings by the court are in favor of the respondent upon the foregoing issues, and all of them are supported by testimony, and should not be disturbed. These facts, which stand in the record, render useless a review of the authorities, and deprive the appellant of every defense alleged in the answer. There are other questions which have been discussed by counsel, and carefully weighed, but, in the light of the issues and findings, they are irrelevant and immaterial. There is an error in the computation of the amount which is to be paid to the appellant under the decree appealed from. The tender made by the respondent, October 25, 1889, of the sum of $728.25, on account of the unpaid púrchase money, was not kept good, and did not have the effect of stopping interest. (Bissell v. Hayward, 96 U. S. 580.) This objection is not applicable to the subsequent tender to the appellant of the sum of $750, upon January 24, 1890. It is therefore ordered and adjudged that the judgment be modified so that the defendant, upon the payment of the sum of $745.18 by the plaintiff, shall be required to execute the deed therein described, and that, when so modified, the judgment be affirmed. Modified and affirmed. Harwood, J., and De Witt, J., concur.

De Witt, J. The motion to discharge the garnishment was made in the District Court solely upon the ground that the garnishee, as a public corporation, was exempt from garnishment. No other ground was set forth in the written motion which is preserved in this record. That the motion on that ground should have been denied is settled. (Waterbury v. Commrs. of Deer Lodge County, 10 Mont. 515; 24 Am. St. Rep. 67.) Since the decision of the Waterbw'y Case, respondent filed his brief, in which he urges in this court that which he did not present below, viz., that it did not appear that any fixed debt was due from the garnishee to the defendant. Whether there was or not is not apparent from this record, and is a matter to be ascertained in the lower court in the manner provided by the law as to garnishment. (Code Civ. Proc. § 190.) The order discharging the garnishment is reversed, and the case is remanded, with directions to the District Court to proceed in accordance with the views herein expressed. Reversed. Blake, C. J., and Harwood, J., concur.

Harwood, J. By return made to the writ of habeas corpus, and the writ of certiorari issued in aid thereof, it appears that the prisoner was adjudged, by the District Court of the Second Judicial District, guilty of having committed a contempt of that court, and was therefore committed to jail. The facts and proceedings whereby the judgment and order of commitment was made appear by the returns as follows: A certain newspaper, known as the Helena Daily Journal, printed and published at the city of Helena, and of general circulation, contained in its issue of July 7,1891, among other items, the following; — ■ WHY THERE’S PREJUDICE. “An old Montanian, who is very familiar with all the ins and outs of the Mavis Will Case, was discussing yesterday the subject of the change of venue, asked in this celebrated case, when he said s ‘Prejudice? Why, of course, there’s prejudice. The money involved in this case has turned the head of every man, woman, and child in Silver Bow County. Republicans and Democrats are sworn allies and friends in all that pertains to keeping the estate in the hands of the Butte parties, and they stood together for the re-election of Judge McHatton solely because they knew that he could never be won over to any other view of the will than the Butte view. This was why no Republican nomination was made, and why McHatton was so readily adopted as the candidate and elected by so pleasing a vote. I tell you there is money enough in this business to corrupt every corruptible man in the State, and it has caused a deadly bias in the minds of some men who could not be bought with money at all. There are not more than one or two cases to-day before the courts of this country in which the stake involved is so great. Nothing like a fair trial can ever be had in Silver Bow County, as neither a judge nor a jury could be obtained there that would render a decision in accordance with the evidence. Therefore, unless a change of venue is granted, the jig is up for the contestants of the will/ This gentleman is a Republican who travels a good deal about the State, but a Democrat beside him, who has been a good deal in Silver Bow County, said he had to admit the truth of the stricture.” On the ninth day of July, 1891, Hon. John J. McHatton, judge of department 1 of said court, made and filed in his court an affidavit setting forth that an action or proceeding for the probate of an alleged will of Andrew J. Davis, deceased, was pending in said court; that such case or proceeding was generally known as the Davis Will Case; that said MacKnight and other persons named in the affidavit were the editors and publishers of said newspaper, and published the matter recited; and that “said publication has come under the observation of the judge of said court, and the charges therein made are false and contemptuous.” Upon the filing of the affidavit, said court issued an attachment for the persons charged with commission of contempt by said publication. In .the proceedings which were afterwards had before said court, in the matter of this alleged contempt, the petitioner, MacKnight, appeared to show cause why he should not be punished for contempt as charged; and answered, admitting that he was the managing editor of said newspaper at the time of said publication; admitted that he alone wrote and caused to be published in said newspaper the matter recited ; but denied that the same was a contemptuous act towards said court, or the judge thereof, or was so intended by the author and publisher thereof. Then followed an inquiry before said court, wherein said MacKnight, under oath, explained to the court where and under what circumstances he heard the comments, which were recited in the publication. He stated, in effect, that at the time he wrote and published said comments a proceeding for an order for a change of the place of trial of the contest of said alleged will, in said Davis Will Case, was being heard upon appeal by the Supreme Court of this State; that he had heard much comment by various persons, at different hotels, upon the streets, and about the court-house in the city of Helena, in relation to said application for a change of venue, which expressions, uttered by several persons, were put together, and made up the matter published ; that said matter was published in a column which purported by its heading to contain street gossip and incidents of interest. At this point the inquiry was directed to the ascertainment of the names of the persons who had made the comments mentioned. In answer to questions calling for the names of such persons, the witness said s . “ There were individuals that made some of the comments in the article whose names I cannot possibly recall, but it was in private conversation.” In only one case could the witness recall the person who stated what constituted a portion of the comment published, namely, that which related to the political situation in Silver Bow County at the time of the last election. The witness saids aAs a matter of fact, the gentleman who made those remarks did not wish them printed. He had no feeling or interest in the Davis Will Case, I gave him my word that I would not in any way disclose his name, and wrote the paragraph several days after the conversation.” The name of the person in question was demanded by the court under peril of commitment for contempt if the witness refused to disclose it; but the witness declined to state the name of such individual without his permission. A continuance was then had to give the witness an opportunity to consult said person, and find whether it would be agreeable to have his name mentioned to the court in this proceeding. On resuming the hearing, the witness stated that the individual in question, whose comments had been thus taken by the witness and published, would not consent to have his name given to the court, and the witness declined to disclose it; whereupon the court adjudged the witness guilty of contempt for refusing to disclose the.name of the person demanded, and refused to pass upon the original charge of contempt in said proceeding, and refused to hear counsel for prisoner upon the question as to whether in law any contempt had been committed, and ordered the prisoner committed to jail. It is this imprisonment which the prisoner insists is illegal. Upon the hearing before this court, counsel who appeared in the court below, as amicus curice in the proceedings, also appeared here, and raised the point that this court has no jurisdiction to bring up for review by writ of certiorari the proceedings of the lower court in the matter in question. In support of this position, he cites that clause of section 3, article viii. of the Constitution, which provides that the Supreme Court “shall have power, in its discretion, to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.” Counsel contends that the writ of certiorari, and others named in said clause, can only be issued by this court when the same are necessary or proper in the exercise of its appellate jurisdiction, and therefore the issuance of the Avrit of certiorari in this case was irregular, because it was not in aid of the appellate jurisdiction of this court. His position is that the latter words of said clause relate to the writs specifically mentioned, and restrict this court to the use of said writs, in the exercise of its appellate jurisdiction only. The case at bar presents a striking illustration of the error involved in such a construction of said clause of the Constitution as is contended for by counsel. It is clear that this court is given power to issue, hear, and determine all of the writs mentioned, among others the writ of habeas corpus. That is conceded by all, but the contention is that this court can issue, hear, and determine said writs only in the exercise of its appellate jurisdiction. Now, how would the writ of habeas corpus be ordinarily used by the Supreme Court in the exercise of its appellate jurisdiction? So the writ of certiorari is among the writs which this court is expressly authorized to issue, hear, and determine. Yet that writ is peculiarly inapplicable to use in aid of appellate jurisdiction; and, indeed, cannot be lawfully issued in cases where error may be reached by appeal. (Code Civ. Proe. § 555.) Is it to be presumed that the framers of the Constitution placed within the jurisdiction of this court these writs, the use and effect of which, in the actual administration of law, is so well defined, and some of which are in no way adapted to, or used in, the exercise of appellate jurisdiction, and then restricted the use of said writs by this court simply to the aid of its appellate j urisdiction ? We think not. The clause carries no such purport with it. The writs named are defined in law; and their use in the administration of justice is fixed by long usage and well-settled principles. It is provided in the Constitution that this court shall have power “to issue and to hear and determine” said writs, which are known and certain implements of courts. Their office being known, the framers of the Constitution understood exactly what jurisdiction was being granted by placing them within the power of the court to issue, hear, and determine. In that there was no uncertain grant of jurisdiction. But the Constitution does not stop there. It adds: “And such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.” These other original or remedial writs are restricted to the exercise of appellate jurisdiction. Why? Because otherwise this grant of jurisdiction to frame, issue, hear, and determine new writs, heretofore unknown in the administration of justice, would have been the granting of an unknown, unlimited, and undefined power; therefore such other writs were limited to the exercise of appellate jurisdiction. To further indicate the use which it was intended would be made of the writ of certiorari, the same section of the Constitution provides that “each of the justices of the Supreme Court may issue and hear and determine writs of certiorari in proceedings for contempt in the District Court.” The jurisdictional question raised by counsel is not sustained. Beturning to the consideration of the merits of the proceedings under review, we find counsel for the prisoner challenging the legality of the imprisonment by two propositions. First. That if a contempt was committed by such publication, as charged, then the contempt was committed by that act; and relevant inquiry ceased when it was ascertained who was. the author and publisher; that the prisoner admitted the writing and publishing of the comments as charged, and any inquiry beyond that was irrelevant and illegal; that refusal to answer such irrelevant question was a legal right of witness, and commitment for such refusal was unlawful. Secondly. That in the main proceedings the matter charged, to wit, the writing and publishing of the matter set forth, did not in law amount to a contempt of court, and therefore the court was proceeding without jurisdiction, and all questions-pertaining to the matter in such proceeding were irrelevant and unauthorized, and the witness had a legal right to respectfully decline to answer any or all questions in a case where the court was without jurisdiction. We are of the opinion that in this case the law fully sustains both propositions in favor of the prisoner. As to the first proposition, the record shows that the prisoner appeared before the court, and admitted every fact charged as constituting the contempt. What fact there was in the charge not admitted, or what relevancy there was in the questions which the prisoner refused to-answer, the counsel who acted as amicus curiae was unable to explain, and we have been unable to ascertain. It is provided in sections 659 and 660 of the Code of Civil Procedure, that witnesses shall answer questions legal and pertinent to the matter in issue. They are not bound to answer questions irrelevant to the issue. (Ex parte Zeehandelaar, 71 Cal. 238.) After the prisoner had admitted the facts set forth in the charge as constituting a contempt, if, then, an inquiry as to facts outside of that charge was necessary to establish contempt, it follows that no contempt was charged in the proceeding. But suppose the prisoner had answered the question put to-him, and said that A made the remarks about the “political situation in Silver Bow County.” Would the offense charged, to wit, the publication of said remarks, have been any more certain, or would the gravity of the offense been any greater or less, than it would have been if B had made those remarks? Suppose, again, the prisoner had answered that A made the remarks, and A had been called and questioned, and said that lie got the idea from B; and B had been sent for, and testified that he got the matter from C, and so on ad infinitum; how much would this have added to or subtracted from the offense charged against MacKnight, and the punishment due therefor? It is not unlikely comments were made in reference to the application for change of venue, mentioned in the article. Parties on one side of the motion were insisting that the people of Silver Bow County, for various reasons, had become biased or prepossessed with one view of the contest. It was also suggested, and attempted to be shown, that the judge of the lower court was biased and prejudiced. The motion was brought before the Supreme Court on appeal, and these propositions as to bias and prejudice were uttered, published, commented upon, and considered. Now, are the parties who entertained and expressed the views that bias and prejudice existed in peril of the jail of Silver Bow County ? The main charge preferred against the prisoner is not within the acts defined by statute as contempts, nor is it within the general definitions of that offense, as found in the authorities upon this subject. The principal ingredient of the definition of “contempt” is disregard of the authority of the court. It is provided in our statute that certain acts or omissions described “ are contempt of the authority of the court: First. Disorderly, contemptuous, or insolent behavior towards the judge while holding court, tending to interrupt the due course of a trial or other judicial proceeding. Second. A breach of peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of the trial or other judicial proceeding.” (Code Civ. Proc. § 584.) Definitions taken from works of authority are as follows:— “ A wilful disregard or disobedience of a public authority.” (Bouvier’s Daw Diet.) “Disrespect; wilful disregard of the authority of a court or legislature.” (Anderson’s Law Diet.) “ Contempt is disorderly or insolent language or behavior in the presence of a legislature or judicial body, tending to disturb its proceedings, or impair the respect due to its authority; or a disobedience to the rules or orders of such a body, which interferes with the due administration of law.” (3 Am. & Eng, Encycl. of Law, 777.) Mr. Bishop, in his work on Criminal Law, introduces this subject with the following declaration: “No court of justice could accomplish the objects of its existence unless it could in some way preserve order and enforce its mandates and decrees. The common method of doing these things is by process of contempt.” (2 Bishop on Criminal Law, § 243.) Counsel cites, in support of the proceedings, the law as laid down by Blackstone. This eminent commentator on the laws of England gave his works to the world many years before the adoption of the Constitution of the United States, and at a time when a censorship of the press was thought to be a proper office of government. It is well known that in his time the English courts assumed a much wider scope on the subject of applying the process of contempt to restrict the freedom of speech and publication than in more recent times. And yet this proceeding cannot be supported by citations from Blackstone, without culling from his text the most general observations. The case of Territory v. Murray, 7 Mont. 251, is cited in support of this proceeding. That case, we think, has no application to the case at bar. The offender in that case was a suitor before the court. It appears that he concocted a scheme, and invented a fictitious set of facts, in relation to the very case under adjudication, in which he was a party. He caused to be telegraphed a statement of the fictitious and alleged events, which he had conjured into apparent existence, and caused the same to be published so as to get it communicated to the attention of the court; and it was clear that he did all this to cause an impression upon the mind of the court which he thought would work to his benefit in the litigation wherein he was interested. That case, it seems to us, ought not to have misled either court or counsel in the case at bar. The publication in the Mwrray Case, supra, was put out of consideration, the court observing that the offender had used the press to communicate to the court the fictitious matter which he had concocted, and which he hoped would have an influence. The court passed by the publisher, and turned its attention to the offending suitor. A review of authorities shows clearly that a suitor is held to a stricter accountability for his conduct than parties in no way connected with the litigation. It is not to be understood that this court approves the propriety of publishing comments of the nature contained in the article in question. "We are passing upon a question of law, as between the rights of a citizen and the power of a court to summarily imprison upon a charge of contempt. It is from this point of view that we are considering the publication, and the proposition to punish therefor. The article in question contains expressions concerning a state of influence and feeling. As before observed, the object of the power to.punish by process of contempt is to enforce obedience and respect to the authority of the court. For this purpose the power is given, and to this purpose the power is limited. It is not to enforce sentimental respect. That must be gained by other means, and will flow ungrudgingly from a generous and law-abiding people to that court where law and justice is administered with able, fearless, and impartial fidelity. The power to punish for contempt being given to preserve proper order within the precincts of the court; to silence and remove those disturbing elements which interfere with or interrupt the due and orderly progress of judicial business; to disarm and punish disobedience or resistance of the lawful authority of the court, — we scan the acts charged and admitted in the case at bar, to see wherein they run counter to this authority of the court. It is clear that the publication of the views expressed as to bias in no way interrupts the orderly progress of the said court in its adjudications; at least, no such effect, had been suggested, and it does not appear in the nature of the comments. The authority of the court is bowed to with unhesitating submission, even by the party bold enough to publish the comments in question. Sometimes courts have interposed to prevent publication of matter in reference to the merits of cases pending, and which seems to have a prejudicial influence thereon. But in the case at bar nothing was said in relation to the merits of the case, or the litigants, tending to prejudice. We do not understand that the suggestion that the judge of a certain court, or the people of a certain place, are biased in their view of a certain case in litigation, would make them biased or more biased. Conceding that would be near conceding the charge of bias already. If the assertion that there is a bias subjects to punishment for contempt, then how would those who make application for a change of venue on that ground, and those who asserted bias and the facts which support the assertion, escape? Such is not the law, because that character of assertion does not interfere with the authority of the court. It follows, then, that this character of assertion stands in that broad field covered by constitutional sanction of the freedom of speech and press. What was the purpose of this constitutional guaranty? Was it to grant freedom to ordinary speech and publication which could excite the resentment of no one? If that was the purpose, then it would be as needful to put into the Constitution a provision that people may freely walk the streets quietly and peaceably. The history of the struggle for supremacy of certain principles and ideas shows the purpose of the law, when such principles or ideas are clothed with that force and dignity, and inscribed upon our Constitution or statute. And so the history of the struggle for the establishment of the principle of freedom of speech and press shows that it was not ordinary talk and publication, which was to be disenthralled from censorship, suppression, and punishment. It was in a large degree a species of talk and publication which had been found distasteful to governmental powers and agencies. The people of this State did not omit that guaranty of freedom of speech and publication from their constitution, with the ordinary responsibility attached to the misuse thereof. (Art. iii. § 10.) It is ordered that the prisoner be discharged. Blake, C. J., and De Witt, J., concur.

Harwood, J, Action to determine the several rights of plaintiff and forty persons named as defendants in and to the waters of “ Race Track Creek,” a natural stream of water situate in Deer Lodge County, tributary to Deer Lodge River. The action was tried by the court sitting without a jury, and by findings made in writing, and judgment accordingly, the court found and determined the respective rights of all the parties to the action in and to the waters of said creek, and also the relation of such water rights to one another as to priority. All parties having set up their respective claims to certain portions of the water of said creek by pleading, a stipulation was made by them through their counsel to the effect that at the trial each party, whether plaintiff or defendant, should be deemed to have denied all allegations of the pleadings of every other party to the action claiming right to any of the waters of said creek, and that each party might introduce evidence iSto show non-appropriation, non-user, or abandonment by the plaintiff or any of the defendants.” The questions brought here for review by this appeal arose between certain defendants. The court found and adjudged that defendants C. K. Hardenbrook and R. S. Kelley were entitled to four hundred inches of the waters of said creek, by reason of an appropriation thereof made in the year 1869, which finding and judgment made the water right of defendants Hardenbrook and Kelley the fourth in the order of appropriations. From this portion of the judgment certain other defendants, whose rights were adjudged to be subsequent to that of Hardenbrook and Kelley, have appealed. The findings of fact by the court in relation to the water rights of defendants Hardenbrook and Kelley, upon which the court pronounced judgment in their favor, are as follows: a Findings for the defendants R. S. Kelley and C. K. Harden-brook. The court finds as facts that the Miners’ Ditch was commenced to be surveyed in the latter part of the year 1869; that it was built and owned by the owners of certain placer mines, situated in two or three different gulches, from ten to twelve miles from the head of the ditch; that water was turned into the ditch as far as Prairie and Spring gulches in the summer of 1871 and into Antelope gulch a year later; that the ownership of the ditch was divided into twenty-four parts, each part being represented by a share; that at the time of the commencement of this action the defendant, R. S. Kelley, was the owner of three shares and the defendant, C. K. Hardenbrook, was the owner of eight shares; that none of the waters of the Miners’ Ditch have been used on placer mining ground since the year 1886; that the Miners’ Ditch has been abandoned since the year 1886; that waters claimed as belonging to the Miners’ Ditch were turned into Race Track Creek in the year 1886, and were recaptured by the defendant, C. K. Hardenbrook, and used for the purpose of irrigating land belonging to him, to the extent of four hundred inches; that the remaining amount of water belonging to the Miners’ Ditch has been abandoned by the owners thereof from and after the year 1886; that the ditches owned or used by the defendant, C. K. Hardenbrook, are of sufficient capacity to carry said amount of four hundred inches.” The point of contention on the part of appellants is that upon said facts found it was error to adjudge that the appropriation of four hundred inches of water from said creek, in favor of defendants Hardenbrook and Kelley, dated from the appropriation thereof through said Miners’ Ditch for mining purposes at the time set forth in the findings. They maintain that tho owners of the Miners’ Ditch were tenants in common of the water right acquired by the appropriation and use of the water taken thereby, and that when the use of said waters through said ditch for mining purposes ceased, and said ditch was abandoned in 1886, that was an abandonment of the water right which had been gained and held by said tenants in common. On behalf of respondent it is admitted that the appropriators of the water of said creek, used for mining purposes through said Miners’ Ditch, were tenants in common of the water right acquired thereby, and upon that relation, of such owners, it is maintained that any of the tenants in common could keep alive said water right, or any part of it, by continued lawful use thereof; and that such use, as well as the place of use, could be changed from one purpose or place to another, subject only to complaint of other tenants in common, whose rights are infringed thereby; and that no such complaint is under consideration in this case. The several parties who owned the Miners’ Ditch, and acquired the water right by appropriation and use of the waters <of said creek, through said ditch, were undoubtedly tenants in common of such water right. (Bradley v. Harkness, 26 Cal. 69; McConnell v. Denver, 35 Cal. 369; 95 Am. Dec. 107; Reed v. Spicer, 27 Cal. 58; Freeman on Cotenancy and Partition, § 88.) But the use of the water for mining purposes through said Miners’ Ditch ceased in 1886, and that ditch has been abandoned since that year; and, as said in the finding, the “ waters claimed as belonging to the Miners’ Ditch were turned into Pace Track Creek in the year 1886, and were recaptured by defendant Hardenbrook, and used for the purpose of irrigating land belonging to him, to the extent of four hundred inches.” Was this a lawful exercise of the rights of a tenant in common of said water as against all, except other tenants in common, who may not have consented to such change of use? We think this proposition must be answered in the affirmative, and such holding affirms the judgment of the court below. We cannot draw from the finding of the court the conclusion which appellants’ counsel contends for, namely, that the abandonment of the Miners’ Ditch was also an abandonment of the entire water right acquired by the appropriation of water through said ditch. Abandonment is a matter of fact to be found by considering the act and intention of the party alleged to have abandoned a thing. (1 Am. & Eng. Encycl. of Law, 1, and cases cited.) By referring to the findings of the court it will be seen that it was found, not only that the waters belonging to the Miners’ Ditch were turned back into Pace Track Creek, and were recaptured by Hardenbrook to the exte^ of four hundred anches, but that “the remaining amount of water belonging to the Miners’ Ditch has been abandoned by the owners thereof from the year 1886.” Now, this clearly shows that the court found, not that the whole of the water used through the Miners7 Ditch was abandoned, but that all in excess of four hundred inches was abandoned. That one tenant in common may preserve the entire estate or right held in common is a proposition so well settled it is unnecessary to cite authorities in support thereof. In this the tenant in common is only preserving his own, as his right partakes of the whole. It would seem to follow from analogy that one tenant in common may, of course, preserve part of the common estate or right. In the peculiar case of water rights it would appear to be so with more force, because the right can only be preserved by both the use, and the necessity for the use, for some beneficial purpose; so that a tenant in common, in preserving this right, can only preserve it to such extent as he can use it. As regards the change in the use of the water right from one lawful and beneficial purpose to another, we think the holding in the case of Woolman v. Garringer, 1 Mont. 535, to the effect that such change is lawful, covers this point of contention in the case at bar. The same rule prevails in California. (Kidd v. Laird, 15 Cal. 163; 76 Am. Dec. 472; Davis v. Gale, 32 Cal. 27; 91 Am. Dec. 554; Higgins v. Barker, 42 Cal. 233; Junkans v. Bergin, 67 Cal. 267.) It is ordered that the judgment be affirmed. Affirmed„ Blake, C. J., and De Witt, J., concur.

Blake, C. J. The indictment alleges that the appellant Schultz, “on or about the fifteenth day of September, A. D. 1890, at the county of Silver Bow, in the State of Montana, wilfully, falsely, and unlawfully did assume upon himself to execute, exercise, and occupy the art, faculty, and science of a physician and surgeon, and then and there unlawfully did practice medicine, and did give, administer, apply, and prescribe medicine to one J. P. Jones (whose full Christian name is to the grand jury unknown), and to divers other persons (whose names are to the said grand jury unknown) afflicted with various infirmities and diseases, he, the said Carl J. Schultz, not having a certificate from the board of medical examiners of the State of Montana, or any member thereof, admitting, allowing, and qualifying him to then and there practice medicine, or any other legal right or authority so to do, contrary to the statute in such case made and provided.” The jury returned a verdict of guilty, and judgment was entered thereon. It appeared during the trial that the board oí medical examiners issued October 4, 1889, to said Schultz, a certificate to practice medicine and surgery. The following proceedings were had April 1, 1890, by the board: “In the matter of Dr. Carl J. Schultz, of Butte, it appearing that he has violated his word of honor to abstain from former unprofessional conduct, in that he publicly advertised to cure or treat disease, injury, or deformity in such manner as to deceive the public, his certificate is declared revoked, and the secretary instructed to notify him of this action by the board.” The secretary of the board after-wards sent to Schultz this letter: — “Great Falls, April 9, 1890. “Dr. Carl J. Schultz, Butte, Montana — Dear Sir: I am instructed by the board of medical examiners of Montana to say that, it appearing from evidence before them that you have violated your pledge to abstain from unprofessional methods heretofore alleged against you, your certificate authorizing you to practice medicine and surgery in Montana is revoked. “Very respectfully, your obedient servant, “Ernest Crutcher, Secretary.” At a regular session of the board, which was held prior to these proceedings, this resolution was adopted: “Resolved, that it is the sense of this board that advertising in any newspaper or journal, promising to cure any particular injury or disease of the body of any kind, for any sum of money, or any other consideration, is unprofessional conduct, and shall be sufficient cause for the revocation of any certificate granted.” No notice of any charge of unprofessional or dishonorable conduct was ever given to Schultz by any officer of the medical board or otherwise. The court below instructed the jury that this fact was immaterial, and that the action of the board in that matter was valid, and could not be questioned by them. The court also refused to allow the defendant to prove that he had appealed from the decision of the board in revoking' his certificate, and that the appeal was then pending in the District Court of the proper county. The statute relating to this subject provides that the board may “ revoke a certificate for unprofessional, dishonorable, or immoral conduct;” and that, in all cases of revocation, “the applicant, if he or she feels aggrieved, may appeal to the District Court of the county where such applicant may have applied for a certificate.” It was assumed by the court below that the board possessed the power, under these clauses, of revoking the certificate of appellant without a notice of any charge preferred against him, or a hearing thereon. All the rulings conform to this view of the law, which is clearly erroneous, and subverts the most precious rights of the citizen. The principles which govern the disbarment of attorneys are analogous. In Ex parte Heyfron, 7 How. (Miss.) 127, the court held that it is error to strike an attorney from the roll without giving him notice of the proceedings, and said: “It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard.” This case was approved in People v. Turner, 1 Cal. 150; 52 Am. Dec. 295, and the court, by Mr. Justice Bennett, refers to the “ power inherent in every court, which has the authority to admit attorneys to practice, of striking their names from the rolls, or as the order expresses it, of expelling them from the bar, whenever they are guilty of such conduct, either in or out of their profession, as shows them to be unfit persons to practice it.” The learned judge then proceeded: “But where an attorney is proceeded against with this-object, he is entitled to have notice of the charges against him,, and an opportunity to make his defense. This is not only tho dictate of natural justice, and the uniform practice in such cases; but it has been carried into an express adjudication in Ex parte Heyfron, 7 How. (Miss.) 127. In the case at bar, no notice-of the charges upon which the order was made was given; no opportunity for explanation, apology, or defense was afforded; the judgment of the court was ex parte, and condemned the defendants without a hearing. It is barely necessary to add that a judgment thus rendered, partaking so strongly of the nature of a criminal proceeding, and so serious in its consequences, cannot be supported.....An attorney, by his admission as such, acquires rights of which he cannot be deprived, at the discretion of a court, any more than a physician of the practice of his profession, a mechanic of the exercise of his trade, or a merchant of the pursuit of his commercial avocations.” (See, also, Fletcher v. Daingerfield, 20 Cal. 427; Ex parte Garland, 4 Wall. 378; Ex parte Bradley, 7 Wall. 364; Ex parte Robinson, 19 Wall. 512.) In the last case Mr. Justice Field for the court said: “Before a judgment disbarring an attorney is rendered, he should have notice of the grounds of complaint against him, and ample opportunity of explanation and defense. This is a rule of natural justice, and should be equally followed when proceedings are taken to deprive him of his right to practice his profession, as when they are taken to reach his real or personal property. And such has been the general, if not the uniform practice of the courts of this country, and of England. There may be cases undoubtedly of such gross and outrageous conduct in open court on the part of the attorney as to justify very summary proceedings for his suspension or removal from office, but even then he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance, no one would be safe from oppression, wherever power may be lodged.” The case of People v. McCoy, 125 Ill. 289, is on all fours with that at bar, and the court construed a similar statute. We quote from the opinion of Mr. Justice Scott: “Treating the record of the board, in the matter of revoking the certificate that had been issued to defendant, as having the force of a proceeding in its nature judicial on the part of the board in a case Avhere it had jurisdiction of the subject-matter to be investigated, yet the present record is fatally defective, for the reason it is made to appear defendant had no notice of the proceedings proposed to be taken against him. The prosecution put defendant on the stand, and made him their own Avitness, and he distinctly stated, at their instance, that the notice found in the record was never in fact served upon him. The affidavit of service is not sufficient to overcome his testimony in that respect. It is contrary to the analogies of the laAV that a proceeding, in its nature judicial, should be obligatory and conclusive upon a person not a party thereto; otherwise a party might be deprived of important rights, with no opportunity to defend against wrongful accusations. Whether the right to practice law or medicine is property, in the technical sense, it is a valuable franchise, and one of which a person ought not to be deprived, without being offered an opportunity, by timely notice, to defend it.” The case of State v. State Medical Ex. Board, 32 Minn. 324; 50 Am. Rep. 575, is to the same effect. The court by Mr. Justice Dickinson said: “ It is so opposed to the principles of the common law that any fact affecting the rights of an individual shall be investigated and determined ex parte, and without opportunity being afforded to the party to be affected thereby to be heard (4 Blackst. Com. 282, 283; State v. Bryce, 7 Ohio, pt. 2, p. 82; Murdock v. Phillips' Academy, 12 Pick. 244), that this act shall not be construed as contemplating such a proceeding, unless that purpose is expressed in the plainest terms. While the act does not prescribe the manner in which the proceedings for the determination of the matters referred to in section 9 shall be conducted, there is nothing to indicate that it was intended that such investigations and the determination of the fact should be made ex parte, or without reasonable opportunity given to the party interested to be heard.” We are satisfied that the legislative assembly did not intend to clothe the medical board of the State with the arbitrary power to revoke the certificate of a physician, without a reasonable notice of the charge against him, and the time and place of the trial thereof. The statute, by its mere silence prescribing the procedure, cannot be so construed. The decision of the board in this matter is not final, and upon an appeal the courts may declare null and void its proceedings. No prosecution of this character can be maintained under these circumstances, and the appellant should have been allowed to prove that he had appealed from the decision of the board in revoking his certificate, and that the appeal was pending in the appropriate tribunal. The court below should have instructed the jury that the certificate which had been issued to the appellant had not been revoked, and was in full force. It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to grant the motion for a new trial. Reversed. Harwood, J., and De Witt, J., concur.

De Witt, J. As observed in the statement of the case, no point is now made upon any alleged insufficiency of the evidence to justify the verdict. The complaint of the appellants is that, under the issues and the evidence, the instruction of the court as to fraud was error. It is not suggested anywhere in the case that any fraud was attempted upon creditors of the defendants, nor upon creditors of the plaintiffs, nor upon any one who is in any way connected with this contention, either of record or in interest. If it is attempted to be construed from the evidence that any fraud was contemplated against any one, the supposititious victim was the supposititious creditor of W. A. Boyce, a third person. Let it be noticed that the existence of a fraud was invoked against the defendants. Plaintiffs did not plead anything of this sort, and its existence they vigorously denied in their evidence. Defendants did not offer to prove any such facts in defense, as the instruction suggests. And Casey denies in terms that any fraud or wrong against the creditors of Boyce was intended or committed. Of course, such denial would be of small moment if his acts belied his words, however solemn they might be; and the matter of fraud was properly a subject of inquiry. But regard Casey’s acts. Bemember, in the first place, that plaintiff Purtle, to whom, and not to the defendants, the objectionable instruction would be a benefit, denies that he gave as a reason of his desiring to bill the lumber to Casey that he wished to avoid attaching creditors of Boyce. Now, Casey testifies that Purtle did make this suggestion as to the Montana Improvement Company, a supposed creditor of Boyce. Upou the Montana Improvement Company being mentioned, Casey declined to make the arrangement, which he says Purtle proposed. Casey said that if he were garnished under those circumstances he would answer the facts. He would have nothing to do with having the lumber billed to him until he sent for Boyce, and ascertained from him that it did not appear that the Montana Improvement Company was a creditor of Boyce. No other alleged creditor of Boyce was mentioned in this connection. Having taken all these pains, having ascertained all these facts, on this understanding of the situation, Casey consented that plaintiffs might ship the lumber in his name. This testimony of Casey stands wholly undenied. Such conduct does not look like contemplated or consummated fraud. But respondents may say, if this transaction was not a fraud, why was the lumber billed to Casey? The answer is found in their own mouths. Because Casey and Largey were the purchasers of the lumber, as plaintiffs allege and testify and seek to establish. If that be true, the phantom of fraud dissolves before the light of plaintiffs’ own pleading and testimony. On the other hand, if it be true, as defendants allege and testify, that they were not the purchasers, but allowed plaintiffs, at their own request, to ship the lumber in the name of Casey, and there were no threatening creditors of Boyce of whom defendants had any knowledge in this connection; that they made diligent inquiry upon that point, and found that the only concern supposed to be a creditor did not appear to be such, and Casey said to Purtle that he would answer the facts upon a garnishment, — it occurs to us that the fraud conjured up in this case is a decidedly unsubstantial fabric. The issue in the case was squarely made. It was an allegation of sale and delivery on one side and a denial on the other. The evidence was as squarely contradictory as the issue. The plaintiffs did not plead or seek to prove or rely upon any fraud. The defendants repudiated its suggestion, and their testimony as to their acts did not tend to fix upon them any fraud contemplated or enacted. The instruction of the court complained of was severely adverse to the defendants. It tended to prejudice them with the jury. It was unauthorized by the evidence, and for that reason the judgment is reversed and the cause remanded. Reversed. Blake, C. J., and Harwood, J., concur.

Blake, C. J. This is an appeal from an order overruling the motion for a new trial and the judgment. The transcript does not contain a specification of errors or bill of exceptions, and the action of the court below which is complained of relates solely to a motion for a new trial and cannot be reviewed. The practice of this court has been uniform upon the subject. (Taylor v. Holter, 2 Mont. 476; Bass v. Buker, 6 Mont. 442; Raymond v. Thexton, 7 Mont. 299, and eases cited.) It is therefore ordered and adjudged that the appeal be dismissed without prejudice. Dismissed, Harwood, J., and De Witt, J., concur.

De Witt, J. If any defense or counter-claim is set up in the answer, the demurrer thereto must be overruled. We need not inquire what would be the value of the matter set up in defendants’ pleading as a legal defense to the note; but, looking for an equitable defense to a legal action, and having regard to the facts pleaded, we will ascertain whether defendants allege sufficient to grant them relief. They certainly allege that the partnership is still in existence. They say that the business, not the partnership, has ceased. But the allegation is positive that the partnership is not dissolved, and they pray for a dissolution, settlement, and accounting, and that they have the benefit of such accounting in the result as an offset against the note sued upon. They show that neither settlement, dissolution, nor accounting has been had. They plead that the note grew out of the partnership business; that defendants owe the plaintiff some sum; and that plaintiff owes the partnership or the defendants something for money, property, and effects put into the business, and all connected Avith the same transactions in which the note in question was given. On demurrer, of course, the allegations are taken as true. If it can be gleaned from the answer that any defense or counter-claim is set up Avhich the court can entertain, the demurrer must fall. Viewing sections 1 and 2 of the answer in their entirety, we incline to the opinion that sufficient facts are alleged to entitle defendants to an accounting; and if such indebtedness, in money, property, and effects furnished, exists as defendants allege, it is a proper matter of defense. The third section of the ansAver is a cross-complaint, praying for a reformation of the mortgage. In order that a written instrument may be reformed in equity for mistake, it must appear that the parties agreed upon a certain contract; that they executed a contract, the one sought to be reformed; that the contract executed was not the one agreed upon; that the variance betAveen the contract agreed upon and the one executed occurred by mistake; in Avhat the mistake consisted; and that the mistake was mutual. As the matter at bar is now before this court, the facts are all admitted by the demurrer. It appears to us that the defendants allege and the plaintiff admits that the parties agreed that the mortgage should not be foreclosable on default in the annual interest; that they intended that the written instrument should express this agreement ; that the mortgage by mistake contained a provision making it subject to foreclosure on non-payment of annual interest; and that this mistake was mutual. These allegations seem, under the authorities, to be sufficient to sustain a pleading for reformation. (Boone on Code Pleading, § 170, and cases cited; 2 Estee’s Pleading and Practice, 2804, 2805, and cases; Story’s Equity Jurisprudence, ch. 5, “Mistake”; Chancellor Kent in Gillespie v. Moon, 2 Johns. Ch. 585; Barton v. Sachett, 3 How. Pr. 358; Wemple v. Stewart, 22 Barb. 154; 2 Pomeroy’s Equity Jurisprudence, § 839, et seq.) The judgment of the District Court is reversed and the case remanded, with directions to that court to overrule the demurrer. Reversed. Blake, C. J„ and Habwood, J., concur.

Blake, C. J. McMillan applied to the court below for a writ of mandate to command its clerk to issue a certificate of Ms mileage as a witness in accordance with his affidavit. It is shown by the record that the appellant was a resident, in February, 1891, of the town of Glasgow, in the county of Dawson, in this State; that he was subpoenaed to appear before the grand jury of said county at Glendive, the county seat, as a witness; that he traveled from Glasgow over the line of the Great Northern Railroad to Helena, and thence over the Northern Pacific Railroad to Glendive, a distance of 834 miles; that there was no direct railroad transportation between the said towns; that the most direct means of travel was by railroad from Glasgow to Buford, a distance of 138 miles, and thence, by some vehicle drawn by horses, a distance of 73 miles; that the latter route was inconvenient and unpleasant; that tl McMillan, on the ninth day of February, 1891, made his affidavit of attendance, and of the distance necessarily traveled as such witness, and filed the same with the clerk of said court,, whereupon he requested of said clerk a certificate showing the-distance as aforesaid traveled, and the amount to which said • witness was entitled for necessary travel, as provided by law, which the said clerk then and there refused to issue, and refused to allow the said witness for any further or greater distance traveled than 422 miles, which certificate the said witness, McMillan, refused to accept, on the ground that he claims to be entitled to mileage for the round trip by way of Helena, as set out in his affidavit, for the distance of 1,668 miles, amounting in the aggregate to $250.” The petition was denied by the court, and McMillan appealed. The decision of the legal questions involved in this proceeding depends upon the construction of the following statutes: “Witnesses in criminal cases before the grand . . . . jury .... shall be paid in the manner following: The county commissioners of each of the several counties shall furnish to the clerk of the District Court a printed book of stubs, for affidavit of mileage and time of service of ... . witnesses, with blank certificate attached bearing a'number corresponding to the stub in which to fill out the name of such .... witness, nature of service, and amount due therefor.” (Comp. Stats, div. 5, § 1081.) “Upon application of any such .... witness in attendance upon the District Court to the clerk of said court, for payment as ... . witness .... the clerk shall fill out said affidavit stub, giving the number of miles traveled bv said applicant, naming the starting point, the number of days service, with the sums due for each, and the total amount due for such mileage and service, which shall be sworn to by apld applicant, his certificate corresponding in number to the affidavit stub, and addressed to the county clerk, setting forth the name of the .... witness, the number oi miles traveled, with the sum due therefor, and the nature and number of days service, with the sum due therefor, and the total amount, which certificate shall be signed by said clerk; provided, that if the county commissioners of any county have established a table of distances between the several points of the county and the county seat, the county clerk shall furnish to the clerk of the District Court said official table of distances, and the certificate of mile age of ... . witnesses shall not exceed the distance established by said table of distances.” (Comp. Stats, div. 5, § 1082.) The county commissioners have not exercised this power. The affidavit of the relator,is that he “necessarily traveled” 1,668. miles via Helena. There was at the times referred to a “regular stage line,” which carried the United States mail from said Buford to Glendive. We are satisfied that the statement of the witness concerning the facts mentioned in the statute is not binding upon the clerk of the District Court, and that the respondent is empowered to insert in the affidavit stub the number of miles within the county for which the appellant is entitled to receive compensation. This authority can be limited by the board of county commissioners, which has the power to establish a table of distances, and the subject has not been left to the decision of the witness in any contiugency. The respondent, in the discharge of his duties, was required to issue a certificate to McMillan showing the number of miles between Glasgow and Glendive by the usual route, and the excess, within the meaning of the statute, was not “necessarily traveled” by the witness. It is therefore ordered and adjudged that the judgment be affirmed. Affirmed. Harwood, J., and De Witt, J., concur;

Harwood, J. The piece of land involved in controversy in in this action is claimed by appellant by virtue of a tunnel claim located and recorded about June 13, 1887, pursuant to the laws of the United States and of Montana, and called the “Jubilee Tunnel Claim”; and the same ground is claimed by respondent as part of a quartz lode mining claim location made December 31, 1887, and duly recorded as the “Prince Imperial Mining Claim.” Bespondent having commenced proceedings in the United States land office to obtain patent for said Prince Imperial Quartz Lode Mining Claim, including the ground in dispute, appellant filed in said land office an adverse claim, and commenced this action pursuant to the provisions of the statute of the United States in such cases to determine the controversy. As appears from the record, appellant, in making said tunnel claim, marked by stakes and monuments a claim three thousand feet in length along the line of the proposed tunnel-from the face thereof, by six hundred feet wide, and also marked on the surface the line of the proposed tunnel through the center, lengthwise, of said tunnel claim, and recorded said claim in compliance with the provisions of the statute of Montana in such cases. After said tunnel location was made, and work on said tunnel was commenced, respondent, by means of excavation at a point about two hundred feet north of the line of the proposed tunnel, and within three thousand feet from the face thereof, made discovery of a vein or lode bearing silver and other valuable metals, not appearing on the surface, and not known to exist prior to the location of the said tunnel site, and the commencing of the work on the said tunnel; and respondent made the location of the said Prince Imperial Quartz Lode Mining Claim on said lode, which claim is so located that it intersects and extends across the line of said proposed tunnel, laid out as aforesaid. By this action appellant sought to enjoin respondent from prosecuting said proceedings to obtain patent for so much of said Prince Imperial Claim as lies within the boundaries of said tunnel location. A jury was impaneled to aid the court in the trial of the issues; and, among other instructions, the court instructed the jury as follows: “ The jury are instructed that by reason of the construction placed upon the United States statutes governing tunnel rights by the Supreme Court of Montana in a prior case between the same parties, and by this court in the present case, the plaintiff has no standing in court in this suit in the matter in controversy, nor any cause of action against the defendant, and that, therefore, in no event can you find for the plaintiff The only question, therefore, for you to determine is whether or not the defendant is the owner of and entitled to the possession of the premises in controversy in this suit; that is to say, that portion of the Prince Imperial Claim which is described in the complaint. The question depends upon the validity of the defendant’s location as made.” The court then proceeded to instruct the jury what acts were necessary to be done by defendant in order to- make a valid location of a quartz lode mining claim under the laws of the United States and of Montana. The jury returned a general verdict in favor of the defendant. But, notwithstanding said instructions, the court, upon request of appellant, submitted to the jury special questions of fact for the jury to find upon, and thereon the jury found the following facts: That plaintiff, on or about the 13th of June, 1887, marked the boundaries of what is claimed as the “Jubilee Tunnel location,” so that the same could be readily traced; that said tunnel claim was recorded by plaintiff, as required by law, specifying the place of commencement of the tunnel, the course thereof, and the name of the party interested; that within one year from the time of the location of the said tunnel claim plaintiff ran said tunnel to the depth or distance of one hundred feet; that the location of the Prince Imperial Mining Claim was made by defendant after the location and record of the Jubilee Tunnel right or claim was made; that the vein upon which defendant made the location of the Prince Imperial Lode Claim crosses the line of the Jubilee Tunnel in its strike or onward course; that no other vein than that upon which the discovery of the Prince Imperial Claim was located has been discovered within the limits of the said claim at the time of the location of the Jubilee Tunnel Claim. The jury also found in their fifth finding that the vein upon which the defendant made the location of the Prince Imperial Lode Claim was known to exist when the location of the Jubilee Tunnel Claim was made. But the court set aside that finding, and found instead that “the vein upon which the Prince Imperial Lode location was made, and which is designated as the discovery of the ‘Prince Imperial,’ was not discovered and was not known to exist before the location of the Jubilee Tunnel Claim, but was discovered after the location of the Jubilee Tunnel, and after work had been begun thereon by the plaintiff.” No exception is made to this action by the court, as the fact, as found by the court, is admitted by the pleadings, and there appears to he no dispute in the evidence as to the fact being as found by the court. All other special findings of the jury the court approved. It is not questioned in this appeal that the tunnel claimant had complied with the requirements of law in the prosecution of the work on said tunnel with reasonable diligence. It appears from the evidence, without dispute, that the tunnel had at the time of the trial been run a distance of more than five hundred feet; nor, on the other hand, is there any question raised here as to the claimant of the Prince Imperial Lode Claim having complied with the law in respect to such location. The court, however, conformably to the construction of the law as laid down in said instruction, rendered judgment on the general verdict in favor of the defendant. This case, then, as suggested by counsel, presents questions of law which will be solved by a construction of the statutes relating to the subject. In other words, when it is determined what rights the statute vested in appellant by virtue of the location and prosecution of work on said tunnel, in compliance with the requirements of the statute, the question in this case will be practically solved; because the claims of respondent subsequently acquired, in so 'far as the same, if pursued, would divest appellant of such rights as the statute vested in it, must be at least held subject to appellant’s rights. Let us, then, set these statutes before us for consideration. The statute of the United States upon this subject is found in section 2323 of the Bevised Statutes, and reads as follows: “Where a tunnel is run for the development of a vein or lode, or for the discovery <of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the light to all undiscovered veins on the line of such tunnel.” The statute of Montana relating to tunnel claims, enacted in 1872, is contained in five sections of the fifth division of the Compiled Statutes, as follows: “Sec. 1487. That, if any person or persons shall locate a tunnel claim for the purpose of discovery and mining, he or she shall record the same, specifying; the place of commencement and the course thereof, with the names of the parties interested therein. Sec. 1488. That any person or persons so pre-empting any tunnel have the exclusive right to three hundred feet on each side from the center of said tunnel on any and all lodes that he or they may discover in the course of said tunnel; provided, that none of said lodes, leads, or ledges were discovered and recorded previous to the preemption of said tunnel, in accordance with an act passed by the legislative assembly of the Territory of Montana, entitled ‘ An act relating to the discovery of gold and silver quartz leads, lodes, or ledges, and the manner of their location/ Sec. 1489» That any person or persons who may work any tunnel or tunnels shall have the right of way through any and all lodes, leads, or ledges that may lie in the course of any of said tunnels j provided, that all quartz ore or mineral taken from said tunnel from leads, lodes, or ledges belonging to parties other than the said tunnel company shall be deposited on the surface by said tunnel company, and belong to the original occupants or owners of said lead, lode, or ledge. Sec. 1490. That in order to hold any tunnel claims to the use of themselves, their heirs and assigns, they shall, before the expiration of one year from the date of pre-emption, run to the distance or depth of one hundred feet on said tunnel. Sec. 1491. That any person or persons who shall pre-empt any tunnel claim shall be entitled to three hundred feet on each side of the mouth of said tunnel for the purpose of a quartz or ore yard.” It has not been contended that the statute of Montana, enacted as supplementary to the law of the United States just quoted, is in any way in conflict therewith. All these statutes appear, upon reading, to be plain and explicit, and without difficulty in the construction or application thereof. But it is when applied to the complex geological conditions, shown by mining operations, that difficulty arises. What does section 2323 of the United States statute guarantee to the party who runs a tunnel for the development or discovery of mines? This statute declares: First, that such party shall have “the right of possession of all veins or lodes within three thousand feet from the face of the tunnel, on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface;” secondly, that “locations on the line of such tunnel of veins or lodes, not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid;” thirdly, that “a failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel.” No language can be found in which to state these propositions more clearly and plainly than that used by the statute. But in applying the statute it has been said, in a case which arose in Colorado (Corning Tunnel etc. Co. v. Pell, 4 Colo. 508), that the “line of the tunnel,” as used in the statute, “designates a width marked by the exterior lines or sides of the tunnel. A greater width than this it cannot be fairly said to imply. The line of the tunnel being the width of the tunnel, the location (in the sense that it is here used of the initial point of location or discovery shaft) of the Slide Lode was not on the line of appellant’s tunnel.” Following that definition of the “line of the tunnel,” it was held that the tunnel claimant had no rights which could sustain an adverse claim against the party applying for a patent to the Slide mining location, which crossed “the center line of the tunnel site nearly at right angles,” the discovery shaft of said location being “near, but not on, the center line, being within about fifty-five feet therefrom.” The definition of the “ line of the tunnel ” laid down in that case was followed in a case between the parties at bar, in another action, which came before the predecessor of this court, in respect to the same mining locations now under consideration (Hope Min. Co. v. Brown, 7 Mont. 550); although the construction of the statute, as held by the Colorado case, does not appear to be approved to its full extent in the case last cited, for it was said, in speaking of the rights of the tunnel claimant: “But he [the tunnel claimant] has an additional right not accorded to tbe surface discoverer. As before stated, the object of the law is to protect those explorers in the possession of the lode or vein discovered by means of their tunnel, and therefore the law-maker has seen fit to announce that if, after the commencement of a tunnel and pending the progress of its construction, a third person should locate a vein or lode on the line of the tunnel, .... the'location would be invalid. On the other hand, if the veins or lodes so located by third persons exist on either side of the tunnel, but which neither cross it nor are discovered in the tunnel, they will not belong to the tunnel claimant, but to the person discovering and locating them.” And the court further says: “What we here decide is that third persons have a right to locate any veins or lodes within a distance of three hundred feet on either side of the line of the tunnel, but not on the ‘line of the tunnel/ which we hold means a line the width of the sides of the tunnel. Of course, any locations so made are at the risk of the locators, for upon the discovery of the vein or lode in the tunnel, all locations made subsequent to the commencement of the tunnel become invalid, if they are within three hundred feet on either side of the vein or lode, and within fifteen hundred feet as located along the vein or lode discovered.” From this language it would seem that the court in that case, in considering the rights of these claimants, did not entertain the view, as contended by respondent, that the locator of the lode claim, in the locality mentioned, could acquire the absolute and unconditional title thereto, while the tunnel claimant was prosecuting his tunnel according to law, until it was demonstrated that such lode would not be discovered in the tunnel. This conditional or contingent claim, the court said, might be made and held, subject to be determined against the locator by the discovery of the same vein or lode in the tunnel, and the location thereof by the tunnel claimant; and subject, also, to be determined in favor of the locator by the failure of the tunnel claimant to discover such vein in the tunnel, or by the abandonment of the tunnel scheme. If, however, the claimant of such lode, located within the limits which might be covered by the location of a vein or lode which may be discovered in the tunnel, may procure a grant thereof by patent from the government, or may be allowed to mine out and carry away the substance thereof, before the tunnel claimant can reach such vein, if it does lie in the line of his tunnel, what protection or encouragement is there offered to the tunnel claimant who. drives his tunnel into the heart of the mountain? Or what force is given the statute which provides that “locations on the line of such tunnel of veins or lodes, not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid?” In other words, by way of illustration, suppose a party locates a tunnel site in some portion of the mining country where lodes or veins are supposed to exist, but do not appear on the surface, and are not known to exist, and prosecutes his tunnel with reasonable diligence, and as required by law, until he has penetrated half the distance within which the veins or lodes discovered in his tunnel are reserved for him. Then suppose others come upon the ground, on either side oí the line of the tunnel, as defined in the Colorado case, swpra, and barely keeping outside of the exterior sides of the tunnel excavation, by means of drifts, they discover a valuable lode which crosses the line of the tunnel, towards the latter end thereof, and the parties thus discovering such lode locate claims thereon commencing at a point on either side of the tunnel just outside of its exterior lines, and extending a distance of fifteen hundred feet in each direction from the line of the tunnel; and such parties are permitted to mine out the ore of such lode, and obtain patents for such locations, through the forms provided by law, and the tunnel claimant, applying to the courts to stay such proceedings, is informed that he has no rights which can be acted upon until he has discovered said vein or lode in his tunnel. And suppose parties, by means of drifts, are able to discover and locate, and acquire by patent, all veins or lodes which will be discovered in the tunnel; and under these conditions the tunnel claimant pursues the prosecution of his tunnel with due diligence, as required by law, in the faith that the law will give him what is promised in section 2323 of the Revised Statutes of the United States, and does finally reach and discover in his tunnel said lodes, which have been discovered, located, and patented since he commenced his tunnel, but before he reached them therein. Now, under these conditions, what will the tunnel claimant have as a reward for the expenditure of his labor and money? Why, he will have a section of vein matter the width of his tunnel, and the other portions of such veins, which the statute declares he may under such conditions locate and possess, to the same extent as if discovered from the surface, will have been patented to and in possession of others. However,, under the Colorado decision, it does not seem that the tunnel claimant would have so much of the vein as would lie within the sides of his tunnel, because even that would have been previously granted to the subsequent locator, by patent, with the approval of the court. In the case of Back v. Sierra Nevada Con. Min. Co. Idaho, Feb. 1888, 17 Pac. Rep. 73, which arose in Idaho, the conflict arising by the location of a mining claim was based upon a discovery made on the line of the proposed tunnel; but the location necessarily was not entirely on the line of the tunnel, and the court, making no distinction on the ground that the discovery-happened to be on the line of the proposed tunnel, held that the tunnel claimant’s rights were sufficient, although he had not discovered said lode in his tunnel, to bar defendant from proceeding to obtain a patent. In that case the court say: “ It seems evident from this enactment that Congress intended to withdraw from exploration for lodes not appearing on the surface so much of the public domain as lay upon the line of such tunnel, and reserve such for the benefit of the proprietor of the tunnel, so long as he prosecutes work thereon with reasonable diligence, and to give to him the right of possession for this purpose.” Why was it provided by statute that “locations on the line of such tunnel of veins or lodes, not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid?” It would not be of any practical benefit to the tunnel claimant to hold that such locations were invalid, only in so far as the same rests upon the plane occupied by the tunnel excavation; nor would that holding affect the locator of a mining claim on the line of the tunnel, because he would practically have remaining all he sought to take, and the proprietor of the tunnel, under that holding, would lose the location which the law guarantees to him in case he discovered the vein in his tunnel. The respondent in this action argues upon the construction given to the statute in the Colorado case, supra, that appellant, the tunnel claimant, has no right to any lode or vein, although in the line of the tunnel, until the same has been discovered in the tunnel. It is true he has no right to locate and acquire such lode in advance of discovery in the tunnel. But has he not an inchoate right in such veins, which right is kept alive by prosecution of work on the tunnel, according to law? This seems to be implied by the last clause of the statute, that et failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of the tunnel.” The fact that said non-action on the part of the tunnel claimant should constitute an abandonment shows that it was the intent of Congress to reserve such lodes from the commencement of the tunnel, while it was prosecuted according to law. The only question of difficulty in the application of the law is whether a party discovering a lode not appearing on the surface, and not previously known to exist, which lies in such position in relation to the tunnel that the same may be discovered therein, and taken by the tunnel claimant, can be restrained from acquiring such lode while the tunnel claimant is prosecuting his tunnel according to law. This difficulty lies in the fact that it cannot be definitely shown in advance either that the tunnel will or will not strike such lode. A lode lying near the line of the tunnel, with its strike or course at the surface extending along parallel with the line of the tunnel, may so dip in its downward course as to be in the range of the tunnel excavation. In the case at bar, however, it is shown that the strike of the lode in its course crosses the line of the tunnel, and the location made by respondent overlies the line of the tunnel. It seems to us that the intent of the statute is to provide for this condition in which the parties are placed, and reserves to the tunnel claimant the opportunity to demonstrate what veins or lodes may be discovered therein, before allowing such veins or lodes to be appropriated and taken by another. It is argued that it is against the policy of the law to allow tracts of the mining lands to be thus held in reserve,, before any mines are discovered therein. This argument is. sought to be supported by pointing to the other statutes allowing locations of mining claims to be made only on discovery of valuable deposits of precious metals therein. It may be answered, however, by the observation that the policy of the law also seems to aim at the encouragement of discovery and development of mines. And so, in order to encourage parties to undertake the more hazardous enterprise of driving tunnels in localities where lodes or veins do not appear on the surface, and are not known to exist — localities which might be otherwise allowed to lie unexplored — the law has provided a reservation not provided in cases of less hazardous and less expensive manner of prospecting. We hold that, upon the showing made, the respondent ought to be restrained from prosecuting his proceeding for a patent to the land described in plaintiff’s complaint, while appellant is prosecuting such tunnel as required by law, and until it is demonstrated that such vein or lode upon which respondent has made his location of the ground in controversy will not be discovered in said tunnel, or until such tunnel rights are abandoned by cessation to prosecute the tunnel as provided by law. In that view alone, it would seem to be a proper case upon which to order judgment for appellant; but inasmuch as the special findings were submitted at the instance of appellant, and might have been questioned by proceedings by respondent had the judgment gone otherwise, we think it a proper ease for reversal, and remand for new trial. It is therefore ordered that the judgment be reversed and the cause remanded, with directions to grant appellant’s motion for new trial, and that the proceedings therein conform to the views, herein expressed. Reversed. Blake, C. J., and De Witt, J., concur.

Blake, C. J. The affidavit of the applicant for this writ of mandate says that an act was passed March 7, 1891, by the legislative assembly of the State, which appropriated the sum of $44,648.19, out of all moneys in the treasury not otherwise appropriated, for the relief of persons named therein. That there was appropriated thereby for the Journal Publishing Company the sum of $7,909.93 for its claim for services. That the State auditor drew, March 28, 1891, the following warrant on the State treasurer, under said act: — “State oe Montana. “$7,909.93. Helena, Mont., Mch. 28, ’91. “ State Warrant. The treasurer will pay to Journal Publishing Company, or order, seven thousand nine hundred and nine and ninety-three one hundredths dollars, for printing done and! furnished to the Territory and State of Montana, paid from appropriation H. B. 141, per decision of Supreme Court,, rendered Mch. 28, ’91, out of any moneys in the treasury not otherwise appropriated. E. A. Kenney, State Auditor. “Presented for payment and registered-, 1891. “-, State Treasurer.” That this warrant was then delivered to the Journal Publishing Company, and by it presented to the said treasurer. That said warrant was then registered by the State treasurer, and not paid for want of funds. That there were, December 16, 1891, in the treasury of the State, funds sufficient to pay said warrant. That the affiant was then the owner and holder of said warrant; and that the said treasurer offered to pay the affiant the sum of $7,909.93, the principal sum in the warrant, and refused to pay any interest thereon. The prayer is for a writ of mandate commanding the said treasurer to pay the interest on said warrant from March 28, 1891, at the rate of six per cent per annum. The answer of said treasurer, among other averments, says that there has not been at any time any moneys in the said treasury which have been set apart or appropriated to pay the interest on said warrant; that respondent “denies that the last legislature set apart or appropriated any sum or sums of money to pay the interest on the warrant owned by this relator, or any other person, or at all”; that respondent “further says that said claim so presented by this relator for interest has not been presented to the State board of examiners of said State for approval, and has not been audited by said board.” The applicant filed a motion to strike from the answer the last two paragraphs, which are quoted at length. Disregarding some questions of practice which have been urged by counsel, we are called upon to consider and decide the leading and important inquiries: Is the relator entitled to recover interest upon his warrant without an express appropriation for this purpose by the legislative assembly? Should this claim for interest be submitted to the State board of examiners? It will be necessary and proper to review succinctly the legislation of the Territory of Montana upon this subject, and observe carefully tbe conditions which prevailed when the framers of the Constitution assembled. The first legislative assembly convened December 12,1864; and an act “to provide for the expenses of Montana Territory” was approved December 26, 1864. The eighth section was as follows: “ That all territorial warrants issued by the proper authorities of the Territory shall draw interest at the rate of ten per cent per annum, from and after the date of their presentation, until there are funds to pay said warrants in the hands of the treasurer.” These provisions were amended from time to time, but interest was always payable on territorial warrants which were not paid upon the date of their presentation: When the constitutional convention met in July, 1889, the statutes relating to this subject were in the following form: “That all territorial warrants issued by the proper authorities of this Territory after the first day of March, A. D. 1881, shall draw interest at the rate of six per centum per annum from and after the date of their presentation until there are funds to pay said warrants in the hands of the territorial treasurer.” (§ 1129, Comp. Stats, fifth div.) “The treasurer shall quarterly post upon the door of his office, and publish in some newspaper published at the seat of government, a list of all warrants that he may have funds in the treasury to redeem or pay, the payment of which has not been demanded during the quarter last, and from the date of such notice the interest on all such warrants thus posted shall cease; but the treasurer shall hold in readiness such moneys to pay such warrants upon presentation.” (§ 130, Comp. Stats, fifth div.) “An act to provide for the funding of the debt of Montana Territory” was passed December 3, 1867, and the first section authorizes the treasurer to issue bonds for “ all territorial warrants outstanding and unpaid” at a certain time. Statutes of like import were enacted in 1872 and 1879. In July, 1889, there was no territorial debt of this character. The financial policy of the government of the Territory, which had been established at an early period of its history, was never altered in substance, and was familiar to the makers of the Constitution. What was their action with reference to these matters? They ordained that “all laws enacted by the legislative as sembly of the Territory of Montana, and in force at the time the State shall be admitted into the Union, and not inconsistent with this Constitution or laws of the United States of America, shall be and remain in full force as the laws of the State until altered or repealed, or until they expire by their own limitation; provided, that whenever in said laws the words ‘Territory,’ ‘ Montana Territory,’ or ‘ Territory of Montana ’ occur, the words ‘State’ or ‘State of Montana’ shall be appropriately substituted and read therefor.” (Const, art. xx. § 1.) Is there any language in the Constitution of the State which is inconsistent with the foregoing sections of the Compiled Statutes? The laws supra were enacted by the legislative assembly of the Territory, and were in force when the State was admitted into the Union, and “remain in full force,” if we shall determine this inquiry in the negative. What are the provisions of the Constitution relating to the indebtedness of the Territory or State of Montana? The following sections, concerning the requirements of an appropriation for the payment of interest on the public debt, should be examined: “The general appropriation bills shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive, and judicial departments of the State, interest on public debt. . •. . .” (Art. v. § 33.) “No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt.” (Art. v. § 34.) We will consider in this connection other provisions: “All taxes levied for State purposes shall be paid into the State treasury, and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law.” (Art. xii. § 10.) Many of the rules of construction are applicable to statutes and the Constitution. Mr. Endlich, in his work on the Interpretation of Statutes, says: “ One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.” (§ 113, and cases cited.) The same author also writes: “ As, in statutes, the presumption against an intention to change the existing law beyond the specific purpose of the enactment may create numerous apparent exceptions from the general language employed, so, in the construction of a constitutional provision, a due regard for the existing — whether statutory or common — law, may produce a similar result. . „ . . In such case, no intention to abrogate previously existing laws in general can be presumed, in the absence of expression to that effect. It is therefore a sound rule of constitutional interpretation that a constitution is to be construed with reference to previous legislation.” (§ 520, and cases cited.) We are therefore aided in the interpretation of these sections by resorting to the statutes of the Territory governing kindred matters. It can be fairly presumed, in the absence of plain and direct language to the contrary in the Constitution, that the uniform policy of the territorial government was to be continued under the organization of the State. We do not rely in this discussion upon mere presumptions. We have already referred to the solemn declaration of the Constitution that the legislation of the Territory, with definite exceptions, was to be carried into effect. Some of these statutes will be noticed. The first legislative assembly, in the act supra, approved December 26,1864, provides “that the auditor of the Territory is hereby empowered to issue territorial warrants, drawn upon the treasury of the Territory, in favor of all persons to whom the legislative assembly of the Territory may direct.” (Stats. 1st Sess. p. 329, § 1.) This phraseology has been retained. (Comp. Stats, div. 5, § 1122.) The fourth legislative assembly re-enacted, December 7, 1867, by the authority of Congress, a law which had been approved December 15,1866, and annulled March 2, 1867, to wit? “The territorial auditor of this Territory is hereby forbidden to issue any warrant in favor of any person drawing upon the territorial treasury for any sum, unless he is authorized by law expressly, in which the name of the party shall be specified, the nature of the service performed, and the amount specified for the performance of such service.” (Stats, 3d Sess. p. 78; 14 U. S. Stats, p. 427; Stats. 4th Sess. p. 92.) This section has not been amended. (Comp. Stats, div. 5, § 1129.) The fourth legislative assembly, by an act approved December 3, 1867, provided “ that the auditor of the Territory shall issue no warrants drawn upon the territorial treasurer, in favor of any person, without express authority of law, and then shall specify the name of the party, the service performed for which the same is issued, with the amount and number of the warrant.” (Stats. 4th Sess. p. 55, § 1.) This statute has not been modified. (Comp. Stats, div. 5, § 117.) When these statutory provisions are compared, it will be seen that, although the language of the Constitution may be different, the effect was identical and the same end was accomplished. No warrant could be drawn upon the treasurer of the Territory which was not empowered by an act of the legislative assembly, and such is the declaration of the Constitution prescribing the necessity for an appropriation. The payment of interest upon the territorial warrants was regulated by the general law, and special statutes were not passed to give interest to any creditor. The interest upon the bonds of the Territory was controlled by the respective acts which authorized their creation, and no other legislation thereon was had. We recognize as the fundamental law the section, supra, which does not require an appropriation to enable the proper officer to pay the interest upon the public debt of the State. In what manner has this fiscal department been affected by the transition from the territorial to the State system of government? Where is the clause in the Constitution which has ordained that any other mode shall be adopted with respect to the payment of interest on warrants in the transaction of similar business for the State? It is insisted, however, that the expression, “public debt,” was used in its limited sense, and comprehends solely one class of indebtedness — bonds. Upon the other hand, it is asserted that the words have a broad meaning, and include every species of liability. Partial definitions can be produced which support both sides of the contention. The term “public,” in the foregoing sections, designates the debt as that of the State of Montana. This identical phrase, “public debt,” is employed in the fourteenth amendment to the Federal Constitution: “ The va lidity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.” The words “debts, obligations, and claims” have been selected with precision; and the distinctions are drawn between the ways in which the debt can be authorized or incurred. Judge Cooley states that the chief object of this section when amended was: “To protect the credit of the nation — First, by affirming the unquestionable character of the national indebtedness ; and second, by precluding the assumption by the nation of obligations with which it could not with any justice be burdened.” (2 Story on the Constitution [5th ed.], § 1965.) Judge Cooley includes, by the words “ national indebtedness,” the public debt and other debts of the United States which have been incurred. What, then, is the debt of the State? The framers of our Constitution performed their grave duties iu the light of this financial legislation of the Territory. They could clearly and definitely restrict the effect of the words “public debt” by the insertion of the term “ bonded,” or any other modifying clause. Was this language employed in its ordinary signification? Let us consult other paragraphs of the Constitution, and define accurately, if possible, the status of this debt. The constitutional convention agreed upon the phrase “public indebtedness” as the title to article xiii. The second section is as follows: “The legislative assembly shall not in any manner create any debt except by a law which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged. Such law shall specify the purpose to which the funds so raised shall be applied, and provide for the levy of a tax sufficient to pay the interest on and extinguish the principal of such debt, within the time limited by such law for the payment thereof; but no debt or liability shall be created which •shall, singly or in the aggregate, with any existing debt or lia bility, exceed the sum of one hundred thousand dollars.” “ The-State shall not assume the debt, or any part thereof, of any county, city, town, or municipal corporation.” (Art. xiii. § 4.) The fifth section provides that “ no county shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding. . . . ; and all bonds or obligations in excess of such amount, given by or on behalf of such county, shall be void. No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars.....” The sixth section relates to the indebtedness of a city, town, township, or school district, and embodies similar limitations, and authorizes municipal corporations to devote the revenues derived from their water supply “to the payment of the debt.” “ All obligations of the Territory of Montana existing, in force, and unpaid at the time of the admission of the State into the Union are hereby assumed by the State, which, shall and will well and truly pay the same.” (Art. xx. § 12.) The words “debt,” “indebtedness,” “obligations,” and “liabilities” are repeatedly applied to various subjects which sustain no relation to the sections concerning “ the public debt.” Similar constitutional provisions concerning the indebtedness-of counties have been exhaustively investigated, and it has been generally held that it was not limited to what existed in the shape of bonds. (People v. May, 9 Colo. 80, 404; Law v. People, 87 Ill. 385; Appeal of Erie, 91 Pa. St. 398.) In People v. May, 9 Colo. 95, the court, by Mr. Justice Elbert, said: “To say that the framers- of the Constitution saw no danger save in ‘bonded indebtedness’ is to credit them with a very limited statesmanship; and to say that they trusted to ‘wisdom and discretion’ as restraints is to impute to them a very sanguine statesmanship.....Nor are we to suppose that they dealt with the important question of public indebtedness other than in a practical manner; that they made an unsubstantial distinction, and limited the form and not the amount of indebtedness. The indebtedness was the essential thing. The mischief would be the same, and the burden the same, whether the debt was ‘ by loan ’ evidenced by bonds, or a. floating debt evidenced by warrants.” In Appeal of Erie, supra, the court construed a section of the Constitution which provided that “the debt of any county .... shall never exceed seven per centum upon the assessed value of the property therein,” and said: “ A debt means a fixed and certain obligation to pay money, or some other valuable thing or things, either in the present or in the future..... It is idle to urge that the restriction includes only a bonded indebtedness, for such is neither the constitutional letter nor spirit. A floating debt usually ends in a bonded debt, and the former is just as obligatory as the latter.” Judge Brewer decided in Rollins v. Lake Co. 34 Fed. Rep. 845, that county warrants which had been issued in payment of the fees of witnesses, jurors, constables, and sheriffs, after the constitutional limit of its indebtedness had been reached, were not within the prohibition, and thereby overruled, in part, People v. May, supra. This judgment was reversed by the Supreme Court of the United States. (Lake Co. v. Rollins, 130 U. S. 662.) Mr. Justice Lamar, for the court, said: “Neither can we assent to the position of the court below that there is, as to this case, a difference between indebtedness incurred by contracts of the county and that form of debt denominated ‘compulsory obligations.’ The compulsion was imposed by the legislature of the State, even if it can be said correctly that the compulsion was to incur debt; and the legislature could no more impose it than the county could voluntarily assume it, as against the disability of a constitutional prohibition.” The same doctrine is enforced regarding the' obligations of towns and cities. The court said in City of Council Bluffs v. Stewart, 51 Iowa, 389: “When a warrant is drawn upon the treasurer, if the money is in the hands of the treasurer to pay it, the reasonable expectation is that it will be presented and paid. By such act, no debt as contemplated in the Constitution is incurred. If, however, no funds are on hand to pay the warrant, a debt is incurred.” (See, also, Salem W. Co. v. Salem, 5 Or. 29.) Blackstone says: “Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.” (3 Blackst. Com. p. 160.) This definition was followed in Gray v. Bennett, 3 Met. 526, by Mr. Justice Hubbard, who said: “The word ‘debt’ is of large import, including, not only debts of record, or judgments, and debts by specialty, but also obligations arising under simple contract, to a very wide extent, and in its popular sense includes all that is due to a man under any form of obligation or promise.” In People v. Johnson, 6 Cal. 499, Chief Justice Murray said: “A debt or liability may be created in other ways than by the borrowing of money. It may be created by appropriation, where there is no money to meet it. It may be created by drawing on a fund, where there is no cash in the treasury or incoming revenue to satisfy such drafts.” ([Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Rep. 331.) When our Constitution is considered as a whole, and the authorities are analyzed, the term “public debt” cannot be confined to what is evidenced by one form of indebtedness or liability, but embraces warrants as well as bonds. There is no language which indicates that the framers of this instrument had any other intention. Whenever there is a public debt, it is not necessary for the legislative assembly to make a specific appropriation to authorize the payment of any interest thereon. The law which creates the debt of the State by means of a loan must provide for the levy of a tax to pay the interest thereon. (Art. xiii. § 2.) This section is silent upon the subject of an appropriation by the legislative assembly for the payment of interest. When a public debt has been brought into being through an unpaid warrant, the statute, supra, fixes the rate of interest, and points out the steps which are required to secure it. The Constitution does not directly or indirectly modify the force of these laws. The rule that repeals by implication are not favored is applicable when the repugnancy is alleged to exist between the provisions of a constitution and a statute. (Ohio v. Dudley, 1 Ohio St. 437.) We are compelled, by the rules of constitutional construction, to hold that this legislation of the Territory regulating the payment of warrants upon the treasury has not been interrupted by the formation of the State government. The interest which has been prescribed by law is an inseparable part of the liabilities or obligations which are evidenced by the warrant. The Constitution declares that the governor, secretary of State, and attorney-general “shall constitute a board of examiners, with power to examine all claims against the State, ■except salaries or compensation of officers, fixed by law, and perform such other duties as may be prescribed by law. And no claims against the State except for salaries and compensation of officers fixed by law shall be passed upon by the legislative assembly without first having been considered and acted upon by said board.” (Art. vii. § 20.) By virtue of this authority an act prescribing its duties was approved February 12,1891. (State Stats. 2d Sess. p. 183.) This claim of the Journal Publishing Company was first considered and acted upon by the board. It was then passed upon by the legislative assembly, and an appropriation was made for its payment. Afterwards it was approved by the board, and transmitted to the office of the State auditor, who has drawn his warrant for the proper amount. The jurisdiction of the State board of examiners of this claim was exercised completely under the law. The obligation to pay interest upon the principal sum mentioned in a warrant arises by operation of law under conditions which are independent of, .and cannot be controlled by the action of the board. It is therefore our opinion that the relator is not obliged to show that the legislative assembly made an appropriation to pay the Interest upon his warrant, or that the State board of examiners has audited his claim for interest upon the same. It is ordered that the motion to strike out the portions of the .answer referred to be sustained. Motion sustained. Harwood, J., and De Witt, J., concur.

Harwood, J. This case was before this court at the January term, 1891, and that appeal was determined by granting a new trial. Nor a statement of the case, reference may be made to the opinion of the court upon the former appeal, as reported in Schwab v. Owens, 10 Mont. 381. Upon the second trial the jury found for respondents, both by general and special verdict, and therein found that the mortgage under which appellants claimed the goods in question was made, and was taken by appellants, with the intention to defraud Owens, whom appellants knew was a silent partner with Levy, the mortgagor and joint owner of the mortgaged goods, and also with the intention to defraud the firm creditors. The jury found further that the mortgagor, Levy, was only indebted to appellants in the sum of $1,960.30, which appears to have been an individual indebtedness of Levy, having no relation to the firm business, whereas all the firm property was mortgaged by Levy to secure a pretended debt of $4,000. A searching trial appears to have been had, in which a large volume of evidence was introduced on behalf of each party to the controversy, and the jury were fully instructed upon every feature of the case. The particular alleged errors of which appellants’ counsel complain in their brief and arguments before this court relate to certain portions of the instructions given to the jury. It is a familiar rule that, in the consideration of alleged error committed in giving instructions, the instructions as a whole are to be reviewed and considered together. This we have done, and, considering the instructions altogether, we find no error in them. It seems plain from the special findings that the jury arrived at their verdict from a belief, upon the whole case, that the mortgage under which appellants claim was made and received with the intent to defraud Owens and the creditors of the firm of Levy and Owens. The jury regarded the transaction as fraudulent, and condemned it as such. This is apparent from the fact that every special finding submitted was returned against appellants. Had the jury arrived at their verdict from any particular phase of the case, such as making the mortgage without the knowledge of Owens, as mentioned in instruction No. 6, they would not necessarily have found the mortgage was made and received with fraudulent intent. The mortgage may have been made without the knowledge of Owens, and yet in good faith. The court did not say in that instruction that the making and receiving of the mortgage under the circumstances mentioned in said instruction involved or indicated fraudulent intent at all. In the first and eleventh special findings the jury found the facts hypothetically mentioned in instruction No. 6. Had the jury stopped at that, it might be pertinent to go into a discussion as to whether or not those facts would be sufficient to sustain a verdict for respondents ; but those facts might be stricken out, or the view which appellants take as to that feature of the case might be conceded, and there remain findings, independent of that view of the case, sufficient to overthrow all claim of the appellants to the property. So, with instructions Nos. 9 and 11, of which appellants complain, the features of the ease under consideration in those instructions are not connected with the issue of fraudulent intent, and it is not at all likely those instructions had any influence upon the minds of the jury in considering and finding upon the question of fraudulent intent in making and receiving appellants’ mortgage. The points mentioned in those instructions might be conceded to appellants, and still the ver diet of the jury would be fully sustained by other findings upon considerations entirely independent of those mentioned in instructions 9 and 11. It is one of those cases mentioned in the extract from the opinion of Judge Story, quoted in Rocheleau v. Boyle, ante, page 451, wherein it is said that the findings of fraudulent intent or malum in se will vitiate and destroy the entire transaction. Finding no error in the record, it is ordered that the order refusing to grant a new trial and the judgment be affirmed. Affirmed. Blake, C. J., and Be Witt, J., concur.

Blake, C. J. The appellant filed August 13, 1890, his complaint in the court below, and alleged “ that on the second day of April, A. D. 1885, the said plaintiff became, and ever since said date has been, and now is, the owner and seised in fee, and entitled to the possession of all that certain lot of land [description]; that while the plaintiff was such owner, and so seised and possessed, and entitled to the possession of said land and premises, the defendant did, on the day and year aforesaid, wrongfully and unlawfully enter into and upon the following part and portion of said lot of land, viz. [description], and did oust and eject the plaintiff therefrom, and ever since that day wrongfully and unlawfully withheld, and still and now wrongfully and unlawfully does withhold, the possession thereof from the plaintiff, to his wrong, injury, and damage in the sum of one thousand dollars; that the value of the rents and profits of the said land and premises is two hundred dollars per month; and that by reason of the unlawful withholding of the said land by the defendant, as aforesaid, plaintiff has been deprived of said rents during all the time since the second day of April, A. D. 1885, and by the continuance thereof will be deprived of the use and occupation of the same to his loss and damage in the sum of two thousand dollars.” The prayer is for “the restitution of said land and premises,” and damages. The demurrer of the defendant is as follows: “ That the said complaint does not state facts sufficient to constitute a cause of action, in this: That it appears from the face of the complaint that the defendant has been in possession of the property described in the plaintiff’s (complaint) for more than five years prior to the commencement of the plaintiff’s action, and that said action is barred by sections 29 and 30, title 3, chapter 2, Compiled Statutes of Montana, and that the defendant claims the benefit of the same.” The demurrer was sustained by the court, and upon the refusal of the plaintiff to file an amended complaint, judgment was entered for the defendant for his costs. The sections of the Code of Civil Procedure which are mentioned in the demurrer read as follows: “ Sec. 29. No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question within five years before the commencement of the action. Sec. 30. No cause of action or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person, was seised or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted or defense made.” The briefs of counsel restrict our inquiry to one question, does the complaint show upon its face that the defendant enjoyed the adverse possession of the land in controversy more than five years before the commencement of this action? It is alleged that the plaintiff was, at all the times named in the pleading, “the owner and seised in fee” of the premises. This rule has been prescribed by the Code of Civil Procedure: “ In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof, within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action.” (§ 32.) After quoting this statute in Lamme v. Dodson, 4 Mont. 587, Mr. Justice Galbraith said: “The true principle, therefore, is that he who has the legal title to real property is presumed to have the right to the possession thereof until better right is shown.” (See, also, National Min. Co. v. Powers, 3 Mont. 344.) By the allegations of the complaint the defendant is a trespasser, and there is not a word which indicates that his acts with reference to .the property are accompanied with any claim which is inconsistent with the title of the plaintiff. The intention of the party, which is a a vital element of an adverse possession to realty, is not shown, and there is nothing to rebut the presumption of the statute, supra, from the ownership in fee. (McDonald v. Fox, 20 Nev. 364, and eases cited; Sharp v. Daugney, 33 Cal. 505; Figg v. Mayo, 39 Cal. 262; Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100; Roman Catholic Archbishop v. Shipman, 79 Cal. 288; Harvey v. Tyler, 2 Wall. 328; Probst v. Presbyterian Church, 129 U. S. 182.) The opinions in 'the last two cases were delivered by the learned jurist, Mr. Justice Miller, who said in Harvey v. Tyler, supra: “The third and last instruction given at the instance of plaintiffs had reference to the question of adverse possession, in its relation to the Statute of Limitations. Its purport was that if plaintiffs’ title was found to be the paramount title, and any of the defendants entered upon and took possession of the land, without title or claim, or color of title, that such occupancy was not adverse to the title of plaintiffs, but subservient thereto. We think this law to be too well settled to need argument to sustain it. ... . Where there is no claim of right, the possession cannot be adverse to the true title.” In Probst v. Presbyterian Church, supra, the court approved Harvey v. Tyler, supra, and Ewing v. Burnet, 11 Peters, 41, in which this language is used: “An entry by one man on the land of another is an ouster of the legal possession, arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character.” It is therefore ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to overrule the demurrer. Reversed. Harwood, J., and De Witt, J., concur.

MR, JUSTICE HOLLOWAY delivered the opinion of the court. This action was brought to rescind a contract for the sale of real estate and personal property, to recover a portion of the purchase price, and for damages. The complaint alleges that on July 27, 1910, the parties hereto entered into a written contract by the terms of which plaintiffs agreed to purchase, and defendant to sell, 780 acres of land in Fergus county, described by government subdivisions, together with certain personal property, for the sum of $20,320, payable $2,000 upon the execution of the contract, and the balance in installments covering a period of about eight years. It is alleged that prior to the execution of the contract, defendant took the plaintiffs to the land, pointed out to them a certain road, and represented that it was the eastern boundary line of the premises he was seeking to sell, and that all of the land to be sold was situated west of that road, except about twenty acres; that defendant further represented that 600 acres of the land were in cultivation; and that these representations were made for the purpose of inducing the plaintiffs to purchase the property. It is also alleged that plaintiffs did not know the location of the boundary line, but believed the representations made by defendant to be true, relied upon them, and by reason thereof executed the contract and paid the $2,000 as a part of the purchase price. It is further alleged that the land pointed out to them by the defendant as the land he was offering for sale was valuable chiefly for agricultural purposes; whereas the land situated immediately east of the road was rough, rocky, hilly, and of little or no value. It is then alleged that the representations made by defendant were false, and were made for the purpose of deceiving and defrauding the plaintiffs; that in truth and fact the road was not on or near the eastern boundary line of the land described in the contract; that more than 200 acres lay east of the road, and was rough, rocky and valueless; and that only about 300 acres of the lands actually purchased were in cultivation. Plaintiffs then allege that they went into possession of the property and expended $1,436 in time and money on improvements, in caring for the crops, etc.; that they soon thereafter discovered that the representations made by defendant were false, and immediately notified defendant that they elected to rescind the contract, and demanded the return of the $2,000 which had been paid on account of the purchase price, and the further payment of the damages they had sustained, and that these demands were refused. Defendant admits the execution of the contract, the receipt of $2,000, that he showed the plaintiffs over the property before the contract was executed, that plaintiffs took possession of the property under the contract and devoted three months of their time to it, that they made the demand upon him which is pleaded in their complaint, that he refused to comply therewith, and then denies every other allegation of the complaint. The cause was tried to the court, sitting with a jury. Certain special interrogatories were submitted to and answered by the jury. Three of these special findings were adopted as the findings of the court, and a judgment was rendered and entered, denying the plaintiffs any relief. Exceptions were taken to the findings made, and from the judgment and an order overruling their motion for a new trial the plaintiffs appealed. Each of the plaintiffs testified unequivocally to the representations made by defendant as alleged in their complaint. They also called one J. L. McCormick, who corroborated them, in a measure at least. There was also introduced in evidence the written notice given by plaintiffs to the defendant of their election to rescind the contract, and the answer thereto from the defendant. So much of the letter written by plaintiffs to the defendant as is pertinent to the inquiry here is as follows: “Lewistown, Mont., Nov. 2, 1910. “Notice to Joseph Liberty, Geyser, Mont. — Dear Sir: We have caused to be surveyed the lands which we agreed to buy from you according to that certain written agreement of date July 27, 1910, and have discovered that approximately (200) two hundred acres are located east of the public road which traverses said land, and not on the west side of it, as you represented to us. On account of said fraudulent representations, we hereby rescind said contract. * * * ” And such portions of defendant’s answer thereto as reflect upon the inquiry are as follows: “Geyser, Mont., November 7, 1910. “Post Bros., Lewistown, Mont. — Gentlemen: I am in receipt of registered notice dated November 2nd in which you state that I misrepresented the lands on the Cameron ranch; I am sorry yon see it that way. There was no misrepresentation on my part whatsoever. I showed you the north line, the west line and the east line of this property and I told you that the road along the bluff was the line, or about that. * * * I told you as near as possible where the land was on this entire tract and if there is, according to your statement, 200 acres across on the south side then there are 200 acres of land more than I thought I had or that I was selling. ’ ’ It will be observed that plaintiffs refer to the rough land as lying east of the road, while defendant refers to it as lying south. The road runs southwesterly, and the land is properly described as south or east of the road. There is not any question but that both parties refer to the same land. The record also identifies the road referred to in defendant’s letter as “along the bluff” as the same road which plaintiffs contend was pointed out by defendant as the east boundary line of the land. The plaintiff Menus Post further testified that in November, 1910, he met the defendant in the office of Mr. Coleman in Lewistown, and had a conversation with him, in which the defendant made substantially the same statements as are contained in the letter above, and that during the course of the conversation defendant drew a map or plat of the land to show its location; but on the plat thus made defendant located the land a quarter of a mile, or, to use the witness’ own language, “one eighty,” west of the actual location as given in the contract. This conversation is not denied, and there is not a word in explanation of the statements in defendant’s letter. Defendant in his oral examination denied that he mentioned the lines to Menus Post; admitted that he showed the east line to the plaintiff Chester Post, but denied that he ever stated that the land was all west of the road. However, he did testify: “I always did think that the [east] line was just about the middle of the creek there.” The evidence shows that the road runs along the creek. It is somewhat difficult to understand a portion of the evidence. The witnesses made use of a map and testified with reference to it; but in pointing out different places the record merely contains the word “indicating, ’ ’ without anything to fix the point definitely. Assuming, however, the position most favorable to defendant, that his evidence tends to show that he pointed out the road as on the east line only at the extreme northeastern portion of the land, and that he actually showed to Chester Post the correct line along the east side of the land in section 14 and the corner post at the extreme southeasterly portion of the land in section 27, we are then confronted with this situation: The plaintiffs testify positively that defendant pointed out to them the road as the east line of the land he was seeking to sell, and asserted that the land all lay west of the road, except a small portion, about twenty acres, presumably in section 27. The witness McCormick, apparently disinterested, corroborated plaintiffs to some extent, at least. But of much greater consequence is the letter written by defendant and quoted above. If the language of that letter, when read in connection with the notice to which it is an answer, is susceptible of any meaning at all, it is that the defendant pointed out the road as substantially the east line of the property he was seeking to sell; that he was under the impression when he wrote the letter that there was not any portion of the land lying east of the road, and if there was in fact any substantial part of it to the east of the road he had been mistaken in the location of the east line. The language of the letter, “and if there is, according to your statement, 200 acres across on the south side then there are 200 acres of land more than I thought I had or that I was selling,” can only be reconciled with the theory of plaintiffs that the defendant was selling land situated west of the road. Furthermore, defendant does not deny or offer any explanation of the testimony of Menus Post that in November, in Mr. Coleman’s office, he (defendant) repeated, in substance, the statements contained in the letter, and then and there drew a plat of the land, locating it a quarter of a mile west of where it actually lies, thereby showing that he either did not know the location of the east boundary line, was honestly mistaken as to its location, or was willfully misrepresenting it. In view of the proof thus made by plaintiffs, and the fact that defendant’s statements stand alone, unsupported by any circumstance or other testimony, to say that plaintiffs have not sustained their contention as to the representations made with reference to the boundary line by a fair preponderance of the evidence is to deny to the term “preponderance of the evidence” any meaning whatever, and to preclude a defeated party from ever getting a new trial upon the ground of the insufficiency of the evidence to sustain the findings made in the lower court. But insufficiency of the evidence is made a ground for a new trial by statute. (Bev. Codes, sec. 6794.) From a remark of the trial judge in sustaining an objection, it would appear that the cause was determined upon the theory that plaintiffs ought to have caused the land to be surveyed before they purchased, or ought to have taken some pains to ascertain the boundary lines themselves before executing the contract. The jury found that the defendant did not represent that the land lay west of the road, and that the contract was not entered into by reason of any false representations made by the defendant. But these findings are wholly inconsistent with the evidence as presented. Each of findings 3 and 9, adopted by the court, should have been answered in the affirmative. Having determined, as we do, that the plaintiffs established the facts claimed by them, with reference to the representations made by defendant respecting the location of the east boundary line of the land which he sought to sell; that they did not know the location of the land, but relied upon the representations made by defendant, believing them to be true; that they would not have purchased the land, had they known that more than 200 acres lay east of the road, and that the land shown them was of much greater value than the same quantity, including these 200 acres, of rough, hilly land east of the road, the question then arises: What effect do such representations have upon the sale, when it appears that they were erroneous? The question is not a new one. It has been considered by the courts in many cases, and the decisions are quite harmonious and founded in sound reason. The theory upon which they proceed is that the owner of real estate is presumed to know the location of his land; and if, in attempting to sell it, he undertakes to point out its location or its boundaries he is bound to do so correctly. In other words, his representations amount, in effect, to warranties; and if the land he points out is of greater value than the land he actually sells, the purchaser may rescind the contract, or sue for damages. In Roberts v. Holliday, 10 S. D. 576, 74 N. W. 1034, a similar state of facts is presented. The agent of an owner of land took a prospective purchaser upon it and pointed out a fence as the west boundary line. The sale was effected, and the purchaser afterward ascertained that the fence was in fact sixty rods from the line. The court held that the purchaser had a right to rely upon the representation made by the seller’s agent, and could recover damages for the loss sustained by reason of the misrepresentation. In Davis v. Nuzum, 72 Wis. 439, 1 L. R. A. 774, 40 N. W. 497, the facts were that the owner of certain lands pointed out to a customer two fences which he said were on the north and west lines,- respectively, of the land he was seeking to sell. The purchaser relied upon the representations and entered into a contract to purchase. Afterward it was found that neither fence was on the line it was supposed to represent. The purchaser was compelled to give up a strip of land twenty-one rods wide on the north and a strip fifteen rods wide on the west, and accept inferior lands on the south and east. The purchaser was adjudged entitled to recover damages because of the false representation; the court following the two earlier Wisconsin cases—Bird v. Kleiner, 41 Wis. 134, and Cotzhausen v. Simon, 47 Wis. 103, 1 N. W. 473. In Bird v. Kleiner the court said: “When the vendor undertakes to point out to the purchaser the boundaries of his land, he is under obligation to point them out correctly, and has no right to make a mistake, except under the penalty of responding in damages.” In Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 9 Am. St. Rep. 727, 18 N. E. 168, the owner of a leasehold interest in a mining property represented to an intending purchaser a certain line as the boundary line of his claim. If the line thus pointed out was the true line, the claim contained from eight to ten thousand tons of iron ore. Relying upon the representation, the purchaser concluded the purchase, and afterward ascertained that the line pointed out was not the true boundary, and that the ore bodies were not within the property he had purchased. He was held entitled to recover damages for the misrepresentation. In Schwenck v. Naylor, 102 N. Y. 683, 7 N. E. 788, the owner of all the capital stock of a lumber company, doing business in Florida, represented to a prospective purchaser that the company owned certain lands adjacent to the city of Apalachicola, with a large water frontage, extensive docks, wharves, and buildings, and pointed out a certain ditch or creek which he represented to be the boundary line between the city and the company’s property. Upon the faith of this representation, the purchaser bought two-thirds of the capital stock, and afterward ascertained that the line pointed out by the vendor to him was not the true boundary line; that in fact the company owned but a small portion of the waterfront and wharves which were included within the lines pointed out by the vendor. The court held that the purchaser had a right to rely upon the representation made by the vendor as to the boundary line, and if the representation proved to be untrue, and the vendee was injured thereby, he had a cause of action. In Freeman v. Gloyd, 43 Wash. 607, 86 Pac. 1051, the court considered a similar question in a suit to rescind a contract, and said: “Representations involving mere matters of opinion or questions of judgment, as much within the knowledge of one party as the other, cannot be made the basis of an action to i seind or for damages, even when not in accord with the truth. but representations as to the boundaries of land are not of that sort. Such representations are regarded as representations of fact, and the owner, if he undertakes to point out the boundaries at all, must point them out correctly, under penalty of responding in damages, or an action of rescission.” To the same effect is Lawson v. Vernon, 38 Wash. 422, 107 Am. St. Rep. 880, 80 Pac. 559. The following additional authorities assert the right of the vendee to rely upon the representations made by the vendor as to the location or boundaries of the property: Campbell v. Frankem, 65 Ind. 591; Olson v. Orton, 28 Minn. 36, 8 N. W. 878; Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432. If the vendor does not undertake to. point out the location or boundary lines of property he seeks to sell, the vendee must make such investigation as will satisfy himself; but if the vendor, who is presumed to know, points out the particular line as the boundary of his land, this fact relieves the vendee from making independent investigation. In Kirkland v. Lott, 2 Scam. (Ill.) 13, 33 Am. Dec. 435, the plaintiffs brought an action upon a promissory note. The defense set up was that the note was given as the purchase price of certain lots of land, and that plaintiffs had misrepresented to defendant the location of the lots. The court, in treating the subject under consideration, said: “If the plaintiffs had made no representations as to the location of the lots, the defendant would reasonably have sought, and might have obtained, correct information from some other source; and it is not for the plaintiffs to say that it was his folly not to have done so, when their representations were the cause of his omission. Credulity on his part is no excuse for fraud on theirs.” In some of the earlier cases involving facts similar to those presented in this instance, the rule of caveat emptor was applied and relief denied. But the courts have abandoned that position, and now hold that where fraud enters into the transaction the rule cannot have any application; and it is upon this theory that the cases cited above were determined. (See Walsh v. Hall, 66 N. C. 233, overruling Lytle v. Bird, 48 N. C. 222, and Credle v. Swindell, 63 N. C. 305.) A court of equity will not permit the land owner to say, “It is true I pointed out the boundaries of my property to the intending purchaser, but he ought not to have relied upon my statement.” The purpose of such representations, when made, is apparent. The California court of appeals has expressed itself upon the subject, in Eichelberger v. Mills Land & Water Co., 9 Cal. App. 628, 100 Pac. 117. That was a suit to rescind a contract on the ground of misrepresentation. The land owner had shown the prospective purchasers over the land, which was represented to be 1,400 by 270 feet in extent. The contract was made, and the purchasers afterward discovered that they were getting land 1,400 by 170 instead. In treating the subject, the court said: “The effect of these findings is that plaintiffs, instead of measuring the land, and for themselves ascertaining the dimensions thereof, as they could have done, chose rather to rely upon the representations of defendant in relation to the same. Were they justified in so doing? As the representations were made prior to the transaction, and directly related to it, it must be presumed that they were made for the purpose and with the design of inducing plaintiffs to enter into the contract. (Pomeroy’s Equity Jurisprudence, see. 880.) As a general rule, the owner of real estate, in the absence of facts showing the contrary, is presumed to know the boundaries and area of his land, and a buyer is warranted in relying upon his representations in respect to such facts. It is immaterial whether the representations as to area be as to acreage or dimensions. ’ ’ Section 5063, Revised Codes, provides that a party to a contract may rescind, if his consent was obtained by fraud, or if, through the fault of the other party, the consideration for the obligation fails, in whole or in part. The term ‘ ‘ fraud, ’ ’ as used above, includes: “2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true. * * * 5. Any other act fitted to deceive.” (Rev. Codes, sec. 4978.) The question of good or bad faith is not involved. The fraud arises from the fact that the statement is not true; and coming from one who ought to know whereof he speaks, the effect of his statement is to deceive the intending purchaser. In Baughman v. Gould, 45 Mich. 481, 8 N. W. 73, the facts were that the land owner pointed out a lot which was inclosed, and represented that the property he was offering for sale included all the ground within the inclosnre. The sale was made; but the purchaser discovered afterward that a portion of the ground inclosed belonged to a third person. The court, in treating the subject, said: “There being in fact a misrepresentation, though made innocently, its deceptive influence was as effective, and the consequences to Baughman as serious in respect to actual damage, as though it had proceeded from a vicious purpose. The result was a fraud on Baughman, in contemplation of law, and it entitled him to contend, in Gould’s action for the purchase money, that the damage should be thrown on the latter. ’ ’ Facts practically identical are disclosed in Lynch v. Mercantile Trust Co. (C. C.), 18 Fed. 486, 5 McCrary, 623, in which the court said: “The owner of property, when he sells, is presumed to know whether the representation which he makes about it is true or false; and the positive statement thus made of a material faet, if false, is fraud in law. A purchaser trusts in the owner’s statements, and the law will assume that the owner knows his own property and truly represents it. So, if an injury results-from the statement of a material faet which influences the sale, and not from the statement of the opinion or belief of the vendor, an action will lie, if the representation is false; and it is not material whether the vendor knew to be false what was stated. If the representation as to a material point was relied on, and was stated as a fact, intended to convey the impression that the party had actual knowledge, the vendor cannot plead ignorance as an excuse, if the statement was false.” In Hanson v. Tompkins, 2 Wash. 508, 27 Pac. 73, the vendor represented to the intending purchaser that a certain lot which he was offering for sale contained thirty-six and one-half acres. The sale was completed; but the purchaser afterward ascertained that the lot contained but twenty-six and one-half acres. In dis cussing the subject now under consideration, the court said: “If he knew the lot did not contain thirty-six and one-half acres, and represented to the defendants that it did, he would be guilty of fraud and deceit; but if he did not know it, and believed that the representations he made were true, and defendants, acting upon such representations, were damaged because it eventuated that they were not trae, the liability of the plaintiff would be the same. In neither case will he be allowed to retain the benefit flowing from his misrepresentation.” To the same effect are Banks Griffith v. Hahl (Tex. Civ. App.), 129 S. W. 400; Foster v. Kennedy’s Admr., 38 Ala. 359, 81 Am. Dec. 56; Chatham Furnace Co. v. Moffatt, above. The rule announced by section 4978, Revised Codes, above, and by these courts, is not a new one. It was invoked by the high court of chancery of England in 1803, in the case of Ainslie v. Medlycott, 9 Ves. Jr. 13, in which Sir William -Grant, Master of the Rolls, used this language: “No doubt by a representation a party may bind himself just as much as by an express covenant. If knowingly he represents what is not true, no doubt he is bound. If, without knowing that it is not true, he takes upon himself to make a representation to another, upon the faith of which that other acts no doubt he is bound, though his mistake was perfectly innocent. ’ ’ In 1835 Story announced the same rule as then in effect in this country, as follows: “Whether the party, thus misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive; for it operates as a surprise and imposition upon the other party.” (1 Story’s Equity Jurisprudence, sec. 193.) Our conclusion is that the plaintiffs have shown themselves entitled to relief. There is not any contention made that the complaint does not state a cause of action. Apparently court and counsel treated it as sufficient; for the merits of the controversy were tried, and plaintiffs offered evidence tending to show that they had restored to defendant everything received by them under the contract, although there is not any specific allegation in the complaint that they had placed the defendant in statu quo, as required by section 5065, Eevised Codes, and the rules of pleading in actions of this character. (18 Ency. of Pl. & Pr. 829; 16 Cyc. 235.) The defendant, however, answered to the merits, and we are inclined to treat the complaint as amended, in view of the record as presented to us. Neither is there any contention over the question of damages. The cause was tried upon the theory that, if plaintiffs were entitled to recover at all, they were entitled to claim as damages for the time and money expended by them in improving the property and caring for it. Two interrogatories submitted questions to the jury as to the value of labor performed by plaintiffs in plowing some of the land and putting up hay. A third interrogatory was also submitted and answered; but it is indefinite, and we are unable to find any evidence to support the finding made. The judgment and order are reversed, and the cause is remanded, with directions to enter a decree in favor of the plaintiffs for the cancellation of the contract, for the recovery of $2,000 part payment, with interest at eight per cent per annum from July 27, 1910, for the further sum of $590, damages, as found by the jury’s special findings 6 and 7, and for costs. Reversed and remanded. Mb. Chief Justice Bbantly and Mb. Justice Smith concur.

PER CURIAM. Respondents’ motion to dismiss the appeals herein is, after due consideration, sustained, and the appeals are hereby dismissed without prejudice.'

MR. JUSTICE HOLLOWAY delivered the opinion of the court. The defendant was convicted of grand larceny and has appealed from the judgment and from ah order denying him a new trial. 1. The contention of appellant that the information does not state facts sufficient to constitute a public offense is without merit. (State v. Van, 44 Mont. 374, 120. Pac. 479; State v. Biggs, ante, p. 400, 123 Pac. 410.), 2. Complaint is made of the action of the trial court in giving instruction No. 15, and in refusing defendant’s requested instruction 16. Each of these instructions follows the language of sections 7957 and 7959, Revised Codes; but defendant’s requested instruction adds: “In this connection I charge you that an inference cannot be founded upon another inference or upon facts inferred from other facts legally proved.” Assuming that this addition is correct as an abstract rule of law, was it necessary for the trial court to submit it to the jury? The court had given a correct definition of an inference, and had advised the jury that an inference must be founded upon a fact legally proved. To insist upon this additional statement, even if correct, is tantamount to insisting that the court should proceed and tell the jury what is not an inference and the many sources from which an inference cannot be drawn. Having stated the rule affirmatively, it was not necessary for the court to state the same thing in a negative form, even if it could be done. The court had a right to presume that the jurors possessed a reasonable degree of intelligence and understood the language employed. 3. The defendant requested two instructions (5 and 7) upon the subject of circumstantial evidence. These requests were refused, and in lieu thereof the court gave instruction No. 17 upon the same subject, employing therein the following sentence: “And when a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.” Fault is found with the use of the word “ought,” and it is insisted that the instruction does not convey the same meaning as it would if a mandatory term such as “must,” had been employed. Webster defines “ought” as follows: “3. To be bound in duty or by .moral obligation. 4. To be necessary, fit, becoming, or expedient; to behoove. Syn. Ought, should. Both words imply obligation, but ought is the stronger. Should may imply merely an obligation of propriety, expediency, etc.; ought denotes an obligation of duty.” (Webster’s International Dictionary.), A reference to the definition of the word “must,” as given by the same author, discloses that there is not any substantial difference in the meaning of the two terms. Precisely the same question was presented to this court in State v. Biggs, above, and we then held that the subject was properly covered in the instruction given in that case, which was in the same language as the instruction now under consideration. 4. Instruction 8, given by the court, is not open to the objection urged against it. It very plainly told the jury that they must find that .the animal was stolen within a period of time covered by the evidence, and five years before the informa-tion was filed. The jury could not have understood that it was sufficient to find that the animal was stolen within either period mentioned, to the exclusion of the other. 5. Kequested instruction No. 1 was fully covered by instruction No. 12, given. 6. Defendant’s offered instruction No. 3 is erroneous and was properly refused. (State v. Kremer, 34 Mont. 6, 85 Pac. 736.) The court correctly covered the subject in instruction No. 20, given. (State v. Biggs, above.) 7. By offered instruction No. 11 the court was asked to define a presumption and to tell the jury that “where there are two presumptions, one in favor of innocence and the other in favor of a criminal course, the one in favor of innocence must prevail.” In support of this offered instruction, counsel for appellant cite People v. Douglass, 100 Cal. 1, 34 Pac. 490, People v. Strassman, 112 Cal. 683, 45 Pac. 3, and People v. LeDoux, 155 Cal. 535, 102 Pac. 517. The authorities do not support appellant’s contention. In People v. Douglass, an instruction substantially the same as the one offered here was refused by the California trial court and this action affirmed by the supreme court, which said: “There was no error in the refusal to give the second instruction referred to. There cannot be two presumptions in a criminal case.” This last sentence is quoted with approval in People v. Strassman. In People v. LeDoux, a somewhat similar instruction was likewise refused by the trial court and its action approved by the supreme court, which pronounced the offered instruction erroneous. The trial court properly declared the rule of law applicable, in instruction No. 12 given, and did not err in refusing the instruction tendered. 8. Defendant’s offered instruction No. 13 reproduces a portion of section 8658, Revised Codes, and then continues with an apparent effort to apply the rule to the facts of this particular case, but, in doing so, imposed upon the defendant a burden much greater than that warranted by law. The meaning of the instruction is not clear, particularly the last clause; but, however this may be, the court by instruction No. 9 told the jury that it was incumbent upon the state to prove, beyond a reasonable doubt, that the defendant took the animal in question with a felonious intent, — that is to say, with the intent to steal; and in instruction No. 11 the court made a proper application of the rule announced in section 8658, above. 9. Defendant’s offered instruction 14 is so far contradictory in its terms as to be confusing, if not almost meaningless. In the first paragraph the jurors are told that they may use their own knowledge in determining any fact in the ease, while in the concluding paragraph they are told that they must determine the facts from the evidence introduced. The offered instruction was properly refused, and in instructions given the court advised the jurors as to their proper office in considering the evidence before them. In support of the offered instruction, counsel for appellant cite People v. LaPique (Cal.), 67 Pac. 14; but a reference to the case discloses that the instruction there considered was given at the request of the defendant and is not approved by the California court. 10. The defendant was charged with the larceny of a black mare, the property of Samuel Sanderson. The evidence of ownership is very similar to that held sufficient in State v. Prosper, 41 Mont. 442, 109 Pac. 858. The venue was also shown sufficiently. (State v. DeWolfe, 29 Mont. 415, 74 Pac. 1084.) The evidence offered by the state tends to show that the animal in question was branded CO, that defendant and one McCulluch secured the animal, defaced the brand by running a bar brand through the letters so as to make a reversed B; that the bar brand was put on much later than the letters and had not healed entirely; that defendant took the animal to Culbertson and sold her to one Holland, all without the knowledge or consent of the owner, and that in his transactions with the animal he made an apparent effort to conceal it immediately prior to the sale. There is not any direct evidence as to the particular day upon which the larceny was committed, and if proof of the exact date should be required, range stock would be at the mercy of thieves. But the trial court properly informed the jury that it was only necessary for the state to show that the animal had been stolen within five years of the date when the information was filed, and it is elementary that this fact may be proved by circumstantial evidence. ■ The evidence tends to show that the mutilation of the brand occurred but a short time prior to the trial, and that the animal when sold to Holland was only four or five years old. According to the testimony of defendant and his witnesses, defendant never saw the animal until two or three months, at most, before he sold her to Holland. The defendant offered fin explanation of his possession of the animal, which, if true, completely exonerated him, but the jury refused to accept his explanation, and we cannot say that they were not justified in their action. Defendant and his witnesses were before the jury, their demeanor on the witness-stand, their apparent interest or lack of interest, their candor or lack of it, and all the attending circumstances the jury were advised to consider, and doubtless did consider, in arriving at their determination that defendant’s explanation was not entitled to credence. The trial court having had the witnesses before it and the like opportunity to observe them while testifying, upon a review of the case on motion for new trial refused to interfere. Under these circumstances we cannot say that the evidence is insufficient to support the verdict and judgment. Finding no error in the record, the judgment and order are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Smith concur.

HONORABLE W. R. C. STEWART, Judge of the Ninth Judicial District, sitting in place of the Chief Justice, disqualified, delivered the opinion of the court. Section 5866 of the Civil Code, which is a part of the Negotiable Instrument Act of the laws of the state of Montana, provides: “No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.” This section of our Negotiable Instrument Act is uniform with, and contained in, the laws of thirty-eight states of the Union, and is the result of an effort directed by the American Bar Association to bring about uniformity of the laws on this subject, a history of which effort may be found in Part III of Ogden on Negotiable Instruments. The same general rule is stated in 2 Clark & Skyles on the Law of Agency, section 575, as follows: “It is also a well-settled rule that only such persons are liable on a negotiable instrument as are named or described therein; or, in other words, a negotiable instrument is binding on the person only by whom it is signed. If an agent is authorized to make, draw, accept, or indorse a negotiable bill or note, in order that it may be binding on the principal, he must either sign the principal’s name, or must make it appear in some way from the face of the instrument that it was executed for him; and if instead of doing so he, innocently or intentionally, makes it appear that he himself is the party to the instrument, it will be binding on him alone. When, therefore, an agent makes, indorses or accepts a negotiable instrument in his own name, he is personally liable thereon, although he may have acted in good faith and may have disclosed the fact of his agency or the name of his principal; and parol evidence is inadmissible for the purpose of charging another or relieving the agent from liability on such instrument. ” The same rule is stated in 1 Daniel on Negotiable Instruments, section 303, which reads as follows: “No party can be charged as principal upon a negotiable instrument unless his name is thereon disclosed. The reason of this rule is that each party who takes a negotiable instrument makes his contracts with the parties who appear on its face to be bound for its payment; it is ‘a courier without luggage,’ whose countenance is its passport; and in suits upon negotiable instruments, no evidence is admissible to charge any person as a principal party thereto, unless his name in some way is disclosed upon the instrument itself; although upon other written contracts, not negotiable, it is often competent to show that, although signed in the name of the agent only, they were executed in the business of the principal, and with the intent that he should be bound.” To the same effect is the case of New York Life Ins. Co. v. Martindale, 75 Kan. 142, 121 Am. St. Rep. 362, 12 Ann. Cas. 677, 21 L. R. A., n. s., 1045, 88 Pac. 559; 1 Am. & Eng. Ency. of Law, 2d ed., p. 1141. Since the adoption of our Negotiable Instrument Act the supreme court of Washington, in Seattle Shoe Co. v. Packard, 43 Wash. 527, 86 Pac. 845, has construed the Act as follows: “But, outside of the authorities which have been cited in this case, our own statutes settle the status of the parties to a transaction of this hind. Chapter 149, found on page 340 et seq. of the Laws of 1899, a chapter relating to negotiable instruments, undertakes to establish the law of this state in relation thereto. Section 18 (page 345) provides: ‘No person is liable on the instrument whose signature does not appear thereon except as therein otherwise expressly provided.’ It will be observed that this is an action upon the draft, and it will be further observed that the signature of the respondents does not appear upon said draft, and no liability of the respondents can therefore attach unless the liability is otherwise expressly provided in the Act, and no such express provision can be found.” It will be noted that there is nothing about the notes in question here to indicate a liability on the part of any other person than defendant Smith, who signed the same. Therefore the judgment, so far as it fixes the liability against the defendant Boardman, is erroneous under the statute, and should be revised so as to bind the defendant Smith alone. The judgment is therefore reversed, and the trial court is directed to enter judgment for the plaintiffs for the amount of the notes against the defendant Clyde C. Smith alone, and for the sale of the pledged stock. 'Reversed, with directions. Mr. ‘Justice Smith and Mr. Justice Holloway concur. Rehearing denied June 4, 1912.