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MR. JUSTICE SANNER delivered the opinion of the court. Action by T. N. Howell to recover from Wallace Bent, Bert Bent, Michael Wrote, Tony Garcia, George Crosby, John Sad-ring, Charles Ingram, C. M. Young, W. R. Bainbridge, James Pauley, Tillman C. Graham, A. W. Adams and Curtis Beeler, as defendants, for injury to and loss of crops on account of the alleged wrongful diversion of the waters of Sage creek. Sage creek is a small stream which rises in Montana and flows into Wyoming, and upon it or its tributaries all the parties reside or have lands which require artificial irrigation for the successful raising of crops. The appellant possesses a right to 110 miner’s inches of the waters of Sage creek for the irrigation of his lands, which lie in the state of Wyoming some miles below the lands of respondents, and this right is prior and superior to any that may be asserted by the respondents or any of them. For the purpose of utilizing his right the appellant has, since August 1, 1890, maintained a dam across said creek about a mile above his place, and also a' ditch, tapping the creek at that point, of sufficient size and character to divert and conduct the water to his land. It is alleged that in the year 1908 the appellant tilled, and cultivated 160 acres of his land in a good, husbandlike manner, constructed laterals from his main ditch so as to distribute the water over the land, planted and seeded a large portion of the land to alfalfa and wheat, and in all respects properly cared for the same. The burden of the complaint is set forth in paragraph 8 as follows: “(8) That said defendants, and each of them, in the years 1908, 1909 and 1910, had ditches tapping said Sage creek and its tributaries above the intake of plaintiff’s said ditch; that when it became necessary to irrigate said crops of wheat and alfalfa in the year 1908, said defendants and each of them tapped said Sage creek and diverted therefrom all of the waters of said Sage creek and its tributaries, and thereby deprived plaintiff' of the use of any of the waters of said Sage creek and its tributaries for the irrigation of said crops, which deprivation and wrongful use of said water by said defendants continued throughout the entire irrigating season of that year; that plaintiff notified said defendants and each of them of his right to the said waters of Sage creek and its tributaries, and that they and each of them were diverting the same from plaintiff to his damage, and demanded that they allow said water to flow down said Sage creek in sufficient quantity to allow him to divert therefrom 110 miner’s inches thereof, to which he was entitled; that notwithstanding such notice and demand from plaintiff, said defendants and each of them, from the commencement of the irrigation season and throughout the whole season, wrongfully and unlawfully diverted all of the waters of said Sage creek and its tributaries, and thereby deprived plaintiff of the use of any of said waters in that year; that by reason of said wrongful acts of said defendants, the plaintiff’s aforesaid crops of wheat and alfalfa were entirely ruined and destroyed, and said alfalfa killed, and plaintiff suffered the entire loss of said crops by reason thereof and for no other reason.” To the complaint four separate answers were filed: one by Wallace Bent and Bert Bent, one by Beeler and Adams, one by Young, Ingram and Sadring, and one by Bainbridge. These answers differ slightly in detail, but the general effect of each of them is to raise an issue upon the material allegations of the complaint. The trial was to the district court sitting with a jury, and after dismissal by appellant as to Tillman C. Graham, the verdict was for the respondents. Judgment on' the verdict was entered, and appellant in due time presented his motion for new trial, which was denied. The cause is before us upon appeal from the judgment, and from the order denying the motion for new trial. The brief, of appellant assigns sixteen alleged errors. One of these relates to the pleadings, four to the instructions, and the remainder to rulings upon the evidence. No good purpose could be served by discussing these assignments in detail, because, for reasons presently to appear, the judgment must be affirmed in any event. Suffice it to say that we see no error in any of these rulings, except the admission of testimony to the effect that the waters of Sage creek sank and were lost between the ranches of respondents and that of appellant. We think this subject was not open to inquiry as between the parties to this action. The complaint alleges, and the respondents have admitted, that on May 28,. 1908, in the circuit court of the United States, ninth circuit, district of Montana, in an action involving the right to the use of the waters of Sage creek, wherein one W. A. Morris was plaintiff, the appellant herein was intervener, and the respondents or their predecessors in interest were defendants, such proceedings were had that the judgment and decree of that court was duly entered establishing the right of appellant to 110 miner’s inches of the waters in said Sage creek and its tributaries as of August 1, 1890, and prior both in time and right to the rights of any of defendants. In and by this decree the. defendants were enjoined from in any manner interfering with the rights of the present appellant, but were commanded to allow a sufficient amount of water to flow down to satisfy his claim whenever needed by him: While it is true the pleadings in that action are not before us, the decree itself—as admitted by the respondents—is of such a character that we must presume, in the absence of anything to the contrary, that the court had properly before it, not merely the relative rights of the parties in order of time, but the possibility of interference with the right of Howell on account of diversions above him. If at that time the waters of Sage creek sank and were lost between the ranches of respondents and that of appellant, no assertion of rights to such waters by respondents or their predecessors in interest, and no diversion of such waters by the respondents or their predecessors in interest, could constitute an interference with Howell. In such a situation there would have been no occasion for the injunctional portion of the decree. As we cannot presume the decree to have been without foundation or meaning in any of its substantial particulars, it follows that the circuit court of the United States in entering the decree necessarily determined that at that time the waters of Sage creek did not sink and become lost between the ranches of respondents and that of appellant. (Rev. Codes, sec. 7917; Lokowich v. City of Helena, 46 Mont. 575, 129 Pac. 1063.) This conclusion is strengthened by the testimony in the record before us, as well as by the decision of the case in the circuit court of the United States in the first instance (Morris v. Bean [C. C.], 146 Fed. 423), and in the circuit court of appeals, where it was intermediately affirmed (Bean v. Morris, 159 Fed. 651, 86 C. C. A. 519). It being the adjudicated fact that when the decree of the circuit court of the United States was entered the waters of Sage creek did not sink and become lost, no evidence to the contrary was admissible until a change in the conditions subsequent to the decree was shown. But the error is of no avail because the plaintiff was not entitled to judgment. The complaint leaves one in some uncertainty as to whether the pleader intended to charge that the respondents acted jointly or severally in diverting the water. If jointly, it is not sustained by any evidence; if severally, then the complaint, the evidence presented by the appellant, and the instructions given to the jury at his instance were consistent, but were grounded upon a theory wholly untenable. It is well settled that when two or more parties act, each for himself, in producing a result injurious to the plaintiff, they cannot be held jointly liable for the acts of each other; nor, in the absence of statutory authorization, can they be sued in one action for the entire damage, either with or without an apportionment to each of his share of the damage. In pursuing their course, counsel for appellant doubtless proceeded upon the assumption that such authorization is to be found in section 4852, Revised Codes; but, as early as 1895, the law was declared other wise in Miles v. Du Bey, 15 Mont. 340, 39 Pac. 313. That case arose squarely upon the interpretation of ~?ction 1260, Fifth Division, Compiled Statutes of 1887, which is identical with section 4852, Revised Codes, and in deciding it this court held that an action like the one at bar will not lie, and that the section in question authorized the proceeding here employed only in a suit in equity to “settle the relative priorities and rights of all the parties to the water, or the use thereof, of the stream mentioned,” in which the damages claimed are a mere incident. (See, also, Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Beach v. Spokane Ranch & Water Co., 25 Mont. 379, 65 Pac. 111.) We fully realize that the foregoing consideration is not made a matter of specific argument in the briefs' before us, but it is argued that the judgment should be reversed and a new trial directed because of the errors assigned. If—as is the ease—the judgment is correct, if it could not in this action be other than it is, then the errors assigned could in no wise affect it; and we are forbidden, as well by the statute (Rev. Codes, sec. 6593) as by the rules of reason, to order a reversal (Knipe v. Washoe Copper Co., 37 Mont. 161, 95 Pac. 129). Accordingly, the judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. On June 22, 1912, Stephen Roberts, as administrator of the estate of Martha Roberts, deceased, filed his petition in the district court of Broadwater county—that court having jurisdiction of the administration—alleging that he believed, and had reason to believe, that one Willard Roberts had embezzled, conveyed away, and disposed of certain goods and chattels belonging to the estate, and praying that a citation issue requiring the said Roberts to appear and be examined on oath touching the property, and that the court order him to make disclosure to the petitioner of his knowledge thereof. In response to a citation issued upon the petition, Roberts appeared and answered, denying all the allegations in the petition, and alleging title to the property in himself. Thereafter an examination was had, and at its conclusion the court made an order requiring the disclosure to be made in accordance with the prayer of the petition. From this order, Willard Roberts has attempted to appeal as from a final judgment. During the oral argument in this court the question arose whether the appeal lies. If it does not, this court is without jurisdiction to determine it upon the merits, and hence must order a dismissal. The proceeding was instituted under sections 7505 and 7506 of the Revised Codes, which provide a means by which an. executor or administrator may obtain a discovery of assets belonging to the estate of the decedent which have been concealed, embezzled, smuggled, conveyed away or disposed of by any person, or of knowledge of any deeds, conveyances, etc., showing a claim or right of the decedent to any real or personal estate, or any claim or demand, or of a lost will of the decedent. These provisions are remedial in their nature, and confer power upon the court, when sitting in probate proceedings, analogous in its scope and object to the power of a court in chancery upon bills of discovery. (Mesmer v. Jenkins, 61 Cal. 151.) The proceeding authorized by them is of an ancillary character, however, and is confined to securing a discovery of evidence upon which the administrator or executor may recover assets belonging to the estate which would otherwise be lost. The adjudication of disputed rights of property is not within their scope, for the order which section 7506 authorizes the court to make cannot go further than to require a disclosure which may be used in an action pending or to be brought in behalf of the estate. (Ex parte Casey, 71 Cal. 269, 12 Pac. 118.) The order cannot finally adjudicate any right. The utmost effect such an order could have in any case would be to fix the rule of evidence to be observed in an action brought to establish the right asserted in behalf of the estate. From this point of view it is not a final judgment, within the meaning of section 6710 of the Revised Codes, from which an appeal lies under subdivision 1 of section 7098. It is a mere order of judgment in a probate proceeding. As was pointed out in Éstate of Tuohy, 23 Mont. 305, 58 Pac. 722, the expression “final judgment,” as used in this subdivision, refers only to those judgments known at common law as final judgments as defined in section 6710, and does not include statutory determinations termed “orders” or “judgments” in probate proceedings. (See, also, In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244.) The appeal, there fore, does not lie under subdivision 1 of that section, providing for an appeal from a final judgment. Subdivision 3 of this section provides for appeals from orders and judgments in probate proceedings, and enumerates all those from which appeals lie. Among these we find no mention of an order made in the proceedings under consideration. Hence the appeal does not lie at all, and is therefore dismissed. Dismissed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On October, 28,1910, the Smith River Development Company, a Montana corporation, with its principal place of business at Helena, executed and delivered to John Ringling its promissory note for $16,000, due six months after date with interest at eight per .cent per annum. About the same time it procured a contract for the purchase of certain lands in Meagher county known as the Catlin lands, payment for which was to be made in installments covering a period extending to February, 1914. The defendant, having paid two installments due upon the contract, went into possession of the land, and thereafter, on December 28, 1910, by an instrument in writing it transferred, set over, and delivered to Ringling the Catlin contract, with all its right, title, and interest therein, as collateral security for the payment of the note above. About the same time it also secured an option in writing to purchase the Mayn & Heitman ranches in Meagher county, upon installments extending to May, 1915, and on February 9, 1911, it assigned, set over, transferred, and delivered this instrument, with all its right, title and interest therein, to Ringling as further collateral security for the pay ment of the same note; $5,519.58 was paid upon the indebtedness in June, 1911, and, no further payments having been made, this suit was instituted in 1912 in Lewis & Clark county to secure a judgment for the balance due and a decree foreclosing the defendant’s interest in the securities mentioned. A demurrer for want of jurisdiction was interposed and overruled, and the defense of want of jurisdiction was made in the answer. The plaintiff prevailed upon the trial and secured a decree fixing the amount due, and directing the sheriff to sell the securities mentioned, upon five days’ notice,, and to execute to the purchaser a certificate of sale without the right of redemption. This appeal is from the judgment, and. the record presents only the pleadings, the decree and the notice of appeal. We have purposely omitted reference' to many matters contained in the pleadings, which, while proper for consideration in the district court, do not reflect in any manner upon the question before us. If the assignment of the contract in the one instance, and the option in the other, conveyed to Ringling an interest in land as security for the debt due, the transactions amounted to a real estate mortgage which could only be foreclosed in a suit instituted in Meagher county, and in that event the defendant would be entitled to the statutory period of redemption. If we were called upon to determine the character of the security given to Ringling, our inquiry would be limited to construing the agreement made on December 28, 1910, when the contract wac assigned, and also, the agreement of February 9, 1911, by which the option was transferred as further security; but that is not the question before us. The trial court held that those agreements resulted in Ringling receiving into his possession the contract and option as personal property, delivered in pledge as security for the payment of the $16,000. We enter upon our investigation indulging the presumption that the trial court did not err, and the appellant must assume the burden of overcoming that presumption. (Toole v. Weirick, 39 Mont. 359, 133 Am. St. Rep. 576, 102 Pac. 590.) In the absence of any evidence disclosing the circumstances under which the securities were given, or reflecting the intention of either the debtor or the creditor, and, indeed, in the absence of the writing assigning either the contract or the option, appellant must assume the burden of showing that the trial court’s conclusion is erroneous under any possible state of facts consistent with the declaration of the record that by an instrument in writing, duly executed by it, the defendant assigned, transferred, and delivered the contract in the one instance, and the option in the other, as collateral security for the payment of a debt. So far as this record discloses, the defendant company had not paid anything upon the Heitman option, and had not taken possession of any of the lands described in that instrument at the time the option was assigned, and therefore it did not have any interest in the lands themselves (Smith v. Jones, 21 Utah, 270, 60 Pac. 1104), and could not have given a real estate mortgage upon them or upon any interest in them (Provident Life & Trust Co. v. Mills (C. C.), 91 Fed. 435). It did, however, have the right to purchase, and that right may have been valuable. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.) It was such a species of property as might be sold, transferred, or assigned (Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136), and, being personal property, it could be pledged. When the record discloses that the option (the writing) was actually delivered to Ringling as security for his note, it would seem that a pledge was created, within the meaning of sections 5774 and 5775, Revised Codes. In any event, the appellant has failed to overcome the presumption in favor of the correctness of the trial court’s ruling, so far as the option is concerned. Although the subject is a debatable one, we may assume, without deciding, that by reason of making certain payments upon the Catlin contract and taking possession, the defendant had acquired an equitable interest in the land prior to the time the contract was assigned to Ringling. If so, it is very clear that such an interest could be mortgaged. We may further assume that the assignment of such a contract, as security for the payment of a debt, would, generally speaking, create an equitable mortgage upon real estate. Still that result does not necessarily follow. “But here, as in other cases, the question whether the transaction creates an equitable mortgage depends upon the intention of the parties in that behalf, and this is to be determined by a consideration of the circumstances attending it.” (27 Cyc. 981.) While our attention has not been directed to any case directly in point, our conclusion is fortified by the logic of analogous cases. The authorities seem quite uniform in holding that a lease of, or mortgage upon, real estate may be pledged (Dewey v. Bowman, 8 Cal. 145; Jones on Pledges and Collateral Securities, sec. 143; Denis on Contracts of Pledge, 56; Colebrooke on Collateral Securities, 3), and we see no difference in principle between the pledge of a lease and the pledge of a contract to purchase land. If the parties so intended, they might have created a real estate mortgage by complying with the provisions of section 5749, Revised Codes, but whether the assignment in this instance contained the formalities required in the case of a grant to real property we have no means of knowing. The assignment is not set forth in the pleadings, but so far as we are able to determine its character from the description given, it did not pretend to transfer any interest in the land itself (Gardner v. McClure, 6 Minn. 250 [Gil. 167]), but referred only to the contract and to the defendant’s interest in it. If this be true, then we are of the opinion that the defendant’s interest in it was such that the contract might have been pledged. Since it is possible that these transactions might have constituted a pledge of each of these instruments, the appellant has failed to overcome the presumption attaching to the judgment of the district court, and for this reason that judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

PER CURIAM It is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed in accordance with stipulation of counsel on file herein.

MR. JUSTICE SANNER delivered the opinion of the court. Suit by appellant to quiet title to the south half of the southwest quarter of section 25, township 12 north, range 16 west, Missoula county, Montana. The complaint alleges that plaintiff is the owner of the land; that defendant, without right, claims some estate or interest therein; and that sueh claim casts a cloud upon the title of plaintiff. The prayer is that the defendant be required to set forth the nature of his claim; that the same may be adjudged null and void; that the defendant be enjoined from asserting sueh claim; and that plaintiff have its costs and such other relief as may be meet and equitable. The defendant’s answer, after admitting that he claims some title, right and interest in the land and denying the other allegations of the complaint, contains the following “further and separate answer and defense”: “This defendant avers that ever since the 20th day of March, 1901, this defendant has been and yet is in the actual, open, peaceable, uninterrupted, exclusive, undis turbed, adverse and hostile possession of the lands described in the complaint herein, holding and claiming to own the same by reason of said possession of land, exclusive of any other right as against the world.” The prayer of the answer is that the plaintiff take nothing, and that the defendant have his costs. No demurrer, reply, or other pleading to the answer was ever filed, and the defendant, after the time for filing reply expired, caused the default of plaintiff to be entered. Thereafter, on motion duly noticed, the court entered judgment for the defendant upon the pleadings. In this judgment it is ordered', adjudged, and decreed that the plaintiff take nothing by its action; that defendant have his costs; and that the claim of defendant to the premises “shall be and is hereby declared to be established, and # * * that the title to and the right of possession of said above-described premises shall be and the same is hereby forever quieted in and to the defendant Charles Thomas as against the claims of plaintiff, ’ ’ etc. After the entry of judgment the plaintiff filed a motion to vacate and set it aside, which was denied. This appeal is from the order denying that motion. The contentions of appellant are: (1) That the so-called “further and separate answer and defense” does not contain any matter requiring a reply; (2) that it is ineffective to support the judgment as rendered; and (3) that it is ineffective to support any judgment at all. 1. As a matter of pleading, the allegations of defendant’s “further and separate answer and defense” were such as to require a reply, and, since none was filed, he was entitled to have judgment entered without other proof than the pleadings. (Rev. Codes, sec. 6562; State v. Quantic, 37 Mont. 32, 94 Pac. 491; State ex rel. Montana C. R. Co. v. District Court, 32 Mont. 37, 79 Pac. 546.) This conclusion is not affected by the reference to the lands in question as “the lands described in the complaint herein,” instead of by legal description, since it not only could not mislead but served every substantial purpose attainable by a repetition of the description. 2. The plaintiff, asserting that the defendant claimed some right to the land which operated to cloud its title, brought him into court, demanding that he set forth the nature of his claim. He did so, and, if the statement of new matter contained in the answer and admitted by failure to reply wás such as to entitle him to any relief, it was the duty of the court to grant whatever relief he was entitled to upon such statement. (Rev. Codes, sec. 6562; State v. Quantic, supra.) Disregarding questions of form, the new matter alleged in the answer is confessedly sufficient to support the affirmative relief awarded; but the contention is that such relief was not warranted here because there was no formal plea for it. If the action were at law, the want of a counterclaim complete within itself would be fatal; but the action is in equity, and the pleader is not concluded by his prayer (Gillett v. Clark, 6 Mont. 190, 9 Pac. 823; Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Davis v. Davis, 9 Mont. 267, 23 Pac. 715; Kleinschmidt v. Steele, 15 Mont. 181, 38 Pac. 827) nor by the form of his pleading (Davis v. Davis, supra). “It is a settled rule of equity practice that when the court has before it all the parties to any difference, and when it has obtained complete jurisdiction of the whole subject matter, it will finally settle the whole controversy.” (Davis v. Davis, supra.) Under this rule, the new matter set up in the answer was sufficient to support the decree. (Davis v. Davis, supra; Walker v. Burks, 48 Tex. 206; Chicago etc. Land Co. v. Peck, 112 Ill. 408; McCormick v. District of Columbia, 18 D. C. (7 Mackey) 534; Sale v. Crutchfield, 8 Bush (Ky.), 636.) 3. The contention that the answer is insufficient to sustain any judgment is based upon the assumption that judicial notice must be taken that the lands in question were unsurveyed and therefore not subject to adverse possession within the period of ten years next preceding the commencement of this action. As we view the case, determination of this question and others involved in it is unnecessary. The defendant alleged that he had since March 20, 1901, been “in the actual, open, peaceable, uninterrupted, exclusive, undisturbed, adverse and hostile possession” of the lands in question, and all this, precisely as pleaded, the plaintiff admitted by failure to .reply. This admission was as complete and effective as if it had been made in set terms, and it necessarily admitted that the lands were such as to permit possession of the character alleged by the defendant, during the entire period mentioned. The plaintiff cannot now say, under the shield of judicial notice or otherwise, that such was not the fact. The decree of the district court is not vulnerable to any of the objections urged by the appellant. Accordingly it is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Rehearing denied December 29, 1913.

MB. JUSTICE HOLLOWAY delivered the opinion of the court. Action in claim and delivery to recover certain cattle or their value. Defendant appealed from an adverse judgment, and from an order denying him a new trial. The plaintiffs claim that they owned the cattle in dispute, and let them to one John D. Busch under an agreement which amounted to a bailment, with an option to Busch to purchase. The defendant alleges that he purchased the cattle from Busch while he was in possession of them, and for their fair value, without notice of any outstanding claim. 1. Plaintiff Henry Cuerth testified that Busch came to him a stranger, and that, upon the security of $300 left with him, he permitted Busch to take fifty head of cattle, valued at $1,400, forty or fifty miles away under an agreement to keep them for three months, and to purchase them if Busch had the money to make payment. Upon cross-examination he was asked if he made any investigation as to Busch’s standing or character. This was excluded as not proper cross-examination, and incompetent and immaterial. The witness had given his version of his transaction with Busch. Whether it amounted to an absolute sale, a conditional sale, an agreement to sell, or a mere bailment with an option to purchase, depended upon the truth of Cuerth’s statements. It was a vital question, and any evidence, otherwise proper, which would reflect upon the probability of the story should have been received. The jury might have concluded properly that, if Cuerth did not make any inquiry into Busch’s liability, it was because he then treated the transaction as a sale. In any event,, the inquiry was proper, and the ruling erroneous. 2. Mrs. Cuerth, who claims to be interested in these cattle, testified on her direct examination to the negotiations between her husband and Busch, and that a sale to Busch was not made. On cross-examination the details of the transaction were sought; but practically every effort on the part of counsel for defendant to ascertain the facts was met by an objection that it was not cross-examination, and these objections were sustained. In fact, the rulings amounted practically to a denial of the right to cross-examine the witness. While it is the general rule that cross-examination must be confined to the material matters brought out on direct examination or connected therewith (sec. 8021, Rev. Codes; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 Pac. 778; Borden v. Lynch, 34 Mont. 503, 87 Pac. 609), and that mere excursions into matters foreign to the subject considered on direct examination will not be permitted, still the section above is to be liberally construed, and the general rule extended, rather than restricted. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; Hefferlin v. Karlman, 30 Mont. 348, 76 Pac. 757; Knuckey v. Butte Electric R. Co., 45 Mont. 106, 122 Pac. 280.) The declaration of this court upon the subject was tersely made in Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884, as follows: “Section 3376, Code of Civil Procedure [8021, Rev. Codes] permits a wide range for cross-examination, and the courts should incline to extend, rather than to restrict, the right. Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them whether directly or indirectly, which tend to enlighten the jury upon the question in controversy.” In State v. Biggs, 45 Mont. 400, 123 Pac. 410, this was repeated, and in addition thereto we said: 1 ‘ The rule necessarily includes questions, the purpose of which is to bring out facts illustrative of the motives, bias and interest of the witness, of as reflecting upon his capacity and memory. The right would be of little value if inquiry into these matters were not permitted.” 3. Defendant offered in evidence the cheeks which he had given for these cattle when he purchased them from Busch; but upon objection they were excluded, and erroneously so. In an attempted defense of the rulings, counsel for plaintiffs contends that, by failing to reply to the affirmative matter set forth in the answer, the purchase from and the payment to Busch were admitted; but with this we do not agree. The so-called affirmative matter amounted only to an argumentative denial of plaintiffs’ title, and everything which could be proved under it could likewise be proved under a general denial. (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, 1135; Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881.) Defendant was entitled to show that he purchased the animals from Busch, and to offer the best evidence he had of that fact. 4. The trial court erred also in excluding defendant’s offer in evidence of the note given by Busch to Fruchtbar, and a chattel mortgage upon these same cattle to secure the debt evidenced by that note. The mortgage was duly filed for record in Chouteau county, the home of these plaintiffs, on June 23, within two weeks at most from the day upon which they had given the cattle into Busch’s possession, and remained of record uncanceled on July 30, when the defendant alleges that he purchased the cattle from Busch, who was then in possession of them. The evidence was competent for the purpose of re-en forcing the presumptions which the Codes declare: “8. That a thing delivered by one to another belonged to the latter. * * * 11. That things which a person possesses are owned by him. 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership.” (Rev. Codes, sec. 7962.) 5. At the time these transactions between plaintiffs and Busch and between Busch and the defendant occurred, section 5092, Revised Codes, was in force, as.follows: “All contracts, notes and instruments for the transfer or sale of personal prop- erty where the title is stipulated to remain in the vendor until the payment of the purchase price, or some part thereof, shall be in writing, and the original or a true copy thereof certified by the county clerk and recorder shall be filed with the county clerk and recorder of the county wherein the property is situate, otherwise any such contract, note or instrument is void as to a purchaser or mortgagee of such property prior to such filing.” The trial court should have defined an agreement to sell and should have instructed the jury that, if they found that the transaction between plaintiffs and Busch amounted to such an agreement, and further found that defendant purchased the property from Busch while in his possession, then their verdict should be for the defendant, for it is uneontroverted in the evidence that there was not any contract reduced to writing, or any contract filed as required by section 5092 above. 6. The trial court instructed the jury “that a brand duly recorded with the recorder of marks and brands of this state is prima facie evidence of the ownership of an animal bearing such brand; in other words, that the owner of a duly recorded mark or brand is prima facie the owner of an animal bearing such brand. ” Counsel for respondents contends that the instruction is justified by the rules of the common law, as well as by sections 1791 and 1793, Revised Codes, and cites Queen v. Forsythe, 2 N. W. Ter. 398, 4 Territories L. R. 398, wherein it was held, by a divided court, that proof that an animal bore John Lawrence’s mark and brand, that it was a steer three years old, and that Lawrence had not sold or otherwise disposed of locally any steers, was sufficient proof of ownership to sustain a conviction for larceny. Nothing whatever is said by the court of any rule of the common law, and no authority whatever is cited for the holding • but much emphasis is laid upon the fact that identification of cattle by brands is a common custom in that territory. Upon a somewhat similar state of facts the like conclusion was reached by the supreme court of Oklahoma, in Hurst v. Territory, 16 Okl. 600, 86 Pac. 280, and in State v. Cardelli, 19 Nev. 319, 10 Pac. 433; but in neither of these last two eases is there any mention made of a rule of the common law, and in neither is it asserted that a brand, or the record of a brand, is prima facie evidence of the ownership of the animal which bears the brand. We are satisfied that authority for the trial court’s action based upon a rule of the common law cannot be found, and that such rule was never enforced except by virtue of some statute which promulgated the rule. In State v. Keeland, 39 Mont. 506, 104 Pac. 513, and again in State v. Trosper, 41 Mont. 442, 109 Pac. 858, this court treated the brand upon an animal as evidence tending to identify the animal, and to show ownership in the one who owned the brand; while in State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084, we said: “The fact that the O L brand belonged to Houk, and that the horses bore such brand, was not proof that they belonged to Houk at the time they were driven away, or that defendant was not rightfully in possession of them.” In other words, we have-said that the brand upon an animal is a circumstance to be considered with others as tending to show ownership, but in itself insufficient to prove ownership. (Territory v. Harrington (N. M.), 121 Pac. 613.) It is doubtless true that in the early days, when the livestock industry was of commanding importance in this western country, common custom decreed that ownership of range animals should be determined by the brand, and that controversies over livestock should be settled by tribunals created by the owners of the herds; but, just as the jueces del campo gave way to legally con stituted tribunals, so the rules and customs of the plains were superseded by positive legislative enactments. In probably every western state mark and brand laws have been enacted, and provision made for records. In many instances the statute declares in language unmistakable in its meaning that a recorded brand or the certificate from the recorder shall be prima facie evidence that the person who owns the brand owns the animal which bears the brand (N. M. Comp. Laws 1897, sec. 67; Colo. Gen Stats. 1883, sec. 3174; Idaho Rev. Stats., sec. 1179; Nev. Gen. Stats. 1885, sec. 761; Cal. Pol. Code, sec. 3172; Or. Laws 1893, p. 52; Ordinances N. W. Ter. [Can.] 1900, p. 42); but this is not true in all the western states. In Utah the statute merely provides that the recorder’s certificate “shall be deemed evidence in law.” (Utah Comp. Stats. 1897, see. 39.) In 1887 the Arizona statute made the brand upon an animal pi'ima facie evidence that the animal belonged to the owner of the brand (Ariz. Rev. Stats. 1887, sec. 2788) ; but this was repealed, so far as the rule was applicable to civil eases, in the compilation of the laws with reference to livestock, approved March 1, 1897, which declares that the certificate of the recorded brand “shall be competent evidence of the registration of such brand, and prima facie evidence of ownership.” (Ariz. Laws 1897, p. 25, sec. 50.) In Brill v. Christy, 7 Ariz. 217, 63 Pac. 757, there was involved the ownership of certain cattle. A certificate of the record of the brand was offered in evidence for the purpose of showing prima facie title in defendant, whose brand the cattle bore. The court, after quoting section 50 of the Act of 1897 above, said: “If the ownership of the brand or the fact of its registration was in controversy, the provision quoted would be applicable. * * * Neither is the registration of the brand an issue in the case. Section 50 applies solely to the requirement for and the manner of the registration of brands, the proper evidence of such registration, and the ownership of the brands thus registered, and does not deal with the cattle that may be in such brands, the mode of their transfer, or the evidence of their ownership. # ® * While, therefore, section 50 of the said Act constitutes the certificate of the registration of a brand competent evidence of such registration, and prima, facie evidence of the ownership of such brand, it does not make such certificate either competent or prima facie evidence for any other purpose. The history of our own statute furnishes some insight into the legislative intention in passing it. By an Act approved January 10, 1872, provision was made for recording marks and brands, and for certificates to be delivered to the owners. Section 4 provided that such “certificates shall be deemed evidence in law.” The same Act required that upon á sale of branded livestock the brand should be vented, and section 8 declared: “The venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals.” These provisions were carried into the compilations of 1871-72, 1879, and 1887, without change, and were the law up to the adoption of the Codes in 1895. As the Political Code was reported, and as it first passed the House of Representatives, it contained, in lieu of the two sections above, first, a provision that a certified copy of the record of the brand shall be “prima facie evidence of the ownership of the brand,” and, second, that “the venting or counterbranding is prima facie evidence of sale. ’ ’ In the Senate these provisions were stricken out, and in lieu thereof the language as found in the Codes to-day was substituted. These amendments were concurred in, and the Act thus amended became the law which went into effect July 1, 1895, and provided that the general recorder of marks and brands must “furnish to the owners of recorded brands a certified copy of the record of the same, which certificates are prima facie evidence of the ownership of the brand or mark so recorded” (Pol. Code 1895, sec. 2941), and “every person who sells * * * cattle, must vent or counterbrand such animals, * * * and the venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals so vented.” (Pol. Code 1895, see. 2943.) These provisions were carried into the Revised Codes of 1907, and are found in sections 1791 and 1793, respectively. It will thus be seen that, through all the changes which have occurred in our livestock statute since 1872 the legislature, while asserting repeatedly that a vented brand is prima facie evidence of a sale of the animal bearing the brand, has studiously declined to say that the brand on an animal or a certificate of a recorded brand shall be prima facie evidence of ownership of the animal bearing the brand. On the contrary, while there may have been room for doubt as to the meaning of the original statute, which declared that the recorded certificate “shall be deemed evidence in law,” the legislature which enacted the Codes declined to approve the somewhat equivocal terms employed by the Code commissioners, but cleared away all uncertainty by declaring, in language whose meaning cannot be questioned, that the certificate of a recorded brand “is prima facie evidence of the ownership of the mark or brand so recorded. ’ ’ Other state legislative bodies have had no difficulty in making a recorded brand, or a certificate of such brand, prima facie evidence of ownership of the animal bearing the brand, and doubtless our assemblies could have done equally as well if they had chosen to do so; but their refusal to adopt a statute similar to those in force in sister states where conditions are similar, and their final adoption of the statute in its present form, furnish most persuasive evidence that it has been the policy of this state to go no further than to recognize a brand as evidence, just as a flesh mark or other distinguishing mark or characteristic is evidence. The purpose of the statute is to secure to anyone who records his brand the exclusive use of the design adopted (Stewart v. Hunter, 16 Or. 62, 8 Am. St. Rep. 267, 16 Pac. 876), and the object sought in requiring a brand to be vented is to foreclose the vendor’s claim to the animal sold (Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135). The instruction given is erroneous. It provides a rule of evidence not warranted by statute or the common law. 7. Counsel for appellant requested the trial court to include in an instruction the provisions of subdivisions 8, 11, and 12 of section 7962 above; but the request was denied. It is not commendable practice to submit to jurors abstract rules of law, even though they are correct, and error cannot be predicated upon the action of the court in refusing defendant’s request in this instance. (First Nat. Bank of Portland v. Carroll, 35 Mont. 302, 88 Pac. 1012.) If a concrete application of the rules to the facts of this ease had been made, it would have been reversible error to refuse to submit the instruction. ■Since this cause must be remanded for a new trial, the attention of counsel is directed to the fact that the verdict returned upon the trial of this case does not respond to all the material issues tried, and is insufficient to sustain a judgment. (Hickey v. Breen, above.) The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This is an appeal from certain findings and an order made in a proceeding in eminent domain, instituted by the Great Falls & Teton County Railway Company against E. H. Ganong and others, to condemn certain lands for railway purposes. The facts disclosed by the record are: That in 1910 the Chicago, Milwaukee and Puget Sound Railway Company, which had by construction and purchase secured a main line of road from Mobridge, South Dakota, to Seattle and Tacoma, in Washington, duly authorized the construction of a branch line from its main line at Saugus, Custer county, through the cities of Lewistown and Great Falls, the town of Chouteau, and on to the Canadian boundary. In August, 1912, the engineers of that company, acting under Charles A. Goodnow, assistant to the president, made a survey of the line and particularly that portion which passes through the town of Chouteau; staked out the center line through the center of Grove street in the town of Chouteau; made a map of the proposed route, which was submitted to Mr. Goodnow and by him approved on August 29, 1912, at which time he also selected a strip of ground 400 feet wide and 2,600 feet long, lying immediately east of and adjoining Grove street, for depot grounds, yards and other railway purposes. Thereafter options were taken for some of the lands wanted, and on September 6 the county commissioners of Teton county granted to the Puget Sound company a perpetual franchise for the use of Grove street for railway purposes1 (Chouteau being unincorporated) upon certain conditions mentioned in the resolution evidencing the grant, one of which conditions was that the company should by writing, filed with the county clerk within 30 days, indicate its acceptance of the grant upon the terms imposed. On September 12, 1912, the Great Falls & Teton County Railway Company received its charter as a Montana corporation, and on the same day, at a meeting attended by all the stockholders, the three persons named as incorporators were elected directors of the company, and, the directors having quali fied, a meeting was held at which a line theretofore surveyed by engineers employed by the promoters and incorporators was adopted as the line of definite location of the road to be constructed, and authority was given to institute proceedings in eminent domain to obtain lands for right of way, depot grounds, and other railway purposes. On the same day this proceeding was instituted by the filing of the .complaint and the issuance of summons. In so far as involved here, the line of definite location of the Great Falls company runs parallel with the east boundary line of Grove street'in the town of Chouteau, and the lands sought to be acquired in this proceeding constitute a plot of ground, in general terms, 300 feet wide and about 2,000 feet long, lying immediately east of and adjoining Grove street and included within the plot of ground selected by Mr. Good-now for station grounds, yards, etc. The Puget Sound company appeared by answer and set forth that it had acquired the interests in the lands sought to be condemned theretofore owned by certain of the defendants named; and further alleged that it had taken the steps set forth above looking to the location and construction of its branch road from Saugus to the Canadian line. The trial court found, among other things, that all the lands sought to be condemned are necessary for the use of the Great Falls company, but that a strip thereof 60 feet wide, lying immediately east of and adjoining Grove street (hereinafter called the disputed strip), had theretofore been appropriated by the Puget Sound company for a public use of equal necessity. The order made by the court for commissioners to assess the damages includes all the land desired by the Great Falls company except the disputed .strip mentioned, and as to that strip the court dismissed the complaint and refused to include it in the order. The Great Falls company appealed from the order and from the findings in so far as they determine that the disputed strip had been appropriated by the Puget Sound company, and submits for our consideration the contention that the evidence is insufficient to support the findings or conclusion, so far as this disputed slip is concerned. Upon this appeal we are not concerned with any question which might arise between a railroad company and the private owner of land sought for railroad purposes. Our concern is only with the question of the priority of right to acquire property for railroad purposes as between competing railroad companies themselves. In authorizing the Great Falls company to condemn the land described in the order, the court impliedly found that the Puget Sound company had not appropriated any ground for station purposes, yards, or terminal facilities, and of this conclusion complaint cannot well be made. So far. as the land sought for those distinct purposes is concerned, nothing was done except that Mr. Goodnow selected it. Whatever rule may be adopted for determining the priority as between rival roads seeking the same property for railroad purposes when neither company has attached itself to the property by contract or condemnation proceedings, we think that no authority has ever gone to the extent of holding that the mere mental process of selecting a particular tract of ground wanted for railroad purposes is sufficient to give that company, whose authorized representative may conceal his selection in his own mind, a preference right to acquire the ground. But the trial court did find that, as to the disputed strip, an appropriation thereof had been made by the Puget Sound company “in order to lay out its road, and the laying out of its road is the public purpose to which said property had already been appropriated.” It will be observed that in this the trial court has followed the language of subdivision 4 of section 4275, Revised Codes. That section is entitled: “Powers of a Railroad Corporation.” The introductory clause is: “Every railroad corporation has power.” Then follow eleven subdivisions enumerating those powers. Subdivision 4 reads as follows: “To lay out its road, not exceeding in width one hundred feet on each side of its center line, unless a greater width be required for the purpose of excavation or embankment, and to construct and maintain the same, with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same.” In view of the language employed by the court above, and the facts that Grove street is 80 feet wide, that the center line of the Puget Sound company is in the center of that street, and that this strip 60 feet wide is necessary to give the Puget Sound company 100 feet on the east side of its center line, it seems reasonably clear that it was the theory of the trial court that by making a survey of its center line, staking and mapping the same, and causing the survey to be approved, all prior to the commencement of this condemnation proceeding, the Puget Sound company thereby acquired a preference right, as against its rival, to secure land over which to lay out its road, by virtue of subdivision 4 of section 4275 above, and that the acts which gave rise to such preference right effected an appropriation, to a public use, of a strip of ground 200 feet wide—100 feet on each side of the center line. For the purposes of this appeal we may assume, without deciding, that in every contest between rival railroads, each seeking the same land for railroad purposes but neither having acquired an interest in it, the question of priority of right is to be determined by the equities of the particular case, and that in the instant case the acts enumerated above are sufficient, in effect, to give the Puget Sound company a preference right. We •then approach the important question presented by this appeal, vis.: What is the extent of the right acquired under subdivision 4 of section 4275 above, by the company which has the superior equities? While that subdivision contains a grant of power to lay out a roadway or right of way and to construct and maintain a single or double track thereon, it does not assume to grant such right of way or roadway. The language “not exceeding in width one hundred feet on each side of its center line” is not a grant but a limitation. In the absence of any necessity for additional grounds for excavation or embankment, the strip 200 feet wide simply marks the utmost limits of the' extent of land which a railroad company may take in invitum for roadway or right of way purposes. But no obligation is imposed upon any company to take the full amount permitted, and in the absence of any necessity it cannot do so, either as against the will of the owner or the necessities of a competing road. The strip 200 feet wide is the utmost that it can take, but it may be content with any quantity less which is justified by its reasonable necessities. The line of stakes through the center of Grove street—the only outward, visible evidence of the center line of the Puget Sound company’s right of way— gave no indication of the extent of the land which that company desired or needed. But if we adopt the theory of those courts which indulge the presumption in such a case that the full amount allowed by law was intended to be claimed, we are still unable to agree with the conclusion of the trial court. So far as the extent of the right of way is concerned, subdivision 4, above, at most extends to a railroad company the privilege of taking a strip 200 feet wide, if necessary. The privilege may be accepted or it may be waived; and it is waived by taking a less amount. (Joplin & W. Ry. Co. v. Kansas City, Ft. Scott & M. R. Co., 135 Mo. 549, 37 S. W. 540.) If the Puget Sound company’s preference right to acquire this disputed strip cannot be justified under subdivision 4 above, it cannot be justified at all. It was not in possession of that company; its exterior boundaries were not staked or even surveyed, so far as this record discloses. The right attaches, if at all, by virtue of surveying, staking, mapping and adopting the line through the center of Grove street; and the trial court must have found that it was by virtue of these acts that the Puget Sound company had availed itself of the privileges and powers granted by subdivision 4 above. No other .reasonable construction can be given the trial court’s findings. That subdivision 4 deals exclusively with land sought for right of way purposes, as distinguished from land needed for yards, depot grounds, terminal, and other railroad facilities, is apparent. That it was not the intention of the legislature to limit a railroad company to a strip 200 feet wide for all railroad purposes is clearly indicated by the language employed. Subdivisions 3 and 7 of the same section provide for acquiring lands for other railroad purposes. Our inquiry, then, must be limited to the extent of the preference right which the Puget Sound company acquired to secure land under subdivision 4 above for a right of way. In the first place, that company was not claiming a strip of ground 100 feet on each side of its center line. Beyond the west line of Grove street it was not claiming anything at all except one-half of blocks 4 and 11, and that was claimed only for the purpose of locating a passenger station. It secured a franchise for the use of all of Grove street if it chose to accept the conditions imposed by the- county commissioners. But[ furthermore, as if to set at rest the question as to the purpose for which all of the land lying east of Grove street, including this disputed strip, was wanted, Mr. Goodnow, who made the selections and who was the only person who assumed to represent or to speak for the Puget Sound company, testified that on August 29, 1912, when the map of the survey was brought to him, he then selected the station grounds desired by his company—a plot of ground 400 feet wide and 2,600 feet long, lying immediately east of and adjoining Grove street and including the strip, 60 feet wide, now in dispute. Continuing, the witness said: “On the west side of Grove street I selected half of block 11 and a portion of the lots immediately north of that in block 4; that is to say, the east half of block 4. * * * That selection was made for the purpose of locating the passenger station. * * * The ground to the east of Grove street was selected for the ordinary purposes of station grounds. I selected 400 feet in width, because it would be necessary to straighten out Spring creek'and because I thought it would take some room from the station grounds in order to do that, probably 50 or 75 feet. We expect, of course, to locate elevators and industries of that character on this ground. '* * # The west side of Grove street simply accom mo'dates the passenger business. ■ * * * We would propose to hold the land on the east side of Grove street entirely for industrial and passing tracks, etc.” To our minds this seems 'conclusive that the Puget Sound company was not claiming any ground east or west of Grove street for right of way purposes, but was content to use the street, 80 feet in width, for right of way. Counsel for that company drafted the franchise granting the use of that street, and the intention of his company is indicated, in a measure at least, by Article 1, which reads as follows: “Article 1. That there be, and there is hereby granted, unto the Chica'go, Milwaukee & Puget Sound Railway Company, * * * the perpetual right to use that certain street known as Grove street in the town of Chouteau, and the additions thereto, for the purpose of laying down and maintaining thereon a railway track or tracks, together with the necessary switches, turnouts and sidetracks, and to operate a line of cars over and along the same for the purpose of conveying passengers, freight, express and mail matter, and carrying on such other business as is ordinarily carried on by a railway company.” It cannot be claimed that any part of the strip 400 feet wide east of Grove street was wanted for right of way. The entire strip was selected for other purposes, and purposes recognized by the statute as altogether distinct from the right of way. Under the most favorable view which can be adopted, the evidence fails- to sustain the finding that the strip of ground 60 feet wide lying immediately east of and adjoining Grove street was appropriated for any public use at the time this proceeding in condemnation was instituted. There is not any evidence that the board of directors of the Puget Sound company ever authorized Mr. Goodnow to adopt a line of definite location of its road, even assuming that so important a corporate act can be delegated. Neither is there any evidence of authority conferred upon the president of that company by the statutes of its parent state or the by-laws of the corporation. There is little, if anything, more than a bare scintilla of evidence that Mr. Goodnow acted by virtue of a common custom. There is not any evidence that the franchise granted by the county commissioners for the -use of Grove street was ever accepted. The order of the trial court is reversed and the proceeding is remanded, with directions to eliminate the finding that the disputed strip was appropriated for a public use by the Puget Sound company, and to modify the order for commissioners, so as to include such strip. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur. Rehearing denied November 13, 1913.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. The defendant was convicted of murder in the first degree and sentenced to imprisonment for life. He has appealed from the judgment and the order denying his motion for a new trial. The integrity of the judgment is assailed on the ground that prejudicial error was committed by the court in its rulings upon questions of evidence and in submitting instructions to the jury. Contention is also made that the court permitted such misconduct by the county attorney that the defendant was prevented from having a fair trial. The defendant admitted the homicide and undertook to justify it on the ground of self-defense. The encounter resulting in the homicide occurred in the early (Sunday) morning of March 31, 1912, in a saloon known as the Manhattan Club, at the head of Joliet street in the city of Helena. The place was kept by the deceased, Robert Johnson, and one Ward Cole, both negroes, and was a popular resort among a certain class of colored people. On the evening of the 30th a visit was made to it by several persons with the purpose of promoting the interests of candidates for election to office at the approaching city election. The deceased, who had charge at the time, asked the defendant to go ont and invite in colored men from other places. This he did. There was then some discussion by speakers as to the merits of the parties represented by them and their candidates, during which beer and other refreshments were served at the expense of the visitors. The defendant asked to be served with beer. He was told by deceased that he could get a glass of beer by paying for it. The defendant remonstrated, calling the attention of deceased to the fact that the drinks were free and that he (defendant) had accommodated deceased in various ways during the evening, especially by going to invite in a crowd at the request of the latter, but remonstrance was fruitless. The result was an altercation during which vile epithets were exchanged and a fight was narrowly averted. -Finally the deceased ordered the defendant from the place. He did not go at once but waited until the meeting adjourned. He then went, after using threats against the deceased. This was about 11 o’clock. Having walked about the streets for some minutes and visited other places in the neighborhood, he went to the saloon of a friend and borrowed a revolver with which the killing was done, explaining to his friend that he going out early in the morning with another friend to shoot rabbits. This intention he mentioned to others also. The revolver was not then loaded, but the defendant, having some cartridges of suitable caliber, went to his room and obtained them and after loading the revolver, put it into his pocket. One witness testified, substantially, that he met the defendant on the street in the vicinity of the Manhattan Club; that the defendant referred with feeling to the treatment he had received at the hands of the deceased; that when the witness parted with the defendant, the latter invited him to go to the Manhattan Club, saying that he was going to have it out with the deceased, and that “they would either carry him out dead or Johnson out dead.” The witness refused to go. Some minutes later the defendant entered the resort. There was then present, besides tbe deceased, one John Davis, who was the only eye-witness, other than defendant, as to what was the order of events immediately preceding the homicide. We shall not state the testimony in detail. Davis stated that when the defendant entered he referred to the episode of the evening before and remonstrated with the deceased; that the deceased refused to discuss the matter, telling the defendant that the incident was closed and that he should go out; that he himself interposed by suggesting that life is too short to permit worries over such small affairs; that he invited the defendant and deceased to have a drink at his expense and advised them to forget 'their differences ; that the deceased then gave the defendant a twenty-five cent piece; that the defendant bought a drink; that when this occurred the witness thought the deceased and defendant had become friendly again; but that immediately thereafter while he was apparently waiting for deceased to serve him a cigar, the defendant shot the deceased. He stated that when the defendant began to shoot he hurried from the place, but as he passed out he saw the deceased fall. The story of the defendant is in substantial agreement with that of Davis, except as to who ordered the drinks and except, also, as to who was the aggressor. ■According to his story, he himself ordered the drinks inviting Davis,to join him. He stated that Davis declined the invitation saying that he did not drink; that he then ordered a drink of whisky for himself, putting a twenty-five cent piece upon the bar; that after he had taken the drink and as he was returning the glass to the bar, the deceased reached over with his left hand and struck him, knocking off his hat, which fell behind the bar; that he stepped back to avoid further assault and demanded the return of his hat; that the deceased, applying to him a vile epithet and saying, “I will give you your hat,” raised a revolver and shot him in the abdomen; that he then drew his revolver and began firing; that the deceased attempted to continue firing but that his revolver seemed to “hang”; that the deceased turned as if to secure another weapon; that the defendant thereupon hurried from the place leaving his hat and calling for the police, without, however, hé stated, having seen the result of the shooting. An autopsy disclosed that deceased had been shot four times, one shot passing entirely through the brain cavity from the left temple and lodging under the scalp on the opposite side of the head. The other wounds were not mortal, but this was and was of such a character as to destroy the power of muscular control and must have caused the deceased to fall as soon as it was inflicted. As defendant left the scene of the shooting and in answer to an inquiry by a witness whom he met on the street as to what was the matter, he stated that he had been shot by Johnson and that he was going to a hospital for medical aid. He did not go to a hospital nor to the police station as he was advised to do by the witness, but went first to the saloon at which he procured the pistol and returned it. He there exhibited to the proprietor a flesh wound in his abdomen, a bullet dropping out as he opened his clothes. He stated that he believed that he had killed “that fellow,” without explaining whom he referred to. From there he went to different places, finally going to his rooming-house, where he was later arrested, apparently in hiding in an outhouse. There was evidence that prior to Ms return to the Manhattan Club the defendant made other threats against the deceased. One witness stated that while he was at a place kept by one Silverman, where the defendant had his room, the defendant came in and, giving the proprietor his keys, asked him to take care of his dog and other properly there. Upon being asked what he was going to do he said that “he was going to kill that black s-o-b-.” The witness had been present at the Manhattan Club when the altercation occurred there. Other witnesses testified to similar threats made at different places visited by the defendant prior to the homicide. The defendant denied making any threats at all, and accounted for his return to the Manhattan Club by the statement that he knew that the barber-shops did not close on Saturday evenings until about midnight; that the club was supported by the men that worked in the barber-shops; that his purpose on returning to the club was to meet them, and that he had no idea of having trouble with the deceased. The body of the deceased was found lying between the front and back bars, near the end leading from the front into the space between. In the right hand was a revolver containing two cartridges, one of which had been recently exploded. This brief resume of the evidence shows that it was in sharp conflict on every material point. If we accept the story of the encounter as told by the witness Davis, keeping in mind the antecedent threats of the defendant and. his procuring the revolver with the apparent purpose of carrying them out, we are compelled to the conclusion that the defendant was properly found guilty as charged. On the other hand, accepting his own story as the correct version of the encounter, the homicide was justifiable because done in necessary self-defense. There is not ground for any other than one of these two conclusions. Counsel for defendant have assigned and discussed in their brief many alleged errors which are wholly without merit; so much so that we cannot think counsel serious in urging them. For example: The witness Harry Johnson during cross-exam- ination was questioned as to what he heard the defendant say about the deceased at Silverman’s saloon a short time before the homicide. He was questioned and answered as follows: “Q. You didn’t say a word to him? A. I asked him where he was going. Q. Is that all you said to him? A. He told me that he going to kill that s-o-b-and I laughed at him.” Counsel asked to have the answer stricken out as not responsive to the question. The court overruled the motion. A party is entitled to have a responsive answer to a question propounded to a witness by counsel (Jones on Evidence, sec. 815; Underhill on Criminal Evidence, 2d ed., see. 216), and to have an -answer stricken out in which the witness volunteers statements of facts not called for by the question. The refusal of the trial judge to strike out such an irresponsive answer is error, and, if it appears that the evidence embodied in it has probably wrought prejudice to the party complaining, the result will be the reversal of the judgment. The ruling in question was erroneous but clearly not prejudicial, for the reason that during his examination in chief the witness twice imputed •to the defendant the threat embodied in the irresponsive answer, using almost the exact words employed by him in the latter. The statement was relevant, was already in the ease, and the repetition of it by the witness could not from any point of view have wrought prejudice. A judgment may not be reversed for such an error. (Rev. Codes, secs. 9415, 9548; State v. Vanella, 40 Mont. 326, 20 Ann. Cas. 398, 106 Pac. 364; State v. Byrd, 41 Mont. 585, 111 Pac. 407.) We shall, therefore, omit notice of all the assignments which may properly be classed under this head, and give attention to those only which have some basis of merit. Henry Baker was called to testify as to the reputation of the defendant for peace. He testified that it was good. On cross- examination by the county attorney he was asked: “Did you ever hear about the episode at the Castle when he went up there to beat up a woman ? ’ ’ Objection was made that the question embodied a statement of fact which could not be proved by independent evidence, viz., that the defendant had at some prior time gone up to the Castle (a notorious resort in Helena) to beat a woman, and that the county attorney in putting the question in this form in effect stated to the jury that such an episode had in fact occurred, whereas he would not have been permitted to show it by independent evidence. The county attorney thereafter called other witnesses to whom he put the same question or others similar in form, touching this and other alleged unlawful acts of the defendant. The court overruled the objection. Thereupon the witness answered in the negative. It is argued that the ruling was prejudicial for the reasons stated in the objection, and for the additional reason that in thus putting the question the county attorney was guilty of gross misconduct on. account of which alone the defendant ought to be awarded a new trial. It will be noted that the objection did not technically present the question whether the county attorney was guilty of misconduct. We gather from the colloquy between the presiding judge and counsel that the judge was of the opinion that it would be competent for the county attorney to introduce independent evidence of special instances of lawlessness by the defendant, to rebut the evidence tending to show his good reputation. The rule is well settled that when a defendant in a criminal case calls witnesses to testify that he possesses such a general reputation in the community in which he resides as tends to rebut the notion that he is guilty of the crime with which he is charged, these witnesses may be questioned on cross-examination as to their knowledge of disparaging rumors or common reports affecting his reputation. As the favorable testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements. If, therefore, it can be shown that there are or have been rumors or reports affecting the reputation, to this extent the statements of the witnesses are shown to be without foundation in fact and therefore not entitled to credit. (2 Wigmore on Evidence, sec. 988; Underhill on Criminal Evidence, sec. 82.) The purpose of the inquiry is to ascertain what the witness has heard to the disparagement of the reputation, and not his knowledge of particular acts of misconduct. Extrinsic evidence of particular ‘wrongful acts is therefore not admissible, because it violates the rule against proof of particular facts to establish reputation, declared by the statute. (Rev. Codes, see. 8024; Wigmore on Evidence, sec. 988; Underhill on 'Criminal Evidence, see. 82; 1 McClain on Criminal Law, sec. 307.) The question as put by counsel assumed as a fact that the defendant did go to the Castle for the purpose stated. Though the statement was in the form of an interrogatory, it was as objectionable as if it had been stated in the form of a declaratory sentence and therefore was obnoxious to the rule against proof of particular facts. . The situation was not aided by the negative answer of the witness. The answer did not negative the fact stated, but only that the witness had heard of the fact. If he had answered in the affirmative, the answer would have implied the existence of the fact as well as hearsay knowledge of it by the witness. If it had not been answered at all, it was still objectionable, for it was calculated to leave the jury under the impression that the episode did occur, and hence to furnish them some basis for the damaging inference that the defendant was a lawless character. It is never proper for counsel to so frame questions as to assume the existence of facte which are not admissible if offered as independent evidence. (3 Wigmore on Evidence, 1808; Jones on Evidence, 2d ed., sec. 815; Gale v. People, 26 Mich. 157; People v. Wells, 100 Cal. 459, 34 Pac. 1078; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Aiken v. People, 183 Ill. 215, 55 N. E. 695; State v. Irwin, 9 Idaho, 35, 60 L. R. A. 716, 71 Pac. 608; Howland v. Oakland Con. Ry. Co., 115 Cal. 487, 47 Pac. 255; People v. Ah Len, 92 Cal. 282, 27 Am. St. Rep. 103, 28 Pac. 286; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609.) The attorney who does it is guilty of misconduct which is wholly indefensible, not only because he is proceeding in total disregard of the fundamental rule of evidence, but is at the same time not fair to the defendant. Assuming that in putting the question as he did counsel did so with full knowledge of the limitations of the rule applicable, the observation made by the supreme court of California, in People v. Mullings, 83 Cal. 138, 17 Am. St. Rep. 223, 23 Pac. 229, and approved by this court in State v. Rogers, 31 Mont. 1, 77 Pac. 293, is pertinent: “It is quite evident that the questions, and not the answers, were whait the prosecution thought important. The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facte which could not be proven, rand thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based.” Whether such questions are answered or not, the putting of them is condemned by the courts and text-writers as gross misconduct. (State v. Rogers, supra; Wigmore on Evidence, sec. 1808; State v. Irwin, supra; Gargill v. Commonwealth, 12 Ky. Law Rep. 149, 13 S. W. 916; People v. Grider, 13 Cal. App. 703, 110 Pac. 586; Watson v. State, 7 Okl. Cr. 590, 124 Pac. 1101; People v. Wells, supra.) And we do not think the case is aided by the fact that similar questions put to witnesses previously called, as was the fact in one or two instances, were permitted to pass unchallenged. By overruling the objection, the trial judge not only signified the opinion that the statement of fact embodied in the interrogatory was relevant and material, but stamped with approval the course pursued by the county attorney, thus emphasizing the error committed. The failure of counsel to object earlier did not justify the court in permitting further error; nor did his fail-ure to renew his objection thereafter when the same or similar questions were put to other witnesses. The objection should have been sustained and all similar questions subsequently asked should have been excluded. When a party has seasonably objected to evidence of a certain character and his objection has been overruled, proper decorum would indicate that he should not thereafter interrupt the course of the trial by constant repetition of his objection. (Schierbaum v. Schemme, 157 Mo. 1, 80 Am. St. Rep. 604, 57 S. W. 526.) Counsel for the defendant introduced the depositions of four witnesses who reside at Boise, Idaho, for the purpose of showing that the reputation of the deceased for peace was bad. All of them gave testimony to the effect that one Robert Johnson, who had for some years and until the latter part of the year 1911 been a resident of Boise, was reputed to be a turbulent, violent man. One of these witnesses was asked to attach to his deposition a photograph of Johnson, marking it with the initials of his name so as to identify it. This he did. Upon objection by the county attorney -the photograph was excluded on the ground that it was irrelevant and immaterial. Counsel also offered the testimony of witnesses who knew the deceased, to identify the photograph as his. This was- rejected on the same ground, the court remarking that it was the province of the jury to determine whether or not it was a photograph of the deceased. The evident purpose of the offer was to render the evidence contained in the depositions of avail to the defendant, by showing definitely that the deceased was the same person to whose character they had testified. As it was not permitted to go to the jury with some evidence as to whose picture it was, the jury had no office to perform with reference to it, and the evidence of all these witnesses, as to the character of the deceased was in effect rendered worthless because there was nothing to identify the deceased as the man about whom the witnesses spoke, except the slight presumption arising from the identity in name. Even this slight presumption was probably wholly neutralized by a remark made by the court during the colloquy with counsel as to the admissibility of the photograph, to the effect that it might be that there were other persons who bore the name of Robert Johnson, thus indicating an opinion that there should be some evidence identifying the deceased as the man who had formerly resided in Idaho. The ruling was erroneous. While there is some diversity in the opinions of the courts as to whether evidence of the reputation of the deceased is competent for any purpose unless it is known to the defendant at the time of the homicide (and evidence of such knowledge was not introduced at the trial of this case), the weight of authority, we think, gives support to the rule that when, as in this case, the issue is self-defense and there is doubt as to who was the aggressor, such evidence is admissible in order to enable the jury to resolve the doubt; for it is entirely in accord with every-day experience that a turbulent, violent man is more aggressive and will more readily bring on an encounter than one who is of the contrary disposition. (State v. Shafer, 22 Mont. 17, 55 Pac. 526; 1 McClain on Criminal Law, 307; 1 Wigmore on Evidence, sec. 63.) Such evidence serves the same purpose as uncommunieated threats, which are always admissible when the. question is in doubt, in order to enable the jury to determine who probably brought on the conflict. (State v. Shadwell, 26 Mont. 52, 66 Pac. 508; State v. Hanlon, 38 Mont. 557, 100 Pac. 1035; State v. Whitworth, 47 Mont. 424, 133 Pac. 364.) This much we have taken occasion to say touching the competency of the evidence in question, in order to answer the argument of the attorney general who undertakes in his brief to justify the ruling on the ground that the reputation of the deceased is never competent unless it is first shown to have been known to the defendant. It is the general rule, also, not questioned anywhere so far as we are aware, that when a photograph is shown to be a fair and correct representation of a person whose identity is in question, it is admissible to identify such person; That it is a fair and correct representation may be shown by the person who made it or by any competent witness. (McClain on Criminal Law, sec. 406; Underhill on Criminal Law, sec. 50; 1 Wigmore on Evidence, 660; Mow v. People, 31 Colo. 351, 72 Pac. 1069; People v. Durrant, 116 Cal. 179, 48 Pac. 75; People v. Crandall, 125 Cal. 129, 57 Pac. 785; People v. Grill, 151 Cal. 592, 91 Pac. 515; State v. Roberts, 28 Nev. 350, 82 Pac. 100.) In the case of People v. Durrant, supra, the witness who testified as to the character of the photograph in question was a sister of the deceased, and we think the court properly held that her testimony to the effect that it fairly represented the appearance of the deceased at the time of her death was entirely sufficient to warrant its admission. That the one offered here was such a representation of the deceased was not questioned. Besides, the witnesses whose evidence was offered as preliminary proof of its character apparently knew the deceased well in his lifetime. By excluding it the court virtually excluded the testimony of all the Idaho witnesses; and though there was some testimony by other witnesses, of the same import as that thus excluded, this did not render the error harmless. (State v. Shadwell, supra.) Nor was the photograph rendered inadmissible by the fact that it bore upon it some evidence that it had been taken while the deceased was an inmate of the state prison in Idaho. It appeared incidentally from the testimony of the witnesses, one of whom was the warden of the prison, that the deceased had served two terms in the prison. The warden testi fled that his observation of the deceased had been had and his acquaintance with him acquired, m-ainly during the imprisonment of the latter. This evidence went' in without objection. It was not relevant to the inquiry in hand, and we think counsel, in the form of the interrogatories submitted to the witnesses, undertook to give undue prominence to the fact that deceased was an ex-convict, evidently with the purpose of giving to the jury the impression that he was a bad man. For this reason the court properly struck out several of the interrogatories with the answers to them; nevertheless the evidence as to the repu-. tation of deceased, even though it incidentally appeared from it that he was an ex-convict, being competent and material, it was prejudicial error to exclude the photograph and the evidence identifying it as a correct representation of the deceased. The court should have admitted it for the purpose for which it was offered, under proper restrictions, along with the depositions, after striking out the objectionable portions thereof. It is argued that prejudicial error was committed in submitting the following instruction: “12. You are instructed that in order to constitute murder of the first degree the killing must have been done and perpetrated with malice aforethought and must have been done willfully, deliberately and premeditatedly, and before the jury are authorized to convict the defendant of the crime of murder in the first degree, they should be satisfied from the evidence in the case beyond a reasonable doubt that the defendant killed Robert Johnson willfully, deliberately, premeditatedly and with malice aforethought, and you are instructed that if you find from all the evidence in the case beyond a reasonable doubt that the defendant, William Jones, shot and killed Robert Johnson on or about the 31st day of March in this year in the county of Lewis and Clark, in the state of Montana, with malice aforethought, willfully, deliberately and premeditatedly, and that he was not justified or excused for so doing, then you should find the defendant guilty of murder in the first degree. ’ ’ The criticism made is that the obligation resting upon the jury to be satisfied of the guilt of the defendant beyond a reasonable donbt before they may find him guilty is absolute, whereas by the use of the term “should,” instead of “must,” the court left it discretionary with the jury to convict, whether they were so satisfied or not. The same criticism is made of instructions 13 and 14, as to the duty of the jury to acquit in case they should not be so satisfied. We think the contention is without substantial merit. But for the fact that we feel impelled to order a new trial because of error in the rulings upon the questions of evidence heretofore discussed, we should not deem the contention deserving of any notice. Of course, it is absolutely necessary that the jury be convinced beyond a reasonable doubt before they can convict, and that the duty to acquit, when the jury is not so convinced, is equally absolute. We venture the assertion that the average juror does not stop to speculate as to the distinctions in the meaning of such terms as “must,” “ought” and “should,” all denoting moral obligation, but recognizes the obligation of his official duty enjoined by the use of one of them as not differing in any respect from that enjoined by the use of the other. The average juror understands without being told in terms that in no case may a defendant be convicted unless the evidence establishes his guilt beyond a reasonable doubt. For present purposes we deem it sufficient to refer to 'the discussion of the terms in question, found in State v. Blaine, 45 Mont. 482, 124 Pac. 516, as conclusive against the contention of counsel. We suggest, however, that it is always wiser and safer for a trial court to use such terms in the formulation of its instructions as will inform the jury as to the full measure of their duty as well as the limitations imposed upon them by law. Contention is made that the court erred in submitting the following instruction: “You are instructed that no provocation by words only, however opprobrious or threatening, will mitigate an intentional killing, so as to reduce the killing to manslaughter.” The objection interposed to it in the trial court was that there was no evidence in the ease rendering this instruction necessary or proper. As we have already pointed out, un der the evidence, as we view it, the homicide was either murder or entirely justifiable. There is no ground in the evidence for any other conclusion. Davis testified that the defendant drew his revolver and shot the deceased without any words of threat or opprobrium by either. The defendant testified that the deceased, after applying to him an opprobrious epithet, first struck him and then shot him. While, therefore, it was entirely proper for the court in its instructions to define and distinguish the various grades of homicide as it did, and thus enable the jury to reach a correct conclusion (State v. Shafer, 26 Mont. 11, 66 Pac. 463), it would also have been proper to instruct them that if they were not satisfied that the homicide was murder, they should acquit the defendant. It was therefore neithér necessary nor proper for the court to submit such an instruction as the one in question, when there was. no evidence to which it could apply. (State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Mitten, 36 Mont. 376, 92 Pac. 969.) For this reason the instruction ought to have been refused. Counsel discuss somewhat at length in their brief the question whether the instruction is correct in point of law. This objection was not made in the trial court. We shall therefore not undertake to determine whether it is or not, because the question is not properly before us.- Complaint is made that -the defendant was prejudiced by the following instruction: “The law is that where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the evidence as evenly balanced. The jury have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit and to give credit accordingly.” It is said that the instruction as a whole permitted the jury to weigh the evidence under the rule applicable to civil cases, and, having so weighed it and ascertained on which side the scale preponder ated, to decide the ease accordingly. It is also said that it is for this reason in direct conflict with other instructions in which the jury were told that in order to convict, the evidence must satisfy them of defendant’s guilt beyond a reasonable doubt. The court had already properly instructed the jury as provided by the statute (Rev. Codes, see. 8028) that they were not bound to decide in conformity with the declarations of any number of witnesses which did not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds. To this was added the second sentence of the instruction in question. This was entirely sufficient for all purposes. We agree with counsel that their criticism of the instruction in both particulars is justified. Even if it did not suggest an erroneous measure for the quantum, of evidence necessary to warrant a conviction, it was well calculated to mislead and confuse the jury. From any point of view, such an instruction has no place in a criminal case. The judgment and order are reversed and the cause is remanded for a new trial. Reversed and remanded. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On March 26, 1912, a judgment upon a verdict was entered in favor of the plaintiff and against the defendant, in an action for damages for malicious prosecution. Some time thereafter— the record does not disclose when—defendant was granted sixty days, in addition to the time allowed by law, within which to prepare a bill of exceptions in support of his motion for a new trial. On April 26 another like order was made, and on July 1 a third extension of sixty days’ additional time was granted by the trial court. All of these orders exténding the time were made without the consent of the adverse party. The bill of exceptions was finally served on August 30, 1912. Plaintiff immediately presented written objections to its settlement on the ground that it had not been presented in time. Defendant then moved the court to relieve him from his default in failing to present the proposed bill within seasonable time, upon the grounds of mistake, inadvertence, • surprise and excusable neglect, and supported the motion by an affidavit of Mr. T. T,Lyon, his former attorney. On December 19, 1912, the court granted this motion on condition that plaintiff’s objections and these other subsequent proceedings be incorporated in the bill, and further time was granted for the presentation and settlement. The suggested amendments were made, the bill of exceptions settled on February 13, 1913, and the motion for a new trial denied on March 8, 1913. Section 6788, Revised Codes, requires that a bill of exceptions shall be presented for settlement within ten days after the entry of the judgment upon a verdict, or within such further time as the court or judge may allow. Section 7190, Revised Codes, provides that the court or judge cannot extend the time for presenting a bill of exceptions more than ninety days without the consent of the adverse party; so that the order made on July 1, 1912, granting defendant further time was a nullity, and the bill of exceptions presented on August 30, came too late and plaintiff’s objection to it upon that ground, was well taken. Without determining whether the provisions of section 6589, Revised Codes, have any application to the predicament in which a party finds himself when he has not presented his bill of exceptions in time, but assuming-that he is then in default and may invoke the rule of that section for relief, still the authority conferred can be exercised only when the discretion of the court is set in motion by an application supported by a showing of mistake, inadvertence, surprise or excusable neglect. If defendant can claim any benefit under that section, it is only by complying with its requirements. The affidavit of Mr. Lyon upon which defendant relied and the trial court acted is barren of any facts which tend to excuse the delay. It is asserted in the affidavit that the bill of exceptions could not be prepared without a transcript of the stenographer’s notes of the testimony taken at the trial; that the affiant made repeated requests of the stenographer for such a transcript; that the stenographer informed him it could not be delivered until the latter part of June and in fact was not secured until June 25. There is not presented any affidavit by the stenographer, and Mr. Lyon is altogether silent as to when the demands upon the stenographer were made or whether he tendered the legal fees. For all that he says, he may not have requested the transcript until June. There is not a word in explanation of the stenographer’s delay. Nothing is disclosed as to whether Mr. Lyon applied to the district court for an order compelling the stenographer to deliver the transcript at an earlier date. All that we have from the stenographer is conveyed by a hearsay declaration, which under these circumstances is not entitled to any evidentiary value. Mr. Lyon is frank- enough to say in his affidavit: ‘ ‘ That the deponent was not aware of the time # # * of such limitation upon the court’s power to grant such extension of time and therefore did not procure the consent of counsel of plaintiff to such order.” But a mistake as to the law is not the mistake contemplated by section 6589 above, and ignorance of the law does not constitute an excuse within the meaning of that statute. (Willoburn Ranch Co. v. Yegen, 45 Mont. 254, 122 Pac. 915; Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 Pac. 445; Mantle v. Casey, 31 Mont. 408, 78 Pac. 591.) It is the rule in this state that if upon a motion to set aside a default the showing made leaves in the mind of the court a doubt as to whether it should be granted, that doubt is to be resolved in favor of the motion (Greene v. Montana Brewing Co., 32 Mont. 102, 79 Pac. 693), but the rule presupposes that a proper showing under the statute has been made, and in many instances where defaults have been set aside without such showing, the orders have been reversed. (Lovell v. Willis, 46 Mont. 581, 129 Pac. 1052; Scilley v. Babcock, 39 Mont. 536, 104 Pac. 677; Chambers v. City of Butte, 16 Mont. 90, 40 Pac. 71; Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814.) The very purpose of section 7190 in fixing a limit upon the period of time which the court may grant for the presentation of a bill of exceptions is to compel diligence by .the moving party and to prevent unreasonable delays such as occurred in this instance, which have been the cause of much animadversion upon the administration of our law. Mr. Lyon’s affidavit is eloquent with silence as to any facts showing diligence on his part or any excuse for the delay of more than five months in presenting the bill of exceptions for settlement. After plaintiff’s objections were incorporated, the bill should have been settled and the motion for a new trial denied upon the ground that the bill was not presented in time and therefore could not be considered. This would have conformed to the practice indicated in Sweeney v. Great Falls & C. Ry. Co., 11 Mont. 34, 27 Pac. 347, and approved in Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124, and in Vreeland v. Edens, 35 Mont. 413, 89 Pac. 735; or the court might have refused to settle the bill because presented too late., (Wright v. Mathews, 28 Mont. 442, 72 Pac. 820; Beach v. Spokane Ranch & W. Co., 25 Mont. 367, 65 Pac. 106.) But if the trial court’s ruling upon the motion was right, it will be approved even though it was prompted by a wrong reason. (Brown v. Daly, 33 Mont. 523, 84 Pac. 883; Butte v. Goodwin, 47 Mont. 155, 134 Pac. 670; Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055.) The ruling can be justified upon the ground that the bill of exceptions was not presented in time, and no valid excuse being offered for the delay, it could not be considered. Counsel for appellant invoke the rule repeatedly ‘announced by this court, that every matter should be considered,upon its merits, if possible; but counsel overlook the fact that it is absolutely impossible in this case to determine appellant’s motion for a new trial upon the merits, even if we had before us a bill of exceptions presented in time. Our Code prescribes the grounds upon which a new trial may be granted (section 6794, Rev. Codes), and it cannot be granted upon any other. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.) The grounds of a motion can be disclosed only by the notice of intention which is required to be filed within ten days after receipt of notice of the entry of judgment. (.Section 6796.) This record is silent as to whether a notice of intention was ever filed. To the end that this court may review an order granting or refusing a new trial, it must be apprised of the grounds of the motion, and section 7114 requires that the appellant shall furnish this court with a duly authenticated record containing a copy of the notice of intention. The appellant in this instance has failed to comply with that requirement. The record before us does not contain any copy of the notice of intention, nor does it mention such a paper, and in its absence it is impossible for us to know whether •there was any merit in appellant’s motion. On September 24, 1912, defendant moved the trial court to set aside the judgment entered in this cause, on the ground that the judge who presided at the trial had no authority to do so. The motion was overruled and we are now asked to review that order upon this appeal. The order was a special one made after final judgment and as such is made appealable by section 7098, Revised Codes. The proceeding upon that motion is no part of the new trial proceeding, and in the absence of a separate' appeal, the ruling upon that motion is not before us for review. The order refusing a new trial is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action for damages for loss sustained by the plaintiff by reason of the sale to him by defendant of a glandered horse. The defendant suffered default, and judgment was thereupon entered for the. relief demanded. On motion of defendant, an order was made setting aside the default and judgment, and he was permitted to file an answer. Plaintiff has appealed. The appeal cannot be considered on the merits, for the reason that, whereas the motion was based upon a showing of excusable neglect, the record does not embody properly authenticated copies of the affidavits filed in support of it. It has often been announced by this court that, upon an appeal from an order such as the one at bar, the papers actually used as the basis of it in the district court must be embodied in a bill of exceptions certified by the judge a quo, and that copies certified by the clerk or attorneys only will not be considered, that further announcement on the subject ought not to be necessary. On the authority of Latimer v. Nelson, 47 Mont. 545, 133 Pac. 680, the latest announcement on the subject, and the cases cited therein, the order appealed from is affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. In plaintiff’s complaint as originally presented he alleged that in May, 1910, he entered into a contract with defendant by the terms of which he agreed to perform work and labor for defendant in skidding, hauling, and loading logs and ties, and in scaling the logs, for which defendant agreed to pay $7 per thousand for the work so done upon the logs, sixteen cents for each tie so handled, and $25 per month for sealing, amounting in the aggregate to $1,320; that he commenced work immediately, “and afterward, to-wit, on the 8th day of December, 1910, completed the contract so far as the terms and conditions were to be performed by plaintiff”; that no part of the contract price had ever been paid except the sum of $420; and that there remained due $900, for which amount judgment was demanded. The answer denies generally all the allegations of the complaint; pleads an entirely different contract, an abandonment of it by plaintiff, and a counterclaim for $688.72 for goods, wares, merchandise, and cash furnished to plaintiff at his special instance and request. All of the affirmative- allegations in the answer and counterclaim were put in issue by reply. Upon the trial plaintiff amended his complaint by adding after the word “plaintiff” in the portion quoted above the following: “To this date, and would have entirely performed the same had he not been prevented by act of this defendant.” The trial resulted in a verdict and judgment in favor of plaintiff for $500, and defendant appealed. The complaint as amended does not even charge that plaintiff was prevented from completing his contract by any wrongful act of defendant. If the act was rightful, plaintiff cannot complain upon any theory. If he seeks to justify his failure to complete the work under the contract, he must set forth the facts and circumstances constituting such excuse, to the end that the court may determine whether the acts of which complaint is made were wrongful, and therefore constitute an excuse, or whether they were rightful, and justify the defendant. These rules are elementary, and their enforcement necessary in order that issues may be framed for trial, and the defendant apprised of the charge he is called upon to meet. There is not any conceivable theory upon which the complaint, as it now stands, can be construed into the statement of a cause of action. If it be assumed that it was the purpose of the pleader to charge a wrongful interference by defendant, and that that was plaintiff’s theory of his case, then he had at least two remedies available to him: (1) He could treat the defendant’s wrongful act as a breach of the contract, and sue at once for damages arising from his having been prevented from reaping all the benefits and advantages which would reasonably follow a complete performance on his part, and the measure of his recovery would be the difference between the contract price and the expense to him of doing the work. (See. 6048, Eev. Codes.) But plaintiff did not choose this alternative. He does not state what portion of the entire contract he had performed, what amount remained to be done, what, if anything, is due to him for the portion already performed, or what, if any, profits or advantages to him were within the reasonable anticipation of the parties when the contract was entered into. Of course, if plaintiff could not reasonably expect any profit or advantage from completing the enterprise, he was not injured by the interruption. He does not allege any breach by defendant • but, if he did, that of itself would not warrant recovery for more than nominal damages. (Jacobs Sultan Co. v. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109.) He must disclose that he was injured as the consequence of such breach and the amount or extent of such injury. (Mergenthaler Linotype Co. v. Kansas State Printing Co., 61 Kan. 860, 59 Pac. 1066.) (2) He could treat the contract as at an end, and sue upon a quantum meruit for the work already done (Keyser v. Rehberg, 16 Mont. 331, 41 Pac. 74); but he did not do so. His failure to state what amount of the contract work he had performed renders it impossible to determine the extent to which he should recover. That a party who has been wrongfully prevented from completing his contract has his election between the two remedies just considered, the authorities all agree (3 Page on Contracts, see. 1569; 9 Cyc. 688); hut some go further and add a third alternative, viz.: He may stand by in readiness to perform until the term of the contract has expired, and then sue upon the contract. This third rule is recognized in Isaacs v. McAndrew, 1 Mont. 437, in Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33, 38 N. E. 773, and in some other authorities. Whatever may be said of it, plaintiff in this instance has not sought to invoke it. He does not allege that the term of his contract had expired when his action was instituted; on the contrary, the filing mark upon his complaint discloses that he commenced this proceeding immediately after the alleged interference. He never can invoke it, for his testimony discloses that, according to his theory, his contract had not expired—indeed, that the time for performing a substantial part of it had not arrived. The foregoing observations presuppose an entire or indivisible contract, and, in so far as any theory of the plaintiff can be adduced from his complaint, it is that the agreement upon which he relies is an entire contract. Of course, if the contract was severable, or if plaintiff was seeking relief under section 4926, Revised Codes, he would be compelled, in the one instance, to disclose the proportion of the work performed, and, in the other, the matters contemplated by the section of the Code, just mentioned. In its instructions the trial court failed altogether to advise the jury of the measure of plaintiff’s recovery in the event that he prevailed. Ordinarily, this would constitute reversible error, for it leaves the jury to determine the amount of their verdict by mere guesswork, and in this present instance the amount returned by the jury only serves to emphasize the fact that the jurors were at sea without chart or compass. There is not any evidence to justify a verdict for $500. It does not respond to plaintiff’s demand, nor to his proof; but the trial court’s failure was fully justified, for it was impossible to determine from the amended complaint the theory of plaintiff’s ease or the amount to which he was entitled, if entitled to recover at all. But we are disposed to afford plaintiff an opportunity to state a cause of action, if he can do so by amendment or otherwise. The judgment and order denying defendant a new trial are reversed, and the cause is remanded for further proceedings. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. The pleadings in this case unfold with progressive elaboration. In all they occupy 169 pages of the transcript, and to produce them here, to present even an abstract of their essentials, would take so much space and serve such little purpose that a bare statement of the ultimate issue must suffice. The respondent water company (plaintiff below) recovered judgment against the appellant, city of Butte, for $11,445 made up as follows: $8,464.50, with interest, for certain fire-hydrant water furnished the city in the months of July, August, September and October, 1911, under a written contract dated December 31, 1907; $1,524.85, with interest, as the reasonable value of certain water for street sprinkling, furnished the city in July, August, September, October, November and December, 1911; and $416.40, with interest, as the reasonable value of certain water furnished the city in July, August, September, October, November and December, 1911, at its corral, crematory and crematory residence; and of labor and material furnished in setting a water meter at the crematory in July, 1911, setting two hydrants in September, 1911, and laying a certain water main in October, 1911. Payment was resisted by tbe city on tbe grounds that all the items of charge, except that of fire-hydrant service, were the due of the city without other payment than the fire-hydrant rates under the contract of December 31, 1907, and that the charge for fire-hydrant service was more than offset by sums paid by the city under mistake of its officers to the company for sprinkling, corral and crematory water furnished after January 1, 1908, and before August 1, 1911. The material paragraphs of the contract in question (which we have numbered for convenient reference) are as follows: “(2) That the party of the first part (the water company) for and in consideration of the covenants and agreements hereinafter contained, and to be kept and performed by the said party of the second part (the city), agrees that it will furnish to the said party of the second part, all hydrant and water supply necessary for fire and general municipal purposes for a period of ten years from and after January 1, 1908, and ending on the 31st day of December, 1917. “(3) The said party of the first part further agrees that it will furnish to the said city of Butte, during the term of this contract, and keep supplied with water four hundred and fifty-two (452) fire hydrants, as the same are now placed at different points within the city of Butte, and that it will keep at all times said fire hydrants in good repair and ready for use for fire purposes for the sum of twenty-two thousand six hundred dollars ($22,600) per year, being $50 per annum for each of said hydrants. “(4) It is further agreed upon the part of the said first party that it will furnish to the said city of Butte, and keep supplied with water all hydrants installed by said city in excess of the said four hundred and fifty-two (452) hydrants at the rate of $50 per annum for each hydrant, and that each and all of such hydrants shall be placed and located as the fire committee and fire marshal shall direct, and that the said party of the first part will at all times keep the same in good repair ready for use for fire purposes. “(5) It is.further agreed upon the part of the party of the first part tliat it will furnish to the said city during the term of this contract all water that shall be required by the said city for flushing the public sewers, and for the use of the public buildings in the said city free of charge, provided, however, that the said city provide outlets through which such water shall be furnished, and provided, further, that reasonable rules as to the time of sewer flushing shall be agreed upon between the city and the company, so as not to impair the efficiency of the system fojr fire protection. * * * “ (7) The said second party, in consideration of the agreements hereinbefore contained to be kept and performed by said first party, agrees that it will pay to said first party the sum of $50 per annum per hydrant, for the period of ten years from and after January 1, 1908, in equal monthly installments, and the further sum of $50 per annum,for each hydrant which may .be added under the conditions hereinafter set forth. “ (8) It is further understood and agreed by and between the parties hereto that the said second party shall have the right at any time to order the water mains of the said first party extended upon any street in any part or portion of the said city, during the term of this contract, and that whenever the said .second party shall order said mains extended the said second party hereby agrees to and with the said first party to take and use of the said first party at the established rate hereinbefore mentioned, at least one fire hydrant for every city block so ordered to be laid; it being further understood and agreed that in no case shall more than three hydrants be placed for each one thousand feet of such main extensions. * * # ” 1. According to the appellant, the above contract is so clear that it “conveys but one idea to the mind of the child, the professional man, the ordinary business man, the entire community,” viz., that, for the hydrant rental specified therein the water company agreed to furnish to the city “all hydrant and water supply necessary for fire and general municipal purposes for a period of ten years from and after January 1, 1908.” If this be correct—and to determine its correctness is obviously the first step in the problem before us—then the''Contract is not open to interpretation (Frank v. Butte & Boulder M. & L. Co., ante, p. 83, 135 Pac. 904; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Harris v. Root, 28 Mont. 159, 72 Pac. 429), and the judgment, in part at least, must fall. Whether a document is or is not ambiguous is a matter of impression rather than of definition. This is obviously so, because every provision may be as clear and definite as. language can make it, yet the result of the whole be doubtful from lack of harmony in its various parts. The language used is to be resorted to in the first instance, but the conclusion to be reached depends, not upon the verbal clarity of the particular sentences or paragraphs, but upon the view to be taken of the contract ip its entirety. (O’Brien v. Miller, 168 U. S. 287, 42 L. Ed. 469, 18 Sup. Ct. Rep. 140; Page on Contracts, sec. 1112; 9 Cye. 579.) Recognition of this may be found in all the books upon the snbject, culminating in our Code provision that “the whole of contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Rev. Codes, sec. 5030.) Can it be said, then, that, taking the contract as a whole, its meaning is so clear that “he who runs may read”? We think not. Assuming that the language of paragraphs 2 and 7 clearly implies an undertaking on the part of the company to supply the city with all the water necessary for fire and for general municipal purposes in consideration of the hydrant charge, that construction cannot be applied to the contract as a whole, without ignoring the import of the paragraphs numbered 3, 4, and 5. Paragraph 3, for instance, appropriates the consideration named to the fire-hydrant service, and it is a permissible, if not a necessary, inference from the language of this paragraph that the only service agreed to be rendered for the consideration named was the fire-hydrant service; in other words, paragraph 3 may be said to limit the apparent scope of paragraph 2. (Railton v. Taylor, 20 R. I. 279, 39 L. R. A. 246, 38 Atl. 980.) Again, paragraph 5 cannot be given any meaning consistent with the idea that the hydrant charge was intended to be in payment of all water that might be supplied to the city for general municipal purposes; on the contrary, its clear implication is that at least some water within the definition of “general municipal purposes” should be free of any charge. Paragraph 5 is a material part of this contract, and it mry be reasonably viewed as an incidental or additional inducement to the city for its assent; but it is rendered valueless for this purpose because there was no need to stipulate for water “free of charge” if all the water was to be paid for by the hydrant rates. If, on the other hand, paragraph 5 is an incidental provision for free water, in the nature of an inducement to the city for its assent, then the purposes for which such water should be furnished are specifically enumerated, with the necessary inference that no other water was intended to be free. We are not unmindful of the provision of our Code that “repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract” (Rev. Codes, sec. 5041); but this itself is a rule of interpretation rather than of construction, and the general intent and purpose of the contract is the very matter that is put in doubt. “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract” (Rev. Codes, sec. 5037); and, granting that the contract before us may be construed so as to cover and include water for sprinkling, corral and crematory purposes, that it need not be so construed is apparent. In such a situation there is ambiguity within the meaning of the law which opens the contract to interpretation by the aid of evidence alkmde, so as to give effect to the mutual intention of the parties to it at the time it was made. (Rev. Codes, secs. 5025, 5036; Lozes v. Segura Sugar Co., 52 La. Ann. 1844, 28 South. 249; Pressed Steel Car Co. v. Eastern Ry. of Minnesota, 121 Fed. 609, 57 C. C. A. 635; Uinta Tunnel etc. Co. v. Ajax Cold Min. Co., 141 Fed. 563, 73 C. C. A. 35.). 2. The reply alleges in effect that the contract in question was a continuation or renewal of relations which had existed since January, 1893, under successive contracts of the same general character, and containing substantially the same provisions as the one at bar, and that it was formulated and entered into with the understanding and in view of the construction which both parties alike had attached to these prior contracts; that these contracts had never been understood by either the company or the city to require the furnishing of any work, labor or material whatsoever, or any water free of charge except for flushing sewers and for use in the public buildings of the city, but were all understood, construed and acted upon by both the company and the city so as to leave subject to independent arrangement the furnishing of water for sprinkling, corral and crematory purposes and the furnishing of labor and material of the character set forth in the complaint; that during such period separate and independent arrangements did in fact exist, under which the company furnished, and the city voluntarily paid for, all such labor and material and all the water used for sprinkling, corral and crematory purposes; and that from June 1, 1908, up to and including the month of June, 1911, the contract at bar was by both the city and the company understood and acted upon to similar effect. Doubt may be entertained whether the conduct of the parties under the prior contracts could aid in the interpretation of the contract at bar, since they were completed and past transactions; but, in view of the similarity of language employed, it does not seem unreasonable to say that, in the absence of an indication to the contrary, the meaning the parties put upon the language used in the prior contracts was the meaning they attached to it when they used it in the present contract. In any event, the evidence, which is both documentary and oral, establishes .without contradiction that the parties did put a common practical interpretation not only upon the prior contracts but also the one at bar for the first three and one-half years of its existence; and the manner in which they interpreted it sustains the conclusion that the intention of the parties when it was made was to provide for a supply of water for fire protection to be paid for as stipulated, to furnish free water for flushing sewers and for the public buildings, and that water required for other purposes was not deemed within the purview of the contract. It is an ancient and elementary rule that, where parties to a contract of doubtful or ambiguous meaning have placed a practical interpretation upon it, said interpretation is one of the best indications of their true intent. (Uinta Tunnel etc. Co. v. Ajax Gold Min. Co., supra; Thomas v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.), 81 Fed. 911; Chicago v. Sheldon, 9 Wall. (U. S.) 50, 19 L. Ed. 594; City of Vincennes v. Citizens’ Gas Light & Coke Co., 132 Ind. 114, 16 L. R. A. 485, 31 N. E. 573; Hill v. City of Duluth, 57 Minn. 231, 58 N. W. 992; Animas Con. Ditch Co. v. Smallwood, 22 Colo. App. 476, 125 Pac. 594.) Hence error cannot be imputed to the trial court in so far as the findings and judgment at bar effectuate the intent thus established. 3. But the contract is not subject to interpretation by the parties or by anyone else concerning any matter upon which it clearly speaks. We think this principle was infringed in the award to the respondent of the whole of its fifth cause of action. Included in this cause of action are certain items, to-wit: “Material and labor furnished in setting two-inch hydrant on comer of Montana and Granite streets, of the reasonable value of $71; material and labor furnished in setting hydrant at corner Broadway and Granite streets, of the reasonable value of $58.29; material and labor furnished in laying two-inch water main on Oregon avenue, 225 feet north of Gallatin street, to south side of Irvine street, of the reasonable value of $128.60. ” As we construe the contract, it is clear, unambiguous and not subject to interpretation touching the duty of the company to furnish fire hydrants and install water mains. In our judgment, paragraphs 4 and 8 clearly impose this duty upon the company. That these items were not of that character or were incurred in aid of purposes not covered by the contract we find nothing in the record to show. We must therefore assume them "to have been within the duty imposed upon the company by paragraphs 4 and 8 of the contract, and no recovery can be had. The total amount, including interest, represented by these items is $282, and the judgment should be reduced accordingly. The cause is remanded to the district court, with directions to correct the judgment as above suggested; the judgment when so corrected to stand affirmed. Mr. Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTÍCE SANNER delivered the opinion of the court. Dr. Gideon E. Blackburn, of Butte, died intestate on March 24, 1912, leaving some estate, and surviving heirs as follows: Hannah A. Blackburn, his wife, Charles A. Blackburn, a son, and two daughters- On March 29, 1912, Charles A. Blackburn filed in the district court of Silver Bow county a petition for letters of administration of the estate, and also filed a writing signed by the widow, wherein she formally waived her right to such letters and requested his appointment. In the petition it is recited that the estate and effects in respect of which letters of administration are asked do not exceed the value of $5,000, and that it consists of office and household furniture, libraries, book accounts, and miscellaneous stocks and bonds .of unknown value. The petition came on for hearing in due course, and at the hearing the petitioner testified that, so far as he then knew, the value of the estate was not to exceed $5,000; of this, $2,900 was cash, the remainder being stocks, bonds, and other interests. The petition was granted, and Charles A. Blackburn has since acted as administrator. On June 5, 1912, he filed an inventory and appraisement, wherein he failed to list a gold watch and a pair of field-glasses as part of the estate, but did list as the property of said estate a large number of securities and various parcels of realty claimed by the widow as her individual property. By this inventory it was made to appear that the estate was of the value of $34,996.07. On June 7, 1912, the widow filed her petition, alleging, in substance, that the administrator had willfully and fraudulently failed and refused to list the watch and field-glasses above mentioned, and had converted the same to his own use, and that, with the intent to involve the estate in useless and unnecessary litigation, he had listed the securities and realty above referred to, belonging exclusively to her. On the following day the administrator filed a supplemental inventory, listing the watch, the glasses, a revolver, and an additional piece of real estate; so that, as finally presented by the two inventories, the appraised value of the estate is made to appear at $35,-558.07. To the petition of the widow two answers were filed: One by the administrator, and the other by H. L. Maury on behalf of Daisy I. O’Neill and Sister M. Florentia, the daughters of deceased; the answer of the daughters, praying “that no relief be granted to Mrs. Hannah A. Blackburn,” denies generally the allegations of her petition,.including her widowhood; denies that the watch and glasses are of any value; alleges that she is not related to them, and that their mother is still alive. The answer of the administrator puts in issue the widowhood of the petitioner ; explains the omission of the watch and glasses from tb*e 'irst inventory; denies the charges of fraud, waste, or intent -ijvolve the estate in unnecessary litigation, or that^v irrigation lie bring will be in bad faith; and allege- that any claim he\may assert or attempt to enforce will be under the permission of .^e court, for the sole use and benefit oí the estate. By way of fu.,. ther answer the administrator pleads the waiver and request.' executed by the widow, and alleges that in consequence thereof, and of expenditures by him of money in the care of the estate, “she is not entitled to now assert any rights which she may have or claim, as widow, to have letters of administration issued to her.” In reply to the answer of the administrator, the widow admits the execution of the waiver and request filed March 29,1912, and alleges that the same was made by her “upon the solicitations of Charles A. Blackburn and the advices of John 6. Brown, his attorney, and the representations of friendliness on the part of the said Charles A. Blackburn” toward her, and that since the issuance of letters of administration to him, he has become and now is hostile to her and to the best interests of the estate “and dishonest and untrustworthy, as more fully appears from the petition herein on file.” The matter was heard before the district court of Silver Bow county, the Honorable Jeremiah J. Lynch, judge presiding; and, upon the proceedings had, including the testimony taken, an order was made by which the petition of the widow was denied and the proceeding dismissed. From that order this appeal is taken. The appellant contends that the petition should have been granted, because the widow is vested by the statute with a prior right to administer her late husband’s estate, which cannot be affected by her renunciation; because the circumstances under which the administrator secured her renunciation were such that it ought not be held effective in view of his present attitude toward her interests, and because the evidence establishes that he is not a fit and proper person to have control of the estate. 1. The position that the widow is entitled, notwithstanding her renunciation and the appointment of her nominee, to have b removed and letters issued to her whenever she so elects'18 groimci-ea *■» the assumption that such is the unmistakable meaiLiu-g of section 1450, Revised Codes. Notwithstanding tU"' contention of a/ppellanu that this section is so clear as to T'e- self-interpreting/ its meaning cannot be ascertained from its \\anguage alone. Taken by itself&emdash;all collateral light excluded&emdash; we are without an;y information- as to .what right is recognized, what the character of that right is, or how that right may be asserted; all we can know is that whatever the right and however claimed, it would be unavailing where letters have been issued to the mother, since she is not mentioned among those as against whom it may be asserted. Such a conclusion, so manifestly contrary to the general plan and purpose of the statute, is of course untenable; but it serves to show that, to give the statute any intelligible meaning, we are required to construe it in connection with other provisions to which it stands in obvious relation. When this is done, a result is reached different from that upon which the appellant insists. “Administration of estate of all persons dying intestate must be granted to some one or more of the persons hereinafter mentioned, * * * in the following order: 1.'The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5. The. sisters. * * * ” (Sec. 7432, Bev. Codes.) “Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuance of letters to themselves” (see. 7444); but when letters have been granted to any other person than the surviving spouse, child, parent, brother, or sister, “any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration” by presenting to the court an appropriate petition (see. 7447), on which a citation to the administrator shall issue (sec. 7448), and a hearing be had (sec. 7449). “The surviving husband or wife, when letters of administration have been granted to a child, father, brother or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right and obtain letters of administration and have letters before granted revoked in the same manner prescribed in the three preceding sections. ” (Sec. 7450.) The primary purpose of these provisions is, of course, to confer a prior right of administration upon those most interested in the estate, to signify the legislative will concerning the order of priority, to provide a method by which it may be once asserted in every case, and to authorize its assertion by nomination in certain instances. There is no warrant for the inference that the legislature intended the right to continue after it had been once freely exercised; for, valuable though it is, the advantage conferred is solely for the benefit of the persons named, and involves no public purpose. It may therefore be waived (sec. 6181, Rev. Codes), and the effect of its waiver cannot be different from the effect of a waiver in other cases. This result, derived from our statutory provisions alone, is supported by an abundance of authority, and compels us to hold that if the renunciation and request of appellant, because of which the administrator was appointed, was fairly procured and freely given, she has exercised her prior right, and no longer has any to assert. (In re Estate of Moore, 68 Cal. 281, 9 Pac. 164; Slay v. Beck, 107 Md. 357, 68 Atl. 573; Estate of Keane, 56 Cal. 407; In re Evans’ Estate, 117 Mo. App. 629, 93 S. W. 922; Estate of Wooten, 56 Cal. 322; Stocksdale v. Conaway, 14 Md. 99, 74 Am. Dec. 515; In re Bedell’s Estate, 97 Cal. 339, 32 Pac. 323; Estate of Kirtlan, 16 Cal. 161.) 2. It is, however, the policy of our law that the widow shall control in limine the administration of her late husband’s estate. (Shiels’ Estate, 120 Cal. 347, 52 Pac. 808; Dorris’ Estate, 93 Cal. 611, 29 Pac. 244.) To that end she is authorized to either administer it herself, or to nominate some person in whom she places trust and confidence to administer it for her. (In re Watson’s Estate, 31 Mont. 438, 78 Pac. 702.) No condition or limitation is imposed upon her choice save that she or the person she nominates be competent; nor does the fact that she asserts claim to property which the other heirs contend belongs to the estate render her. or her nominee incompetent. (Rev. Codes, sec. 7436; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828; Brundage’s Estate, 141 Cal. 538, 75 Pac. 175; Estate of Bauquier, 88 Cal. 302, 26 Pac. 178, 532.) In the instant case, considerations touching the burden of proof in any action affecting the title to the disputed property might easily render the attitude of the administrator a matter of grave importance to the widow; and she was entitled to retain, until lost by her voluntary act, such legitimate advantage as might arise from her right to control the administration. Therefore, her due was absolute frankness on the part of the person seeking her nomination; and if he, pending her assent to his appointment, so demeaned himself as to deceive or lull her into a false security concerning his attitude, and she, believing him friendly to her and not hostile to her claims, waived her right and assented to his appointment to her disadvantage, it cannot be said that her waiver was fairly procured or freely given. The voluminous record before us tends to show that the claim asserted by the widow to certain stocks, bonds, and real estate which were not mentioned in the petition for letters, but which have been listed in the inventory, is not wholly baseless. The evidence bearing upon the attitude of the administrator toward her and her claims comes entirely from her and from him. Prior to his appointment, she says, he had been kind and affectionate to her, and she was depending upon him. On the day after the funeral of Dr. Blackburn she and the administrator had gone through the boxes at the bank and he had seen her remove some deeds, and had at her request erased the name of Dr. Blackburn from one of the boxes, and had put hers in its place. He claimed he knew that the stocks and bonds in the Miners’ Savings Bank belonged to her, and he gave her to understand that there was no question about it. When they were going up the steps to court the morning he was appointed administrator, she said, “Now, Charley, there is no question about my bonds and stocks at the Miners’ Bank, and I can have them?” and he said, “Yes, Mrs. Blackburn, I’ll see to it right away”; “but he talked very different after he was appointed. Prior to his appointment he had shown no disposition to sue me or bring my property in question at all; none whatever. ’ ’ Again, touching the real estate: “Charles Blackburn has talked to me and discussed with me my title to the property. He saw all the papers before he was appointed administrator, and after he was appointed he said, in the presence of my sister, that there was no question of my ownership of the real estate. * * * I cannot say how many times he made that statement, but he talked that way right along. He stated that more than once. I could tell you specifically the conversation we had about the Gallatin Addition, and it was this: I owed $2,000 on the Gallatin Addition, and the interest was 10 per cent, and I wanted to stop the interest; so I paid my $2,000. Charley was up in the room one day, and I said, ‘Now, Charley, I am going to pay my $2,000; as administrator you are not going to present any claim whatever to my Gallatin Addition?’ and he said, ‘No, Mrs. Blackburn, that is absolutely yours.’ * * * Charles Blackburn testified to the value and nature of the property belonging to the estate at the time he obtained his letters of administration. He at that time, as I remember, said there was no real estate in the estate, and that the property consisted of mining stock, office furniture, and book accounts, and I do not remember any more. # # * He did not mention the Tuolumne stock at the Miners’ Bank as belonging to the estate, nor the South Park Mining & Realty Company stock as belonging to the estate, nor the Independent Telephone bonds as belonging to the estate. As I remember it, he stated the value of the estate was from $5,000 to $7,000, or words to that effect-—that the estate was not over $7,000. He said there was no real -estate. Before he made these declarations under oath he had not only examined the papers of the estate, but he had seen my papers also. * * * As we came down from Judge D-onlan’s court T said something about, ‘Now, Charley, I will go and get my things,’ and you [Mr. Brown] said, ‘Oh, Mrs. Blackburn, Charley is under bond now,’ and I said, ‘Mr. Brown, those things don’t belong to the estate; they belong to me.’ * * * "What I wanted was my Tuolumne stock. Charley had promised to go over there to the bank as soon as he was appointed. * * * And this conversation was right after the hearing at which he testified in Mr. Brown’s presence that the ' estate was worth something like $5,000.” The deeds which she had removed from the bank boxes in the presence of the administrator ran from her to Dr. Blackburn; these she destroyed, claiming that they had been executed to avoid administration in case of her death, but never delivered. In regard to that she testified that Charles Black-bum knew of her intention to destroy them, before it was done, and both he and Mr. Brown knew of their destruction after it was done,, and before the appointment of the administrator. The waiver was signed on March 29, 1912. At that time she did not have, and had not had, any counsel. Concerning this, in response to inquiries by Mr. Brown, she testified: “You offered your assistance as attorney; otherwise I would have had an attorney to protect me. But Charley brought you to my house, and you offered your services, and I, as a professional man’s wife, did not consult any other attorney until Charles Blackburn was appointed administrator, and then I said to you, ‘Are you my attorney ? ’ and you did not know about it. ’ ’ The testimony of the administrator is as remarkable for what it does not contain as for what it does contain. On direct examination he gave no testimony in denial of the foregoing or concerning his attitude before and after administration, touching her and her claims, except that he had consulted counsel regarding the stocks, bonds, and real estate, and had listed them as the property of the estate on the advice of counsel. He also said: “I first knew the deeds had been destroyed when the matter was testified to here in court. * * * I can’t recall whether Mrs. Blackburn told me she was going to destroy them; my recollection is that she did tell me that her intention was to destroy them.” On cross-examination he said he could not tell when he first consulted counsel about the real estate, except that it was after his appointment. “I did not tell him about those deeds in the bank and their removal by Mrs. Blackburn before I petitioned for letters of administration. I knew about those deeds before I petitioned for letters of administration, but did not disclose the fact to my counsel. I don’t know why I didn’t, but it probably escaped me. I don’t know whether I disclosed that fact to him before I secured letters of administration or not. * * * I testified at the hearing of the application for letters of administration * * * that the estate did not, to the best of my knowledge, own any real estate. # * At that time I knew of those deeds which Mrs. Blackburn had removed, and had known of them some ten days before, but began to see the light in regard to this real estate as soon as I had put the facts up to my counsel.’ I cannot say what date that was, but I am quite sure it was after my appointment. * * * i first learned of those bonds being down in the Miners’ Savings Bank before Dr. Blackburn was buried. # * * I took this matter up with my counsel, and got advice from him shortly before I was appointed, I think. I am not sure that I talked that matter over with him about it before my appointment. I am not positive whether I did or not. * * * Upon the advice of my counsel, it was true of my own knowledge that this was the property of the estate. It was my own knowledge that that was property of the estate, and Mrs. Black-bum was endeavoring to get it for her own use. '* # # I remember Mr. Brown in my presence, and within a few minutes after I was appointed administrator, telling Mrs. Blackburn that those securities had to be turned into the estate. He told Mrs. Blackburn that standing in front of Judge Lynch’s courtroom on Granite street. That was a few minutes after I was appointed. At that time Mrs. Blackburn said, ‘Well, now, you can go right down and get my stocks and give them to me, can’t you?’ or ‘Get my bonds and stuff at the Miners’ Savings Bank,’ and Mr. Brown said, ‘Why, that stuff must undoubtedly go through the estate.’ * # # I presume Mrs. Blackburn addressed the remark, ‘ Go down and get my bonds or stocks, ’ to me. All three of us were there. I had not previously agreed to do that. In a general way the ownership of the securities at the Miners’ Savings Bank had been discussed between myself and Mrs. Blackburn. I did not tell her as late as the morning of my appointment .that I would go down and get those things for her as soon as I was appointed. In this general con vernation that I had about the ownership, I did not agree with her, that she was the owner. I did not say she was hot. I took the position that until I had been more fully advised in the premises and had seen the securities, and had had an opportunity to investigate the conditions under which they had been left there, and the physical appearance of them, that it was not up to me to decide as to whose they were. I don’t know whether I told her that at any time before' I was appointed administrator or not. As to telling the court that when I was under oath, I wasn’t asked about it. * * * • I consulted with Mr. Maury in regard to this proceeding. He is not my attorney in this case. I have not consulted with him quite as frequently as I have with Mr. Brown. I retained him on behalf of Sister M. Florentia and Daisy I. O’Neill. I do not feel that I am controlling their case. I do not feel that I am their representative. They "have not communicated directly with Mr. Maury or Mr. Templeman, to my knowledge. As far as I know, they have communicated with me. ” Counsel insist that the zeal of the administrator in getting together all the property of the estate is no fault or ground for removal. Assuredly not, but that is beside the mark. The question is whether the waiver of the widow and her request for his appointment was fairly procured and freely given. We think her testimony shows that it was not, and his serves only to confirm that impression. He received her consent to the administration by him of an estate of, a certain character, estimated at not to exceed $5,000 in value, and which did not claim any of the property in dispute; she never did consent that he should administer an estate of a different character, valued at $35,558.07, three-fourths of which consists of property claimed by her as her own. Before his appointment she undoubtedly believed, and had reason to believe, that his attitude toward her claims was not adverse; whether this arose from what he said or failed to say is of no importance. (Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950.) His duty under the circumstances was candor toward her and toward the court; he should have told her that her claims might have to be questioned, and he should have given the court, in his petition for letters and in his testimony at the hearing thereof, all the information he then had in regard to the matter; instead of this, he evaded to the point of deception, if he did not expressly deceive. Deception cannot be countenanced in matters of this kind. (Lutz v. Mahan, 80 Md. 233, 30 Atl. 645; In re Farnham’s Estate, 41 Wash. 570, 84 Pac. 602.) At the time he filed the inventories, at the time he filed his objection to her petition, and at the time he testified on this hearing, no material facts had come to his knowledge which were unknown to him at and before the time he received his appointment as administrator; yet he now questions her widowhood, is certain that none of the property is hers, charges her with endeavoring to convert the property of the estate to her own use, and causes counsel to appear and join in his attack on behalf of the other heirs. His offense is not in listing the property in question, but in the exhibition of an attitude so generally hostile to the widow as to warrant the inference that he had held it before his appointment, but carefully screened it from her until his position should be assured. It is urged, however, that there was no sufficient allegation in the appellant’s “pleading” in the way of excuse or avoidance of her waiver and request. We do not think that in a proceeding of this bind the parties should be held to a strict and technical observance of the rules of pleading. It is sufficient if the administrator was informed, by the allegations of the widow, of the nature and probable scope of her complaint, and that he was so informed is evident from the fact that no surprise was claimed, that he testified concerning the matter so far as interrogated, and that the subject was canvassed without any objection touching the sufficiency of the “pleading.” Some remarks are also made about the discretion of the district court and the willingness of the administrator to have the disputed questions of title settled by an agreed statement of facts. Discretion in the trial court arises only when there is room for it. From the testimony, which presents no substan tial conflict, it appears that the widow’s renunciation of her right to administer was not fairly procured nor freely given; her prior right has therefore not been exercised. It is not within the power of any court to deny her the exercise of that right. .As to the agreed statement of facts, the record does not show what the administrator proposed to agree to; hence we cannot tell whether his willingness to agree is a circumstance in his favor or not. 3. An examination of the record and of the authorities convinces us that the failure of the administrator to include the watch and glasses in his first inventory constituted no ground for his removal. As an impeachment of his integrity it was frivolous; but it illustrates the state of feeling and the lack of confidence on the part of the widow toward her nominee. We have said above that the widow is not incompetent merely because of her claims to the property in dispute; whether her conduct was such as to establish a want of understanding or integrity so as to render her incompetent we do not decide. But, competent or not, she still has her right of nomination. (McLean v. Roller, 33 Wash. 166, 73 Pac. 1123; Stevenson’s Estate, 72 Cal. 164, 13 Pac. 404; Bedell’s Estate, supra.) The order appealed from is reversed, wdth directions to the district court of Silver Bow county to revoke the letters of administration heretofore issued to Charles A. Blackburn, and to grant the petition for the appointment of the appellant, unless the court shall find, from the evidence taken or which may be taken at a further hearing, that she is incompetent for want of proper understanding or integrity, in which event to appoint such competent person as she may nominate. Reversed and remanded. Mr. Chibe Justice Brantly and Mr. Justice Holloway concur. Rehearing denied December 24, 1913.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action by the plaintiff upon a promissory note for $5,000, payable on demand and executed and delivered by the Judith Basin Milling Company (hereafter referred to as “the company”) to the Empire Bank & Trust Company, of Lewistown, Montana, on March 6, 1911, and thereafter assigned to the plaintiff. Prior to the execution of the note to the bank, the defendants indorsed it as guarantors, waiving presentment, demand, protest and notice. The complaint is in the usual form, alleging demand upon the milling company and the defendants, and their failure to make payment. The defendants, admitting that they had indorsed the note and that they have not paid it, deny generally all the other allegations of the complaint. They then allege as a special defense substantially the following: That at the times mentioned in the compaint the plaintiff was the owner of the entire capital stock of the company; that on March 6, 1911, they were in charge of the business and affairs of the company, at the request and with the consent of the plaintiff, under an agreement t.o purchase from him the capital stock thereof; that it became necessary for the company to borrow the sum of money for which the note was executed; that they guaranteed the payment thereof as accommodation indorsers solely for the benefit of the company and at its request, receiving no consideration whatever therefor; that the sum received thereon was used by the company; that the agreement between the plaintiff and the defendants was not carried out, but that on August 26, 1911, the plaintiff sold the entire capital stock to one Charles Borgeson; and that as part of the agreement of sale to Borgeson, and in consideration therefor in part, the plaintiff assumed and promised to pay the existing debts of the company, including the promissory note which is the subject of this action. The reply contains statutory denials of all these allegations, except that it admits, by not denying, that the plaintiff at the times mentioned was the owner of all the capital stock of the company. The trial was to the court without a jury. At the close of plaintiff’s evidence the defendants moved the court to direct a nonsuit, for that no cause of action was disclosed by the evidence: (1) Because it appeared that the plaintiff was the owner of the entire capital stock of the company, and therefore that the debt represented by the note was his individual debt; and (2) because under his contract of sale to Borgeson he agreed to assume and did assume all the debts and liabilities of the company. The court reserved a decision of the motion. After the defendants had introduced their evidence, the court sustained the motion and directed judgment in their favor. Plaintiff has appealed. The evidence discloses the following: The note was executed to the bank for money borrowed for the use of the company, and was used by it.' At that time the defendants were ostensibly directors of the company, and the defendant McCullough was acting as its president. On August 26, 1911, the plaintiff sold the stock to Borgeson, the sale being witnessed by a writing which, after stating that the plaintiff is the owner of all the capital stock of the company and reciting the consideration paid by Borgesoa, contains this stipulation: “Now, therefore, in consideration of the premises and of the purchase, of said capital stock of the said party of the first part by said party of the second párt upon said terms, the said party of the first part, for himself, his heirs, and administrators, does hereby agree to and with the said party of the second part that upon such sale he will turn over to said party of the second part all of the capital stock of the said Judith Basin Milling Company, free and clear of all encumbrances of every kind soever; that he will save the said Judith Basin Milling Company harmless from any debts, suits, judgments, liabilities, or obligations of any kind soever, save as hereinafter specified, incurred by it or by the said party of the first part, prior to the transfer of said capital stock by the said party of the first part to said party of the second part, including taxes of every bind whatsoever for the year 1911, and said party of the second part shall have immediate possession of all premises.” Other recitals in the agreement show that the saving clause in this stipulation has no reference to the note due the bank. On August 28 plaintiff paid the bank the amount of the note. It was thereupon indorsed to him without recourse. With reference to this transaction the plaintiff testified on his cross-examination, as follows: “Q. Mr. Barnes, you say you bought this note that has just been shown you? A. Yes, sir. Q. What was the purpose of your buying that note? A. Well, it was against the milling company, and when I sold the mill I promised Mr. Borgeson, the man I sold to, that I wouldn’t allow any encumbrance to come against him or his interest, and I had a reason for buying the note otherwise. I thought probably it was due the bank. I was interested in the bank, and I paid them the money and took the note, with the risk of ever getting it out of Mr. Smith. I see he had indorsed the note as security on it, and he appeared to be pretty energetic, and I thought probably [I] might catch him some time and get the money out of him.” It does not appear that the plaintiff was at any time a director of the company, nor, if there were others besides the defendants, how many and who they were; but it does appear that at the time the debt to the bank was contracted the plaintiff was the owner of the entire capital stock of the company, and that at the time the sale was made to Borgeson he was in control of all of its property. It also appears by necessary inference that the defendants were not qualified to act as directors, even by nominal ownership of stock. It will be noted, further, that the plaintiff agreed to deliver to Borgeson the immediate possession of the property belonging to the company. It must therefore follow, as a necessary conclusion from the facts thus disclosed and the inferences justified by them, that the defendants, though acting as ostensible directors, were in fact mere agents of the plaintiff, and were conducting the business of the company for his sole benefit. In brief, the business, whatever its extent, was being conducted in the name of the company, but was, in the ultimate analysis of the situation, the business of plaintiff. What are the rights of the parties in the premises? Counsel for the plaintiff cites many authorities which announce the rule that the stockholders are not liable for the debts of the corporation and that the courts will not ignore its existence and entity, but will recognize and preserve it, even though the stock is all owned by one person. In most instances there is no doubt that this rule aids the purpose of the legislature in authorizing the creation of corporations, particularly industrial corporations, such as is the company here, viz., to encourage trade and industry by enabling natural persons to make profitable investment by availing themselves of the skill, experience and personal' fitness of others, without incurring personal liability for the obligations incurred in the management of the business of the corporation. So, after a corporation has been once lawfully organized, it continues to exist until its life expires by limitation, or it has been dissolved by one of the modes prescribed by the statute. (Rev. Codes, secs. 3825, 3905; Merges v. Altenbrand, 45 Mont. 355, 123 Pac. 21; Daily v. Marshall, 47 Mont. 377, 133 Pac. 681.) Its character, as such, cannot be inquired into collaterally at the instance of a private citizen in a controversy between him and it. Its legal capacity can be brought in question by the state only through its proper officer (Rev. Codes, sec. 3892), and for one of the causes prescribed by the statute (Id., see. 6944). The rule is especially applicable to cases in which creditors are seeking to enforce their claims against the corporation, or to hold the directors liable for their failure to file their annual reports, or the like, when, though one director is the owner of all the capital stock, he has continued the business in the corporate name. The acquisition of all of the capital stock does not vest the owner with title to the corporate property, so as to enable him to maintain an action in replevin for it. (Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 131, 20 N. W. 667.) The ownership of the stock carries with it only an equitable interest in the property. (Wilde v. Jenkins, 4 Paige (N. Y.), 481.) Where one person, owning all the stock, conducts the business in the corporate name, those who deal with the corporation can hold it liable for debts incurred in its name. (Newton Mfg. Co. v. White, 42 Ga. 148; Louisville Banking Co. v. Eisenman, 94 Ky. 83, 42 Am. St. Rep. 335, 19 L. R. A. 684, 21 S. W. 531, 1049.) In Louisville Gas Co. v. Kaufman, Strauss & Co., 105 Ky. 131, 48 S. W. 434, the court of appeals of Kentucky held that, though one corporation held all the capital stock of another and was conducting the business of the latter through its own officers and directors, it was not liable for the negligence of the employees of the latter. The text-writers concur in holding that this is the general rule. (Cook on Corporations, 6th ed., see. 663; Thompson on Corporations, 2d ed., sec. 6498.) Even so, there are exceptional cases in which the courts refuse to recognize the corporate entity, as distinguished from the stockholders, if the refusal of such recognition is necessary in order' to get at the truth. This statement applies especially to eases in which the corporation is used as a cloak for fraud, or to enable the owner of the stock to evade personal liability or the performance of a public duty. It has application, also, to cases in which circuity of action would otherwise be necessary to reach an adjustment of the rights of the parties. It was said by the court of appeals of New York, in Seymour v. Spring F. C. Assn., 144 N. Y. 333, 26 L. R. A. 859, 39 N. E. 365: “The abstraction of corporate capacity will never be allowed to bar out and pervert the real and obvious truth.” And again, in Anthony v. American Glucose Co., 146 N. Y. 407, 41 N. E. 23: “We have of late refused to be always and utterly trammeled by the logic derived from corporate existence, where it only serves to hide or distort the truth.” In this latter case the facts were that the Glucose Company had been formed for the purpose of taking over all the property and business of several other corporations, upon an agreement between the in corporators of all of them that payment for the transfer should be made by apportioning to the original stockholders the whole of the stock of the new corporation, except that reserved for use of the treasury. Stockholders of one of the constituent corporations, who had not received their stock, brought an action against the new corporation to compel its delivery to them. The court sustained the action. The extent to which the courts will ignore the corporate entity in order to do concrete justice, ■when the circumstances require it, is illustrated by the following cases: Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 78 Am. St. Rep. 707, 48 L. R. A. 732, 56 N. E. 1033; Andres v. Morgan, 62 Ohio St. 236, 78 Am. St. Rep. 712, 56 N. E. 875; Day v. Postal Tel. Co., 66 Md. 354, 7 Atl. 608; Chicago Union Traction Co. v. City of Chicago, 199 Ill. 579, 65 N. E. 470. Under section 3833 of the Revised Codes, the powers of a corporation must be exercised by a board of not less than three nor more than thirteen directors, to be elected from among the stockholders, or, where there is no capital stock, then from the members of the corporation. “Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the by-laws,” etc. (Sec. 3833.) Manifestly, the legislature, in making this requirement, intended that the directors should be bona fide owners of stock; -otherwise, the aggregate body would be such only in name, and it would be possible for a single person, through his own employees and agents acting as his “dummies,” to conduct his individual business under the guise of a corporation, with all of the attendant privileges and immunities, and thus escape personal liability altogether. The legislature did not intend this situation to be possible. The result of the requirement is that, when the capital stock passes into the hands of a single person, the entity of the corporation, except so far as it is necessary to protect the rights of strangers, who deal with it through its ostensible officers and agents, is entirely in abeyance, and its functions for the time being cease. So it is held by the current of authority. (First Nat. Bank of Gadsden v. Winchester, 119 Ala. 168, 72 Am. St. Rep. 904, 24 South. 351; Louisville Banking Co. v. Eisenman, supra; Louisville Gas Co. v. Kaufman, Strauss & Co., supra; Thompson on Corporations, sec. 6498.) Strangers dealing with it while this condition exists cannot know of its internal affairs, and those who have made use of it for their own purposes, though they act in good faith, are estopped to deny its capacity or that they are its officers. (Daily v. Marshall, supra.) In controversies growing out of dealings of the ostensible officers with the sole owner of the stock, however, though he deals in the name of the corporation, we think the corporate entity should be ignored, and that the contract liabilities of the company to them should be treated as those of the owner of the stock. If the bank were seeking recovery on the note which is the subject of this suit, we think it should be treated as a stranger to the corporation; but, so.far as concerns the rights of the plaintiff and the defendants inter sese, the plaintiff should be deemed the corporation itself, and as 'occupying exactly the relation to the defendants as did the corporation when they indorsed the note. And this is but just, because the company could not have borrowed money without the plaintiff’s consent, nor could the defendants have become parties to the contract, except as his agents. The district court was clearly right in looking at the substance of the transaction, rather than its technical aspects, and adjudging the rights of the parties accordingly. Counsel for the plaintiff has devoted considerable space in his brief to a discussion of the distinction between a contract of indemnity and one of suretyship and guaranty, and insists that, since the indemnity clause in the contract of sale runs to Borgeson only, only he or someone claiming under him can enforce it. The disposition we have already made of the case renders it unnecessary to consider the nature of this feature of the contract. Conceding it to be merely an agreement to indemnify Borgeson, it indemnifies him against a claim which the plaintiff cannot enforce against the company in any event, because tbe payment to tbe bank was tbe discharge of an indebtedness which, so far as concerns the plaintiff, was his own. The judgment is affirmed. Affirmed. Me. Justice Holloway and Me. Justice Sannee concur. Rehearing denied January 7, 1914.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On July 20, 1906, an agreement was entered into between Margaret Northey, Stephen H. Northey, the Butte & Boulder Mining & Lumber Company and H. L. Frank. This agreement is prefaced by an introductory clause which recites that the min ing and lumber company had been organized for the purpose of taking over certain mining claims and water rights belonging to Margaret Northey, and for carrying on a general lumber business, and that it was necessary for the company to borrow $30,000 to carry out the purposes of its organization. These recitals are followed by the contracting portions of the agreement, which are: (1) Frank agrees to loan the company $30,000. (2) The mining company agrees to transfer to Mrs. Northey, in payment for the mining claims and water rights, 24,995 shares of its capital stock, being all of its capital stock excepting five shares, the shares being of a par value of $10 each. (3-) Mrs. Northey agrees to transfer 9,000 shares of the stock to Frank without any further consideration and as a bonus to him for making the loan to the company. She further agrees to retransfer 1,000 shares to the treasury of the company, to be used in purchasing a sawmill. (4) All the parties agree that the capital stock of the company shall not be increased without Frank’s consent. (5) Mrs. Northey agrees to convey to the company the mining claims and water rights mentioned. (6) Stephen H. Northey is to have the use of the surface ground of the mining claims for farming purposes, and he is to be the general manager of the company, with an assistant, to be designated by Frank, who shall have charge of the books and accounts of the company. (7) Until Frank’s indebtedness is paid he is to be one of the directors of the corporation and to have the right to name another director. (8) Stephen H. Northey agrees to transfer to the company a certain tie contract which he had with the Milwaukee Railway Company. (9) All the parties agree that no dividends are to be declared until Frank shall have been repaid. (10) All the stock is to be pooled and placed in the First National Bank of Butte, with an agreement that, if any sale of any stock is made, the proceeds shall be divided among the members of the pool in accordance with their respective holdings. The contract further provides: “It is further understood and agreed that the said thirty thousand dollars so advanced and to be advanced by the said H. L. Frank, shall be repaid to the said. H. L. Frank by the said company, out of the first earnings of its business, after deducting running expenses, which said earnings are to be computed and paid over at the monthly meetings of the board of directors of said company.” The contract is executed on behalf of the company by Frank, president, and Genzberger, secretary. This action was brought by the heirs of Frank, to recover as for an indebtedness due. They allege the execution of the contract; that the money was actually furnished by Frank and used by the company; that no part has ever been repaid; that the company has never realized any earnings in the operations of its business after deducting its running expenses; and that a reasonable time has elapsed since the defendant received the money from Frank. There is a second cause of action upon an assigned claim. The answer admits the execution of the contract, denies that there is anything due, and sets forth some affirmative matters, which, however, were on motion stricken out, and no exception was reserved. The trial court found the issues in favor of the plaintiffs and rendered judgment for the whole amount claimed upon both causes of action. From that judgment this appeal is prosecuted. While the appellant in its brief asserts that the complaint does not state a cause of action upon either cause of action set forth in the complaint, no argument whatever is offered in support of that contention, as it applies to the second cause of action, and, under the rule recognized by this court that assignments not argued will be treated as waived (Winterscheid v. Reichle, 45 Mont. 238, 122 Pac. 740; Brian v. Oregon Short Line R. Co., 40 Mont. 109, 20 Ann. Cas. 311, 25 L. R. A. (n. s.) 459, 105 Pac. 489; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860), nothing further need be said than that, in our opinion, the second count states a cause of action. The principal contention arises over the construction of that clause of the contract quoted above. The contention of respondents is that the contingency mentioned in the contract that repayment should be made out of the net earnings of the company merely postpones the time of payment, and that upon the expiration of a reasonable time the obligation becomes absolute and can be enforced, whether there were any net earnings of the company or not. And in support of this contention a number of eases are cited, including Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161; Noland v. Bull, 24 Or. 479, 33 Pac. 983; Smithers v. Junker (C. C.), 41 Fed. 101, 7 L. R. A. 264; Hicks v. Shouse, 17 B. Mon. (Ky.) 483; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687, and other cases of like character; but in every one of those cases there was a pre-existing indebtedness, and the contingency mentioned referred only to the time of payment. In our opinion, those cases are not in point. Other cases cited, however, including Harkinson v. Dry Placer Amalgamating Co., 6 Colo. 269, Johnston v. Schenck, 15 Utah, 490, 50 Pac. 921, and Busby v. Century Gold Min. Co., 27 Utah, 231, 75 Pac. 725, are cases somewhat similar in their facts to the one before us, and the decision in each is in harmony with the theory of respondents in this ease. Appellant relies upon cases which hold that a contingency, such as the one before us, affects the liability, renders the obligation conditional, and imposes upon the party seeking its enforcement the burden of showing that the contingency has happened or the condition has been fulfilled, before recovery can be had. Among the cases are Blake v. Coleman, 22 Wis. 415, 99 Am. Dec. 53; Lyman v. Northern Pac. Elevator Co. (C. C.), 62 Fed. 891; Munro v. King, 3 Colo. 238; Toombs v. Consolidated Poe M. Co., 15 Nev. 444; Breaux v. Lauve, 24 La. Ann. 179; Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383; Orman v. Ryan, 25 Colo. 383, 55 Pac. 168; and Congdon v. Chapman, 63 Cal. 357. The conflict, however, between the cases cited by appellant and those relied upon by respondents, is more apparent than real. Every ease has been decided upon its own peculiar facts and surrounding circumstances, the courts being unable to formulate any definite, general rule upon the subject. The authorities are therefore of little, if any, value as precedents. There is not anything peculiar about the contract before us. There is not any question of fraud or mistake involved. The parties do not seek to have the contract reformed; on the contrary, they rely upon it as it was written, and we are to determine its meaning by the rules which our Codes prescribe. “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Rev. Codes, sec. 5025; State ex rel. Coburn v. District Court, 41 Mont. 84, 108 Pac. 144.) “The language of a contract is to govern its interpretation if the language is clear and explicit, and does not involve an absurdity.” (Section 5027; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title.” (Section 5028; Stadler v. First Nat. Bank, 22 Mont. 190, 74 Am. St. Rep. 582, 56 Pac. 111.) In Bullard v. Smith, 28 Mont. 387, 72 Pac. 761, this court said: “It is a well-settled rule of law that the circumstances under which a contract is made, or the intent of the parties existing at that time, are only material when the contract is ambiguous in some of its terms. If it is plain and unambiguous, it needs no construction, and it is the duty of the court to enforce it as made by the parties.” In the contract before us the parties appeared entirely capable of expressing themselves in plain, terse English. No one complains that the language employed is not explicit or that it is open to construction. Under like circumstances, in Harris v. Root, 28 Mont. 159, 72 Pac. 429, Chief Justice Brantly, speaking for the court, said: “The contract is clear and explicit in its terms, and its construction involves no difficulty. To its language alone, therefore, must we look in order to find the intention of the parties! ’ ’ In speaking of the provisions of section 5025, above, this court, in Quirk v. Rich, supra, said: “This section simply means that the intention of the parties-shall be ascertained in the first instance by reference to the language employed by them. Where the words used are clear, certain and unambiguous, interpretation may not be resorted to.” There are not any words in this agreement employed in a strictly technical sense, and those that are used are therefore to be understood according to their ordinary and popular meaning. (Rev. Codes, sec. 5033.) Taking this contract before us as it is written and giving to its words their ordinary and popular meaning, the result cannot be in doubt. The parties explicitly agreed that Mr. Frank should be paid from a special fund as rapidly as it should be accumulated. The meaning of the parties.is not left in doubt. If it was their intention to create a general liability on the part of the mining company which would subject all of its property to seizure in satisfaction of Frank’s claim, why, then, should they say, in the portion quoted above, that Frank’s indebtedness was to be paid out of the first net earnings of the company’s business? In Lyman v. Northern Pac. Elevator Co., above, it appeared that the elevator company issued its notes or evidences of indebtedness which provided that they should be “paid out of the first net earnings of the company ”; of this Judge Williams said: “It is very clear from the agreement and note, which must be read as one paper, that there is no liability of the company on this note, except out of the net earnings, and that, if net earnings have not been made, it cannot be contended that the company is liable for the face of the note as absolutely as if there was no provision either in the note, or in the contract of August 15, 1890, respecting the payment out of the net earnings. Certainly, the clause was inserted for some purpose—either to limit the liability or to add to the security of the stockholder. It certainly does not add to his security, for if no provision had been inserted when the note became due, not only the net earnings but all of the company’s property could have been applied to the payment of the note. It therefore limited the company’s liability to the net earnings. If it was intended as a pledge of the net earnings as security, such language would have been used in the contract; but the contract does not provide that the net earnings are pledged as security, but rather limits the payment to the net earnings. ’ ’ Whatever impulses may control individual action, courts must be governed by law. It is their province to interpret contracts which are open to interpretation, or they may enforce obligations, but it is beyond their power to make agreements for parties of to alter or amend those which the parties themselves have made. (McCrimmon v. Murray, 43 Mont. 457, 117 Pac. 73.) In order to uphold this judgment, we must say that these parties agreed to repay Frank within a reasonable time out of the net proceeds of the company’s business, if there were any, but, if there were none, thfen out of the property of the company generally. To do this would be to create a new obligation so far different from the one which the parties themselves executed that they would never recognize it. In Congdon v. Chapman, above, there was involved a writing by which Chapman agreed to pay Congdon for certain shares of stock in a mining company ten cents per share “from the first moneys which can be realized from the sale of any stock of said company owned or controlled by him; * * * and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him without unnecessary delay, to the end that said payment may be made to said Congdon.” In an action by Congdon against Chapman to enforce payment upon the theory that the shares were to be paid for within a reasonable time, whether Chapman sold his stock or not, the court held the defendant not liable, and said: “By this agreement the parties clearly expressed their intention that the stock should be paid for out of the first moneys that could be realized from the sale of any stock of the company owned or controlled by Chapman; the latter further agreeing to use all reasonable efforts to realize on the stock without unnecessary delay, ‘to the end that shid payment may be made to said Cong-don.’ At the trial the court below found that the defendant used reasonable diligence and made all reasonable efforts to sell the stock, but had been unable to sell any of it. Under such circumstances, to hold the defendant liable in this form of action would be to make and enforce between the parties a contract essentially different from the contract that they themselves made and from that declared on herein. ’ ’ In so far as the judgment in favor of the plaintiffs is based upon the first cause of action it is erroneous. The cause is remanded to the district court, with directions to dismiss the complaint as to the first cause of action and to enter judgment in favor of plaintiffs upon the second cause of action nunc pro tunc, as of the date of the original judgment. Each party will pay his own costs of this appeal. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. CHIEF JUSTICE BRANTLT delivered the opinion of the court. Original applications for writs of prohibition. Prior to June 20, 1913, the relator Hackshaw applied by petition to the board of commissioners of Chouteau county, for a license to engage in business as a retail liquor dealer at the village of Flowerree, in Chouteau county. The application was made under the provisions of section 3 of the Act of the thirteenth legislative assembly, approved February 27, 1913 (Laws Thirteenth Session, Chap. 35). Within the time allowed for that purpose, certain freeholders, residents of Flowerree and the vicinity, filed their protest against the issuance of the license. On June 30th, after a hearing fixed by previous notice for that day, the protest was overruled and the license granted. The protestants, being dissatisfied with the action of the board, caused to be served upon the attorney for the relator and the chairman of the board their notice of appeal and an undertaking on appeal, and filed them with the clerk of the district court. At the same time they caused to be filed with the clerk of the board, and served upon its chairman, the following request: “To the County Clerk of the County of Chouteau, State of Montana: “Notice of appeal in the above-entitled action having been this day filed with the clerk of the- district court of the Twelfth judicial district in and for the county of Chouteau, you are hereby requested to certify to the said clerk of the district court any and all proceedings of the board of county commissioners of Chouteau county, in the above-entitled action. “Dated this 23d day of July, A. D. 1913. “Vernon E. Lewis, “Attorney for Appellants.” Thereafter, on December 3d, Hackshaw moved the eonrt to dismiss the appeal on the ground, among others, that it had not been perfected in conformity with the requirements of the statute, and that for this reason the court was without jurisdiction to entertain and determine it. On December 27th the motion was denied. Thereupon Hackshaw applied to this court for a writ to prohibit that court and its judge from proceeding to hear the appeal. At the same time G. C. Ihmsen, F. H. McGowan, and Jurgen Engellant, as members of the board, also applied for a writ. Inasmuch as both applications sought to accomplish the same end, the court directed them to be consolidated, and ordered the alternative writ to issue accordingly. The defendants filed a motion to quash the writ, and also an answer, which, however, presents no question of fact. The question to be determined, therefore, is: Did the court, by the proceeding detailed above, acquire jurisdiction of the appeal? In the section of the statute referred to supra is found this provision: “From the decision of the board of county commissioners the applicant for license, or the protestants against the issuance thereof, may appeal to the district court of said county within thirty days after the decision of the board of county commissioners. The appeal shall be taken and heard in the same manner as appeals from justice courts to the district court, except that the appeal shall be heard, if possible, within thirty days from the time of filing in the district court, and the same shall be determined without delay.” The Constitution provides that appeals shall be allowed from justice courts to the district courts “in such manner and under such regulations as may be prescribed by law.” (Const., Art. VIII, sec. 23.) The rules prescribed by the legislature under which such appeals may be taken, so far as it is necessary to notice them here, are found in section 7121 of the Revised Codes, as amended by the Act of 1911 (Session Laws 1911, p. 8), and sections 7123 and 7124. Amended section 7121 provides that: “The appeal is taken by serving a copy of the notice of appeal on the adverse party or his attorney and by filing the original notice of appeal with the justice or judge.” The order in which these acts are done is not important. Under section 7123 the justice, within ten days after receiving the notice and the undertaking required by the next section, must transmit to the clerk, of the district court a copy of his docket and all the papers filed in the case, together with the notice and the undertaking. Section 7124 declares the appeal not effectual for any purpose unless an undertaking is filed as therein prescribed. While under section 7128 the appeal may be preserved by substituting a good undertaking for one that is merely defective or irregular (Marlowe v. Michigan Stove Co., ante, p. 342, 137 Pac. 539), and under certain circumstances the requirements prescribed touching the service of notice, etc., may be waived (Davidson v. O’Donnell, 41 Mont. 308, 110 Pac. 645; Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064), nevertheless, in the absence of such conduct of the adverse party as amounts to a waiver, there must be a substantial compliance with all these provisions in order to give the district court jurisdiction to proceed with the trial upon the merits. (State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580.) In providing the method of appeal from the decision of the board, the legislature evidently did so with the intention that for the purpose to be served by it, the petitioner and the protestants are to be deemed to be the real adversary parties, and the board to bear the same relation to the decision made by it as does a justice of the peace to a judgment rendered by him. That this is so is made manifest by the fact that in providing for appeals from orders allowing or disallowing claims against counties, the legislature has regarded the claimant or the objecting -taxpayer, as the case may be, and the county as the real parties in interest, and prescribed a method of appeal apparently suited to that situation. (Rev. Codes, sec. 2947.) Its intention is also shown by the additional consideration that the real parties in interest are in fact the petitioner for the license, and the residents of the community in which the business of. retailing liquor is to be conducted, the theory of the statute being that the residents of the vieinity in -which- the business is to be carried on shall have notice of the purpose to establish in their midst a business which, though lawful, is often objectionable. In other words, the statute accords to communities outside of incorporated cities and towns the right to appear before the board as adversary parties and oppose the issuance of the license. From this point of view, therefore, the board is the judicatory tribunal vested with the power to determine the rights of the parties just as does a justice of the peace in an ordinary action between adversary parties. It is pro hoc vice the “justice or judge” with whom the original notice and the undertaking must be filed under amended section 7121 and section 7123, supra, and by whose agency, acting through the clerk, the files and transcript of the' proceedings are transmitted to the clerk of the district court. After the board has performed these functions, neither it nor any member of it has any interest in the proceedings, other than such as a justice of the peace has in an ordinary action removed by appeal from his court. Since the protestaras in seeking to remove the proceeding to the district court failed to pursue the provisions of the statute, the court did not acquire jurisdiction to entertain the appeal or determine the controversy on its merits. Counsel for defendants insists, however, that the course pursued by him in taking the appeal is authorized by the decision in State ex rel. Riddell v. District Court, 27 Mont. 103, 69 Pac. 710. Upon examination of the provisions of the statute (Rev. Codes, sec. 1588), prescribing the method of taking appeals from the determinations of the board of medical examiners in certain instances, which were examined somewhat in that case, it will be found that they are wholly different in their requirements. Besides, the only question there determined was whether the notice was sufficient in form and substance to convey to the board the information necessary to bring it before the court as the adversary party, which, under the provisions- of the statute, it becomes when an appeal is taken from its action. Counsel also insists that the request filed with the clerk of the board and served upon its chairman was a sufficient notice of appeal. In view of what has been said, for the purpose of the appeal the adverse party was the petitioner. While the recitals in the notice served upon him were sufficient to meet the requirements of the statute, neither the notice nor the undertaking was ever filed with the “justice or judge” within the meaning of the statute; therefore the filing of this request with the board served no office whatever. It was merely notice to the clerk to file with the clerk of the district court a transcript of the proceedings had before the board. Since the members of the board have no personal interest in the question whether the district court shall entertain the appeal or not, this court may not entertain an application by them to restrain its action in assuming to entertain the appeal. The motion to quash, so far as they appear as relators, is sustained and the proceeding is as to them 'dismissed. The relator Hackshaw is entitled to the relief demanded. Accordingly, as to him, the motion to quash is overruled, and the alternative writ made peremptory. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. CHIEF JUSTICE BRANTLT delivered tbe opinion of tbe court. Tbe plaintiff brought this action on July 19, 1911, to obtain a decree quieting its title to the property described in tbe com plaint, which is situated within the corporate limits of the city of Butte and consists of a strip of land extending from the south line of the alley immediately south of Galena street to the north line of Silver street. ' Its boundaries are indicated on the subjoined diagram by the heavy lines inclosing the area A, B, C, D, a part of the area designated as the Barnard Placer, the dotted line being the western boundary of the latter. The question involved is whether the described area is a part of Alabama street. The defendant, admitting that the record title is in plaintiff, pleaded as a defense that for the full period of ten years prior to the bringing of the action it had been in the open, notorious, uninterrupted, exclusive and adverse possession of the disputed area and used the same as a public street, and was therefore the owner of an easement over it for a public street. The district court found the issues in favor of the defendant and entered a decree accordingly. The plaintiff has appealed from the decree and an order denying its motion for a new trial. Counsel have, made many assignments of error in their brief, but since the only substantial argument made is confined to the assignment that the evidence is insufficient to sustain the findings, we shall deem the other assignments waived and devote our attention to the single question thus submitted. The evidence introduced by the defendant tends to establish the following: The area shown on the diagram to the north of the alley and east of the dotted line was originally a part of the Barnard Place. In the year 1889 Barnard, the owner, caused it to be subdivided into blocks and lots and made it an addition to the city. The portion of this area north of the south line of the alley was thus formally dedicated to the use of the public, presumably as an extension of Alabama street from the north. The dedication apparently included also the extension of the alley to the east. The area to the west of the dotted line from Galena street south is embraced in three distinct additions made to the city by other persons at about the same date, the portion north of the alley being a part of the Columbia Addition, that between the alley and Mercury street a part of the Saturn~Addition, and that further south a part of the Neptune Addition. All the portions of these areas designated as streets and alleys up to the dotted line were thus formally dedicated to public use. ■ The rest of the Barnard Placer east of the dotted line has been uninclosed and accessible to public travel. The fractional lots lying west of the line have been held or sold by the respective plat owners as fractional lots, the plaintiff and its predecessor having at all times refused to sell any portion of the area between the dotted line and the west line of the disputed area. Many of the lots in the Saturn and Neptune Additions are now occupied by dwellings, some of which were erected more than ten years prior to the bringing of this action, and others of them within ten years. One of these, situated on lot 1 in the Saturn Addition at the corner marked “A,” fronts to the east. A narrow sidewalk constructed of boards extends from the north line of Silver street along the course of the dotted line to the .south line of Mercury street. This has been constructed from time to time by owners of lots bordering on the Barnard Placer, to facilitate access toward Galena street from the south, but without permission of plaintiff or its predecessor. Extending north from Mercury street there is a sidewalk which follows the direction of the east line of the Saturn Addition, and encroaches slightly upon the disputed area. It does not appear who constructed this. During the year 1905 the area designated as Silver street east of the dotted line was, as a result of negotiations had with Barnard, opened as a public street and has since been graded and used as such. These negotiations had no relation to an extension of Alabama street, the purpose entertained by the city apparently being only to extend Silver street to the east to accommodate the residents along it toward the west. Some time subsequent to the beginning of the year 1901 a ditch theretofore constructed along the west side of the dedicated portion of Alabama street and probably across the alley was extended south to and across Silver street. This was done by men employed by the street commissioner of the city and at the expense of the city, the purpose being to divert the surface water which tended to follow the natural slope of the country toward Missoula Gulch on the east and prevent it from cutting up the surface of the roadway toward the south and obstructing travel in that direction. At that time there were two lines of travel well defined, one on the east side of the line of the ditch and the other west of it, the one or the other being used according as it suited the convenience of the traveler. Later culverts were constructed at the points indicated on the diagram to facilitate access to the streets and alleys toward the west. Prior to 1889 placer mining operations were extended from Missoula Gulch toward the west as far as the west line of the disputed area and north to about the south line of Mercury street, leaving the surface in such a condition, by reason of excavations and scattered debris, that travel over the area south to Silver street, though practical, was not convenient. The surface of this portion was leveled off by the city in 1905 and 1906. About the same time lines of wires were erected along the east and west sides of the disputed area, to supply the residents to the west with light and telephone service. Arc-lights were thereafter maintained by the city at Silver and Mercury streets. All of these improvements were made without the consent of the plaintiff, though its officers and agents had knowledge of them at the time. As a result, the area gradually assumed the appearance of an improved, much-traveled street. Sometime during the years subsequent to 1900 the city caused Mercury street to be graded. The grading operations stopped at the west boundary of the Barnard Placer. The disputed area has never been made to conform to the grade established for that street. Later Silver street was graded throughout. Much evidence was introduced as to the character and amount of travel over the disputed area from the time the various additions were made to the city. If, however, the testimony of defendant’s witnesses be taken as uneontroverted and at its utmost worth, it does not tend to establish a definite, fixed line of travel over any part of the area prior to 1896. As late as that year there were no buildings toward the west. The area in that direction was unoccupied, and persons having occasion to travel south and west from Galena street, after reaching the alley, took that direction which best suited their convenience and did not usually follow any definite, fixed route. Gradually, as the lots in these additions became occupied during the subsequent years, travel was forced eastward until it finally followed uniformly the two lines parallel with the line of the ditch., This had been the condition only from a date not earlier than the year 1896. The date at which the ditch was constructed was fixed by the defendant’s one witness who testified on the subject as in the summer of 1901—in June or July. The construction work occupied two or three days. One of plaintiff's witnesses, who was assistant city engineer from 1898 to 1906 and city engineer during 1908 and 1909 and was familiar with the streets of the city, stated that the ditch was not constructed until 1907 or 1908. These were the only witnesses who undertook to fix a definite date at which the city authorities assumed to exercise control over the disputed area. The district court did not make special findings, but found generally for the defendant. It proceeded upon one of two theories, viz.: That the assumption of jurisdiction by the city authorities by the doing of this work was definitely shown by the first witness to have taken place more than ten years prior to the commencement of the action, and hence that the right by prescription had then already accrued; or that it was wholly immaterial when the city authorities assumed jurisdiction and that a mere user by the public for the statutory period of ten years was sufficient to establish the right. Without considering the testimony introduced by the plaintiff as to when the work was done, it seems clear that the defendant’s evidence does not warrant any finding other than that it was commenced and finished during the last three days of July, 1901. Since the defendant relied exclusively upon a right acquired by adverse use, it assumed the burden of establishing this right, by showing every element necessary to constitute its title. (1 Cyc. 1143.) One of these elements was to fix, by direct or circumstantial evidence, a definite date at which the statute began to run. The statement of the .witness left the court no basis for a conclusion as to any definite date within the extreme limits covered by the two months mentioned. It is clear, therefore, that the only conclusion the court could reach was that the work was not done until the last two or three days of July, because there was no basis for fixing any earlier time. The statute was, upon this theory, not put in motion earlier than July 28, 1901. This brings us to the question whether mere user by the public for the statutory period, without substantial recognition by the public authorities,'is sufficient to establish a highway by prescription. The answer to this inquiry must, we think, be found by reference to the provisions contained in sections 1337 and 1340 of the Revised Codes. These are the following: “All highways, roads, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways.” (See. 1337.) “A highway laid out and worked and used as provided in this Act must not be vacated or cease to be a highway until so ordered by the board of county commissioners of the county in which said road may be located; and no route of travel used by one or more persons over another’s land shall hereafter become a public road or byway [highway?] by use, or until so declared by the hoard of county commissioners, or hy dedication by the owner of the land affected.” (See. 1340.) These provisions were first enacted as sections 2600 and 2603 of the. Political Code of 1895. Whatever may have been the rule touching the establishment of public highways by prescription prior to the date of their adoption, they declared what should be considered highways at the time of their enactment and how a highway might thereafter be established. By the first section all highways, roads, streets, alleys, etc., were declared public highways (1) which had been laid out or erected by the public (that is, by the public authorities and at public expense); (2) which were then traveled or used by the public; or (3) which had been laid out or erected by others (by private persons) and dedicated or abandoned to the public. We are not now concerned with the question whether it was the intention of the legislature to declare all roads then in use to be public highways, without reference to how long the use had continued or what the character of use had been. We think, however, as we said in State v. Auchard, 22 Mont. 14, 55 Pac. 361, that the intention was to declare those only to be public highways which had been established by the public authorities, or were recognized by them and used generally by the public, or which had become such by prescription or adverse use at the time the provision was enacted. Any other view would, in our opinion, render the legislation open to serious constitutional objection (Const., sec. 14, Art. III). Be this as it may, the second section clearly evinces the intention that no highway falling within the enumeration contained in the former section should be vacated except by the public authorities, and that no route of travel should thereafter become a public right until declared so by the public authorities or had been made so by dedication by the owner of the land affected. The term “now,” as used in the first provision, clearly indicates the intention to leave intact such rights as the public had already acquired, and as clearly -does the use of the term “hereafter,” in the latter section, indicate an intention that rights of the same kind should not in the future be acquired except by the methods therein prescribed. The expression, “one or more persons,” can mean no more nor less than any number of persons, and therefore is necessarily as broad in its meaning as the term “public,” employed to indicate the extent of the use mentioned in the first section. By these enactments the legislature explicitly declared it to be the rule that after July 1, 1895, when the Codes went into effect, a highway could not be established by use unless the use should be accompanied by some action on the part of the public authorities having jurisdiction of the subject, tantamount to a declaration that the particular road was a public highway. The provisions were copied substantially from the Political Code of California, where they appear as sections 2618 and 2621. We have not been referred to any decision by the supreme court of that state, construing the latter section. In Leverone v. Weakley, 155 Cal. 395, 101 Pac. 304, cited by counsel, it was merely referred to as not in anywise in conflict with the theory that a highway may be established by an implied dedication of it by the owner of the land affected by it. No question of dedication is involved in this ease. In North Dakota a statute containing the provision, “no road traveled or used by any one or more persons over another’s land shall become a public highway by use.” The supreme court of that state construed it as meaning that no highway could be established by prescription after its enactment, unless the right had theretofore fully matured by lapse of time. (Walcott Township v. Skauge, 6 N. D. 382, 71 N. W. 544; Burleigh County v. Rhud, 23 N. D. 362, 136 N. W. 1082.) It will be noted, however, that the Dakota statute does not contain the clause found in our statute, viz.: “Until so declared by the board of county commissioners, or by dedication by the owner of the land affected”; hence we are not required to adopt in toto the construction given by the court to the Dakota statute, our own evidently meaning that use, coupled with a substantial recognition of its public character by the public authorities, is sufficient to put the statute in motion. But counsel insist that under other provisions of the Code, the control of streets and other highways within the limits of a city or town is lodged exclusively in the city or town authorities, and hence that section 1340 has no application to this ease. This argument proceeds upon the assumption that mention in this section of the board of county commissioners, which body has control of county roads only, excludes the notion that the legislature intended that the provision should apply to streets in cities and towns. That the streets of these municipalities are subject to the control of the municipal authorities is true (sec. 3259, Rev. Codes). That the provision in question does not' in terms refer to them is also true. But, taking sections 1337 and 1340 together, a legislative intention is clearly evinced to provide a general rule by which highways of every character may be established or vacated. The latter section has reference to those highways enumerated in the former, to streets, etc., as well as to county roads; and though the only public authority mentioned is the board of county commissioners, it cannot be conceived that the legislature by this reference alone intended that this board should thereafter have control of the streets of cities and towns, or that these should be established by methods other than those prescribed for the establishment of county roads. Counsel also insist that the cases of Pope v. Alexander, 36 Mont. 82, 92 Pac. 203, 565, and Lockey v. City of Bozeman, 42 Mont. 387, 113 Pac. 286, have definitely established the rule applicable to the condition of facts presented in this case, and that it is conciusive against the position assumed by the plaintiff. Each of these eases, however, involved rights which had been established and matured prior to the enactment of the provision in question here. No reference was made in either of these cases to the provision found in section 1340, supra, nor was it cited or commented upon by counsel. The case of State v. Auchard, supra, also involved a right which was alleged to have become matured prior to July 1,1895. In th,e case at bar for the first time has the provision been invoked, rendering a determination of its meaning and application necessary. Neither was it referred to in the case of Montana Ore Purchasing Co. v. Butte & B. etc. Min. Co., 25 Mont. 427, 65 Pac. 420. That ease was decided upon the controversy as presented by counsel. If the provisions of the statute had been invoked by the defendant, it would have been a conclusive answer to the plaintiff’s contention, irrespective of the question actually decided. During the oral argument counsel for plaintiff suggested that the answer is wholly insufficient to present the issue of adverse use by the public, in that it asserts title in the city to the right of way claimed. The conclusion we have reached renders it unnecessary to notice this contention. Moreover, the question involved is not discussed in the printed argument. The decree and order are-reversed and the cause is remanded to the district court for a new trial. Reversed and remanded. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This suit was instituted by Louis Kaufman against the city of Butte and its-street commissioner, to obtain an injunction. The plaintiff alleges that he is the owner, in possession, and entitled to the possession, of a certain piece of land 80x100 feet in extent, described by metes and bounds with reference to the lots and blocks in Central addition to Butte; that he has upon the ground a frame building of the value of $200, which the 'defendants threaten to and, unless restrained, will remove. The joint answer denies-plaintiff’s title or right to the possession of the ground, but does not deny his actual possession. It is alleged that the ground constitutes a part of Oregon avenue, which is a public street of the city of Butte, and that for more than ten years it has been regularly laid out, dedicated and used as a public thoroughfare or street of the city. There is a denial of knowledge or information as to whether the plaintiff owns the building in dispute, and an admission that the defendants intended to remove it unless restrained by the court. The answer further alleges “that ever since September 4, 1888, the said tract constituted and was part of a public street of the said city of Butte, and ever since has remained and now is such.” By way of an affirmative defense, the defendants undertake to plead a statutory dedication to -the public use of the tract in dispute, as a part of Oregon avenue. 'The answer concludes with a prayer for an injunction restraining the plaintiff from asserting any claim to the ground or interfering with the city and its officers in their efforts to remove the building. The reply is, in effect, a general denial of the affirmative allegations contained in the answer. Upon the trial, the defendants were required to assume the burden of showing that the city then had a better right to the use of the ground than the plaintiff in actual possession, and, in attempting to sustain the burden thus imposed, they introduced in evidence a plat of Central addition, upon which the ground in dispute is delineated as a part of Oregon avenue. It was made to appear that "Warren, Noyes, and Upton owned the land comprising Central addition; that in 1888 they had the ground surveyed, a plat made and filed, upon which plat the streets, avenues, and alleys, ineluding Oregon avenue and the ground in dispute, were shown. Evidence was also introduced tending to show the use actually made by the public of this portion of Oregon avenue now claimed by the plaintiff, and of sales of lots in Central addition abutting upon this portion of Oregon avenue and described in the deed with reference to the plat which had been filed by Warren, Noyes and Upton. The evidence further disclosed that the building claimed by plaintiff was moved to its present location, about 1897 by a predecessor of plaintiff, who laid no claim to the ground upon which the building was located. The trial resulted in a general finding in favor of defendants, and a decree which follows substantially the prayer of the answer. The plaintiff has appealed from an order denying his motion for a new trial. That the court correctly denied to plaintiff equitable relief is beyond controversy. Whether his complaint states a cause of action for an injunction is not very material. When in the course of the trial the evidence disclosed, as it did, that plaintiff had no title whatever to the ground in controversy, and that the building claimed by him was personal property, the value of which is easily determinable, in the absence of any facts pleaded disclosing that he will be injured beyond the value of the building in case it is removed, there was not any excuse for his invoking the aid of a court of equity. If the building is removed and he suffers by reason thereof, a court of law will afford him complete relief by way of damages. (Donovan v. McDeviit, 36 Mont. 61, 92 Pac. 49; Eisenhauer v. Quinn, 36 Mont. 368, 122 Am. St. Rep. 370, 14 L. R. A. (n. s.) 435, 93 Pac. 38; Wilson v. Harris, 21 Mont. 374, 54 Pac. 46.) The only question which plaintiff could thus present for adjudication was one with respect to which the defendants were entitled to a jury trial, and this was an added reason for refusing him equitable relief. (City of Bozeman v. Bohart, 42 Mont. 290, 112 Pac. 388.) The only question involving any difficulty whatever is suggested by the inquiry: Did the trial court err in granting the defendants affirmative relief? In order to warrant the decree which was entered, the court must have found that the ground in controversy is a part of a public street of the city of Butte. It may be conceded that the original owners of Central addition did not comply substantially with the law in force in their attempt to make a statutory dedication of the streets, avenues, and alleys; but, nevertheless, the allegations of the answer referred to above, in the absence of a special demurrer, are sufficient to admit proof of a common-law dedication, if, indeed, evidence of such dedication was not admissible under the general denial; and, if the evidence is sufficient to show such dedication, the decree must stand. The essential elements of a common-law dedication are (1) the offer on the part of the owner evidencing his intention to dedicate, and (2) the acceptance on the part of the public. (City of Los Angeles v. Kysor, 125 Cal. 463, 58 Pac. 90; John Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 Pac. 237; 2 Lewis on Eminent Domain, sec. 492; 3 Dillon on Municipal Corporations, 5th ed., p. 1695; Elliott on Roads and Streets, sec. 123; 13 Cyc. 453, 461.) That the filing of the plat by "Warren, Noyes and Upton, upon which Oregon avenue is shown as a street, though insufficient to meet the requirements of the statute in force at that time, was a sufficient offer to the public of the ground thus marked as a street, and, in the absence of any evidence to the contrary, indicated the intention of the owners to dedicate that ground to the public for a highway, is the rule quite generally recognized by the authorities. (City of Anaheim v. Langenberger, 134 Cal. 608, 66 Pac. 855; Owen v. Brookport, 208 Ill. 35, 69 N. E. 952; Keyport v. Freehold etc. Ry. Co., 74 N. J. L. 480, 65 Atl. 1035; Elliott on Roads and Streets, sec. 121; 3 Dillon on Municipal Corporations, 1079, 1090; 4 McQuillin on Municipal Corporations, 3246; 2 Lewis-on Eminent Domain, sec. 492.) The evidence upon the extent and character of the use made of this portion of Oregon avenue within the next “few years following the filing of the plat is apparently somewhat uncertain as presented to the lower court, while, as revealed to us in the printed record,- much of it is simply incomprehensible. It appears that a map or plat was used upon the trial, to which the attention of the witnesses was directed; and, while their testimony was doubtless intelligible enough to the trial judge, who observed their actions in indicating the points made prominent in their testimony, it is meaningless to us, in the absence of the map and any indications in the record fixing the particular points emphasized. For example: A portion of the testimony given by the witness Henderson reads as follows: “It stood along in there (illustrating on map). This place here was an opening. Q. This place here is where it is marked ‘barn’ and east of there where your pencil was? A. Yes, sir; that was a driveway that the Butte Hardware graded out here to get teams up into this place. Q. Into this plaee, you say, Oregon avenue? A. I did not know that it was Oregon avenue, or I did not know that there was a street there, for that matter. Q. But that is where they had the driveway? A. Yes, sir; they come down along here, come down this street here, turn over here, there was a hill here, turn around here, ’ ’ etc. This method of presenting a record to the appellate court has been condemned so often and so vigorously that it is now inexcusable. (Pope v. Alexander, 36 Mont. 82, 92 Pac. 203, 565.) In this character of action, the appellant has the burden of showing that the evidence preponderates against the trial court’s findings (Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Kift v. Mason, 42 Mont. 232, 112 Pac. 392; Orton v. Bender, 43 Mont. 263, 115 Pac. 406; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136; Wright v. Brooks, 47 Mont. 99, 130 Pac. 968); and in this in stance he has failed (1) because he has not presented a record that can be understood in its entirety, and (2) because, in our opinion, the evidence, so far as it can be understood, is sufficient to show such user of this portion of Oregon avenue by that part of the general public having occasion to use it, and such sale of lots with reference to the plat of Central addition on file, as constituted an acceptance and completed the common-law dedication long before any part of the avenue was occupied by the building now claimed by the plaintiff. We agree with counsel for appellant that the acceptance must occur within a reasonable time after the offer is made, or, in this instance, after the plat was filed, and we refer particularly to the testimony of witnesses Henderson, Carman, and Carr to justify the conclusion that such acceptance as the law requires was had in this instance. Our conclusion is that the ground in, controversy became a part of a public street, and that the city acquired an interest in it superior to that attaching to the naked possession of plaintiff, based as it is upon a trespass by his predecessors in the ownership of the building. The fact that for a short time, probably fifteen months, a large portion of this strip of ground in controversy was inclosed by a corral fence, and that since 1897 this frame building has occupied a small portion of the same ground, cannot operate to devest the city of its right to control it as a part of one of its streets. The evidence shows conclusively that plaintiff’s predecessors, who owned the building until within three or four years of the commencement of this suit, were not holding the ground upon which the building stands adversely to the city, and the fact, if it be a fact, that the city officials negligently or wrongfully permitted the unlawful use of this portion of the street cannot defeat the right of the public to its use for the purposes for which it was dedicated. (Elliott on Roads and Streets, sec. 653.^ The order denying a new trial is affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. This cause was presented to the district court upon an agreed statement of facts, and judgment was entered directing that a peremptory writ of mandate issue to the appellant, as county treasurer of Lewis and Clark county, requiring him to pay to the respondent the sum of $100 for services rendered as court attendant for the month of June, 1913. From that judgment and from an order denying him a new trial, the treasurer has appealed. The following are the material facts: The Honorable J. Miller Smith is, and since January 6, 1909, has been, one of the judges of the first judicial district of this state, presiding over department No. 2. On January 6, 1909, the respondent was appointed by Judge Smith as court attendant in said department No. 2, and ever since that time he has performed the duties required of him, devoting “all the working hours of every judicial day to the care and custody of the courtroom, the judge’s chambers, and all the books, papers and other property connected with the said court and the judge thereof.” He also acts as crier of said court, opening and adjourning court, and “when the court is engaged in the trial of cases, with a panel of jurors in attendance, takes care of jurors, under the usual oath, and performs all the duties required of bailiffs and court attendants” in the district court. For these services he was, up to and including the month of May, 1913, paid the sum of $100 per month, but on May 1, 1913, he received a notice from the board of county commissioners of Lewis and Clark county to the effect that from and after June 1, 1913, bailiffs or court attendants would be allowed the sum of $3 per day “for those days upon which the jury was in attendance at their respective courts.” On June 30, 1913, he made out his receipt in the sum of $100 for salary as court attendant for the month of June, 1913, and, after indorsement of approval by the county auditor, presented the same to the board of county commissioners; but the board declined to allow or authorize payment of such sum for the reason that under its above-mentioned order there was not due to the relator to exceed $24 for the eight days of June upon which a jury was present in department No. 2. Thereupon the relator cast his demand into the form of a verified claim, in which he recited that his services had been rendered ‘ ‘ at the special instance and request of the judge presiding,” presented the same to Judge Smith who, on July 3, 1913, indorsed it as follows: “It is hereby certified that the foregoing claim and account is correct, and a proper charge against the county treasury of Lewis and Clark county, and must be paid out of the general fund thereof; and the treasurer of Lewis and Clark county is hereby authorized and directed to pay the same.”- A similar order was on the same day entered on the minutes of the court, preceded by the following recitals: “The board of county commissioners of Lewis and Clark county not having provided a court attendant for department No. 2 of this court, and a court attendant being necessary in said department of this court for the proper and expeditious transaction of the business of this court, and the judge of department No. 2 of this court having hereto fore requested and appointed W. W. Hillis to act as court attendant of department No. 2 of this court, and the said "W. W. Hillis having presented his claim and account for services, * * * it is hereby certified,” etc. Notwithstanding the above indorsement and order, the county treasurer refused and still refuses to pay the respondent’s claim. In the agreed statement of facts there appears this further recital: “That immediately upon the qualification of the sheriff of Lewis and Clark county, Montana, he offered to perform the duties of court bailiff as required of him under the statute, and has ever since been willing, and is now willing, to perform such duties specified in the statute; but the court objected, as the relator herein had been and is now performing such services.” Briefly stated, the position of the appellant is that by the statute it is made the duty of the sheriff to attend upon the district court, act as crier thereof, call the parties, witnesses, and all other persons bound to appear, and make proclamation of the opening and adjournment of court, and of any other matter under its direction (Rev. Codes, secs. 3010, 3026); that by the statute the board of county commissioners is charged primarily with the care of the property and the disbursement of the funds of the county, and upon them, in the first instance, is imposed the duty of furnishing suitable rooms, attendants, etc., for the district court (Rev. Codes, sees. 2894, 6302); that if the board shall fail to furnish suitable rooms, attendants, etc., the court may direct the sheriff to procure them, and, when so procured, the expense thereof, certified by the judge, is a proper charge upon the county (Rev. Codes, sec. 6302); and that if the court has any power to appoint an attendant to perform the service required of the respondent, to fix his compensation, and make it a county charge payable without the assent of the board, such power can only be exercised upon and during necessity, and after the failure or refusal of the sheriff to perform such service, or that of the board to furnish the same. On behalf of respondent we are favored with an elaborate and able brief, devoted to the demonstration of the following propo sitions: That by the Constitution of this state the powers of government are divided into three distinct departments: The legislative, the executive and the judicial; that no person or collection of persons charged with the exercise of powers properly belonging to one of these departments can lawfully exercise any powers properly belonging to either of the others, save as expressly authorized by the Constitution; that the whole judicial power of the state is vested by the Constitution in the judicial department, of which the district court is an integral part; that the district court is a court of record and, as the one court of general original jurisdiction in this state, is vested with all the powers necessarily incident to the full and free exercise of all its functions, save as limited by the Constitution; that included in these powers is the right to appoint its own attendants whenever necessary, and to itself determine the necessity in every case; that included in the right to appoint is the right and power to fix their compensation. As a conclusion from these postulates, it is contended that the district judge was authorized to appoint the respondent, to impose upon him the duties which he has performed, to fix his compensation, and to make it a liquidated charge upon the county, without regard to the neglect or default of either the board or the sheriff in the premises. We should be loath indeed to question any of the above propositions; but we think that, properly understood, they make for a conclusion quite different from that for which the respondent contends. “It is an elementary rule,” said this court in State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94, “that Constitutions are to be construed in the light of previous history and the surrounding circumstances.” The framers of our Constitution spoke in general terms, and their intention is to be ascertained not merely from the language used, but “in the light of our history, the surrounding circumstances, the subject matter under consideration, and the object sought to be attained.” (Northern Pac. Ry. Co. v. Mjelde, ante, p. 287, 137 Pac. 386.) Our Constitution uses many terms that it does not define, provides for many offices the duties of which it does not prescribe. “In judging what it means, we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes.” (Cooley’s Const. Limitations, 7th ed., p. 94; Constitution of Montana, Schedule 1; Wastl v. Montana Union Ry. Co., 24 Mont. 159, 61 Pac. 9.) When the Constitution was adopted, “the previous history” of this community, “the well-understood system” then in use, included a political organization of more than twenty years’ standing, which was republican in form, constitutional in character, and broadly resembled in all but complete autonomy the scheme of government with which we are familiar. Then, as now, the common law was “the law and rule of decision,” save as affected by legislation. There was also an extensive body of statute law, all of which was continued in force except where inconsistent with the Constitution. (Schedule, see. 1.) And there were such instrumentalities of government as district courts, sheriffs and county commissioners. These instrumentalities were continued by the Constitution—the district court with an expression of its general jurisdiction only, the sheriff and county commissioners without any definition whatever. The Constitution is not a grant, but a limitation, of power (Northern Pac. Ry. Co. v. Mjelde, supra; In re Beck’s Estate, 44 Mont. 561, 121 Pac. 784, 1057), and it is manifest from its text that as to all unexpressed duties and powers—whether of the district court, the sheriff, or the county commissioners—the convention that framed and the people who adopted it had in view these offices, as they were commonly known, as possessing the attributes and authority which had theretofore been declared by the written and the unwritten law, and which “were shadowed forth and symbolized by their names.” (French v. State, 52 Miss. 759; King v. Hunter, 65 N. C. 603, 609, 6 Am. Rep. 754; Warner v. People, 2 Denio (N. Y.), 272, 43 Am. Dec. 740; State ex rel. Kennedy v. Brunst, 26 Wis. 412, 7 Am. Rep. 84.) Under the Organic Act, the district court was a tribunal of grave dignity; in it and the supreme court of the territory were vested all the jurisdiction formerly possessed by the superior common-law courts of England (Territory v. Flowers, 2 Mont. 531), together with that of chancery (Zimmerman v. Zimmerman, 7 Mont. 114, 14 Pac. 665); and doubtless it was clothed with all the power and authority necessary to render its jurisdiction effective. It is by no means clear, however, that the superior common-law courts of England were wont to assert or claim the right in limine to select, and fix the compensation of their own attendants, without reference to other agencies of government. Certainly this was not the ease when the judges of these courts were holding the assizes, for we read that of old it was incumbent upon the sheriff “to meet the judges on their progress through their circuits, usually upon the borders of the county, escort them to the assize town with much display and antique ceremonial, procure for them suitable quarters, attend them with his undersheriff and a sufficient corps of deputies and bailiffs during their settings, and at the close of the term speed the parting guests with the like demonstrations of respect with which they were welcomed.” (Murfree on Sheriffs, sec. 425.) This, doubtless with some abatement of the fanfare, it is still his duty in England to do (25 Halsbury Laws of England, p. 805, sec. 1391) ; but these attendants were always servants of the sheriff, and for their conduct and compensation he was answerable. (1 Blackstone, pp. 339, 347.) In general, the common-law relations of the courts to the sheriff have been preserved in the United States. In the absence of statute to the contrary, the office of sheriff imports, and always has imported, that he is the executive arm of the district court, that it is both his duty and his privilege to attend upon its sessions, either in person or by deputy, to act as the crier of the court, to execute the lawful orders of the court, and to furnish the court, when no other provision has been made, such apartments, appliances and attendants as the court may require for the transaction of its business. (Murfree on Sheriffs, Chap. 10; In re Court Officers, 3 Pa. Dist. R. 196; Mercer County Commrs. v. Patterson, 2 Rawle (Pa.), 106.) An examination of the various statutes of the territory which are pertinent to this controversy unmistakably evinces that such was the relation of the district court to the sheriff for the entire period from the Organic Act to the Constitution. “The sheriff, in person or by his undersheriff or deputy, shall * # * attend upon the several courts of recordAn his county.” (Bannaek Statutes, p. 511, sec. 7; Codified Statutes 1872, p. 445, see. 58; Rev. Stats. 1879, p. 492, sec. 404; Comp. Stats. 1887, Gen. Laws, sec. 855.) “If a room for holding the court be not provided by the county, together with attendants, etc., suitable and sufficient for the transaction of business, the court may direct the sheriff to provide such room, attendants, etc., and the expense shall be a county charge. ’ ’ (Bannack Statutes, p. 137, sec. 476; Codified Statutes 1872, p. 161, sec. 623; Rev. Stats. 1879, p. 168, sec. 683;'Comp. Stats. 1887, p. 243, sec. 703.) So, too, the functions of the county commissioners were well known when our Constitution was adopted. Then and during the whole territorial regime the county commissioners were three in number in each county; they constituted a board; as a board they represented the county, were the custodians of its property, and the managers of its business and concerns; they were charged with the exercise of its powers, including the making of contracts and the incurring of expense. It was their special duty to examine, settle and allow all accounts chargeable against the county, and they were the only agency through which the county eou].d perform the duties imposed upon it. (Bannack Statutes, pp. 499-501; Codified Statutes 1872, pp. 434, 435; Rev. Stats. 1879, pp. 479-481; Comp. Stats. 1887, pp. 842-844.) With these relations, then, the district courts, the sheriffs, and the county commissioners passed from territorial to constitutional agencies of government; the district courts having no more power to secure attendants than they had to secure rooms. Could the district judge have hired a courtroom at the expense of the county without regard to whether suitable provision had already been made 1 The Code provisions now in force and relied on by appellant (secs. 2894, 3010, 3026, 6302, Rev. Codes) merely declare relations which have always existed. These statutes cannot be effectively assailed as invasions of the inherent power of the court, because the power of the court, as organized by the Constitution, did not include the right to appoint attendants without prior recourse to the sheriff and to the county. The very conception of inherent power carries with it the implication that its use is for occasions not provided for by established methods. When we say that it is primarily the duty and right of the sheriff, either in person or by deputy, to perform all the duties for which an attendant upon the district court may be had •at public expense, that if additional attendants are required the county through its board of commissioners shall furnish them, that if the county fail in that regard the court may procure them through the sheriff, we express the normal situation, the orderly method which must be observed so long as it is adequate in results. When, however, these methods fail and the court shall determine that by observing them the assistance necessary for the due and effective exercise of its own functions cannot be had, or when an emergency arises which the established methods cannot or do not instantly meet, then and not till then does occasion arise for the exercise of the inherent power. (Los Angeles v. Superior Court, 93 Cal. 380, 28 Pac. 1062; County of San Joaquin v. Budd, 96 Cal. 47, 30 Pac. 967.) •Neither, in our opinion, is it necessary for the preservation of judicial independence that the district court should have the power to appoint its own attendants, fix their compensation, and compel payment out of the public funds, without recourse to the sheriff, who is paid for that service, or to the county commissioners, who are charged with the supervision of county expenditures. The court is entitled to trustworthy and competent attendants as needed; it is not obliged to accept any other; it may procure such service if the sheriff does not, or the board will not, supply it. How, then, can its independence be endangered when the remedy is in its own hands? The most important of all its ministerial officers is the clerk, with whose selection it has nothing to do; if a vacancy occurs in that office it is filled by appointment, not of the judge, but of the county commissioners. The separation of the government into three great departments does not mean that there shall be “no common link of connection or dependence, the one upon the other in the slightest degree” (1 Story’s Commentaries on the Constitution, sec. 525); it means that the powers properly belonging to one department shall not be exercised by either of the others (Constitution, Art. IV, see. 1). There is no such thing as absolute independence. The govemor.may recommend or veto legislation, and he may fill vacancies occurring on the bench of this court or of the district court. The legislature may increase the number of judges in any district, it may prescribe, as it has prescribed, the entire scheme of pleading and practice by which rights are asserted and wrongs redressed in the courts, and it may impose additional duties upon certain executive officers. The judiciary may set aside Acts of the legislature that are clearly unconstitutional, and it may coerce the executive into the performance of ministerial duties. The protection of the judicial department from encroachment is not to be sought in extravagant pretensions to power, but rather in a firm maintenance of its own clear authority coupled with “a frank and cheerful concession of the rights of the co-ordinate departments. ’ ’ (People ex rel. Smith v. Judge, 17 Cal. 548.) But it is insisted that under the decision of this court in State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 Pac. 962, this appeal must be determined in favor of the respondent. Mr. Schneider was the appointee of this court to an office, that of stenographer, which had not been formally created by legislative Act but had arisen out of the necessities of this court; the legislature had from session to session, however, made appropriations to pay for the services rendered therein; the question presented was whether, after the legislature had made an appropriation of $200 per month in that behalf, the state board of examiners were vested with the authority to say that the appointee of this court was not entitled to the compensation thus provided. The right claimed by the board of examiners was absolute and unconditional; but we held that the power vested by the Constitution in that board “to examine all claims against the state, except salaries or compensation of officers fixed by law,” did not authorize it to deny to the stenographer of this court the compensation for which the legislature had provided; nor was it authorized by section 262, Revised Codes, to grant this court permission to employ a stenographer, since that implied the right to withhold such permission and thus disable the court or seriously hamper it in the discharge of its duties. We said: “The legislature, recognizing the fact that the court has the power by which it may supply its own necessities, enacted section 6248 of the Revised Codes. * * * In case no provision had been made for a stenographer, there would have been furnished by this section a mode by which one could have been secured, as well as the power to fix and order his compensation paid. This provision indicates recognition on the part of the legislature of the necessity that this court should be free from any control in the selection of its assistants in ease the legislature should itself have failed to make suitable provision for them.” There is nothing in the Schneider Case to conclude us upon any of the questions now presented, for the power of the district court to appoint its own .assistants in any event is not assailed. It is the exercise of that power without the necessity therefor appearing. The relator at bar was appointed by the district court to render a service which by statute and by the- common law it was the right and duty of the sheriff to render, or of the county to supply. He was appointed ex gratia, without recourse to the mode prescribed by law and without anything to indicate that such recourse would be unavailing. He has been kept, not out of the necessities of the court, so far as the record discloses, but in spite of the sheriff’s offer to'render all the attendance for which public moneys may be paid. His compensation has been fixed by the district judge without reference to legislation, and has been ordered paid out of funds for the expenditure of which the board of county commissioners is primarily responsible. To state the instant case is to state its necessary conclusion, viz., that the service of the respondent covered by his claim was without authoritative warrant. Therefore, his claim, though audited by the judge, is not a liquidated charge against the county, and therefore the appellant cannot be compelled to pay it. The judgment below is reversed and the cause remanded, with directions to dismiss the proceeding. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. The complaint attempts to set forth three causes of action for damages: (1) For assault and other personal indignities; (2) for false imprisonment; and (3) for malicious prosecution. Each charge arose out of transactions which occurred while plaintiff was imprisoned in the penitentiary, and while Conley was warden or contractor in charge of that institution. After the cause was at issue and upon the trial, defendant objected to the introduction of evidence by the plaintiff, upon the ground that the complaint does not state a cause of action. This motion was sustained, and a judgment was entered dismissing the action and awarding defendant his costs. From that judgment plaintiff prosecuted this appeal. Respondent has moved 'to dismiss the appeal upon the ground of insufficiency of the notice. The motion is overruled. The notice is informal, indefinite and reaches the very limits of defensible ground. It refers to the order of the court sustaining defendant’s motion to exclude evidence. Such an order is not appealable (sec. 7099, Rev. Codes); but from the notice it may be gathered that the plaintiff’s purpose was to appeal from the judgment in this action made and entered on June 27, 1912, in favor of the defendant and against the plaintiff. In support of the motion counsel refer to the decision of this court in State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580; but in the later case of Valadon v. Lohman, 46 Mont. 144, 127 Pac. 88, we had occasion to review the Bosenstein Case and to differentiate it from the then instant case. In referring to the contents of a notice of appeal we said: “It must be deemed sufficient if upon its face the adverse party is given enough information to enable him to know what is required of him in order to protect his rights. This view not only permits, but requires, a reasonable construction of it in order that the appellant may not be defeated of his right for merely technical reasons. * * * The notice * * * contains the title of the cause, the date of the rendition of the judgment, the statement that it was rendered in favor of the plaintiff and against the defendant, and the title of the particular court that rendered it. The notice was sufficient.” The defects in the notice in this case are clearly the result of the misapprehension of counsel for appellant, as to what the judgment determined. They apparently confuse the order for judgment with the judgment itself, or proceed upon the theory that the preliminary recitals in the judgment constitute an essential part of it. So long as the notice serves the purpose of apprising the respondent of the judgment which it is sought to have reviewed, it is sufficient. T'he giving of a notice is not an indispensable step in taking an appeal. It does not serve any higher purpose than a summons, and its entire absence can be waived. (Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064.) This court is commanded by statute to give its judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. We are forbidden to idolize matters of form at the expense of substance, or to pay tithes of mint and anise and cumin while omitting the weightier matters of law. On the Merits First Cause of Action. The plaintiff complains that while he was duly imprisoned in the penitentiary, the defendant, as warden in charge of that institution, caused him to be (a) confined in a cell with an insane Italian, and (b) with a negro, (c) to be shackled, manacled and placed in a dungeon and confined on a bread and water diet, and (d) assaulted, beaten and wounded, his collarbone broken, and his head and chest cut and bruised. (a) The complaint fails to allege that the Italian’s insanity was known to the warden or to the guards or other prison officials, or that plaintiff ever made complaint or requested a change. (b) While the plaintiff’s refined sensibilities may have been shocked by his being compelled to share his cell with a negro, he fails to allege facts sufficient to state a cause of action for legal relief. Furthermore, the answer, while admitting the fact of plaintiff’s confinement with the negro, alleges in justification that, on account of the crowded condition of the prison, it was necessary that someone be confined in the same cell with the negro, and this is not denied. (c) All of plaintiff’s allegations are predicated upon the premise that he was a convict, and that Conley was warden. The answer admits the facts that plaintiff was manacled, shackled, placed in a dungeon, and kept on a bread and water diet. It then sets forth in justification that the state prison board, pursuant to statutory authority, duly made and promulgated certain rules and regulations for the management of the penitentiary and the discipline of prisoners; that the punishments enumerated under this specific charge are species of punishments provided for by such rules, and that the infliction of the punishments upon the plaintiff was necessary to compel his submission to prison authority. The history of an incipient riot in the penitentiary is recited at length, and the part played by defendant is set forth. There is no denial of these facts, and, standing admitted, they amount to a complete justification, and defeat any right of recovery upon the part of the plaintiff, if any right he otherwise had. (d) Standing alone, the assault upon the plaintiff, with the details of his injuries as depicted in this charge, seems cruel— almost barbarous—but plaintiff doubtless discreetly refrained from enlightening the court upon the surrounding circumstances. These, however, are fully'supplied by the affirmative portion of the answer to this charge, which amounts, in legal effect, to a confession and avoidance, or, in other words, to a justification for whatever injuries were actually inflicted upon the plaintiff. The answer alleges that on March 8, 1908, this plaintiff, Geo. Rock, Wm. Hayes, and C. B.. Young, all convicts in the penitentiary, entered into a conspiracy to escape from prison, and in pursuance of that purpose, and in the attempted execution of their plan, they murdered John Robinson, the deputy warden, and assaulted this defendant, the warden, with intent to kill and murder him, and did grievously wound him so that for many weeks thereafter he was nigh unto death; that this plaintiff, Stephens, actually participated in the murder of Robinson and the assault upon defendant; that thereafter Thos. McTague, co-contractor with this defendant in the management of the penitentiary, and having equal authority with him to maintain order and discipline in the prison, after a complete investigaton of the mutiny referred to, ordered Stephens confined to a dungeon, that Stephens was contumacious and violent, and assaulted the guards detailed to execute McTague’s order, and that in the necessary defense of themselves and in subduing Stephens the guards inflicted whatever injuries plaintiff sustained. There is not any denial of these facts, and, standing alone, they constitute a justification for the acts of which complaint is made, assuming that the complaint states a cause of action in the particular instance now under consideration. For this reason alone the ruling of the trial court should be sustained; for it is now the rule, too well established in this state to be open to further controversy, that if the decision of the lower court was correct, it will not be disturbed even though it may have been prompted by an erroneous reason. (Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055; Von Tobel v. City of Lewistown, 41 Mont. 226, 137 Am. St. Rep. 733, 108 Pac. 910; Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 Pac. 592; Winnicott v. Orman, 39 Mont. 339, 102 Pac. 570.) But the trial court’s ruling was correct upon the theory of its rendition, and the complaint does not state a cause of action The. warden of the penitentiary is a public officer, and in this instance he is sued as such, and for acts done by him in virtue of his office as warden. (State ex rel. Stephens v. District Court, 43 Mont. 571, Ann. Cas. 1912C, 343, 118 Pac. 268.) The presumption that official duty was regularly performed attaches to his acts (see. 7962, subd. 15, Rev. Codes); and, since this pretended right of action.arose while plaintiff was rightfully imprisoned, it was incumbent upon him, in order to put the warden in the wrong, to allege that his injuries did not result as the consequence of his wrongful or unlawful acts. In Wightman v. Brush, 56 Hun, 647, 10 N. Y. Supp. 76, an action similar to the one before us, a demurrer was sustained to the complaint, and properly so according to the supreme court. In justification of that conclusion the court said: “There is no allegation in the complaint that the acts done by the defendants Avere not in accordance with the regulations of the .superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission and obedience upon his part. ’ ’ . For the reason that this complaint does not negative the presumption attaching to the warden’s official acts, it does not state a cause of action. Second Cause of Action. “False imprisonment is the unlawful violation of the personal liberty of another.” (Sec. 8324, Rev. Codes.) The gist of the offense is the unlawful detention. (McCarthy v. De Armit, 99 Pa. 63.) No complaint is made of plaintiff’s incarceration in the penitentiary in the first instance. His action proceeds upon the assumption that he was properly sentenced to a four year term of imprisonment, but his contention is that, by virtue of the good-time allowance provided in our statute, he was entitled to his discharge as a matter of right, upon the expiration of three years and two months, in the absence of any showing that such allowance had been forfeited by the prison board. In many of the states this theory would be accepted at once, not because of any peculiar right in the plaintiff as a convict, but solely because of local laws, rules or regulations. Commutations for good conduct are purely matters of legislative control, and the determination of the extent and character of the right in any given instance is referable entirely to the local statutes. (Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047.) An examination of the provisions found in the laws of the different states discloses that they classify themselyes generally into two groups. In the first are found those statutes which by 'their terms automatically reduce the period of imprisonment upon the rendition of the judgment. It is said, indeed, that a provision of this character forms a part of the judgment, and that under it the prisoner enters upon his confinement with the statutory assurance that his term is automatically abridged by law, unless by his own breach of prison discipline he forfeits the credits which inhere to his sentence. Under a statute of this character the presumption is in favor of the convict, and the burden is upon the state to show affirmatively the facts which defeat the claim to statutory allowances. (Ex parte Wadleigh, 82 Cal. 518, 23 Pac. 190; In re Canfield, 98 Mich. 644, 57 N. W. 807; In re Kness, 58 Kan. 705, 50 Pac. 939; State ex rel. Davis v. Hunter, 124 Iowa, 569, 104 Am. St. Rep. 361, 100 N. W. 510.) In the second group are those statutes which determine in advance the amount of credits—computed in days and months—which certain prisoners may earn upon certain specified terms and conditions. The commutation is held out as a reward for good conduct or efficiency in prison labor. A statute of this character cannot enter into the sentence or form a part of it, for the reward must first be earned before the prisoner is entitled to it. Our statutory provisions are very brief, and their terms somewhat indefinite, but the theory upon which they proceed is, we think, made sufficiently manifest. The government, supervision, and control of the penitentiary are lodged in the state board of prison commissioners. (Sec. 9716, Rev. Codes.) Among the powers and duties of the board, section 9737, Revised Codes, provides the following: ‘ ‘ The board is hereby authorized and required to grant to any convict confined in the state prison, who shall well behave himself and who shall perform regular labor during good health, either within or without the state prison inclosures, a credit of the time from his sentence as appears in the following table.” The table mentioned designates in months the credits which may be earned. Upon a four year term they aggregate ten months. But it is to be observed, in the first instance, that by the- language of the statute any allowance for good conduct or efficient labor has its source in a grant from the prison board, and does not spring from the operation of the law itself. The' section quoted implies that some investigation must be made by the board, and a judgment formed thereon. There must be a finding that the convict has well behaved himself, and that he has performed regular labor during good health. These are conditions precedent to his right to any credits. Section 9738 seems to indicate a course of procedure for the board. In order to carry out the purpose of these statutes, the board must investigate the record of every convict, probably at the end of every year of his service, and grant the proper credits if earned, for the section declares that, if after a credit has once been earned, the convict commits any of the offenses enumerated, the board shall, upon proof of the fact, after notice to the convict, forfeit all deductions of time earned before the commission of such offense. New York, Pennsylvania, and doubtless other states have statutes somewhat similar to ours, and under any of these the burden is upon the prisoner to show that he has earned the credits by complying with the prison rules. (33 Cyc. 333; In re Raymond (D. C.), 110 Fed. 155.) And even upon such showing he has but made a prima facie ease against the board, and not any ease of dereliction of duty upon the part of the warden. Doubtless, if the board arbitrarily refused to grant him credits fairly earned, the prisoner would have an adequate remedy; but it is only after the board has acted that the warden can be held derelict, and then only upon his refusal to deduct the credits which have been granted by the board. In the absence of any' showing that the plaintiff had earned the commutation which he might have earned under the law, and a further showing that the board had granted to him the credits he claims, the plaintiff fails to state a cause of action for false imprisonment. When the judgment of imprisonment is entered, and the sheriff in execution of it delivers the convict to the penitentiary, he must also deliver to the warden a certified copy of the judgment (see. 9380, Rev. Codes), and this is the evidence of the warden’s authority for detaining the prisoner. If upon its face the judgment directs that he be confined in the penitentiary at hard labor for four years, the warden cannot release him sooner, except upon an order of the prison board or the judgment of a court of competent jurisdiction. Third Cause of Action. In the answer to the third cause of action, defendant specifically sets forth that on March 6, 1911, he signed and verified a complaint in the justice of the peace court of Cottonwood township, Powell county, before M. B. Fee, justice of the peace, charging the said Oram Stephens with the crime of attempt to escape from the state penitentiary; that a preliminary examination was had; that Stephens was bound over to the district court; that the county attorney of Powell county filed an information against him for the same offense; and that on May 15,1911, he was, by order of the district court discharged from custody and from prosecution upon said charge. The defendant, by way of special defense, so called, further alleges his belief in the truth of the charge which he made against Stephens, the fact that, before making it, he consulted and sought the advice of the county attorney, and after a full, frank and truthful statement of all the facts, he was advised by the county attorney that there was probable cause and sufficient ground for believing Stephens guilty, and that in making such charge he acted upon that advice. Not any of these facts are denied by a reply, and respondent insists that they are therefore to be deemed admitted, and, if admitted, they constitute a complete defense to the plaintiff’s third cause of action, if any he has. Was it necessary for plaintiff to reply to these affirmative allegations? That such an inquiry arises and is difficult of solution is of itself a reproach to the law. It is a most serious reflection upon our legislation that the ablest attorneys in this state—men of great learning and wide experience—cannot under stand the complex rules of procedure provided in our Civil Practice Act. But so long as legislative assemblies fix, by hard and fast statutes, mere rules of practice, this condition will continue. Under the Code of 1895 a reply was necessary only when the answer contained a counterclaim (Code Civ. Proc., sec. 720), and, as a counterclaim was defined, the statute was comparatively simple and quite generally understood, and doubtless for these reasons was changed. By an Act approved February 22, 1899, the section above was amended so as to require a reply whenever the answer contains either a counterclaim or- any new matter (Laws 1899, p. 142). With a further slight but'immaterial amendment, that provision was carried into the Bevised Codes, and is now found in section 6560. What is meant by the words “any new matter”? The legislature doubtless intended that they should be understood in the same sense as the like terms are employed in section 6540, which provides that an answer, aside from admissions and denials, may contain a statement of any new matter constituting a defense or counterclaim. If this be true, then the new matter, in an answer which calls for a reply, is only such new matter as constitutes either a defense or a counterclaim, and anything else is not new matter within the meaning of the Practice Act. Eliminating from further consideration any reference to a counterclaim—for there is not any contention that defendant’s pleading falls within the definition of that term—and we are confronted with the inquiry: Does the answer contain a statement of new matter constituting a defense, within the meaning of the Code section above? If it does, a reply was required and, in the absence of one, the facts are admitted. If it does not, a reply was not necessary. Any definition of the phrase “new matter constituting a defense” which may be adopted will require further definition or elucidation in order to be understood. In Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409, this court, after reviewing the authorities at length, said: “The defense of new matter, necessarily, either expressly or by implication, admits the averments of the complaint, and alleges facts that destroy their effect or defeat them. If what is alleged amounts to a denial, it is not new matter; nor is it new matter if the facts alleged might have been proven under a denial. If that which is alleged amounts to a denial, or might be proved under a denial, no replication is required, but the defense of new matter must be denied, or it is admitted. It is therefore of vital importance to determine clearly what amounts to a denial, and what to new matter. And the rule for ascertaining this may be stated thus: Whatever facts are alleged in the answer, that might have been proved under a specific denial of the allegations of the complaint, may be considered as and are equivalent to a specific denial of such allegations, and require no replication; for such an answer forms an issue, and whatever averments of the answer amount to an admission of the allegations of the complaint, and tend to establish some circumstance or fact not inconsistent with all such allegations, constituting a defense or counterclaim, and which could not be proved under a specific denial, are new matter and require a replication.” The rule appears to be, then, that if the facts stated in the answer could have been proved under a denial of the allegations in the complaint, they do not constitute new matter within the meaning of the Practice Act, and the failure to reply does not amount to an admission of the truth of the matters stated as against the plaintiff. “Under a general denial of the allegations in the complaint the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish to sustain his action.” (1 Ency. PL & Pr. 817.) In order to make out a prima facie ease of malicious prosecution, the plaintiff was required to allege and prove: (a) That a judicial proceeding was commenced and prosecuted against him; (b) that the defendant was responsible for instigating, prosecuting or continuing such proceeding; (c) that there was a want of probable cause for defendant’s act or acts; (d) that he was actuated by malice; (e) that the proceeding terminated favorably to plaintiff; and (f) that plaintiff suffered damage, with the amount thereof. (13 Ency. Pl. & Pr. 427; Newell on Malicious Prosecution, 397; Wheeler v. Nesbitt, 24 How. (U. S.) 544, 16 L. Ed. 765.) With the burden thus imposed upon the plaintiff to allege and prove every one of these facts, it is apparent at once that there is not anything set forth in defendant’s answer which could not have been proved under a general denial. The only purpose which the allegations of this answer can serve is to show probable cause, absence of malice, and the presence of good faith. These are but reasons why the defendant should not be held liable and such pleading has been aptly termed an argumentative denial. (Band v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87.) “If the defendant acted under the advice or opinion of legal counsel, this fact is relevant both to show probable cause and absence of malice.” (Newell on Malicious Prosecution, 470.). Under a general denial the defendant “may prove probable cause, good faith, and absence of malice, advice of counsel, that the prosecution has not terminated, or that it was not instigated by the defendant.” (13 Ency. Pl. & Pr. 458; 1 Eney. Pl. & Pr. 823.) In considering the question now before us, this court in Smith v. Davis, 3 Mont. 109, in treating of new matter similar to that found in' this answer which had there been stricken from the answer on motion, said: “It was necessary for the plaintiff, in order to maintain the action, to allege in his complaint, and to establish by the evidence upon the trial, malice and the want of reasonable or probable cause. This is the gist of the action. It gives life to the complaint. And the defendant might have controverted every allegation that it became necessary for the plaintiff to prove in order to make out his case, under the general denial. It follows, therefore, that it was not necessary for the defendant to plead the absence of malice, or that he had reasonable or probable cause for his act in causing the arrest of the plaintiff, in order to establish his defense. The general denial was a sufficient answer, and under it all the matter contained in the second defense might have been and was introduced in evidence upon the trial.” Our conclusion is that the affirmative allegations' in the answer do not constitute new matter within the meaning of section 6560 above, and that a reply to them was not necessary. But respondent insists, further, that this complaint does not state a cause of action for malicious prosecution. It fails to allege that any judicial proceeding whatever was instituted or prosecuted against the plaintiff, and, naturally enough, fails to allege that the proceeding terminated favorably to plaintiff before the commencement of the present action. Counsel for appellant reply, however, that these necessary allegations omitted fron^ the complaint were supplied by the defendant’s answer. That one pleading may provide a necessary allegation omitted from an adversary pleading is the rule at common law (1 Chitty on Pleading, p. 703), and is now recognized generally as in effect in all states proceeding under the code system (1 Sutherland’s Code Pleading, Practice and Forms, see. 361; Bliss on Code Pleading, 3d ed., sec. 437; 31 Cyc. 714; Pomeroy’s Co/de Remedies, sec. 579). In an early case this court declared that ”a defective complaint may be cured when the material fact omitted therefrom has been supplied by the answer.” (Hershfield & Bro. v. Aiken, 3 Mont. 442.) The same rule has been repeatedly or specifically recognized in each of the following cases: Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713; Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112; Crowder v. McDonnell, 21 Mont. 367, 54 Pac. 43; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Harmon v. Fox, 31 Mont. 324, 78 Pac. 517; and Mantle v. White, 47 Mont. 234, 132 Pac. 22. The rule was applied in Wall v. Toomey, 52 Conn. 35, in an action for malicious prosecution. The plaintiff there failed to allege that the proceeding of which he complained had terminated, and this would have been held fatal but for the fact that the omission was supplied by an allegation in the, answer. It will bt\ observed from the statement of the contents of the answer abové\. that defendant distinctly alleges that he caused a criminal prosecution to be instituted against Stephens. He describes the offense, gives the date, the name of the court, and the particular steps taken. This is a sufficient statement that a judicial proceeding was commenced (13 Ency. Pl. & Pr. 428; Runk v. San Diego Flume Co., 5 Cal. (Unrep.) 251, 43 Pac. 518.) He further alleges that on May 15, 1911, Stephens was, by an order of the district court, discharged from custody and from prosecution on said charge. And this sufficiently discloses that the proceeding had terminated favorably to Stephens. (McIntosh v. Wales (Wyo.), 134 Pac. 274; Newell on Malicious Prosecution, p. 332 et seq.; Carpenter v. Nutter, 127 Cal. 61, 59 Pac. 301; 13 Ency. Pl. & Pr. 444.) The essential allegations omitted from the complaint are thus furnished by the hnswer. But our determination that these affirmative allegations do not constitute new matter—that they might have been omitted altogether without impairing the efficiency of the answer—is not equivalent to holding that the allegations are immaterial. Thq facts stated are very material, but their statement was not essen-' tial to the defense. However, so long as the defendant volunteered them, he is bound by his statement. The reason of the rule which permits one pleading to be aided by another was concisely stated in an early Massachusetts case, as follows: “When the defendant chooses to understand the plaintiff’s count to contain all the facts essential to his liability, and in his plea sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy.” (Slack v. Lyon, 9 Pick. (Mass.) 62.) It does not seem consonant with reason, with our present theories of justice, or of the part which courts are to play in its administration, to say that though defendant asserts these facts to be true, he should not be bound by them, merely because, if he had chosen to do so, he could have omitted any reference to them. Though these allegations do not constitute new matter within the meaning of those words as used in our Civil Practice Act, they are binding upon the defendant as admissions, and supply the necessary facts omitted' from the complaint. This is in effect the holding of the supreme court of Connecticut in Wall v. Toomey above, and the court of appeals of Kansas in a case whose facts are somewhat similar to those before us. (Arkansas City Bank v. McDowell, 7 Kan. App. 568, 52 Pac. 56.) It is fairly inferable from the record that, in passing upon the motion to exclude evidence, the attention of the trial court was not directed to the allegations of the answer which cure the defects in the complaint, and that no opportunity was afforded for a decision upon the precise question now before us; but our duty extends to a review of the judgment, and if it is erroneous, we cannot say that it is rendered errorless by the failure of counsel to press upon the trial court the same view now urged upon us. Since issues are presented by the pleadings, the action for malicious prosecution- should have been tried upon the merits. The judgment upon the first and second causes of action is affirmed. The judgment as to the third cause of action only is reversed, and that cause of action is remanded for further proceedings not inconsistent with the views herein expressed. Bach party will pay his own costs of this appeal. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. Robert G. Huston, a resident of Butte, died intestate in Seattle, Washington, on November 1, 1912. Thereafter two petitions were presented to the district court of Silver Bow county, each asking for the appointment of an administrator of the estate— one by a person claiming to be the surviving wife and the other on behalf of a nonresident sister of the deceased. Pending the final determination, appellant was appointed special administrator. The two petitions were heard together, and the result of the trial was an order granting the petition of respondent, denying the petition of the sister and revoking the special letters theretofore granted to appellant. There is an appeal from the order, and the only question for determination is the sufficiency of the evidence to warrant it. There is not any substantial dispute as to the facts. In the fall of 1910 Huston and Mrs. Annie B. King—a divorced woman—left Butte together for the national encampment of the G. A. R. at Atlantic City, New Jersey. They stopped in Toledo, Ohio, and there were married by a Methodist minister according to law. They continued their journey, living and cohabiting together as husband and wife. Huston returned to Butte almost immediately, but the woman stopped in Michigan until the following March. During this period of separation many letters passed between them, and in practically every one written by Huston he referred to the woman as his wife and addressed her in the most endearing terms. In March, 1911, she returned to Butte and took up her residence in the Penn Block, in which block Huston had his business office and 'his living room. A part of the time thereafter Huston occupied her apartments with her; took his meals with her most of the time; paid her room rent and store bills, and was in her company upon the streets, at the markets and theaters a great deal. To three or four acquaintances Huston told that he and the former Mrs. King were married, but to two of these at least the information was imparted in confidence and from them a pledge of secrecy was exacted. To one or two other persons he referred to the woman as his wife, but to his business associates and to the public generally he invariably referred to her as Mrs. King, and the fact that they were cohabiting together was kept a profound secret so far as they were concerned. This course of conduct was pursued until Huston left for the coast in September, 1912. In October following he became confined in the Providence Hospital, Seattle, where he died. About the time he went to the hospital he sent for the former Mrs. King to come to him, and with his letter inclosed a check for $100 to defray her expenses. The check was made payable to Annie B. King, and was cashed by her by indorsing the name “Annie B. King.” She immediately left Butte and arrived in Seattle on October 19 or 20. On the following morning she took up her abode at the hospital and until Huston’s death gave him every .attention that a wife could bestow upon her husband. Upon her arrival Huston introduced her to the hospital attendants and to others as his wife; was introduced by her to her friends as her husband, and in return recognized her to them as his wife. She occupied the same room with him during the time they were at the hospital, and for the last nine days of his life her attention to him was so constant that, to use her language, she did not undress during that time. This, in very general terms, covers the principal points of the evidence of their relationship. At the time the marriage ceremony was performed in Toledo Huston had a wife—Elizabeth—living in Portland, Oregon. He knew her address and was then in correspondence with her relative to a divorce. Of these facts, however, Mrs. King was ignorant until after Huston’s death. He represented to her that he had been divorced, and she entered into the marriage relationship in good faith, believing a valid marriage had been contracted. She had entered public land in the name of Annie B. King and sought to keep the marriage a secret until she could make final proof. In May, 1911, Elizabeth Huston secured a divorce in Oregon. ' Section 3612, Revised Codes, provides: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any other person than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled. 2. Unless such former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.” So far as the Toledo ceremony is concerned, it is of no aid to respondent in her attempt to establish her claim as the surviving widow of Robert G-. Huston, deceased, by a marriage contracted prior to the trip to Seattle in October, 1912. Whatever may be said of the evidence as to their conduct to each other in Butte after May, 1911, when Huston’s disability was removed, this fact is indisputable: that their assumption of the marital relationship—their cohabiting as husband and wife— was clandestine. Section 3607, Revised Codes, provides: “Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by mutual and public assumption of the marital relation.” At the time the. ceremony was performed in Toledo, Huston- was incapable of contracting a valid marriage. There was not any further ceremony performed for them in Montana, and assuming that they mutually agreed upon their immediate marriage as soon as the disability was removed, the evidence above is insufficient to show that public assumption of the marital relation which our statute demands. Section 3614, Revised Codes, provides: “All marriages contracted without the state, which would be valid by the laws of the country in which the same were contracted, are valid in this state.” If, then, these parties were married in Washington, the courts of this state will recognize the relationship, even though it be such a marriage as that, if contracted in- this state, it would not be valid under our laws. The question before us is: Are the facts above enumerated sufficient to make out a 'prima facie case of marriage in Washington? The statutes of that state are not before us, and it is insisted by appellant that a common-law marriage is not valid there. In 1892 the question of the validity of a common-law marriage in Washington was presented to the supreme court, apparently as one of first impression in that jurisdiction. An elaborate opinion was prepared and the conclusion reached that the statutes contemplate a ceremonial marriage only, and that a common-law marriage is not valid there. (In re McLaughlin’s Estate, 4 Wash. 570, 16 L. R. A. 699, 30 Pac. 651.) That decision is referred to in Smith’s Estate, 4 Wash. 702, 17 L. R. A. 573, 30 Pac. 1059; in Kelley v. Kitsap County, 5 Wash. 521, 32 Pac. 554, and in Wilbur’s Estate, 14 Wash. 242, 44 Pac. 262. In Summerville v. Summerville, 31 Wash. 411, 72 Pac. 84, very slight evidence that a ceremony had been performed in British Columbia was held sufficient with evidence <?f cohabitation by the parties as husband and wife to establish a marriage. In Shank v. Wilson, 33 Wash. 612, 74 Pac. 812, the date of a marriage was the question in issue. Appellants proved a ceremonial marriage celebrated on June 4, 1900. Respondent offered evidence that the parties had lived and cohabited together as husband and wife and held themselves out as such for sev eral years prior to that date. It was held that these facts raised a presumption, that a valid statutory marriage had preceded such acts, and that this presumption was not overcome by positive proof of the marriage celebrated in June, 1900. In Nelson v. Carlson, 48 Wash. 651, 94 Pac. 477, there was not any evidence whatever that a marriage ceremony had ever been celebrated between John Nelson' and Christina Alida Carlson. The only evidence was that for several years before the woman’s death they lived and cohabited as husband and wife, were recognized as such by their neighbors, that they joined in conveyances as husband and wife, and upon the death of the woman, Nelson had a headstone erected at the grave upon which her name was inscribed as Mrs. Nelson. The court held that this evidence was sufficient to establish the marriage. A somewhat similar case, with the same result, is McDonald v. White, 46 Wash. 334, 89 Pac. 891. In the McLaughlin Case above the court said: “In all cases, whether common-law marriages are recognized or not, evidence of cohabitation and repute is admissible as tending to show a valid marriage; holding each other out as husband and wife to the public, and continued living together in that relationship has ordinarily, if not universally, been held sufficient proof, unless contradicted, to establish it, even within those states where common-law marriages are mot recognized. This presumption could always be rebutted, however, by showing that the parties intended their connection to be illicit, and, if it was so intended at its commmencement, it is presumed to continue, unless evidence is produced of a change of mind.” It then quotes, and apparently with approval, sections 970-975 and 979 from 1 Bishop on Marriage, Divorce and Separation. In the Summerville Case above, the court quotes from 1 Bishop on Marriage, Divorce and Separation, section 956, as follows: “Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality; not only casting the burden of proof on the party objecting, but requiring Mm throughout, in every particular, to make plain, against the constant pressure of tMs presumption, the truth of law and fact that it is illegal and. void. * * * It being for the highest good of the parties, of the children and of the community, that all intercourse between the sexes in form matrimonial should be such in fact, the law, when administered by enlightened judges, seizes upon all probabilities, and presses into its service all tMngs else which can help it, in each particular case, to sustain the marriage, and repel the conclusion of unlawful commerce.” The court then concludes: “A valid marriage may be presumed to exist from general reputation .among the acquaintances of the parties that such is the fact, when that reputation is accompanied by their cohabitation, and arises from their holding themselves out to the world as occupying that relation to which the law refers when marriage is mentioned.” In Shank v. Wilson the court said: “It is well-established law, not necessitating the citation of authority, that the proof of continual cohabitation of a man and woman, and of a continual assertion that the marriage relation exists, and proof of such conduct as is consistent with the marriage relation, raises the presumption in those states where the common-law marriage itself is not held to be a legal marriage, that the ceremonial or legal marriage has preceded the acts mentioned.” It also reaffirms the doctrine announced in section 956 of Bishop as quoted in the Summerville Case. In Potter v. Potter, 45 Wash. 401, 88 Pac. 625, the question whether there had been a marriage ceremony performed was in sharp dispute. The court again refers to the decision in the Summerville Case and says: “In a conflict of testimony such as is shown by the record in tMs case, it is well established that a ceremonial marriage may be proven by circumstances, such as the cohabitation of persons as husband and wife, their reputation and recognition as such in society, and that, when such circumstances are shown, the presumption of marriage exists, and the burden is upon the party denying the marriage to show that the ceremony had never been performed.” In Sloan’s Estate, 50 Wash. 86, 17 L. R. A. (n. s.) 960, 96 Pac. 684, the court said: “The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.” In Thomas v. Thomas, 53 Wash. 297, 101 Pac. 865, the language of section 956 from Bishop, quoted in Shank v. Wilson, añd in Summerville v. Summerville, is again reproduced with approval. Finally, in Weatherall v. Weatherall, 56 Wash. 344, 105 Pac. 822, all the preceding eases are reviewed at length and the court sums up its conclusion upon the status of the law in Washington, as follows: “We have reviewed the cases in this court for the purposes of showing that there is no real conflict between the earlier and later ones on this subject. We have seen that in the McLaughlin Case it was stated by Judge Scott that, in the states where common-law marriages are held invalid, a lawful ceremonial marriage may be presumed from cohabitation and reputation. The logic of that case has been liberally applied to the facts in the later cases to uphold the marriage relation, where the parties have lived together as husband and wife, and held themselves out to the public as sustaining that relation. * * * Whilst language may be found in some of the earlier cases which tends to support the judgment, the uniform and unbroken current of opinion in this court, as we read the cases, has been that, while a common-law marriage is invalid in this state, evidence of cohabitation and reputation is admissible for the purpose of raising the legal presumption of a prior ceremonial marriage.” While in the earlier eases it was held that there could not be a common-law marriage in Washington, in Willey v. Willey, 22 Wash. 115, 79 Am. St. Rep. 923, 60 Pac. 145, the validity of a common-law marriage contracted in California was upheld in Washington; and in In re Hollopeter, 52 Wash. 41, 132 Am. St. Rep. 952, 17 Ann. Cas. 91, 21 L. R. A. (n. s.) 847, 100 Pac. 159, where there was involved the validity of a marriage between Grover, a youth of nineteen, and Imogene, a girl of fourteen, without parental consent, the marriage was upheld and the court said: “Imogene was within the common-law age of consent, so that we cannot hold as a matter of law, as did the lower court, that she was incapable of consenting to the marriage.” And this in the face of a statute which provides: “Marriage is a civil contract which may be entered into by males of the age of twenty-one years, and females of the age of eighteen years who are otherwise capable.” (Rem. & Bal. Ann. Codes of Washington, see. 7150 (4467).) If the evidence of this case had been presented to the courts of Washington, we are satisfied that they would have held it sufficient to create a presumption that Huston and Mrs. King had been legally married. The same authorities cited by the Washington court in the cases above were cited and relied upon by this court in Hadley v. Rash, 21 Mont. 170, 69 Am. St. Rep. 649, 53 Pac. 312, where was called in question the validity of the second marriage of Daniel Rash. The court held that evidence that Rash had married the second wife and had lived and cohabited with her would raise the presumption of a divorce from the first wife and a valid second marriage. “That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage” is one of the presumptions declared by section 7962, Revised Codes (30). Because in our opinion the evidence is sufficient-to disclose a marriage valid in Washington at the time of Huston’s death, we are compelled to recognize this respondent as his surviving widow. For this reason the order above is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. The following promissory note is copied into the complaint and made the basis of plaintiff’s cause of action: “July the 15, 1908. “I promise to pay to Mrs. A. C. Yanderpool one thousand dollars, $1,000, in three years from date, at 6 per cent interest. “S. L. Yanderpool.” It is alleged that S'. L. Yanderpool died testate on June 19, 1911; that the defendant is the duly appointed executrix of his last will and testament; that on August 26, 1911, plaintiff presented her claim for the amount then due on said note, which claim was rejected; and that the plaintiff is now the owner and holder of the note, no part of which has ever been paid. The answer denies the execution or delivery of the note, or any indebtedness due from the deceased to the plaintiff, and denies that any claim for the debt sued upon was ever presented to the executrix. It is further alleged affirmatively that plaintiff’s cause of action, if any she ever had, is barred by the provisions of section 7525, Eevised Codes. The reply is a general denial of the new matters contained in the answer. Upon the trial of the cause plaintiff testified to the facts and circumstances surrounding the execution and delivery of the note; that no part of the debt.evidenced by it had ever been paid, and that about August 17, 1911, she went to the office of Mr. H. J. Burleigh, attorney for the estate, which office was designated in the notice to creditors as the place for the presentation of claims against the estate; that she was informed by Mr. Burleigh that he was the attorney for the estate, and as such could not act as her attorney in preparing her claim in statutory form, but that as a mere matter of accommodation and gratuitously he would prepare her claim for her; that he did prepare a claim; and that she verified it and left it with him, and in a short time thereafter was notified that it had been disallowed and rejected. As to what further took place in Mr. Burleigh’s office at that time, the witnesses speak for themselves. Plaintiff testified that she informed the attorney that her claim was founded upon a promissory note, but that the note had been mislaid and she could not find it at that time; that shortly after her claim was rejected she found the note, a copy of which is set forth above, and notified Mr. Burleigh of the fact; that he came to her house, secured the note, aud, after keeping it a day or more, returned it to her, with the assurance that she would have no trouble getting her money. Mr. Burleigh testified that when the plaintiff came to his office and asked him to prepare her claim in statutory form, he inquired of her particularly whether she had any note or other writing evidencing the debt; that she informed him that she did not have, and that it was after the claim was rejected, and after plaintiff had been notified, that she then informed him for the first time that she had a note, and that he told her.if it was all right she would doubtless receive her money without trouble. Much of the time of the trial was devoted to receiving evidence touching the genuineness of the signature to the note sued upon. The trial resulted in a judgment in favor of plaintiff, and from that judgment and an order denying a new trial, the defendant has appealed. We have omitted all references to those portions of the evidence which tend to weaken the plaintiff’s case as exhibited under the view most favorable to her, as well as all references to testimony tending to defeat her claim or to corroborate Mr. Burleigh. For the purposes of this appeal we may assume that the jury found specifically that plaintiff’s version of her transactions with the attorney is correct, and that the evidence is sufficient to sustain that finding. Section 7529, Bevised Codes, in treating of claims for presentation against an estate, provides: “If the claim be founded upon a bond, bill, note or other instrument, a copy of such instrument must accompany the claim, and the original must be exhibited if demanded, unless it be lost or destroyed, in which ease the claimant must accompany his claim with his affidavit containing a copy or particular description of such instrument, and stating its loss or destruction.” Compliance with these provisions involves no difficulty, and a court cannot say that anything less than substantial compliance upon the part of the claimant meets the requirements. It is not within theipower of a court either to repeal or amend this section. The only claim which was presented by the plaintiff against this estate, omitting merely formal portions, reads as follows: “Estate of Samuel L. Yanderpool, Deceased, to Caroline E. Yanderpool, Dr. “1908, July 15. 'To money loaned deceased to be repaid in 3 years with interest at the rate of 6 per cent per annum.$1,000 00 Interest from July 15, 1908, to August 15, 1911 ................. 185 00 Total amount due to August 15, 1911.........................$1,185 00” This does not purport to be founded upon any instrument in writing. It does not contain any copy, and neither was it accompanied by an affidavit containing a copy or a particular description of any instrument, or any statement that the instrument upon which the claim was founded had been lost or destroyed. The statute further provides: “No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator.” (Sec. 7532, Rev. Codes.) The only exception to this rule is in favor of one whose claim is secured by mortgage or lien, and who does not seek a deficiency judgment against the estate. What claim is it which must be presented under this section? The identical one sued upon. A party cannot present a claim founded upon an open account and then maintain an action upon a promissory note, or vice versa (Brown v. Daly, 33 Mont. 523, 84 Pac. 883; Waltemar v. Schnick’s Estate (Woltemahr v. Doye), 102 Mo. App. 133, 76 S. W. 1053); and, if he attempts to do so, the result is such a variance as amounts to a failure of proof. (Etchas v. Orena, 127 Cal. 588, 60 Pac. 45.) So imperative is the statute above that, in the absence of an express allegation that the plaintiff duly presented the claim sued upon, the complaint fails to state a cause of action altogether. (Fratt v. Hunt, 108 Cal. 288, 41 Pac. 12; Morse v. Steele, 149 Cal. 303, 86 Pac. 693; 18 Cyc. 991.) Plaintiff apparently appreciated this rule, for in her complaint she alleges due presentation of her claim founded upon the note above; her proof, however, fails to sustain her pleading. She has not appeared in this court at all, and we are not aided by any brief submitted in her behalf. We infer from the record, however, that the trial court proceeded upon the theory that if plaintiff was led into error in filing her claim, by the attorney for the estate, the estate itself is estopped to deny that the claim was presented as required by law. Section 7525, Revised Codes, provides that: “All claims arising upon contracts, whether the same be due, not due or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever. ’ ’ These statutes of nonelaim are special in character; they supersede the general statutes of limitations, and compliance with their requirements is essential to the foundation of any right of action against an estate upon a cause of action which sounds in contract. The executor or administrator is in effect a trustee of the funds of the estate for the benefit of the creditors and heirs, and cannot waive any substantial right which materially affects their interests, and, for the same reason, cannot be estopped by his own conduct. He cannot, by failure to plead the statute of nonclaim as against one who-sues upon a claim which has not been properly presented, preclude the heirs or other creditors of the estate from setting it up upon settlement of his accounts (In re Mouillerat’s Estate, 14 Mont. 245, 36 Pac. 185), and he renders himself personally liable for devastavit in case of payment of such a claim. While an equitable estoppel might be invoked as against an executor or administrator so far as his individual interest in the estate is concerned, it cannot operate to the prejudice of the heirs or other creditors. Even his misleading statements, his assurances or his conduct which induces a creditor to omit compliance with the statute, will not operate to estop him from contesting the claim upon the ground of noncompliance. The reason for these rules ought to be manifest at once, and with reference to them there is substantial unanimity of opinion among the authorities. (2 Woerner’s American Law of Administration, sec. 387; Kells v. Lewis, 91 Iowa, 128, 58 N. W. 1074; Spaulding v. Suss, 4 Mo. App. 541.) In Nagle v. Ball, 71 Miss. 330, 13 South. 929, the court said: ‘ ‘ The administrator cannot waive the absolute bar created by statute for the protection of estates of decedents. He cannot abrogate a positive rule of law requiring probate of claims within the prescribed period by conduct of his own, however misleading or designing. The creditors were bound to obey the plain requirements of the statute. They, as all others, "were supposed to know the law prescribed' for their guidance. But if they did not, and. the administrator advised or induced them to omit to probate their claims, * # * where is the authority to be found for exempting them from the operation of a positive statute which is universal in its application?” If the estate would not have been bound by the same representations as are alleged to have been made by Mr. Burleigh, if they had been made by the executrix, for the stronger reason it .was not estopped by -the acts of the attorney, who has no authority whatever in passing upon claims, or in allowing or rejecting them. In failing to present the identical claim sued upon, plaintiff has suffered the penalty provided in section 7525 above, and we cannot change that statute in order to relieve her from the hardships, if any, which this conclusion imposes. If she has any cause of action which she can now assert, it must be one against Mr. Burleigh and not against this estate. For the reason that the evidence fails to support the verdict, the judgment and order are reversed, and the cause is remanded, with directions to dismiss the complaint. Reversed and remanded. Mr. Chibe Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. The respondent, Paul Michalsky, suffered personal injuries while in the employ of the appellant brewing company and brought this action to recover for the same. As detailed in the last amended complaint, the place of the accident and the manner of its happening are as follows: Near the southeast corner of the company’s main building there was a platform from which the delivery wagons were loaded. This platform was about two and a half feet above the floor upon which the kegs or barrels of beer were placed for loading, and the kegs were raised from the floor to the platform by means of a lift. The lift consisted of endless chains to which were attached “cer tain long iron bars or hooks” so adjusted as to take hold of the kegs or barrels and raise them; and these chains worked over two pulleys or rollers to which power was imparted by means of “a certain belt, cogwheels, and gear.” It is alleged that this mechanism, though dangerous, was negligently kept exposed and unguarded; that the place of its operation was insufficiently lighted; that the respondent had been employed for other and safer work in which simple tools and implements only were required and which did not take him near said mechanism; that he was unfamiliar with it; that on the morning of the accident he was ordered by his superior, the appellant Huddel, to leave the work for which he had been employed and to “help load kegs of beer by means of the aforesaid elevator and hoist” and to generally ‘ ‘ assist the teamsters in placing upon their wagons all such articles and things as were required by the teamsters to be placed thereon, and to do all other work which it was necessary and proper to do at and near the aforesaid belt, cogwheels, elevator, and hoist”; that he was unskilled, inexperienced, ignorant and uninstructed with reference to the dangers connected with this new work and did not realize them; that in the doing of it he was, as a matter of fact, in constant danger of being brought into contact with the loading mechanism and of being caught by it and injured; that no sufficient or any warning had been given him; that while in the course of this work he was handing some article to a teamster he came into contact with the rapidly moving belt, was caught by the hooks or bars and by them “forcibly brought in contact with other portions of the machinery, instrumentalities, place, wheels and platform in such manner that he was greatly injured thereby. ’ ’ Separate answers were filed denying negligence and affirmatively pleading negligence on the part of the respondent, his assumption of risk, and that after the accident he did for a valuable consideration in money paid by the brewing company, “and for the purpose of compromising any and all claims of damages,” make, execute and deliver to-the company a full release and satisfaction of all such claims and demands “and did further discharge” the company, its agents and employees, from any and all liability in the premises. In his replies the respondent denied the negligence and assumption of risk imputed to him by the answers, disclaimed any definite recollection of the alleged release, and .averred that if he signed anything of the kind he did so while suffering great pain from his injuries and while he was under the influence of opiates and without any understanding or appreciation of what was going on; that not until after the answers were filed and his counsel had inspected the alleged release was he informed of the fact that his signature had been obtained on or about May 14, 1909, to a writing in which for the sum of $50 he purported to release all claims for damages on account of his injuries ; that he was about that time visited by defendant Mueller and another, which visit was followed by a visit of his wife; that when his wife arrived he was in possession of $50 which he “now believes was left in his possession by said Mueller”; that she took possession of said money, but “neither she nor this plaintiff knew that the said money was paid as a release in full or any release or satisfaction of plaintiff’s claim for damages on •account of injuries received as herein stated; and * * •* that, if the said money was paid for such purpose, plaintiff now offers and tenders to defendants herein the return of said sum of $50.” Upon the trial the verdict was for respondent and against the brewing company and Huddel, the damages being fixed at $5,000. Judgment was entered accordingly. Motion for new trial was made and denied. From the judgment and from the order denying the motion for new trial, the brewing company and Huddel have appealed. 1. The first contention is that the complaint “fails to state a cause of action under the rule laid down in Cummings v. Helena etc. Reduction Co., 26 Mont. 434, [68 Pac. 852], holding that although the absence of contributory negligence need not be pleaded, if the 'complaint shows that plaintiff’s own act was a proximate cause of the injury, it must also state his free dom from negligence in doing the act.” This rule has been applied by this court in too many'cases to admit of doubt as to its existence or meaning. Most of these cases are collated in Conway v. Monidah Trust, 47 Mont. 269, 132 Pac. 26. A cursory review of them, together with the still later decision in Nilson v. City of Kalispell, 47 Mont. 416, 132 Pac. 1133, will demonstrate that the allegations of the present complaint do not bring it within the rule. (See, also, Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063; Hollenback v. Stone & Webster Eng. Corp., 46 Mont. 559, 126 Pac. 1058.) 2. It is also contended that the replies are insufficient because “plaintiff seeks conditionally to annul and rescind the release agreement relied upon by defendants,” and because a tender of the money received upon the execution of the alleged release is not sufficiently pleaded. We do not construe the replies as seeking a rescission, conditional or otherwise. A rescission is available where the consent of the party seeking the rescission was actually had, but was given by mistake or obtained under duress, menace, fraud, or undue influence. (Rev. Codes, sec. 5063.) To say that rescission is sought is to imply or assume that the party seeking it acknowledges the existence of something to rescind. But the burden of the replies is that if the signature of respondent was in fact procured to any release, it did not represent any assent or act of his mind; that he was at the time not possessed of capacity to assent; that in short there was no contract, and any paper writing purporting •to be such should be disregarded. It is entirely beside the question to say that the plaintiff might have acknowledged the contract and sought a rescission upon the ground of fraud. He does not admit the contract, and, as one cannot rescind a contract that he has not in fact made, so one cannot be assumed to seek a rescission where his position negatives the idea of any contract to be rescinded. So as to the $50 which he admits he found himself in possession of when his wife came, following the visit of Mueller. He “now believes” that Mueller left it, but he did not know that it was left as payment for any release, and, if it was so left, the return of it is offered. That on the theory of a rescission this would be insufficient as a tender or a restoration to the other party of the benefits received need not be gainsaid; but, if there was no contract to rescind, the principle invoked by appellants has no application; and if, as a matter of fact, the money was a gratuity or was not paid or received as consideration for the release, no return at all was due. In the absence of an admission that the money was paid and received as consideration for the release, and upon the respondent’s plea of uncertainty as to who left it and why it was left, we think the replies went quite as far as any rule of good faith in pleading could require. 3. The sufficiency of the evidence to justify the verdict is questioned. Judging from the cold record, it would seem that, as regards all the essentials of liability, the appellants had met and overcome the respondent at every point. Against the bare testimony of respondent, four witnesses testified that it was light at the lift when the accident occurred; four that respondent had worked at this lift several times prior to the accident; three that he had been specifically warned of the danger of coming into contact with the mechanism; two that he actually stepped upon the revolving shaft; and five that after the accident he was conscious and stated that it was due to his own fault. Just why the jury in the first instance, and the trial court on the motion for a new trial, deemed the unsupported testimony of the plaintiff to be superior in weight, force, efficiency or influence to the mass of definite testimony against it, we can only conjecture. It is true that the testimony on behalf of the appellants was given by persons who were or had been in the employ of the appellant company; there was testimony also to the effect that before Mueller and his companion appeared at the hospital on May 14, the occupied cot next to respondent’s was moved and an unoccupied one put into its place; that a screen was then placed about respondent’s cot; and that pills and injections were administered to him, which had the effect of making him dizzy, sleepy and without appreciation of what was taking place. It may be that the jury believed all this and believed that it was designed to make it easier to secure from the respondent a release of all claims on account of the serious injuries he had sustained, for the pittance of $50. If they so believed, it was not entirely illogical that they should then discount the value and credibility of all the rest of appellants’ case. In any event, the weight of the evidence was for the jury, and we may not disturb their conclusion, if it is supported by evidence sufficient, if credited, to sustain the charge. (Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851; Robinson v. Cole, 46 Mont. 140, 126 Pac. 850.) It was not necessary that the plaintiff should sustain the charge of negligence as to all of the particulars pleaded, but it is sufficient if actionable negligence was shown in any of the respects alleged. (Riley v. Northern Pac. R. Co., 36 Mont. 545, 93 Pac. 948; Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843.) Now, the testimony of plaintiff is to the effect that he was hired by Mueller to move machinery, which occupation was pursued at a point remote from the keg lift; that he was later put to washing vats; that he had never worked with the keg lift until the morning of the accident; that he had no familiarity with it whatever and no warning of its dangers was given him; that the light in the place was poor; that he was ordered to work at the lift by Huddel, who told him to hurry up. and help load kegs and do whatever else might be required; that he was kept busy loading kegs upon the hooks or bars above described; that he had no opportunity to observe the machinery closely and did not know or realize its points of danger; that after he had been there ten or fifteen minutes someone on the loading platform called for the paste, and while respondent was picking up the pot of paste he was struck by a belt which he had not before seen, pushed or dragged into the lift, and injured. All this is within the allegations of the complaint, and it is idle to say that it does not establish negligence prima facie or that contributory negligence or assumption of risk must necessarily be inferred. (McCabe v. Montana Central R. Co., 30 Mont. 323, 76 Pac. 701; Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29; O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724; Stewart v. Pittsburg & Montana Copper Co., 42 Mont. 200, 111 Pac. 723; Forquer v. North, 42 Mont. 272, 112 Pac. 439.) The suggestion is made that when respondent was picking up the pot of paste he was not engaged in the business of his employer. "We think he was. He had been directed by Huddel to assist in loading and to lend a hand as required. A stamp or label had fallen from one of the kegs; it had to be restored before the keg could go out; and the paste was needed to restore it. In procuring it the respondent was not merely complying with the request of a teamster for paste, but he was doing something necessary to be done in and about the loading of the beer and executing the general orders which had been given him. Appellants attempt to meet this by asserting that Huddel himself was a mere fellow-servant and not a superior; but we cannot give serious consideration to this in view of the allegations of the answers and of the extent of his power and authority as disclosed by the evidence before us. It is further said: “The evidence on behalf of plaintiff is insufficient to * * * support his contentions that he was induced to execute the release through the fraud of defendants.” What is said above touching this subject as affected by the pleadings applies here. The contention is not that he was induced to execute the release through the fraud of defendants, but that he did not execute it at all and did not accept any money for any release. His evidence is consistent with that position and sufficient, if true, to support it. 4. Error is assigned on the giving of instructions 6, 7,- and Z. Instructions 6 and 7 read as follows: “ (6) You are instructed that an employer must indemnify his employee, except as prescribed in the next instruction, for all that he necessarily loses in the direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer.” And “(7) You are instructed that an employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risk of the business in wliich he is employed. ’ ’ These instructions are substantially a reproduction of sections 5242 and 5243, Revised Codes, and of course no error could be predicated upon the giving of them in a proper case, with the proper limitations. The point made against them is that the exception made in instruction 6, to-wit, the condition described in instruction 7, is directed to the assumption of risk alone, leaving no room for the defenses of contributory negligence or release from liability, and that instruction 7 does not define what ordinary risks are; in other words, these instructions tell the jury, in effect, that regardless of the release, if given, or of contributory negligence, if shown, the plaintiff should recover unless the accident was due to the ordinary risks of his employment, whatever they may have been. With equal propriety it might also be added that instruction 6 does not even require that the employer should have been negligent. We think that, considering these instructions alone, there is force in appellants’ contention, although the language in instruction 6 that the loss for which the employee will be indemnified must be “in the direct consequence” of the discharge of his duties implicitly excepts contributory negligence. As a general rule, it is excellent practice to follow the statute in framing instructions, taking care that the language is adapted to the needs of the given case. Had the court made the exception in instruction 6 broad enough to cover all the instructions, there could have been no criticism; but if it would defeat a recovery by the employee that the employer was not negligent, or that the employee was negligent, or that the employee released the employer, then clearly instructions 6 and 7 were inadequate. The instructions, however, must be taken as a whole (Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45), and it is incredible that the jury could have been misled by the merely negative inference to be drawn from instructions 6 and 7, when they were told in positive terms by instruction 1 wbat the issues were, including the special defenses of contributory negligence and the release; by instruction J that, to warrant a recovery, the accident must have been due to some act of negligence alleged in the complaint; by instruction 9 that, if the release was signed in consideration of the sum of $50 which the respondent kept and used after learning that it was paid to him for that purpose, “he cannot now recover in this action”; by instructions U and Y that, if the respondent was guilty of contributory negligence, “he cannot recover in this action”; and by the various other instructions what the risks, ordinary and extraordinary, were which, under any possible theory of the case, the respondent could be held to have assumed. Jurors are presumed to have average intelligence and to employ it. No man possessing or employing average intelligence could infer from the instructions as a whole that the defenses of non-negligence, contributory negligence, and release by contract were not in the ease. We are therefore disinclined to direct a reversal merely because of the verbal misprision in instructions 6 and 7. The giving of instruction Z was entirely proper. The statutory provisions touching the effect of evidence should be given in every case. The doctrine that, “if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory is within the power of the party, the evidence offered should be viewed with distrust ” is a fundamental canon of all proof. In no case can it be a valid objection to it that any particular party i£ put by the court under the imputation of having withheld the best evidence available—that is for the jury to say. If in fact he has not, he cannot be adversely affected by the instruction; and, if he has, his is just the case for which the rule was made. 5. There was no error in the refusal of offered instruction K. It asked the court to tell the jury that it was the duty of respondent to apprise himself of any danger which he could “or ought to have discovered by the proper examination” of the machinery. We have repeatedly held that a workman, when ordered from one part of the work to another, cannot be allowed to stop, examine and experiment for himself in order to ascertain if the place assigned to him is a safe one. (Kallio v. Northwestern Improvement Co., 47 Mont. 314, 132 Pac. 419; Hardesty v. Largey Lumber Co., supra.) 6. So, also, the court properly refused to instruct the jury that there was no evidence that the machinery was unguarded, as requested by offered instruction X. The respondent says that when picking up the pot of paste he was struck and pushed by the belt, but a guarded belt could not have struck or pushed him. The appellants’ witnesses say that he stepped upon the revolving shaft, and he could not have done this if the shaft was covered. All the testimony is that he was loading beer on the hooks attached to the endless chain, and these had to be open for that work to be done. This is evidence enough to furnish the basis for the application to the testimony of whatever the jury may have ascertained on their visit of inspection. At the request of appellants the jury were taken to view the premises and machinery, which appellants said were in the same condition as at the time of the accident. What the jury saw we do not know; but the appellants who made the request cannot now complain if, in the absence of evidence to the contrary, this court indulge the presumption that the verdict is supported by evidence of the unguarded condition of the machinery, assuming that fact to be necessary to give verity to their conclusions. Concerning the effect to be given to an inspection, we adhere to what was said in Ferris v. McNally, 45 Mont. 20, 121 Pac. 889. 7. The court could very well have submitted-to the jury the special interrogatory requested by the appellants: “Was the place at and around the beer elevator reasonably well lighted at the time plaintiff was injured?” The submission of such interrogatories is to be commended, particularly in cases where the answers may be decisive. It has a tendency to keep the jury to the main issues and is often a great aid to this court in ascertaining the precise basis upon which the verdict is made to stand. But the submission of such questions is always within the discretion of the trial court, especially where the answer may not necessarily determine the rights of the parties; hence the refusal is not subject to correction by us. (Poor v. Madison River Power Co., 41 Mont. 236, 108 Pac. 645.) 8. After the motion for nonsuit was denied, appellants were permitted to plead and prove that since the accident the brewing company had paid to the respondent monthly sums aggre gating $2,100, and the fact that he has been awarded the further sum of $5,000 is characterized as a miscarriage of justice. Granting that the amounts voluntarily paid by the brewing company were properly shown in mitigation, we cannot say that the jury ignored them. The respondent suffered grievous injuries; he has sustained an incurable deformity and his ability to do physical labor is permanently impaired. The grand total of the verdict and all that has been paid respondent is $7,150. We have affirmed judgments for more than this for injuries in no wise more serious. The assignments of error not disposed of by the above are either without merit or are too trivial for consideration as a ground of reversal. The judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTICE SANNER delivered the opinion of the court. The respondent, plaintiff below, brought this action to recover damages for injuries received by him as the result of a fall of some scenery at the appellant’s Broadway Theater, in Butte, on December 9, 1910. The complaint is in two so-called causes of action, the first charging a failure on the part of appellant, as plaintiff’s employer, to exercise reasonable care to furnish him with a reasonably safe place in which to work, and the second charging a failure on the part of appellant to use ordinary care to employ reasonably competent fellow-servants. The answer joins issue upon all the matters alleged in the complaint which form the basis of recovery, but contains no affirmative pleas. The cause was tried to a jury which returned a general verdict for the respondent, and judgment was entered thereon. Motion for new trial was made and denied. The cause is now before us upon appeal from the judgment and from the order denying the motion for new trial. In its brief, appellant assigns forty-nine alleged errors; of these twenty-seven are argued under special heads presenting certain propositions which we shall consider in their order. It is to be noted at the outset that although the complaint is in the form of two causes of action, but one actionable event is set forth, to-wit, a fall of the scenery resulting in plaintiff’s injuries. ■ The effect of the complaint, notwithstanding its form, was to allege but one cause of action, arising out of the negligence of the appellant in the two particulars mentioned. These particulars are not pleaded as interdependent or concurring causes, as in the case of Forsell v. Pittsburgh & M. Copper Co., 38 Mont. 403, 100 Pac. 218, and in fact were not such; hence the respondent was not required to establish both, but it was sufficient to take the case to the jury if the evidence presented tended to establish that negligence in either of these particulars caused his injuries. (Westlake v. Keating Gold Min. Co., ante, p. 120, 136 Pac. 38; Beeler v. Butte & London Copper Dev. Co., 41 Mont. 465, 110 Pac. 528; Hoskins v. Northern Pac. R. Co., 39 Mont. 394, 102 Pac. 988.) 1. The appellant’s neglect to use reasonable care to furnish respondent with a reasonably safe place in which to work is alleged to consist in these facts: that on the stage where the respondent was working “was a large amount of scenery necessary to be used and which was used” in presenting the performance then being given, “which said scenery was placed against the west wall of said building without any protection to prevent the said scenery from falling; that in order to hold said scenery and prevent same from falling, defendants in the exercise of ordinary care should have provided said stage with a stall or scenery-holder, or other proper or safe means of holding said scenery”; and because of its failure to do this, the scenery fell and injured him. Under this charge it became necessary for the respondent to maintain three propositions: that he was in the employ of the appellant at the time; that its failure to furnish means for holding the scenery was negligent; and that because of this negligence the injuries occurred. We cannot agree that the respondent has failed to sustain any of these propositions, because, though we may be unconvinced touching his claim of employment, that was a question of fact for the jury in the first instance and for the court on motion for new trial; both the jury and the court have said upon sufficient evidence, if believed, that the respondent was in the employ of appellant at the time. We do agree, however, that [3] respondent failed in the two other necessary respects, and for these reasons: According to the evidence presented by the respondent, the Broadway Theater was “a combination-house,” that is to say, a theater in which traveling companies carrying their own scenery are accommodated. In such houses the method in general use is to have a dock for all scenery not required in the production being staged, but to stack, or lean in packs, against the walls all the scenery required in the production and not actually in place upon the stage. In leaning such scenery against the wall it is pulled out at the bottom so as to give it good footing and prevent its falling. The scenery that fell upon respondent was so stacked or leaned against the wall of the theater, and it did not, and could not, fall upon him on account of that or because it was not kept in a holder. It fell upon him because other employees, while straightening the pack to the perpendicular in the effort to get out a piece from the middle, lost control of it. Quiescent, leaning against the wall, the pack was impotent for harm. Nor when being straightened was there any danger, save from incompetent handling. The reason it fell upon the respondent, as the witness Peiler stated, was that the men engaged in straightening it were drunk and did not have energy enough to hold it. The respondent himself says: “When the stage-hands axe straightening up these scenery packs, to get a piece out, it does not occur very often, if a man is competent, that the scenery gets away from him and falls down on the stage. * * * As to whether I knew if it got toppled over it would fall down on the stage—well, it would not fa.11 over if there was competent men there; there was no chance.” The inference from the foregoing is inevitable that the method employed by appellant in keeping the scenery used or to be used in the production being staged—the method in general use among play-houses of like character—was in itself reasonably safe, and that the accident was not primarily due to it but to the action of fellow-servants. 2. The failure to exercise reasonable care to furnish respondent with reasonably skillful and competent fellow-servants is alleged to have consisted in the following facts: That the appellant “carelessly and negligently employed one William Cary as a stage-hand to assist in setting up scenery and removing the same from said stage”; that he was incompetent because “at the time of his employment he was intoxicated,” and thereby rendered “incompetent and unfit to perform the services required of him”; that these facts were known to appellant, or in the exercise of ordinary care should have been known to it; that “by reason of his said incompetency and unfitness, as herein detailed,” said Cary performed his work so carelessly and unskillfully that a portion of the scenery was thrown upon the respondent. It is vigorously insisted by the appellant that the respondent has not sustained these allegations by the proof. The respondent’s narrative of the accident and the manner of its happening is substantially this: About a quarter past 9, while talking with the stage manager, Hi Leckie, their attention was called to Cary and one Petrucci, who were over at the pack of scenery on the west or back wall of the stage. Mr. Leckie saw Petrucci beckon, and turning to respondent said: “Go over there and see what they want.” Respondent went over, saw Petrucci and Cary holding the scenery pack and ascertained they were desiring to get out “a pair of curtains.” Respondent then turned around, started toward the stage manager to “tell him the condition of these men”; got about ten feet from the pack when it fell upon him. “Cary was then under the influence of liquor.” The witness Peiler testified that Petrucci and Cary were both handling the pack; that it fell on the respondent “because they did not have energy enough to hold it; there was no power back of them; they were drunk”; that the condition of Cary “was such that it could be noticed by anyone coming in contact with him, ’ ’ but the witness could not say whether Cary was intoxicated at the time he commenced work at the theater, because the witness did not see Cary come in. He had, however, seen Cary employed on the stage of the Broadway Theater, prior to the day of the accident, when Cary was intoxicated. Vic. McGrath testified to seeing Cary drink beer twice that day before the show and once during the show, half an hour before the accident. He says it was plainly noticeable at ten minutes to 8 that Cary had been drinking and was under the influence of liquor; that he had seen Leckie hire Cary for work on the Broadway stage as much as a dozen times before that, when Cary was under the influence of liquor. It must be conceded that if we rigidly apply the proof to the allegations of the complaint, there is no evidence that Cary was intoxicated at the time he was hired, but he was noticeably in that condition for over an hour before the accident, during which time the appellant’s stage manager was present; and this does charge the appellant with keeping him employed when he was incompetent and unfit by reason of his condition. In this situation we have no reason to doubt that the court would, on proper motion, have granted the appellant all necessary relief on the ground of surprise, if such could be fairly claimed. But in view of the fact that no claim of surprise is urged; that Petrueei, Cary and others fully testified, denying Cary’s intoxicated condition at any time during the performance, we do not feel that at this' time the case should be reversed because of a variance so unsubstantial. It was not only the duty of appellant to use ordinary care to employ, in the first instance, but to use like care to keep employed, competent fellow-servants for respondent. If certain witnesses are to be believed, it did not do this, and the accident happened as the result. The argument of counsel for appellant that these witnesses, particularly the respondent himself, were not entitled to full credit, is quite forcible and convincing, but that is not for us. They were believed apparently, and upon their testimony a case was made sufficient to go to the jury. 3. Under “Argument III, Errors XXI and XXII,” complaint is made because the court gave instructions numbered 11 and 12, which, it is said, were “prejudicially erroneous in failing to take into consideration the assumption of risk, the negligence of a fellow-servant, and the proximate cause of the injury.” Errors XXI and XXII assign the giving of instructions C and H, and we do not find that the court gave any in- structions numbered 11 and 12. The only instructions 11 and 12 that appear in the record were requests of appellant which were refused, and properly so, because they do not at all advise the jury that the person sought to be charged with assumption of risk must have appreciated and realized the danger. Instructions C and H, however, to which the argument is really directed, do omit all mention of assumption of risk, and instruction H does fail to categorically charge that the incompeteney of Cary, by reason of intoxication, must have been the proximate cause of the injury. But we do not follow the argument that these instructions “should embody these elements (assumption of risk, negligence of fellow-servants, proximate cause), in order to assist the jury in determining the amount of damages,” or that either instruction is wrong, “because it fails to tell the jury that in arriving at the amount of damages it must take into consideration the assumption of risk and negligence of fellow-servants.” These things do not go to the amount of damages ■but to the utter defeat of plaintiff’s entire claim. Moreover, assumption of risk, and the negligence of fellow-servants are matters of defense, unavailing if not pleaded—as they were not—unless affirmatively appearing from the plaintiff’s own pleadings or proof. Some effort is made to show that assumption of risk does arise from respondent’s own testimony; but it cannot be inferred from anything he said that he at any time before going over to Cary, either knew that Cary was intoxicated or appreciated any danger from that fact; on the contrary, it does appear that when he got to the pack of scenery lie then noticed Cary’s condition, refused to assist on that account, and was making his way out of whatever danger there was, when the scenery fell. As to the fellow-servant doctrine, it is out of the case for the further reason that while the respondent pleads the injury to have been due to the act of a fellow-servant, it also charges that act to the negligence of appellant in furnishing a fellow-servant who was incompetent from intoxication. In passing, we add that the failure of the court in instruction H to specifically charge that the incompetency of Cary, because of intoxication, must have been the proximate cause of the injury, is entirely cured elsewhere in the charge, notably in instruction No. 10, offered by the appellant. Instruction C is further attacked because it advises the jury that the employer must in all cases indemnify his employee for the “losses” caused by the former’s want of ordinary care. Taking the instructions as a whole, we think it reasonably plain that the term “losses” was used in the sense of legal damages, and that its use did not make the instruction in question so meaningless as to confuse the jury. 4. It is ■ further urged that the verdict is contrary to law, as in defiance of instructions 5 and 6. These instructions were to the effect that before the plaintiff could recover on his first cause of action, it must be established that the defendant, in the exercise of ordinary, care, should have provided the stage with a stall or scenery-holder to' hold the scenery, and that its failure to do so was the proximate cause of the injury. It is true, as stated above, that there was no evidence to support the allegation of negligence in this regard, but the verdict is a general one, and as there was sufficient evidence to support negligence in the other particular alleged, we cannot hold the verdict to be against the law on this account. No argument is presented in the brief to the effect that the giving of these instructions, or the giving of any instructions based upon the so-called first cause of action, was error, and in fact the particular instructions 5 and 6 were given at the request of appellant. 5. The luminous discussion under the head “Argument VI,” in appellant’s brief, amounts to nothing more than to a claim "that the jury should have discredited the plaintiff and his witnesses and should have received as the truth of the matter the narrative of events given by the witnesses for the defendant. If the case were before us upon appeal from an order granting a motion for' new trial, as in Mullen v. City of Butte, 37 Mont. 183, 95 Pac. 597, or from a judgment based upon an order of nonsuit, as in Escallier v. Great Northern Ry. Co., 46 Mont. 238, 127 Pac. 458, the consideration urged might be pertinent. As it is, we are powerless to interfere. The other assignments of error argued in the brief are disposed of by what we have said above. We find nothing in the record to warrant a reversal. The judgment and order appealed from are therefore affirmed. 'Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action to foreclose a chattel mortgage. This appeal is from an order of the district court refusing to appoint a receiver pendente lite. On February 3, 1912, the defendant Erb-Harper-Rigney Company, a mercantile corporation doing business at Laurel, Yellowstone county, being financially embarrassed, made an assignment of all its property, real and personal, to George F. Clawson for the benefit of its creditors. Clawson immediately qualified as such assignee and entered upon the discharge of his duties. On June 8, 1912, under an order of the district court of Yellowstone county, the creditors of the corporation consenting thereto, the assignee sold and conveyed all the property to the defendant Erb, a stockholder and the manager of the corporation. The consideration of the sale was the assumption by Erb of the indebtedness of the corporation, amounting in all to $24,450.87. Thereupon Erb executed and delivered to the plaintiff, as trustee for the benefit of the creditors and to secure the indebtedness due them, a mortgage upon certain real estate, including all owned by the corporation at the date of the assignment, and certain other belonging to Erb in his own right. He also, and for the same purpose, executed a chattel mortgage upon the stock of merchandise theretofore owned by the corporation, consisting of hardware, farming im plements, etc., together with the bills receivable and accounts due it from its customers. The real estate mortgage, it seems, was to run for the period of two years, though this fact does not distinctly appear. The chattel mortgage contained this provision: “That said mortgagor shall remain in possession of and sell and dispose of the above-described goods and chattels in the regular course of business for the benefit of the mortgagee and that an accounting shall be made by the mortgagor to said trustee on the first of each and every month during the time this mortgage is in force, and the proceeds of the sales, after deducting the expenses of the business not to exceed $150 per month together with taxes, insurance and the interest on a real estate mortgage held by E. Vaughn, of Laurel, Montana, for $2,400, shall be turned over to said trustee by said mortgagor and shall be held by said trustee and shall be applied on said indebtedness by said trustee whenever the sums in his hands shall amount to 10 per cent of the total indebtedness. ’ ’ It describes the debts secured as evidenced in part by promissory notes, and in part by open accounts due and payable at different dates. It further provides: “In case of default in the payment of the aforesaid principal sums of money, or any part thereof, then it shall be optional with said party of the second part, the mortgagee, and obligatory on him at the request of a majority (in number and amount) of the creditors to consider the whole of said principal sums immediately due and payable, and immediately to enter in and sell all and singular the premises hereby granted, and to sell and dispose of the same and all benefit and equity of redemption of the said mortgagor according to law. * # * It is further agreed by the parties hereto that at the expiration of this mortgage it shall be renewed for the period of one year from the date of expiration.” Upon the execution of the mortgages the defendant Erb took possession of the property and proceeded to sell the merchandise in the regular course of business. He continued to do so until June 22, 1912. On this date he sold to Fred. Darrow 51 per cent of his equity under the mortgages, and to defendant Rig ney 33 per cent, who, having assumed to discharge the debts secured thereby in proportion to the amounts of their respective shares, thereafter conducted the business under the firm name of Darrow & Erb. This arrangement was continued until October 1, when Rigney sold his interest to defendant Steele, who assumed Rigney’s obligation. On January 22, 1913, Erb repurchased the interest theretofore sold to Darrow, and thereafter, on February 19, sold his entire interest to defendant Harris. •This action was brought on April 11. At that time Steele and Harris owned and were in possession of the entire property subject to the mortgage. The complaint, after making a statement substantially as above, alleges that from and after the transfer to Harris on February 19, Erb ceased to have any further interest in the business; that he has not been in the possession of the property, and has not rendered any accounting to plaintiff; that he has not paid the debts secured by the mortgage, or any part of them,.except the sum of $1,517.72; that the balance with interest is wholly due and unpaid, and that by virtue of the option contained in the mortgage, and upon request by a majority of the creditors, to whom is due the greater portion of the indebtedness, the plaintiff has elected to declare the whole thereof immediately due and payable. The prayer is for the usual decree in foreclosure, and for costs, including attorneys’ fees. The material allegations of the petition for the appointment of the receiver are substantially the following: That it was the understanding by the creditors, and it was part of the arrangement whereby the mortgage was given, that the defendant Erb was to give the business his personal attention.and supervision; that the obligation assumed by him was personal to the creditors ; that he has not continued in possession of the property as in the mortgage provided, but has sold it in bulk, and has ceased to have any interest therein or in the business; that the property has gone into the possession of defendants Steele and Harris; that through the sales made by him, Erb received a valuable consideration, for which he has failed to account to plaintiff; that Steele is a resident of the state of Colorado; that neither he nor Harris is personally conducting said business; that these defendants are selling said property in the usual course of business, and will continue to do so unless a receiver is appointed; that by reason of said sales the mortgaged property will be materially injured; and that it is therefore necessary for the protection of the creditors that a receiver be appointed pending the action. The hearing was had after notice, upon affidavits and oral testimony. While there was some controversy upon the question whether the dealings had by Erb with Darrow, Steele, Rigney and Harris were consented to by the plaintiff, the evidence shows clearly that Erb was never in the active conduct of the business, but that it was conducted by Rigney prior to the date of the assignment, and that it has been conducted by him since the execution of the mortgage, and this wich full knowledge by the plaintiff and the creditors. Since Erb took charge under the mortgage, Rigney has been making sales in the usual way. Prior to Erb’s sale to Steele and Harris, Rigney kept strict account of all transactions. He deposited the proceeds of sales to the credit of the plaintiff and Erb in strict accordance with their instructions, and they have been devoted by the plaintiff to the discharge oro tanto of the claims of the creditors. So, also, the evidence discloses that he was in charge for Harris and Steele, and was pursuing this course at the time this action was commenced. There has been no diversion or misappropriation of any of the property or proceeds of sale. The sales of the different interests by Erb were in fact all subject to the rights of plain; iff and the creditors, and were understood to be so both by himself and the plaintiff; the purpose in each ease being to substitute the purchasers in Erb’s place to carry out the terms of th< mortgage contract. In none of the transactions did Erb receive any money, but merely exchanged his equity in the property for equities in real estate which was also subject to encumbrances. In short, Erb and the other defendants have faitl fully observed all the terms of the mortgage, except that Erb has not been at all times actually in physical possession of the mortgaged property and in personal management of the business. It is true that the net result to the creditors has not been large, only one small dividend having been paid to them during the year of 1912. This fact is explained by the statement of Rigney that when the mortgage was executed and he resumed charge under Erb, the season for the sale of farm implements for the year 1912 had passed, and hence that sales were limited exclusively to other portions of the stock. He expressed the opinion, however, that if the business should be allowed to go on without interference, the sales for the season of 1913 would produce funds enough to make substantial payment to the creditors. It will be observed that it is not alleged, either in the complaint or in the petition,' that Erb is not entirely solvent and able to meet all the demands of the creditors, or that the real estate held under the other mortgages is not amply sufficient to secure them. The evidence does not disclose what the facts in this connection- are. The breach of the contract alleged as the ground upon which foreclosure is sought is that the obligation assumed thereunder was personal to the creditors, and that Erb has failed to continue in possession of the property and give the business his personal supervision. Assuming that the plaintiff may, on this ground, maintain his action for foreclosure prior to the maturity of the mortgage, do the facts disclosed warrant the appointment of‘ the receiver? The statute itself (Rev. Codes, sec. 6698), in our opinion, answers this inquiry in the-negative. It requires a showing that the property is in danger of being lost, removed or materially injured. It will be noticed that the ground of the application is that by reason of sales being made by defendants, the mortgaged property may be materially injured unless a receiver is appointed. This statement is a mere bald conclusion, and is without support in the facts proved. The mortgage itself provides for the sales just as they are being made. It was 'well known and understood at the time the mortgage was executed that the stock was not of sufficient value to secure all the inaebt edness. The very purpose of it was to have the business continue, and thus to preserve the value of the security. While the defendant Erb is not personally in charge of the business, sales are being made, and the proceeds are being devoted to the discharge of the claims of the creditors in strict conformity with the terms of the mortgage. Hence the creditors are not suffering any injury, nor is their security being impaired further than as a consequence of the depletion of the stock, a result which must necessarily follow from an observance of the terms of the mortgage; for it is provided therein that Erb shall sell the property and account for the proceeds. If this provision is observed, the creditors cannot suffer injury. The remedy of a receivership, drastic and violent as it is in effect, because it deprives the defendant in limine of the possession of his property, should not be allowed in any case except upon a statement of facts showing that it is necessary to prevent injury to the rights of the plaintiff pending the action. “The power to appoint a receiver is to be exercised sparingly and not as of course. A strong showing should be made, and even then the authority must be exercised with conservatism and caution.” (Hickey v. Parrot Silver & Copper Co., 25 Mont. 164, 64 Pac. 330.) “The appointment of a receiver is an extraordinary remedy, to be resorted to only in cases of emergency.” (Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424, 80 Pac. 1024.) The exercise of the power is lodged in the discretion of the court, but the discretion is not arbitrary. It must be exercised in conformity with the rule that a receiver is necessary as an auxiliary to the attainment of the ends of justice, by the preservation of the property in controversy pending an adjustment of the ultimate rights of the parties. (High on Receivers, 3d ed., sec. 19.) Since it appears that the property involved here is being devoted to the purposes for which it was set apart by the parties, and that the creditors are not suffering, nor are liable to suffer, any substantial injury before final decree, we do not think the district court abused its discretion in denying the application. The appointment of a receiver would serve no useful purpose, but would tend rather to impair the value of the security by subjecting it to the expense which is always a necessary incident of a receivership. The order is affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. ■ Among the issues tendered by the complaint and joined by the answer are these: “That on or about the 17th day of September, 1910, plaintiff, being the owner and in possession of 140 head of fat beef cattle, then located and grazing in the vicinity of Malta, Montana, notified and informed the defendant of that fact, and that it desired and intended to ship said cattle to the Union Stock Yards, Chicago, Illinois, over the line of the defendant and succeeding connecting common carriers for sale upon the market at that point, and * * * requested and directed the said defendant as such common carrier to provide and furnish for the loading, shipment and transportation of said cattle from its said station of Malta, Montana, on September 30th, 1910, a sufficient number of suitable stock-cars for the loading and transportation of said cattle to said destination, ’ ’ and all of which the defendant, on or about said September 17, 1910, promised and agreed to do. “That on said September 30, 1910, the said plaintiff tendered said 140 head of cattle to the defendant as such common carrier at said station of Malta for shipment and transportation over its said line of railway and connecting lines to said Union 'Stock Yards, Chicago, Illinois, and requested the defendant as such common carrier to receive and accept the same for such transportation and delivery, and also requested the said defendant as such common carrier to provide, furnish and set at its said station of Malta, Montana, for the use of plaintiff, sufficient reasonably suitable ears to be loaded with said 140 head of cattle for shipment and transportation as aforesaid, and that thereafter daily and on October 1st and 2d, 1910, the said plaintiff repeated and reiterated its said tender of said cattle to the defendant at said Malta, and its offer to load and ship the same over its said line of railway and connecting lines to said Chicago, and also repeated and reiteratéd its said demand upon the defendant for cars into which to load its said cattle for transportation to said destination as aforesaid, but that the defendant wrongfully and negligently failed, neglected and refused to furnish or provide said ears for the use of said plaintiff as aforesaid, and wrongfully and negligently failed, neglected and refused to receive or accept said cattle as such common carrier or at all, for shipment or transportation to said Chicago, or elsewhere, or at all, until Monday October 3d, 1910.” To maintain these issues the respondent presented evidence to the following effect: In the year 1910 the “Helena Pool” was a combination of individual cattle owners, including the respondent, who, for economic reasons, ran, gathered and brought their cattle to the shipping point as one concern. It employed a single foreman, Mr. Jay cox, and it spoke through a single manager, Mr. L. E. Kaufman. When the cattle were brought to the shipping point, the customary procedure was to cut out and load them according to ownership, and they were then transported under several contracts in the name of the individual owners. Such a proceeding had been completed on September 17, 1910, when Mr. Kanfman. appeared before the agent of the appellant company at Malta and said: “I am ready to give you the next order; I want forty-two 44-foot ears for the same people what shipped out now, for the same members; I want them for the 30th of this month, Friday the 30th. You can put it down again the same as before ‘Helena Pool, by me.’ ” The agent answered': “All right, we will see that they are here.” Nothing was said at that time about the number of cattle to be shipped, either as a whole or according to ownership, because it was not then'definitely known. On September 29th, Mr. Jaycox having gathered and brought to within eight miles of Malta about 1,000 head of beef cattle belonging to the members of the pool, Mr. Kaufman again appeared before the agent, informed the agent of the arrival of the cattle, that .1,000 head were to be shipped under the order placed on September 17th, and that “we are ready to load out to-morrow morning.” The agent said: “"We can do nothing for you; no cars here.” “I told him,” says Kaufman, “that we were here with our cattle, and that we must have the cars, and he says, ‘Do you need all those cars what you ordered?’ I says, ‘Yes, we know how many we got, each outfit. We got 18 ears for the Conrad-Price Cattle Company, and we have 6 cars for Pruett & Phelps, and we have 6 cars .for the Empire, and we have about 6 ears for the American, 3 for the pool and 3 for Stadler & Kaufman. That makes just the amount what I ordered, 42 cars.’ ” There were no stock-ears at Malta on that day or the next day; but Kaufman saw the agent again on Friday the 30th, and told the agent “to try to get the ears for Saturday if he could not get them for Friday; that we must have ears, as our cattle was out here and have no feed and bad water, and the cattle fall off every hour of the day. * * # I did not demand forty-two 44-foot stock-cars, but we demanded cars enough to ship our cattle. * * * Such information as I gave the agent in regard to the number of cattle out there, the owners and the condition of the range was given to impress him with the necessity of his complying with the order of Sep t ember 17tb. That was tbe only purpose of advising him as to the number of cattle or as to the owners. * * * He said he would try to do what he could for us for Saturday. I talked with him again on Saturday about getting the cars for us. # * * As before, I demanded that he furnish us cars; I told him it would take forty-two 44-foot cars or at least 55 small cars. * * * I told him rather than to hold our cattle until the following week we would take .a chance if they can get us the cars for Sunday. He says: ‘I will try, and wire up to headquarters and see whether they can furnish you any cars for Sunday.’ ” No stock-cars appeared at Malta during Saturday or Sunday morning, and on Sunday morning the agent told Mr. Kaufman that no word had come from Havre. A little after noon on Sunday Mr.' Kaufman again saw the agent, who said: “I have got an answer; we can furnish you. 18 small cars.” But it was then too late to get the cattle in, cut out enough belonging to any particular owners to fill eighteen ears, and load them out on that day. To ship Monday would bring the cattle to Chicago on the following Saturday, on which- day of the week there is little, if any, market for western stock; and to ship Tuesday would bring -the cattle to Chicago on the following Sunday, on which day of the week there is no market at all.. The shipment was therefore deferred to Wednesday, but in the meantime forty head were turned back, because they were “gaunted and showed the hard usage.” As finally made on Wednesday, October 5th, the shipment was in one train of forty-two cars—twenty-three 44-foot cars, three 36-foot cars, and sixteen 33-foot cars—billed out “under separate individual livestock contracts, then and there executed by the agent, Schilling, for the defendant railway company, and by the witness Kaufman as agent on behalf of each of said shippers.” As so billed, the train contained three cars'of cattle for Stadler & Kaufman, six for the Empire Cattle Company, sixteen for the Conrad-Price Company, six for Pruett & Phelps, four for the Helena Pool, and seven cars containing 140 head for the respondent on this appeal. At the close of the evidence on behalf of the respondent, the appellant moved for a nonsuit upon several grounds, among them being “a fatal-variance amounting to a failure of proof” in that the complaint alleges, and the action was brought to recover for, the failure of the railway company to comply with an order placed September 17th by the respondent for a sufficient number of stock-cars for the shipment of its 140 head of beef cattle on September 30th, whereas the evidence discloses no such order, but an obligation which, whether viewed as arising from contract or from the duty of the appellant as a common carrier, ran not to the respondent, but to a combination known as the “Helena Pool,” and which obligation was not to furnish sufficient ears to ship a definite number of cattle belonging to the respondent, but to furnish forty-two 44-foot cars for the shipment of the stock of the pool. It was urged in support of the motion that the variance is prejudicial in point of fact, in that the appellant is subjected to several suits to recover damages upon a single cause of action, is denied its right to have the matter adjudicated by the federal court, and is prevented from asserting a counterclaim for the ordering of excess cars. The motion was denied, and upon the correctness of that ruling all the assignments of error primarily depend. Under our statute, no variance of the proof from the allegations of a pleading is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits (Rev. Codes, sec. 6585); and no such variance amounts to a failure of proof unless the allegations of the claim or defense stand unproved, not in some particular or particulars only, but in its general scope and meaning. (Rev. Codes, sec. 6587.) The language of these provisions is clear, and they are designed, on the one hand, to insure to the defendant full notification of what he shall be called upon to meet, and, on the other, to require that he shall meet it without regard to unsubstantial departures. Such, in effect, has been the construction of these statutes by this court in the cases where the variance has been held material and fatal, and in the cases where it has not. In accordance with this construction, we have said that, where one contract is pleaded and another one is proved, or where the complaint alleges one breach of duty, and the evidence establishes a different one, the variance amounts to a failure of proof, upon the occurrence of which a nonsuit is proper. (McCrimmon v. Murray, 43 Mont. 457, 117 Pac. 73; Knuckey v. Butte Electric Ry. Co., 41 Mont. 314, 109 Pac. 979; Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pac. 416; Forsell v. Pittsburgh etc. Copper Co., 38 Mont. 403, 100 Pac. 218; Spellman v. Rhode, 33 Mont. 21, 81 Pac. 395; Kalispell Liquor Co. v. McGovern, 33 Mont. 394, 84 Pac. 709; Childs v. Ptomey, 17 Mont. 502, 43 Pac. 714; Gilliam v. Black, 16 Mont. 217, 40 Pac. 303.) These decisions have their counterpart in others which enforce the rule that mere divergencies in detail are not of vital consequence. (Mosher v. Sutton’s New Theater Co., ante, p. 137, 137 Pac. 534; Previsich v. Butte Electric Ry. Co., 47 Mont. 170, 131 Pac. 25; Robinson v. Helena L. & Ry. Co., 38 Mont. 222, 239, 99 Pac. 837.) The question, then, is whether the evidence presented by the respondent sustained the cause of action pleaded in the complaint. The case was tried in the district court upon the theory that the order for cars placed on September 17th did not give rise to a contractual relation, and that the appellant’s liability, if any, arises from its duty as a common carrier to furnish ears upon reasonable notice. While there is abundant authority for the conclusion that, under the evidence presented by the respondent, a contractual relation was created (Clark v. Ulster & Del. R. R. Co., 189 N. Y. 93, 121 Am. St. Rep. 848, 12 Ann. Cas. 883; and note at page 885, 13 L. R. A. (n. s.) 164, 81 N. E. 766), the question is unimportant, because error is not predicated upon the theory adopted, and because the essentials and consequences of a variance are not affected thereby. In this case the order for cars was placed in the name of the Helena Pool, by the manager of the Helena Pool, for a definite number of cars estimated by him as sufficient to meet the needs of the Helena Pool. At no stage of the transaction did the respondent present or seek to assert its individuality; it tendered no cattle, it demanded no cars, it made no complaint. At no time could the appellant have made any effective offer of cars to the respondent or demand that the. respondent' ship its cattle without regard to the other members of the pool. The purpose for which the cars were to be furnished is described by all the witnesses as “a shipment” of cattle by the Helena Pool. That the obligation imposed upon appellant by the order of September 17th was to the Helena Pool, and not to the respondent cannot, we think, be doubted. Now, neither in actions ex contractu nor in actions ex delicio can the plea of an obligation to the plaintiff individually be sustained by the proof of an obligation running to himself and others jointly, for the reason that, to maintain a'joint obligation, all the obligees must be parties to the action. This was the rule at common law (Farni v. Tesson, 1 Black (U. S.), 309, 17 L. Ed. 67; Pomeroy’s Code Remedies, secs. 184—189); it is still the rule under the Codes (Rev. Codes, sec. 6491; Montana Mining Co. v. St. Louis, M. & M. Co., 19 Mont. 313, 48 Pac. 305; Pomeroy’s Code Remedies, sec. 197; Sutherland on Code Pleading, secs. 18, 19; Bliss on Code Pleading, secs, 63-65), and its justification may be found in the almost universal conviction that the multiplication of suits over a single cause of action is contrary to sound public policy. The rule just stated has reference, of course, only to those obligations in which the legal interest is joint, and by “legal interest” is meant, not the interest which may be had in the sum of money or other benefit to accrue upon the performance of the obligation, but “the legal, technical interest” created by the obligation itself; hence the converse of the foregoing is that, though an obligation be joint by its terms, each obligee may nevertheless maintain an action upon it, if, in fact, the legal interest is several, as where specific sums or benefits are made to inure to the obligees in severalty. The argument of respondent rather vaguely suggests that the obligation at bar is of the character last described; but the very most to be said from respondent’s point of view is that from previous transactions the appellant’s agent knew respondent as a member of the pool, knew that the shipment, when made, would include an unknown number of respondent’s cattle, which would be billed in its name, and knew, or should have known, that failure to furnish the cars ordered might result in some damage to the respondent. That these circumstances unaided could not change an obligation which by its terms ran to the respondent and others jointly into one actionable by the respondent alone is clear from the authorities cited above, as well as from the following additional ones: Florence v. Helms, 136 Cal. 613, 69 Pac. 429; Graves v. Boston etc. Ins. Co., 2 Cranch (U. S.), 419, 2 L. Ed. 324; Ford v. Bronaugh, 11 B. Mon. (Ky.) 14; Stearns v. Martin, 4 Cal. 227; Titus v. Railroad Co., 5 Phila. (Pa.) 360; Simpkins v. Montgomery, 1 Nott & McC. (S. C.) 589; Gray v. Johnson, 14 N. H. 414; Snell v. De Land, 43 Ill. 323; Rorabacher v. Lee, 16 Mich. 168; Bradley’s Executor v. Maull, 4 Har. (Del.) 223; Richey v. Branson, 33 Mo. App. 418; Davis v. Wannamaker, 2 Colo. 637; Curry v. Kansas etc. Ry. Co., 58 Kan. 6, 48 Pac. 579; Holyoke v. Loud, 69 Me. 59 ; McIntosh v. Zaring (Ind. Sup.), 38 N. E. 321; Wright v. Gilbert, 51 Md. 146; McCord v. Seale, 56 Cal. 262. The complaint is made in respondent’s brief that the proposition involved in this appeal is technical. While we have repeatedly said that matters of mere technicality will receive scant consideration in this court, it surely is not a valid objection to a matter of substance that it is also technical and formal. The complaint in a civil action is a matter of form, but it is so far from being a mere matter of form that no defense can be aptly presented, no testimony be intelligently taken, and no judgment be responsively entered so as to protect the public from endless litigation, without a complaint stating with substantial accuracy the matters upon which relief is claimed; and to abrogate the rule requiring the pleadings and proof to cor respond, would not mate for simplicity and justice, but for confusion, for delay, and for the denial of justice in many cases. In view of the foregoing, the questions suggested by the other assignments of error become wholly academic, and need not be considered. The judgment appealed from must be reversed and the cause remanded, with directions to dismiss the complaint. It is so ordered. Reversed and remanded. Me. Chief Justice Brantly and Me. Justice Holloway concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This is an appeal by the Chicago, Milwaukee and Puget Sound Railway Company and others from certain findings and an order of the district court made in a condemnation proceeding instituted by the Great Falls and Teton County Railway Company against E. H. Ganong and others, to condemn certain lands near the town of Chouteau for railway purposes. The appellants are the owners of the property sought to be condemned, and by this appeal they raise the question of the right of the Great Falls company to exercise the power of eminent domain. The record discloses that, upon the receipt of the charter of the Great Falls company as a Montana corporation, the stockholders selected three persons directors, and that these three directors qualified and organized as a board and constituted the only board of directors of the company at the time these proceedings were before the trial court. The articles of incorporation provide for a board of directors of five members, and section 4274, Revised Codes, fixes five as the minimum number of directors of a railroad corporation. It is urged upon us that, “where a minimum number of directors is fixed by statute or the company’s regulations, the provision is mandatory, so that if the total number falls below such minimum no valid board meeting can be held although the prescribed quorum may attend”; and 2 Machen’s Modern Law of Corporations, section 1456, is cited as authority for the rule which appellants invoke. The author of the article quoted refers to but a single case to support his text. (Bottomley’s Case, 16 Ch. Div. 681.) The decision in that case is reviewed at length by the supreme court of California, in Porter v. Lassen County Land etc. Co., 127 Cal. 261, 59 Pac. 563, and reference is had to the peculiarly worded English statute which influenced the decision in Bottomley’s Case. The California court reaches the conclusion—and we think correctly—that there is not anything in the decision of the English ease which militates against the genéral rule that a quorum of a duly constituted board may bind a corporation as the board with all its members present and acting in unison might do, and that vacancies on the board do not prevent the remaining directors—if they constitute a quorum—from holding lawful meetings and transacting the company’s business. 'By the organization of the Great Falls company five offices were created; three of these were filled and the other two simply remained vacant. “An existing office without any incumbent is vacant, whether it he a new one or an old one.” (State ex rel. Buckner v. City of Butte, 41 Mont. 377, 109 Pac. 710; Mechem’s Public Offices and Officers, sec. 131; Throop on Public Officers, sec. 431.) “An office newly created becomes ipso facto vacant in its creation.” (State ex rel. Smith v. Askew, 48 Ark. 82, 2 S. W. 349; In re Fourth Judicial Dist., 4 Wyo. 133, 32 Pac. 850.) Section 3836, Revised Codes, provides for the organization of the board of directors of every domestic corporation—including railroad corporations— and then proceeds: “A majority of the directors is a sufficient number to form a board for the transaction of business, and every decision of a majority of the directors forming such board, made when duly assembled, is valid as a corporate act.” If, then, a majority of the directors is sufficient to form a board, and such board can perform all corporate acts, vacancies cannot affect the legality of its proceedings so long as the legally constituted quorum is present and acting either unanimously or by -a majority of such quorum. (Porter v. Lassen County Land etc. Co., above.) The failure of the stockholders of this corporation to fill all the offices by electing five directors does not invalidate the title of the three who were selected or prevent them from legally representing the corporation so long as they constitute a quorum. (Wright v. Commonwealth, 109 Pa. 561, 1 Atl. 794; In re Union Ins. Co., 22 Wend. (N. Y.) 591; Schmidt v. Mitchell, 101 Ky. 570, 72 Am. St. Rep. 427, 41 S. W. 929.) This attack is from outside the corporation, and presents a different question from the one which would arise if a minority stockholder or the state was complaining that the stockholders of this company had not discharged fully their duty and elected all the directors required by the articles of incorporation and the statutes of this state. In the present controversy, as between this corporation and a person from outside the corporation itself, the trial court properly held that the Great Falls and Teton County Railway Company was authorized to exercise the power of eminent domain. So far as the trial court’s findings and order are involved in this appeal, they are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. This action was brought to recover of the defendants Casey and Frank A. Shoemaker, damages for the conversion of certain personal property of plaintiff, consisting of a set of Werner’s edition of the Encyclopedia Britannica and miscellaneous books, sheet music, and articles which may be classed as domestic utensils. The prayer was for a judgment for $500 compensatory and $1,000 punitive damages. The defendants filed separate answers in which they denied generally all the allegations of the complaint. They also alleged affirmatively certain matters as special defenses by way of justification or in abatement, upon which the plaintiff joined issue by reply. At the trial the issues in this behalf were eliminated from the case, the defendants relying exclusively upon the issues tendered by the denials. The jury returned a verdict in favor of the plaintiff for $1,050, of which, as is disclosed by a special finding returned with the verdict by direction of the court, the sum of $50 was for the value of the property converted and $1,000 for punitive damages. Judgment was entered accordingly. The defendants moved for a new trial. The court made an order granting their motion unless within thirty days the plaintiff would file with the clerk her consent in writing that the amount of the judgment be reduced by deducting from it, as of the date of its rendition, the sum of $500, The written consent was thereafter filed and the judgment was amended accordingly. A new trial was then refused. The defendant Casey has appealed from the order and the judgment as amended. Counsel for plaintiff has not filed a brief. We are thus left to determine the appeals as best we may upon the contentions made by counsel for defendant Casey. The first contention is that the complaint does not state a cause of action for a conversion. The sufficiency of it was questioned by general demurrer, which the court overruled. At the close of the evidence and at the suggestion of the court, the pleading was amended by striking out one paragraph and amending another so as to render definite and certain the allegation that at the time of the taking of the property in question the plaintiff was entitled to the immediate possession of it. The defendants objected to the amendment at that time, on the ground that it made the complaint sufficient, whereas prior to the amendment it was wholly insufficient and therefore the court could not lawfully permit or direct the amendment. They did not thereafter question the sufficiency of the pleading in .any way. Counsel now contends that the court erred in overruling the demurrer. This contention is without merit. The pleading as amended took the place of the pleading as it stood at the beginning of the trial. (Butte Butchering Co. v. Clarke; 19 Mont. 306, 48 Pac. 303; Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25.) If, therefore, it be conceded that the original pleading was open to attack by general demurrer, for present purposes the integrity of the judgment must be determined upon the pleading as amended, and not upon the original pleading. The error, if such there was, in overruling the demurrer cannot now avail the defendant. But counsel insist that the complaint as amended is insufficient, in that it fails to allege in terms that the defendants converted the property. While the complaint is not a model and would have been open to an objection by special demurrer on the ground of uncertainty,-it is sufficient to withstand an objection to it on the ground of insufficiency, made for the first time in this court. Counsel contend also that the court had no power to permit or direct an amendment, at that stage of the trial. Wherein the defendants suffered prejudice by reason of it, however, is not pointed out; nor is prejudice disclosed by the record. The power to allow or disallow amendments at any stage of the1 trial is within the discretion of the court. (Rev. Codes, sec. 6589.) If no abuse is shown, the court’s action will be approved on appeal. (Sandeen v. Russell Lumber Co., 45 Mont. 273, 122 Pac. 913; Dorais v. Doll, 33 Mont. 314, 83 Pac. 884.) This discretionary power authorizes a court in proper cases, even on its own motion, to direct an amendment if in its opinion a nonsuit or mistrial may be avoided. It is further contended that the evidence is wholly insufficient to justify the verdict in any amount, as against Casey, or, in any event, that it does not justify a finding of punitive damages. The facts out of which this controversy grew are briefly the following: In August, 1910, the plaintiff and her husband were' occupying a house .in Butte which they had rented fully furnished. The husband, having closed up his business, went to Great Falls to seek employment, expecting the plaintiff to follow him. Before leaving he packed into a barrel and three boxes the glassware belonging to the plaintiff, and other similar articles usually found in a household, together with a set of the Encyclopedia Britannica, and a number of miscellaneous books, sheet music, etc. These latter articles were packed in one of the boxes. The barrel and boxes were marked plainly as the property of the plaintiff and stored at the warehouse of one Doráis, who kept a grocery store in Butte. Doráis kept the packages gratuitously and merely as an accommodation. Presently the plaintiff also went to Great Falls, leaving the packages stored. Some time later Doráis’ grocery business went into the hands of the Credit Men’s Association of Butte, to be wound up for the benefit of its creditors. The association at first attempted to continue sales by retail, but finally concluded to sell out the stock by wholesale. This was done on or about October 12, 1910. The defendants Casey and Shoemaker were employees of the Butte Grocery Company. This company purchased a part of the Doráis stock and had it carted from the Doráis warehouse to its own warehouse. Both Casey and Shoemaker knew about the packages belonging to the plaintiff. While the purchases of the Butte Grocery Company were being carted to its warehouse under the direction of Casey and Shoemaker, Casey directed the drayman to bring plaintiff’s packages to the company’s warehouse. This order was countermanded by Shoemaker and, for the time, the packages were left at Doráis’ place. On a later day the box of books and one of the other boxes was brought to the warehouse with other goods. By whose order this was done does not appear. Casey, who was at the time receiving the goods as they were brought to the warehouse of the Butte Grocery Company, ordered one of the helpers to take the packages up to the second story of the warehouse and store them. WThat the contents of the second box were, the evidence does not disclose; nor does it disclose their value, nor what became of the barrel and the other boxes. In December Mr. De Celles returned from Great Falls to look after the property but could not find any of the packages in the Doráis warehouse or that of the Butte Grocery Company. He was told by both Casey and Shoemaker that they knew nothing about them. Later on, about February 10, 1911, Mr. De Celles, in company with a constable armed with a search-warrant, went to the home of Shoemaker and there found the set of Encyclopedia Britannica and a lot of glassware which he identified as belonging to the plaintiff. He did not find the miscellaneous books and sheet music, nor any other of the articles. They were not found anywhere. Mr. De Celles took away the books, but left the glassware where he found it. About a week or ten days after the boxes were taken to tbe grocery company’s warehouse, in a conversation between Casey and Shoemaker overheard by one of the witnesses who was then in the employ of the grocery company, the statement was made that De Celles was indebted to the company about $35, that the books would bring about $50, and that they (presumably the company) would get more money than the bill amounted to. The witness could not tell who made the statement. Prior to this time someone had opened the box containing the books and the witness had learned what its contents were. This is a summary of all the evidence, except that introduced on the subject of value. It will be noted that direct personal responsibility for the bringing of the two boxes to the company’s warehouse is not fixed upon anyone. Casey’s direction to the drayman was countermanded by Shoemaker and was not obeyed. Since a part of the property in them was thereafter found in Shoemaker’s possession, it is a fair inference that he was' responsible. Casey’s only connection with the matter was his direction to the helper to store the boxes in the warehouse. The possession thus acquired was that of the company and not bis, and though, since dominion over the property inconsistent with the ownership of it by the plaintiff, was thus assumed by the company through his instrumentality, this amounted to a technical conversion of it by him and also the company, if he was acting within the scope of his employment (2 Cooley on Torts, 3d ed., 859 et seq.; Tuttle v. Hardenberg, 15 Mont. 219, 38 Pac. 1070); and though the statute authorizes the imposition of punitive damages in eases of this character if the defendant has acted maliciously, fraudulently or oppressively either in taking or detaining the property in controversy (Rev. Codes, sec. 6047; Bohm v. Dunphy, 1 Mont. 333; Shandy v. McDonald, 38 Mont. 393, 100 Pac. 203; 1 Sedgwick on Damages, secs. 373, 374), there is nothing in the evidence justifying an inference of malice, fraud or oppression in anything Casey did. Apart from the fact that he ordered the boxes stored after they reached the warehouse, there is nothing to connect him with the taking or tbe subsequent de tention. It is true that he stated to Mr. De Celles and the plaintiff that he did not know.anything as to the whereabouts of the boxes at the time the inquiry was made of him. So far as the evidence discloses anything to the contrary, this was true. That Shoemaker subsequently determined to appropriate the articles to his own use and did so is not inconsistent with the want of knowledge of the fact by Casey. Nor was mere knowledge by Casey of Shoemaker’s subsequent misconduct sufficient to render him subject to the penalty which Shoemaker properly in- curred thereby. It not appearing that Casey went further than to refuse to divulge such information as he had, assuming that he had any, that Shoemaker should be punished furnished no reason why. Casey should also. (Sedgwick on Damages, sec. 382.) The evidence was sufficient to justify a verdict against Casey for the value of the contents of the box containing the books and also for a nominal amount for the conversion of the other box. That the verdict was excessive because given under the influence of passion and prejudice of the jury, however, is clear. The amount to be awarded in this class of cases is lodged in the discretion of the jury; but this discretion is not unlimited or to be exercised arbitrarily. It will not do to say that the jury are free to make the measure of punishment whatever they choose, without any just or reasonable relation to the wrong done. No definite rule can be declared as to when the court should interfere and when it should not; yet since a new trial may be ordered when it appears that the jury have acted under the influence of passion and prejudice (Rev. Codes, sec. 6794), it follows that when the award is so large that it cannot be accounted for on any other theory and is wholly out of proportion to the wrong done and the cause of it. the conclusion is irresistible that it was measured by the passion and prejudice of the jury, rather than by an estimate made in the exercise of their discretion, and it becomes the duty of the court to set it aside. So far as a general rule on the subject can be stated, this seems to be the one recognized by the courts. (Sedgwick on Dam ages, sec. 388; Saunders v. Mullen, 66 Iowa, 728, 24 N. W. 529; Texas Land and Cattle Co. v. Nations (Tex. Civ.), 63 S. W. 915; Flanary v. Wood, 32 Tex. Civ. 250, 73 S. W. 1072; International & G. N. R. Co. v. Telephone & Tel. Co., 69 Tex. 277, 5 Am. St. Rep. 45, 5 S. W. 517; McCarthy v. Niskern, 22 Minn. 90; Buford v. Hopewell, 140 Ky. 666, 131 S. W. 502.) Applying this rule to the facts of this case, we think the award of the jury was out of all proportion to the wrong done, even upon the assumption that Casey was guilty of such misconduct as would call for punishment. Notwithstanding the court required the plaintiff to accept the reduction of one-half of the award, the reduced amount is, under the authorities cited supra, still out of all proportion to the extent of the wrong done. In requiring the plaintiff to remit what it deemed the excess, the trial court evidently was of the opinion that the award of compensatory damages was justified by the evidence. As we view it, the plaintiff was entitled to recover from Casey some amount, viz., the value of the contents of the box of books less the value of the Encyclopedia, the possession of which plaintiff recovered from Shoemaker, together with nominal damages for the other box. But the gross value thus recoverable could not exceed the value alleged in the complaint. Excluding the Encyclopedia, the value of .all the articles that came into the hands of Casey, so far as it was shown, is alleged to be the following: Sheet music, $15; miscellaneous books, $18. Add to this amount a nominal sum of $1 for the conversion of the second box, and adding interest from the date of the conversion, which the court properly instructed the jury they might allow (Rev. Codes, sec. 6071), the gross sum chargeable to him could not exceed $38. What amount the jury should allow for the detention of the Encyclopedia was not submitted to nor considered by them. If it be assumed that the jury should have found the value of the Encyclopedia and included it in their verdict—and this they were authorized to do, as we shall see hereafter—-the amount of the verdict still cannot be accounted for, for upon the undisputed evidence this itself was of the value of at least $50. It is entirely possible that the jury, having had their prejudices aroused by the misconduct of Shoemaker, who furtively took and converted the property, and by reason of the fact that the plaintiff is a woman, disregarded the evidence tending to show the amount of compensatory damages and arbitrarily fixing the amount in this behalf, proceeded to punish both defendants for Shoemaker’s misconduct, thinking this course would render plaintiff whole for the wrong done her. On the whole, and upon any theory of the case, we are of the opinion that the appellant is entitled to a new trial. In this view we are confirmed when we come to examine the instructions indicating the theory upon which the cage was submitted to the jury. The defendants requested the court to instruct the jury, in effect, that since it appeared from the evidence that plaintiff had recovered possession of the Encyclopedia before the bringing of the action, she was not entitled to recover the value of it, the law being that she could not recover it and also its value. The request was refused and the case was submitted under instructions which authorized the jury to find and return a verdict for all the articles alleged to have been converted, including the Encyclopedia. "While it may properly be said that the requested instruction was objectionable, in that it would have permitted the jury to regard the recovery of the books as pro tanto a complete defense to plaintiff’s action, whereas it was proper to consider it only in mitigation of damages (Watson v. Coburn, 35 Neb. 492; Murphy v. Hobbs, 8 Colo. 17, 5 Pac. 637; Cooley on Torts, p. 78; Moak’s Underhill on Torts, p. 97), those submitted by the court were no less so, because they allowed the jury to find a verdict for the full value of these books notwithstanding plaintiff had them in her own possession at the time the action was brought and at the time of the trial. Other errors are assigned and discussed by counsel. We do not find prejudicial error in any of them. The judgment and order are reversed and the cause is remanded for a new trial. Reversed md remanded. Mr. Justice Holloway and Mr. Justice Sanner concur.

PER CURIAM It is ordered that the appeal in the above-entitled cause be dismissed in accordance with stipulation of counsel on file herein.

■MB. JUSTICE SANNEB delivered the opinion of the court. The complaint alleges: That the plaintiff is the owner of 1305/1500 of what is known as the Moreland canal and water right in Gallatin county, Montana; that the defendant is the owner of 83/1500 of the same; that the defendant became such owner by virtue of a deed executed and delivered to him by the plaintiff on May 23, 1905, which deed, after describing certain •real estate thereby conveyed, contains the following language: “Including with said land the following interest in and to the canal known as the Moreland canal, to wit: 83/1500 interest. The party of the second part to assume his proportionate amount of the cost of maintaining said canal”; that said deed was delivered and accepted by the defendant in consummation of a certain written contract entered into by the plaintiff and the defendant on May 23, 1905, which contract contained the following provision: “Said White further agrees to stand 83/1500 of cost of maintenance of said Moreland ditch”; that between May 23, 1905, and December 31, 1909, “plaintiff did and performed all the work and labor and furnished all the money expended in and about the maintenance of said canal during said time, and in full completion of said work of maintenance, said work and labor done and money expended amounting in the aggregate to the sum of $5,458.04, and that the share thereof due from defendant to plaintiff pursuant to the covenants and agreements of defendant contained in said deed and contract as aforesaid, amounts to $302.12 (or 83/1500 of said sum of $5,458.04), no part of which has been paid, though defendant has often been requested to pay the same by plaintiff. ’ ’ A general demurrer to this complaint was overruled, and after answer by the defendant and trial to the court without a jury, the plaintiff was adjudged to have and recover the sum of $72.80. The plaintiff, deeming that judgment inadequate, appeals therefrom, as well as from an order overruling its motion for new trial. Certain contentions are presented in support of the appeals, grounded upon an alleged misconstruction by the trial court of the provisions of the contract and deed above quoted; but these we cannot consider, for the reason that the respondent, invoking the provisions of section 7118, Revised Codes, insists—and quite correctly-—that the complaint does not state facts sufficient to support any judgment. Under the facts stated by the complaint, the parties stand in the position of tenants in common. This circumstance is recognized, and argued by the appellant itself. Such being their situation, neither was the agent of the other; neither could charge the other with any expense incurred in the repair or improvement of the common property, except by consent, or, in case of necessity, upon prior notice to the other with demand and refusal to co-operate therein. (Freeman on Cotenancy, etc., secs. 182-185, 261, 262; 38 Cyc. 50; Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911, and note, 29 L. R. A. 449, 21 S. E. 746; Cooper v. Brown, 143 Iowa, 482, 136 Am. St. Rep. 768, 122 N. W. 144; note to Robinson v. McDonald, 62 Am. Dec. 482; Stickley v. Mulrooney, 36 Colo. 242, 118 Am. St. Rep. 107, 87 Pac. 547; Mumford v. Brown, 6 Cow. (N. Y.) 475, 16 Am. Dec. 440; Kidder v. Rixford, 16 Vt. 169, 42 Am. Dec. 504; Calvert v. Aldrich, 99 Mass. 74, 96 Am. Dec. 693; Welland v. Williams, 21 Nev. 230, 29 Pac. 403; Stevens v. Thompson, 17 N. H. 103; Taylor v. Baldwin, 10 Barb. (N. Y.) 582.) It was therefore necessary for the appellant to allege and prove consent or ratification; or, failing that, necessity with a prior notice, demand and refusal. The complaint does not contain any such allegations, and the deficiency was not supplied by pleading the deed, because the stipulation above quoted—which is the only one at all pertinent—merely fixes the measure of respondent’s general duty and cannot be construed as referring to the particular work or expenditure in question, nor as an admission of its necessity, nor as an authorization of appellant to do it either then or at any particular time. It was not found by the court that there had been consent, notice, demand or refusal. To sustain any judgment we should be required to deem the complaint amended and to imply essential findings; but the complaint cannot be deemed amended because the bill of exceptions does not present any evidence or disclose that any of these facts was established by evidence received without objection; and we cannot imply findings of fact without either pleadings or proof. As the case is presented, the duty of the court is to make disposition of it according to the substantial rights of the parties as shown upon the record. (Rev. Codes, sec. 7118.) The order appealed from is therefore affirmed, but the judgment is reversed at the cost of appellant, and with directions to the district court of Gallatin county to vacate its order overruling the demurrer to the complaint and to enter an order sustaining the same. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Rehearing denied April 22, 1914.

MR. CHIEF JUSTICE BRANTLT delivered the opinion of the court. The plaintiff recovered a judgment for damages for personal injuries alleged to have been suffered by him during the course of his employment as a servant, by the defendant Missoula Light & Water Company. Adam Hadalin was also made a defendant, but the jury found in his favor. Plaintiff has not appealed, nor did he reserve and incorporate in the record exceptions to any rulings adverse to him during the course of the trial. The Missoula Light & Water Company has appealed from the judgment and an order denying its motion for a new trial. This defendant, hereinafter referred to as “the company,” is the owner of a franchise granted by the city of Missoula, whereby it is authorized to lay the mains and pipe-lines in the streets of the city necessary to enable it to distribute water to the inhabitants. The franchise in express terms grants the privilege of making such excavations in the streets and alleys as are required to install the system of mains and pipe-lines and to keep it in repair. It provides that the company shall repair or pay for any damage done by it to property or persons by reason of the construction or maintenance of the system. Under an arrangement between the company and the defendant Hadalin, the latter had undertaken to do, at a stipulated price per foot, all the digging and refilling of trenches required by the company for the laying of pipe-lines, for the year 1910. Under this arrangement Hadalin employed his own men, including a foreman, and furnished all the tools and implements necessary to do the work, and agreed to hold the company harmless as against any claim for damages by reason of the doing of the work or any part of it. At the time of the accident the plaintiff, with others, in all about fifteen men, was engaged, under the direction of one Odenwald, Hadalin’s ostensible foreman, in excavating a trench on South Seventh street, in what is designated in the record as No. 2 Daly Addition to the city of Missoula. The addition had not, at the time, been incorporated in the city, because the owner of it had not complied with the requirements of the statute relating to additions to cities and towns. (Rev. Codes, secs. 3212, 3213, 3465 et seq.) The pipe-line theretofore laid on this street was, by the work in hand, being extended from the city limits into the addition' at the expense of the owner. The place where the accident occurred was therefore not within the city limits, though the street mentioned is an extension of the street of the city having, the same designation. The manner of doing the work was as follows : Each employee was allotted a section of twelve and a half or thirteen feet, which he was expected to complete during the forenoon.' A like amount was allotted to him for the afternoon. In case any one of them had not fully completed his allotment within the time allowed, the others would assist him. The trench was five and a half feet deep and two feet in width. The debris was shoveled out upon the surface of the sides of the trench. At noon on the day of the accident the plaintiff had finished the task allotted to him up to that time. As soon as he had taken his lunch he went to the assistance of another who had not completed his task. At that point the ditch had been completed to the depth of about four feet. While the plaintiff was engaged in lowering it to the required depth, the walls for a distance of from fifteen to thirty feet caved in and partially covered him, breaking his left leg below the knee. From causes which super vened thereafter it became necessary for the limb to be amputated above the knee. It is alleged that the defendants were engaged in excavating ditches in certain streets of the city of Missoula; that they well knew, or in the exercise of ordinary care ought to have known, that the nature of the soil in which the excavation was being made required the walls of the completed portions thereof to be supported by some sort of cribbing or other appropriate means in order to prevent them from crumbling or caving; that the lack of such cribbing or support rendered it unsafe to work in the incomplete portions; that with knowledge of these conditions the defendants wholly failed and neglected to provide any cribbing or support for the walls of the completed portions; that plaintiff did not know of the conditions; and that while he was engaged in his work, the walls of the completed portion crumbled and caved in, causing the walls of the incomplete portion, where the plaintiff was at work, also to crumble and fall upon him, whereby he suffered the injuries complained of. The defendants filed separate answers; the company, admitting its corporate capacity and plaintiff’s injury, denied all the other material allegations of the complaint. Among other matters designated as affirmative defenses, it alleged that at the time the plaintiff was injured he was not in the employment of the company, but was in the employ of its codefendant Hadalin, under an independent contract, by the terms of which the latter had exclusive control of the construction of the trenches required by the company, at a stipulated price per foot for excavation and refilling, and that neither the company nor any of its officers or agents had any right to control, or was responsible for, any act or omission of said Hadalin. The defendants also relied upon the special defenses of contributory negligence and assumption of risk. There was issue by reply. The brief of counsel for the company contains thirty-five assignments of error, to most of which they have devoted attention in their argument. Many of them are wholly without merit. We shall give special notice to such of them only as will serve to guide the court on another trial, which must be ordered on the ground of insufficiency of the evidence to sustain the verdict. 1. The sufficiency of the evidence to make a ease for the jury was challenged during the trial, both by motion for nonsuit and by request for a directed verdict. The principal contention now made is that the evidence introduced by the plaintiff fails to show prima facie that, at the time of his injury, he was in the employment of the company, and that, if it be conceded that he was employed by the company and that the latter was guilty of negligence in failing to support the walls of the completed portions of the trench by any suitable means, the evidence wholly fails to shew a causal connection between this dereliction of duty and the plaintiff’s injury. The plaintiff was the only witness who testified in his behalf as to the character of the work, the purpose for which it was being done, the surrounding circumstances, and how and by whom he was paid his wages. When his case was closed .no contract had been shown between Hadalin and the company. On the other hand, it appeared that the trench was being excavated for the company, for the laying of a pipe-line which was to be part of its system, and that it was-engaged, with another crew of men, in laying pipe therein as fast as it was completed. It was shown that the plaintiff’s wages were being paid by Hadalin, but Hadalin’s relations to the company were not shown, except that he was directing the work as it progressed. One seeing how and for what purposes the operations were being conducted, and knowing, as he must, that corporations can act only through agents, would naturally infer that the whole enterprise was that of the defendant company. These circumstances, we think, furnish a sufficient basis for an inference, in the absence of countervailing evidence or circumstances in themselves explanatory of the situation, that all the men engaged were the employees of the company. It was said by Chief Justice Cock-burn, in Welfare v. London & Brighton Ry. Co., L. R. 4 Q. B. 693: “I agree that where a thing is being done upon the premises of an individual or a company in the ordinary course of business, it would fairly be presumed that the thing was being done by a person in the employment of the principal for whose benefit the thing was being done.” To the same effect are the remarks of Justice Clopton, in Borne & Decatur R. R. Co. v. Chasteen, 88 Ala. 591, 7 South. 94: “As no contract was produced or proved, which was in the power of the defendant, evidence that the engine and cars belonged to the company, and that the road was being constructed for its benefit, if believed, prima facie shows that those employed in the work of construction were the agents and servants of the company, and devolves on it the burden to prove that the road, engine, and ears were in the possession and under the control of Callahan as a contractor, and that those employed were exclusively his agents and servants. As an inference may be reasonably drawn that the company retained the right to direct what should be done, and how—the general mode of performance—though Callahan may have employed and paid the workmen, the sufficiency of the undisputed facts mentioned to overcome the presumption arising from ownership was a question for the jury, on consideration of all the circumstances proved.” The decisions recognizing the doctrine stated above are not numerous, but the following are more or less directly in point: McCamus v. Citizens’ Gaslight Co., 40 Barb. (N. Y.) 380; Redstrake v. Swayze, 52 N. J. L. 129, 18 Atl. 697; Dillon v. Hunt, 82 Mo. 150; Perry v. Ford, 17 Mo. App. 212. See, also, Moll on Independent Contractors, etc., sec. 32, and note to Richmond v. Sitterding, 65 L. R. A. 445, at page 459. Of course, it was indispensable for the plaintiff to show his employment in the first instance. Without a prima facie showing of the relation established by it, he could not recover. Having the affirmative of the issue, the burden was upon him to produce evidence to support it, and as to this issue the burden was upon him throughout. (Rev. Codes, sec. 7972.) But under the doctrine of the eases cited supra, the circumstances disclosed by plaintiff’s own testimony were sufficient to call for the production of evidence to rebut the presumption thus raised against the company. In a given case the circumstances developed by plaintiff’s witnesses may be such as to furnish no basis for an inference in his favor. As was pointed out by Chief JusticeCoekburn, in Welfare v. London & Brighton Ry. Co., supra, the character of the work done may be such as to rebut any presumption that the person doing it is in the employ of the defendant or is its agent. Under this condition of the evidence the plaintiff has not made a prima facie case calling for the opinion of the jury, but must produce other evidence to avoid a nonsuit. The defendant is responsible upon the principle of the maxim “Qui facit per alium facit per se”; and if at the end of plaintiff’s case there has not been made out a prima facie case of employment by the defendant, or at the end of the whole case it has not been disclosed by a preponderance of the evidence that the defendant is the master—the responsible principal—the plaintiff cannot recover. The defense that the person responsible for the work is an independent contractor is not affirmative in its nature. At common law it was available under a plea of not guilty. (Greenwalt v. Horner, 6 Serg. & R. (Pa.) 71; Hall v. Snowhill, 14 N. J. L. 551; Plowman v. Foster, 6 Cold. (Tenn.) 52; Bidd’s Admr. v. Norfolk & W. R. Co., 87 Va. 711, 14 S. E. 163.) Under the Code it is. equally available under a general denial, because evidence tending to show that a person other than the defendant is the responsible principal—the master—not only tends to negative the fact of employment by the defendant, but also that the negligence causing the injury was his. So far as we know, no court has announced the rule that the defense must be established by a preponderance of the evidence. If the plaintiff’s case as made at the close of his evidence calls for the opinion of the jury, the defendant must thereupon proceed with his evidence in rebuttal, but he is never required to assume any greater burden; and if at the close of the whole ease it appears that the work was being done by an independent contractor, or the evidence on this point stands at an equipoise, he is entitled to a verdict. Just here it may be remarked that the trial court adopted the view that the burden was upon the company to estab list this defense by a preponderance of the evidence. This was clearly error. While we think the evidence sufficient to show prima, facie an employment by the company and a dereliction of duty in the failure to provide against the caving of the walls of the com- pleted portion of the trench, we also think it wholly fails to show, directly or inferentially, any causal connection between this dereliction and the injury suffered by the plaintiff. Under the allegations of the complaint, the failure to crib or support the walls of the completed portion caused the walls of the incomplete portion to crumble and cave. It is the duty of the master to exercise ordinary diligence to furnish his servant with a reasonably safe place in which to work. He cannot delegate this duty to another so as to avoid being held responsible for any negligence in that behalf. This rule, however, does not apply when the servant is employed in making a dangerous place safe, or when the making of the place is an incident of the work in which he is engaged and the danger arises from the work as it progresses. This is true particularly of mining and other industries which from their nature require service in dangerous places, as well as in the making of them. The master, if a corporation, must necessarily employ someone to do this work. The necessities of the ease, therefore, require the servant, when he enters upon such an employment, to assume the risk of such dangers as are incident to it. (Thurman v. Pittsburg & Mont. Copper Co., 41 Mont. 141, 108 Pac. 588; Labatt on Master and Servant, 2d ed., sec. 1177.) The plaintiff is a foreigner. He speaks broken English, and some of his statements are somewhat quaint. The following excerpts from his evidence will be sufficient to show that it wholly fails to support the allegations in the complaint: “I came back this end and helped this man here; and my bank started to cave in and reached me and buried me up. While I was working in this ditch in the afternoon, I was turned east and the cave-in came from the west. I was digging and shoveling both in the afternoon; digging I believe and shoveling is the same thing. I was working on the west side when I was through there, and went to help another man when I was hurt. The dirt came on me just about here. After the dirt buried me I did not lose consciousness. I started to yell; another man came and dug me out. I said something a while ago about the ditch caving starting at the west. I saw that afterward; after they dug me up. The time they took me up they left me there; then I turned back and saw it was caven on the west side of me; it was about from thirty to thirty-five feet west. * * * The first man west of me was about thirty or thirty-five feet. When the dirt covered me up it did not cover my head and the upper part of my body'; I looked back west at the same time the cave struck me. They dug me up, and I could not myself, and I turned back, and they helped me, took me out while I was looking back, too. I turned round and looked back and saw the ditch’ just as the cave struck me and saw the cave-in. It was caving in, sliding, falling. Back of me at the time I turned around I saw the ditch falling in. At that time the ditch was falling in’ about thirty or thirty-five feet. I did not see, could not see, it fall; it was fallen already. I did not see it fall; I just saw what buried me. I did not see the cave fall at all. I felt that it was falling. I do not know where that cave started back of me. It started with a piece of work I was through in the morning. I know that because I saw it after; saw it after it was caved in. Q. It was all fallen down when you saw it ? A. That end of it faced me; I didn’t was looking around. As to whether or not it caved both ways, I did not see it. I saw when it reached me; it buried me up. All I know is when I looked at it the ground was caved in there for thirty or thirty-five feet. I know it started back of me. I was not looking back at the time it was caving. I do not know where it started.” This evidence was not aided by the testimony of any other witness. The witness Hadalin said: “When I went there in the afternoon about twelve or fifteen feet in length of the bank had fallen into the ditch on the north side of the ditch. * * * When I got back there in the afternoon I found that twelve or thirteen feet had caved in. Mr. Odenwald and I measured it; I do not exactly remember the number of feet, but it was only a short distance, twelve or fifteen feet to the best of my knowledge.” Odenwald testified: “The cave-in of the ditch on the north bank was about twelve or fifteen feet, and on the south bank not quite that much, I don’t think.” Marino Scandello, a fellow-workman of plaintiff, testified: “I noticed how far along the ditch the cave-in extended; it was about fifteen feet. De Sandro was in the center of this cave, and the ground was caved on both sides of where De Sandro was. I was there before De Sandro was liberated and taken out of the ditch.” The utmost that this evidence tends to show is that the plaintiff was caught and injured by the caving of the walls at the place in which he was working. Whether he himself caused the fall of the material by a stroke of his pick at that place, or whether because of the nature of the ground, disturbed as it was by his work, it began to cave there and extended to the completed portion, or whether it began in the completed portion, and the fall there carried with it the walls at the point where the plaintiff was at work, are questions left entirely to speculation. If the nature of the soil at that place was such that the plaintiff’s operations were likely to cause it to fall, this was a catastrophe which he was bound to foresee and guard against; for it is conceded that cribbing could not have been put in at that place until-that portion of the trench had been completed. It is not sufficient that the plaintiff prove the injury. It is -necessary that he go further and show by some substantial evidence the causal connection between the negligence of the defendant and the injury; for the master cannot be held liable if his negligence was merely a condition, as opposed to the efficient cause of the injury. (Labatt on Master and Servant, 2d ed., sec. 1570; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243.) The efficient cause may be shown by indirect evidence, but it cannot be said to be established by such evidence unless the circumstances are such that they not only tend affirmatively to show it, but also tend to exclude any other. (Monson v. La France Copper Co., supra; McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515.) The further contention is made that the evidence as a whole demonstrates that the plaintiff was employed by Hadalin as an independent contractor, and hence that the court should have directed a verdict for the company. During the years 1909 and 1910 the company was apparently engaged in reconstructing and extending its system. It had entered into a written contract for the year 1909 with Hadalin & Campbell, as copartners, under the terms of which the latter agreed to dig and refill all trenches required for the work during the year, at a stipulated price per foot. The contract had been executed to the satisfaction of the company. For the year 1910 it contracted exclusively with Hadalin. This contract the evidence tended to show was to be reduced to writing, but that this was not done because Mr. Brown, the manager of the company, was too 'busy to attend to it. In September, after the accident had happened, this was done. Except the price per foot stipulated for, the writing expressed substantially the stipulations and conditions contained in the one entered into the year before, though there was some discrepancy in the statements of Brown and Hadalin on the subject. Both testified, however, that it contained the terms and stipulations which had been agreed upon by them at the time. The writing was dated back to April 1, the time at which Hadalin actually began work. Under its terms Hadalin agreed to do all the excavation and refilling of trenches required by the company during the year 1910, to supply his own tools and other means of doing, the work, to complete the work from time to time, and at points indicated by the company, in a workmanlike manner, subject to the approval of the foreman of the company, and to save the company harmless against any claim for damages caused by him. The company on its part was to pay Hadalin from time to time on estimates of the amount of work done. This evidence tends further to show that from April until the contract was reduced to writing, periodical settlements were made between Hadalin and the company, based upon estimates at the price per foot named in the contract, the company paying a lump sum for the amount due, and that Hadalin employed and paid all the men who did the excavation work. It is insisted by counsel that this evidence stands uncontroverted by any evidence in the record, and hence that the court erred in submitting to the jury the question whether Hadalin was an independent contractor. With this contention we do not agree. But for the fact that the parties prepared and signed the writing in September, the question whether there was or was not a contract would have been left entirely to rest upon parol evidence. The preparation of the writing at that time did not change the situation so far as it covered the time prior to the accident. In the absence of the writing it would have been the exclusive province of the jury to say whether there was or was not a contract; for whether there was or not depended upon the truth of the statements of Brown and Hadalin in that behalf, in the light of the surrounding circumstances. There was some evidence that Wright, the general foreman of the company, was present and gave some orders to Odenwald touching the completion of the particular work on which Hadalin was engaged on the day before the accident. This was a circumstance to be considered by the jury in connection with the other evidence as to how far the company retained control of the work. The mode pursued for periodical settlements between Hadalin and the company tended to corroborate Hadalin and Brown as to the terms of the contract, but this did not so conclusively establish the fact of its existence that the court was warranted in taking the case from the jury. The production of the writing did not aid the defendant’s case; on the contrary, the fact that it was executed after the accident, and dated back to cover the time of its occurrence, might be suggestive of fabrication in order to save the company from liability. This was also a circumstance to be considered by the jury; for the question of good or bad faith of the transaction thus was made a matter of inquiry to be determined by the jury. When such a contract is in writing and clearly expresses all the undertakings of the parties, the relation it creates between them is to be determined exclusively by the court. (Good v. Johnson, 38 Colo. 440, 8 L. R. A. (n. s.) 896, 88 Pac. 439; Moll on Independent Contractors, etc., see. 32; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Mayhew v. Sullivan Min. Co., 76 Me. 100.) So, too, when, though verbal, there is no controversy or uncertainty in the evidence as to the terms of the contract and there is room for only one inference, it is to be construed by the court. (Drennen v. Smith, 115 Ala. 396, 22 South. 442; Moll on Independent Contractors, etc., see. 29.) When, however, as in this case, the contract is not in writing, and the evidence is not entirely clear as to its terms, and different deductions may be drawn from it, especially so when a question of good faith is at issue, the relations of the parties are to be determined by the jury under proper instructions. (Rome & D. R. Co v. Chasteen, 88 Ala. 591, 7 South. 94; Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58; Daley v. Boston etc. R. R. Co., 147 Mass. 101, 16 N. E. 690. See, also, note to Richmond v. Sitterding, cited supra, 65 L. R. A. 508.) The contention is also made that the court should have directed a verdict on the ground that the danger incident to the employment was shown by the evidence to have been obvious and fully understood by the plaintiff. On the theory that the injury was caused by a eave-in in the completed portion of the trench, which would net have occurred if precaution had been taken to make safe the completed portion, we think the question whether plaintiff assumed the risk of danger from this source was properly submitted to the jury. 2. We have examined the several assignments upon the rulings of the court in admitting and excluding evidence. Some of them were objectionable from a technical point of view, yet we do not think the company suffered prejudice by reason of any of them. Others of which complaint is made were correct. To illustrate: The ordinance granting the franchise which the company acquired by assignment from the original grantee was ad mitted in evidence without preliminary proof that it is one of the ordinances of the city. That the franchise was granted by this ordinance is admitted in the answer. While it was not relevant to any issue involved, its admission could not have wrought any prejudice. It appeared from the testimony of plaintiff that he had been paid his wages by Hadalin by cheek, and that he had signed the pay-roll kept by Hadalin. On cross-examination he was asked whether after he received the checks signed by Hadalin, he knew for whom he was working. An objection to the question was sustained on the ground that it was not proper cross-examination, and that it called for the conclusion of the witness. We think it was wholly immaterial whether the plaintiff knew for whom he was working, the real inquiry being who in fact was his employer. Though he knew that Hadalin paid him, he could not be expected to know the relations of Hadalin to the company. Again, this witness was permitted, over objection, to state that he saw Mr. Wright, the foreman of the company, on the line of trench the day prior to that on which the accident occurred, and that the latter had ordered Odenwald, the foreman in charge, to beep the crew at work at that place the following day. The evidence was competent as reflecting upon the relations of the parties, and as tending to show how far the company retained control of the work being superintended by Odenwald. 3. The instructions submitted to the jury are criticised in many particulars, the chief complaint being made of those wherein the court declared that the company must, in order to avoid liability, show by a preponderance of the evidence that the plaintiff was employed by Hadalin as an independent contractor. Though the contract was pleaded as a special defense, counsel by specific objection .and exceptions to the instructions on the subject sufficiently reserved the question as to who should sustain the burden of proof. What has already been said in discussing the evidence is sufficient to dispose of these assignments. It is sufficient also to dispose of the assignments upon the question whether the court should have instructed the jury to find for the defendants. There was evidence tending to show that the nature of the soil in which the excavation was being made was such that cribbing or other suitable support was necessary to prevent the walls of the completed portions from caving. There was also evidence tending to show that caving could have been prevented as well by “shearing” off the lips of the trench or digging it wider at the top, thus removing a portion of the superincumbent weight, and that a short time prior to the accident special instructions had been given by Hadalin to all the men working on the trench to do this. These instructions, the witness stated, were given because on a preceding day a cave-in had occurred, slightly injuring one of the men. The plaintiff denied that he had been so instructed. Counsel requested the court to instruct the jury that shearing was a reasonable and proper method to protect the workmen, and that if they found that special instructions had been given to the plaintiff to pursue this method, but that he had failed to do so, and that the accident was the result, they should find for the defendants. The court modified this instruction so as to submit also the question whether or not the method was reasonable and proper. Contention is made that the court erred in modifying the request. The evidence tending to show that the method called “shearing” was proper and safe was not contradicted or impeached in any way; indeed, that it would have furnished ample protection to anyone working in the trench is manifest. Of course, it was a question for the jury whether Hadalin had given instructions to the men, as he and other witnesses stated. Since the evidence as to the propriety and safety of the method was not contradicted, but was entirely in accord with the experience and common observation of men, the court might well have assumed it true and given the instructions as framed by counsel. We do not think, however, that prejudice was wrought by the modification. The question whether the company, operating as it does under a franchise from the city, could let a contract to Hadalin for the digging and refilling of the trenches, so as to relieve itself from liability to Hadalin’s employees for damages for injuries caused by his negligence, was raised during the course of the trial. The court held that such a contract is valid, as is manifest from the fact that it permitted the jury to find whether there was a contract or not. Counsel for plaintiff, so far as the record shows, did not make objection to any instruction and reserve ■ exception, under the provisions of the Code (Rev. Codes, sec. 7118), to the action of the court in that behalf, so as to require this court to review it. In their briefs counsel have devoted a great deal of space to a discussion of the validity of such a contract, and also to the question whether it was invalid so far as any of the work to be done under it was without the city limits. Since the court held in favor of the company as to the validity of the contract, it has no right to complain. Plaintiff cannot complain because counsel did not reserve the the question, as required by the statute. Under these circumstances we must accept the opinion of the trial court as to the law of the case for the purpose of these appeals, and decline to undertake a determination of the question involved. A discussion of it at this time would be purely academic, and any conclusion arrived at with reference to it would be obiter. The same would be true as-to a discussion and decision of the question whether, though the contract, so far as it included work done within the city, was invalid, it was valid as to work done without the city limits; for if the contract was valid, it applied to any work which might be done undér it within or without the city. 4. It is insisted that since the jury found in ’favor of Hadalin, who had general charge of the work, thus acquitting him of negligence, the company was entitled to a judgment notwithstanding the verdict against it. The question presented by this contention has practically been foreclosed by this court by the decisions in Verlinda v. Stone & Webster Eng. Corp., 44 Mont. 223, 119 Pac. 573, and Melzner v. Raven Copper Co., 47 Mont. 351, 132 Pac. 552. It is true that the verdict in each of these eases was silent as to the servant who was made eodefendant with the master, while here it is in favor of the servant. But we think the formal acquittal of the servant or agent through whose wrong the injury was done should not deprive the plaintiff of what the jury has given him, if the evidence shows that he has suffered wrong. As was said in Verlinda v. Stone & Webster Eng. Corp., supra: “The conclusions reached by jurors are sometimes inexplicable. Often they arbitrarily find against one party and in favor of another without any apparent reason; but, if the evidence justifies the verdict as to the party held, there is no reason why it should not be deemed good as to him, notwithstanding there is no finding as to the other. It seems to us that the better rule is that, if the evidence is such that the jury might have found against both the master and the servant, the plaintiff should not be denied his recovery against the master because the jury were unable to agree upon a verdict against the servant, or arbitrarily disregarded the evidence tending to show negligence on the part of the servant.”- There are cases which adhere to the rule which counsel invoke. Doremus v. Root, 23 Wash. 710, 54 L. R. A. 649, 63 Pac. 572, Morris v. Northwestern Improvement Co., 53 Wash. 451, 102 Pac. 402, and Hayes v. Chicago Telephone Co., 218 Ill. 414, 2 L. R. A. (n. s.) 764, 75 N B. 1003, are in point. We prefer, however, as indicated by the decision in Verlinda v. Stone & Webster Eng. Corp., supra, to follow the doctrine announced by other courts: That where the jury arbitrarily acquits the servant or agent through whose negligence the wrong was done, the verdict against the principal ought to be allowed to stand; the reason being that the plaintiff should not be concluded by the capricious conduct of the jury. (Illinois Central R. Co. v. Murphy’s Admr., 123 Ky. 787, 11 L. R. A. (n. s.) 352, 97 S. W. 729; Gulf etc. Ry. Co. v. James, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744; Texas & P. Ry. Co. v. Huber (Tex. Civ. App.), 95 S. W. 568.) This doctrine may not be strictly logical, but it is equally as logical as that announced in the eases cited; for under the rule followed by them, the plaintiff is deprived of his right of recovery on purely technical grounds. But aside from this consideration, for aught that we can gather from the record, the jury in this case did not arbitrarily or capriciously acquit Hadalin. Upon the theory that the work was being done by the company through Odenwald and Hadalin, both being its servants, the jury may have concluded that since Odenwald had direct, personal supervision, it was his duty, and not that of Hadalin, to take precautions for-the safety of the employees, and that the company should be held because of his failure to perform the duty delegated to him. From this point of view, Hadalin was an intermediate agent, and ought not to have been held liable for Odenwald’s dereliction. The judgment and order are reversed and the cause is remanded for a new trial. Reversed and remanded. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. Action in conversion. Thé defendants prevailed in the lower court, and plaintiff has appealed from an order denying it a new trial. . Plaintiff’s claim of title to the property out of which this controversy arose rests upon alleged purchases of it from the Shackleton & Whiteway Construction Company on May 29 and June 26,1905. Defendant Parr claims the same property by virtue of his purchase of it at sheriff’s sale following an attachment levied on July 8, 1905. A more detailed statement of the facts introduces the opinion on the former appeal. (Western Mining Supply Co. v. Quinn, 40 Mont. 156, 135 Am. St. Rep. 612, 20 Ann. Cas. 173, 28 L. R. A. (n. s.) 214, 105 Pac. 732.) Upon the last trial the result of the controversy was made to depend upon the answers to the inquiries: Was there a sale of the property by the Shackleton & Whiteway Construction Company to plaintiff ? And, if so, was there such an immediate delivery and actual and continued change of possession as to satisfy the statute of frauds?' (Rev. Codes, see. 6128.) In our consideration of the matters we have not made any distinction between the plaintiff and its immediate predecessors. While there are items of evidence and circumstances which might have raised a doubt in the minds of the jurors as to whether there was any sale at all by the construction company to plaintiff, we may assume that, as between the parties, there was a valid sale, and the determining question then is: Was there a delivery of possession of the property? The only persons who assumed to know what was done were Suiter, who acted for and on behalf of the construction company, and Farnham, who acted for the plaintiff. These two witnesses told the same story; and, if there was any delivery at all, it occurred on June 26, 1905, and resulted from the delivery by Suiter to Farnham of the key to the warehouse which contained the balance of the property. Upon the former appeal we held that if there was such a symbolical delivery, and the construction company thereafter ceased to exercise any ownership or control, it was sufficient as against the claim of the attaching creditor. (Western Mining & Supply Co. v. Quinn et al., above.) Upon this trial Suiter and Farnham were required to go into details as to their transaction, and in doing so they testified, that the warehouse was entered only through the office door and a basement door, the other doors fastening upon the inside, and that the basement was occupied by one Lawlor as a livery barn. Whether Farnham received a key to the basement is not made plain, but in ány event, about the time of this supposed delivery, Lawlor caused a new lock to be placed upon the basement door and retained the keys to that lock. Practically all of the machinery, lumber, etc., was housed upon the floor above the livery barn and access to it had only through the office door. According to Suiter and Farnham, that office door was fastened by means of a Yale lock, and it was through the delivery of the key to that Tale lock by the construction company, acting through Suiter, to the plaintiff, acting through Farnham, that delivery was made, if made at all, on June 26, 1905. If this testimony had been accepted by the jury, a different result would have been reached; but it was not believed by the jury, and it was not uncontradicted. Lawlor and Parr each testified that there was not any Tale lock on the office door, at the time the attachment was levied, and they and other witnesses testified that there was not any evidence that a Tale lock had ever been on the door. Upon this contradictory evidence it was for the jury to determine whether there was in fact any delivery, and the verdict is conclusive against the plaintiff and fully justifies the trial court’s ruling. A new trial should not be granted except for reasons cogent and convincing, for all questions of fact presented by the evidence ar.e primarily to be solved by the jury. (Sutton v. Lowry, 39 Mont. 462, 104 Pac. 545; Welch v. Nichols, 41 Mont. 435, 110 Pac. 89.) Complaint is made of a ruling by the trial court excluding plaintiff’s offer in evidence of the minute entry of a meeting of the stockholders of the construction company authorizing Suiter to sell the property; but the record discloses also that plaintiff offered as an entirety six typewritten pages of minute entries which included, with the entry authorizing Suiter to make the sale, entries of other meetings with reference to subjects entirely foreign to the matter before the court. It is the rule in this state, and generally for that matter, that if a party makes an offer of evidence, some of which is admissible and some of which is not, the offer may be rejected as a whole. (State v. Hanlon, 38 Mont. 557, 100 Pac. 1035.) Counsel cannot impose upon the trial court the duty to segregate the admissible from that which should not be admitted. Exception is taken to instruction No. 5 given by the court. All that is said of this by counsel for appellant in that portion of their brief devoted to argument is: “And furthermore, as to this instruction, we think that this error is the breach of an elementary proposition of law.” It is the rule in this juris diction that an assignment not argued will be deemed waived. (Mette & Kanne Distilling Co. v. Lowery, 39 Mont. 124, 101 Pac. 966; Foster v. Winstanley, 39 Mont. 314, 102 Pac. 574.) The statement quoted above cannot be dignified with the title ‘ ‘ argument,” and hereafter assignments thus treated will be deemed within the rule above, for, if counsel for appellant cannot urge some specific reason for their objections, they ought not to expect the members of this court to do that work for them. It may be readily conceded that the instruction, as given, is erroneous, in the sense at least that it ought not to have been given. It is not founded upon the evidence. Either there was a delivery of the property by the delivery of the key to Farnham or there was not any delivery at all. There is not room for another inference from the evidence. The court submitted to the jury the question whether plaintiff “by some open, visible, and notorious acts of ownership” had taken actual possession of the property. The jurors may have understood the instruction, but after the most careful consideration we are in doubt as to whether we do. If it was the purpose of the instruction to inform the jury that plaintiff must prove, not only an immediate delivery, but an actual and continued change of possession, the language employed would seem to come as nearly concealing that purpose as any that could be selected. If it was the intention to inform the jury that plaintiff might, by some open, visible, and notorious acts of ownership, obviate the necessity of a delivery, it is clearly erroneous as contradicting the statute. (See. 6128, above.) However, the suggested modification made by plaintiff at the settlement would not have aided the instruction or made it less objectionable; and it is ele mentary that a trial court cannot be put in error for refusing a suggested change of an instruction, unless the instruction, as changed, correctly states the law and is applicable to the facts of the given case. The order of the district court is affirmed. 'Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

PER CURIAM Upon motion of counsel for appellant herein, it is ordered that the appeal in this cause be and the same is hereby dismissed.

MR. JUSTICE ‘SANNER delivered the opinion of the court. Action on a bond arising out of the following circumstances: One Perrine brought suit in the district court of Deer Lodge county against J. W. Lyon, the respondent on this appeal, alleging the existence of a copartnership between himself and Lyon in the business of contract grading and roadwork, and in the ownership of twenty-three head of horses and certain grading equipment, all of the value of $4,000; alleging that Lyon had applied all the receipts and profits of the business to his own use and had refused to account for the same; alleging that Lyon was about to remove the property from Deer Lodge county, and that there was immediate danger of the property being removed beyond the jurisdiction of the court and lost, materially injured, destroyed and unlawfully disposed of; and prating for a dissolution of the partnership, for an accounting and for the appointment of a receiver to take charge of the property, sell it, pay the liabilities of the firm and divide the surplus. On August 18, 1908, an order ex parte was made by the court for the appointment of a receiver to take charge of and preserve said property. On August 22, 1908, one Calvert was clothed with that authority, but before he was permitted to take possession of the property, the court, on November 14, 1908, required Perrine to file the bond which forms the basis of the present action. This bond was executed by Perrine and the appellant, the United States Fidelity & Guaranty Company, for the sum of $3,000 and conditioned for the payment to Lyon of all damages he might sustain by reason of the appointment of the receiver and the entry by the receiver upon his duties, if such appointment was procured “wrongfully, maliciously or without sufficient cause.” The receiver took possession of the property on December 1, 1908. Thereafter Lyon answered, in effect denying the partnership or any ownership or interest of Perrine in the property. On May 26, 1910, the cause of Perrine v. Lyon, having been removed to the district court of Jefferson county, was called for trial, but Perrine did not appear and was not represented; whereupon Lyon submitted evidence in support of his contentions, and judgment by the court was entered decreeing the sole ownership of the property to be in him, ordering the receiver to deliver the property to Lyon, he to hold it subject to the lien of the receiver for his fees, costs and disbursements. On May 27, 1910, Lyon made demand upon the receiver for the property, and on June 1, 1910, the receiver, having had possession of the property about eighteen months, delivered to Lyon thirteen head of horses and part of the equipment. The present action was commenced on July 8, 1911. The complaint, besides setting up the foregoing facts, alleges that the allegations of Perrine’s complaint were willfully false and made maliciously and without sufficient cause; that Perrine procured the appointment of the receiver wrongfully, maliciously and without sufficient cause; that in consequence of the appointment Of the receiver, Lyon has been damaged as follows: $3,000, the value of the property not returned to him by the receiver; $3,000, the value of the use of the property while in the hands of the receiver and $1,000 in money and time expended defending himself against the action of Perrine and the receivership therein; that the receiver has a claim against the property amounting to $3,600, and that demand was made upon Perrine and the appellant surety company to pay the penal sum of the bond, but this they have wholly failed and refused to do. A demurrer to the complaint was overruled and the appellant answered, joining issue upon certain allegations of the complaint ; the burden of the answer, however, is that on September 5, 1908, Lyon filed in the suit of Perrine v. Lyon a motion to vacate the order appointing the receiver, upon the ground of the insufficiency of the application therefor, and on the ground that no bond had been exacted as required by section 953 of the Code of Civil Procedure, which motion being denied and not appealed from, Lyon is estopped to now contend that the appointment of the receiver was procured wrongfully, maliciously or without sufficient cause; and that Lyon by his pleading in Perrine v. Lyon denied that the value of the property was to exceed $1,500 and alleged the cost of the same to have been $1,400, by which denial and allegation, as well as by the judgment in Perrine v. Lyon, the latter is estopped to now contend that said property had any greater value than $1,500 when the receiver took possession of the same. Upon the trial no attempt was made to establish the item of $1,000, damages for loss of time and money expended in the defense of Perrine’s suit; but the cause was submitted upon the value of the property not returned and upon the value of the use of all the property during the receiver’s possession of it. The verdict awarded respondent $2,700 and judgment was entered accordingly. Motion for new trial was made and denied; hence these appeals. Assignment is made of eleven alleged errors, by which it is sought to present three questions, viz.: Is this action maintainable upon the pleadings and the record? Was it permissible for the respondent to assert any value for the property in excess of $1,500? Was it error to receive evidence and to instruct the jury concerning the value of the property not returned by the receiver to the respondent ? 1. It is contended that this action is not maintainable upon the face of the record, because it was necessary to allege and prove an adjudication in Perrine v. Lyon that the appointment of the receiver was procured wrongfully, maliciously or without sufficient cause; and this, it is said, not only does not appear from the complaint, but is specifically negatived by the respondent’s admission that he did move to vacate the appointment, that his motion was denied and that he failed to take an appeal. . The argument is that the receivership must be formally vacated in the primary suit either upon motion in the court of original jurisdiction or upon appeal; that the order of the district court denying the motion to vacate was an adjudication in favor of the appointment, since no appeal was taken; and that the present attempt of the respondent to charge the appointment to have been made wrongfully, maliciously or without sufficient cause, is a collateral attack. The bond which forms the basis of this action was given pursuant to the provisions of section 6701 of the Revised Codes; it is conditioned, as that statute provides, for the payment of all damages sustained “in case the applicant shall have procured such appointment wrongfully, maliciously or without sufficient cause.” We see nothing in this language to indicate that a specific finding in the primary suit against the propriety of the receivership is an essential prerequisite to an action upon the bond, and we look in vain for any intimation that such finding must be in the nature of an order upon motion to vacate. What the statute requires and what the bond expresses-as a condition of liability is a fact, viz., that the appointment was procured wrongfully, maliciously or without, sufficient cause; and assuming that, to state a cause of action of this kind, the complaint must show an adjudication of that fact in the primary suit, it does not follow that such adjudication must in every case occur in response to a motion to vacate or that it cannot be implicit in the final judgment. In the case of Pagett v. Brooks, 140 Ala. 257, 37 South. 263, relied on by appellant, the condition of the bond was that required by the statute of Alabama, viz., the obligees “shall pay or cause to be paid all damages which any person may suffer by the appointment of such receiver if such appointment be vacated.” The cause in which the receiver was appointed was determined upon final hearing adversely to the complainants and their bill was dismissed; but no order was made vacating the appointment of the receiver. The court said: “The question presented is whether a final decree upon the merits dismissing the complainant’s bill, without more, operated to vacate the appointment of the receiver within the meaning of the statute and the condition of the bond. It cannot be seriously doubted that the burden is upon the plaintiffs to show by averments and proof, in order to entitle them to a recovery, that the appointment of the receiver was vacated. His removal or discharge, if it be conceded that such was the effect of the decree, will not suffice. There is a clear distinction between vacating the appointment of a receiver and his removal or discharge. * * * To vacate the appointment is to set aside the order of appointment because improvidently granted, the motion for which is based on the circumstances and conditions attending the appointment. * * * The statutory requirement of giving this bond * * * was simply to afford indemnity to a party who has suffered damages by reason of the improvident appointment of a receiver, and who has availed himself of the opportunity afforded him by the statutes of having the appointment vacated by an order of the chancellor or of this court.” Counsel for appellant assert that the effect of the Alabama and Montana statutes is the same, because one way of establishing that a receivership was wrongfully procured is by an order of vacation; but surely this assertion answers itself. Our statute requires a fact, the Alabama statute requires an order of a specific' kind; ours is directed to the wrongful act of a party, theirs to the improvident act of the court; ours emphasizes substance, theirs form. Whatever may be thought of the general reasoning of the Pagett Case, it is expressly grounded upon a provision so much narrower than ours, both in letter and in spirit, that the decision cannot have any value as a precedent for us. Since our statute is designed to provide indemnity against wrongful receiverships, it has special application to those cases in which the appointment is wrongful because the plaintiff had no right thereto upon the merits. But this fact is not finally determinable anywhere short of trial. Receivership is an extraordinary remedy of ancillary character; it cannot in itself be the ultimate object of a suit but is permissible only in an action pending for some other purpose, and the chief reason for its allowance is to husband the property in litigation for the benefit of the person who may be found entitled thereto. (Rev. Codes, secs. 6698-6704; Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424, 80 Pac. 1024; Villa v. Grand Island Electric Light etc. Co., 68 Neb. 222, 110 Am. St. Rep. 400, 4 Ann. Cas. 59, 63 L. R. A. 791, 94 N. W. 136, 97 N. W. 613.) Hence such, allowance in nowise affects the main controversy or determines the final result. (High on Receivers, 4th ed., sec. 6.) When, therefore, the plaintiff presents a sufficient prima facie ease, the order will usually be made without inquiring into the merits of the case at large, and no showing upon the merits which the defendant can make before trial will absolutely entitle him to a vacation of the order. (34 Cyc. 129, 160.) He may, upon affidavits before answer, or upon the answer if it has been filed, present his motion to vacate upon the ground that the essential equities of the complaint have been denied; he may support his motion by oral evidence upon the hearing and his motion may or may not be granted in the sound discretion of the court; but whether granted or not, the parties are in nowise concluded upon the ultimate questions involved. (34 Cyc. 160, 161.) It follows that to hold a technical vacation of the order of appointment prerequisite to the maintenance of an action of this kind, although the rightfulness of the appointment may depend wholly upon the merits of the plaintiff’s claim, we must deny application of the statute to cases which it was clearly intended to cover, and strip the statute of the greater part of its meaning. This we have no disposition and no authority to do. Nor does any controlling reason assert itself for the conclusion that in a case where the rightfulness of the appointment depends upon the merits of the plaintiff’s claim, there must be any express adjudication against the propriety of the appointment. It may be, as held in Ferguson v. Dent, 46 Fed. 88, that the ultimate defeat of the plaintiff does not always establish the impropriety of the appointment; but one cannot rightfully procure a receiver for property in which he has no interest, and where the very cause of action is a claim to ownership or interest in the property, where the right to a receiver is made to depend upon that, and where the final decree specifically adjudges the ownership of the property to be in the defendant, it seems gratuitous to say that from this a finding against the propriety of the receivership cannot be implied, or, if implied, cannot be sufficient. Counsel cite Joslin v. Williams, 76 Neb. 594, 107 N. W. 837, 112 N. W. 343, as clearly showing “that in order to maintain an action on such a bond, it must first be judicially determined in the manner provided by law in the original action, that the receiver was wrongfully appointed.” The Joslin Case, and also the case cited therein as the leading authority—Haverly v. Elliott, 39 Neb. 201, 57 N. W. 1010—were decided under a statute of Nebraska which exacts of the applicant for -a receiver a bond to pay all damages suffered by the adverse party “in case it shall be finally decided that the order ought not to have been granted.” If this statute requires an express finding to the effect stated, it is open to the comment above made upon the statute of Alabama. As a matter of fact, the Nebraska court merely recites that it was finally decided that the order ought not to have been granted, without stating how such decision was made nor in what manner it is provided by law that such decision should be made, and the question of the form such decision must take was not involved. So, too, our own ease of Thornton-Thomas Mercantile Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10, urged as persuasive at least, is no authority for appellant’s contention. There the appointment had been vacated by this court upon appeal for insufficiency in the preliminary showing. The procedure adopted was doubtless proper and it may have been necessary in the particular circumstances; but it is nowhere suggested in the opinion that such is the indispensable procedure in every case, nor that it is always necessary to have an express adjudication against the appointment, nor that the final judgment against the plaintiff in the primary case may not carry the conclusion that the appointment was improper. What the issues were in Perrine v. Lyon is fully set forth in the pleadings at bar; from them we learn that Perrine sought the receivership to protect an interest which he claimed in the property as part owner thereof, and which claim Lyon denied, asserting sole ownership in himself. When the court by its judgment determined that Lyon was the owner, it necessarily found that Perrine had no interest and therefore no sufficient cause for the appointment of a receiver. As between the parties to this action, that judgment was an adjudication, not merely of the conclusions expressed, but of everything necessarily included in them. (Rev. Codes, sec. 7917; Lokowich v. City of Helena, 46 Mont. 575, 129 Pac. 1063; Howell v. Bent, ante, p. 268, 137 Pac. 49.) Applying the same principle to the order made in Perrine v. Lyon denying the motion to vacate the appointment, it may be conceded that such order was res judicata against the respondent; but only so far as it went. Since the only matters involved were the grounds of the motion, and since these did not, and could not, present the rightfulness of the appointment as dependent upon the merits of the case, and since the merits of the case could not be finally determined save at the trial, such adjudication is of no effect upon the matter as now presented. For like reasons, and independently of others which suggest themselves, the contention that the case at bar is a collateral attack upon the order cannot be sustained. It is suggested, however, that the judgment itself clearly recognizes the validity of the appointment because it does not discharge the receiver, but gives him a lien on the property for his fees, and requires him to make further reports. As to this it is sufficient to say: The judgment commands the receiver to deliver the property to Lyon, and he could not be discharged until this was done and report thereof made to the court; his right to his fees, costs and disbursements did not depend upon the propriety of his appointment (Hickey v. Parrot S. & C. Co., 32 Mont. 143, 108 Am. St. Rep. 510, 79 Pac. 698); he was entitled to have them fixed by the court, and this could not be done without a report; the clause of the judgment giving him a lien on the property indicates nothing save an error against Lyon, of which appellant cannot take advantage in this case. Some argument is devoted to the proposition that the respondent by acquiescing in the order is estopped to now question its propriety; and in this connection it is said that “Lyon was not obliged to leave the property in the possession of the receiver”; he could, by appealing from the order refusing to vacate the appointment and filing an undertaking, have procured a supersedeas and thereby suspended the authority of the receiver and withdrawn the possession of the property from him. While the respondent moved to vacate the order appointing the receiver, basing his motion upon procedural grounds, and while his failure to appeal from the order denying that motion may be taken as an acquiescence in the last order and in the receivership, so far as it depended upon the grounds presented by the motion, still such acquiescence cannot be extended beyond the effect of the order itself. As we have held that the order was not an adjudication against the respondent upon the propriety of the receivership, so far as it depended upon the merits, the acquiescence is of no importance. 2. The issues in Perrine v. Lyon were whether these parties were partners and whether Perrine owned any interest in the property; and although Perrine did allege the value of the property to be $4,000, and Lyon did deny that it had any value above $1,500, the judgment did not find, nor was it necessary to a determination of the issues that it should find, the value of the property. The respondent, therefore, was not barred by the judgment from asserting in this case that the property was of greater value. If he was not barred by the judgment, he was not estopped by the mere pleading of such matter; that amounts at most to the statement or admission of an independent fact, presentable in evidence against him and to be considered by the jury in fixing the amount of his damages. (Peterson v. Warner, 6 Kan. App. 298, 50 Pac. 1091; Thompson v. Currier, 70 N. H. 259, 47 Atl. 76; Posey v. Hanson, 10 App. D. C. 496; Hall v. McNally, 23 Utah, 606, 65 Pac. 724.) We see no error in this part of the proceedings. 3. The receiver returned only part of the property to the respondent, claiming that the remainder was lost or destroyed. The truth of this claim is not questioned; it was not contended upon the trial by anyone that such loss was due to any fault of the receiver, nor does it appear that such loss could not have occurred without his fault; he is therefore presumed to have done his duty. But the loss occurred, and it occurred because of the receivership; this being true, the charge of error in receiving evidence upon the value of the property not returned by the receiver and in submitting that question to the jury as an element of damages is disposed of by the reasoning in Thornton-Thomas Mercantile Co. v. Bretherton, cited above. The judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Rehearing denied April 22, 1914.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. This action was brought by the plaintiffs to obtain a decree dissolving a mining copartnership composed of the plaintiffs and the defendant, and to compel the defendant to account to the plaintiffs for the value of certain ore alleged to have been extracted by him from the common property and converted to his own use. The plaintiffs reside in Butte, Silver Bow county, and are the owners of the Nellie Bly quartz lode mining' claim, situate in Madison county. On or about October 15, 1910, the defendant, having acquired from the plaintiff Wm. J. Jennings an option to purchase an undivided one-tenth interest in the claim, entered into an agreement with the plaintiffs to go to Madison county and take charge of the property, to extract ore therefrom, and to ship the same to a smelter for reduction, in the name of the Nellie Bly mine, the net proceeds to be paid by the smelter company to the plaintiffs. Out of the proceeds were to be paid to the defendant all the costs and charges for the work done by him, including his wages fixed at $3.50 per day. Any balance remaining was then to be divided among the plaintiffs and the defendant, in shares proportionate to their respec tive interests, the defendant’s share to be one-tenth. In the event the enterprise resulted in a loss, each of the parties was to contribute his proportionate share. It is alleged that while the defendant was engaged in working the claim he entered into a conspiracy with Thomas Lero, Robert Angelich and Spiro Yucinich to cheat and defraud the plaintiffs, by representing that certain of the ore shipped had not come from the common property, but from a pretended, fictitious location designated as the Grotto quartz lode claim; that thereafter the defendant caused to be shipped from the Nellie Bly claim to the Washoe Sampling Works at Butte, belonging to the Anaconda Copper Mining Company, but in the name of Robert Angelich, about sixteen tons of ore of the value of $900 per ton, representing that the shipment had been made from the Grotto claim, whereas in truth the ore was from the Nellie Bly claim; that thereafter Angelich and Yucinich procured the proceeds of the ore, amounting to $13,250.24, to be paid over to them; that Angelich, Yucinich, Lero and the defendant thereupon converted the money to their own use, and that the defendant failed to account to the plaintiffs for any portion of it. The answer denies all the allegations charging wrongdoing on the part of the defendant, and alleges that there is due him, for wages during the time he was at work, a balance of $288.84. The court found that the defendant had converted to his own use ore to the amount and of the value alleged in the complaint, and rendered and caused a decree to be entered dissolving the copartnership, and requiring the defendant to account to the plaintiffs for the full amount thereof, less the sum of $1,325.02, the one-tenth to which he is entitled under the agreement. The defendant has appealed from the decree and the order denying his motion for a new trial, and has submitted the question whether the evidence is sufficient to justify the findings. The rule of this court relating to the form in which evidence shall be presented on appeal requires “that in equity cases and in matters and proceedings of an equitable nature, wherein questions of fact arising upon the evidence presented in the record are to be submitted for review by this court, the testimony relating to such questions shall be presented by question and answer.” (Rule VII, subd. 3, 44 Mont, xxx, [123 Pac. xi].) In the preparation of his bill of exceptions, counsel for the defendant failed entirely to observe the requirement of this rule. The evidence is incorporated in the transcript in narrative form. The defendant is therefore not entitled to have the appeals determined -on the merits. Nevertheless, upon the merits so far as we have been able to ascertain them from the record as presented, we think the decree and order should be affirmed. The vital issue in the evidence is whether the ore in controversy was extracted from the common property, or was obtained from some other source. The evidence introduced by the plaintiffs is wholly circumstantial. Counsel for defendant, conceding that the law makes no distinction as to the probative value between direct and circumstantial evidence, insists that when, as in this case, the plaintiff relies upon evidence .of the latter kind alone, he must establish his claim beyond a reasonable doubt, by proof of circumstances consistent with each other and at the same time pointing so strongly to its validity as to exclude every other rational hypothesis, and that plaintiffs’ evidence will not bear this test. The rule invoked by counsel is applicable to criminal cases, but has no application to civil cases. (1 Green-leaf on Evidence, 16th ed., 81d.) In the former the guilt of the defendant must be established beyond a reasonable doubt; in the latter the plaintiff will prevail if the preponderance of the evidence is in his favor. The solution of any issue in a civil case may rest entirely upon circumstantial evidence. (Culbertson v. Hill, 87 Mo. 553.) All that is required is that the evidence shall produce moral certainty in an unprejudiced mind. (Rev. Codes, see. 7856.) In other words, when it furnishes support for the plaintiff’s theory of the case, and thus tends to exclude any other theory, it is sufficient to sustain a verdict or decision. (Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243.) We shall not undertake to analyze the evidence. As we view it, it furnishes ample support for the findings and decision of the district court, even under the rule invoked by counsel. Accordingly, the judgment and order are affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

ME. CHIEF JUSTICE BBANTLY delivered the opinion of the court. Action for damages for fraud practiced by the defendants upon the plaintiff in the sale to him of 120 acres of land situate in Bavalli county. Defendants are husband and wife. The fraud alleged is that defendants knowingly and falsely represented to the plaintiff that the area sold to him included sixty-five to seventy acres of bench land, whereas it included only thirty-five acres; that defendants further, by collusion with the agents of plaintiff, suppressed this fact, and that by reason of the false representations so made, upon which he relied, and by reason of the suppression of the fact by defendants by collusion with plaintiff’s agents whereby he was prevented from discovering the truth, plaintiff suffered damage in the sum of $2,550. The defendants, admitting that they sold the land to the plaintiff, denied generally all the other allegations of the complaint. The plaintiff had verdict and judgment for $2,000. Defendants have appealed from the judgment and order denying their motion for a new trial. They allege insufficiency of the evidence to justify the verdict and error in the instructions. The insufficiency of the evidence was questioned both by motion for nonsuit and on motion for a new trial, and error is assigned upon the action of the court on both motions. Whether we consider the case as made by plaintiff’s evidence alone, however, or the whole ease as it was submitted to the jury, we think the verdict should not be disturbed. The negotiations for the purchase of the land were opened by the plaintiff in November of the year 1909. Having ascertained that defendant F. H. Reeser owned the land, plaintiff sought him out at his place of business. This defendant was then engaged in conducting a real estate business in Hamilton, Ravalli county, and had been so engaged for two years. Plaintiff made inquiry of him as to the character and price of the land, signifying a wish to buy it. A day or two later both defendants accompanied the plaintiff, drove to the land to permit the latter to make an inspection of it. Defendant Julia K. Reeser remained in the conveyance and took no part in the inspection; nor did she thereafter take part in the negotiations. The inspection was confined exclusively to a body of bench land on an elevation of from fifty to seventy feet above the general level, and all the negotiations touching bench land referred exclusively to this. At that time the plaintiff, being without experience in estimating acreage, inquired what area there was. of bench land suitable for raising fruit. Defendant F. H. Reeser (hereafter designated by his surname only) said that there were from sixty-nine to seventy acres. The price demanded was $10,000. Within a few days plaintiff saw Reeser again and told him that he would take the land at $9,000 if Reeser would guarantee that there were sixty acres on the bench. Reeser declined to make the guaranty and advised plaintiff to have a survey made. He agreed, however, to accept the price offered, provided it should be paid in cash. It was then agreed that should the negotiations result in a sale, the plaintiff should pay the purchase price partly in cash, and the balance in deferred payments, the last to be made on or before May 1, 1910. Thereupon plaintiff employed one Hawkins, a professional engineer, to make a survey to ascertain definitely the area of bench land, and arranged to have Hawkins report the result to him in New York, the place of his residence. He deposited $100 in the First National Bank at Hamilton, together with a written option from Reeser, with instructions to the bank to pay the money to Reeser and forward the option to himself in case Hawkins’ survey, of the result of which t.he latter was to inform the bank, disclosed that the area of bench land was approximately sixty-eight acres. Plaintiff then returned to New York after instructing his attorney at Hamilton to prepare the contract of sale for signature by defendants in case he secured the option, and finally determined to exercise it by purchasing the property. Hawkins was to forward to plaintiff, with his report, a blue-print map of his survey, showing the area of the bench. Thereafter and prior to the execution of the contract of sale the following correspondence passed between the plaintiff and Hawkins and Reeser: “Hamilton, Mont., Dec. 23, 1909. “Mr. J. Edwin Shoudy, “27 Williams St., New York: “Dear Sir: I have completed the survey of the land that you wish to buy from Mr. Reeser, and reported to the First National Bank that it was all that you wished, and I told them to pay over the $500. (This amount was $100.) It took me longer than I expected to complete the job and it will cost you a little more than I thought it would at first. I am enclosing my bill for the remainder. Yours very truly, “O. J. Hawkins.” “Hamilton, Mont., Jany.-, 1910. “Mr. J. E. Shoudy, “27 Williams St. “My Dear Shoudy: Your letter of Dee. 30th, 1909, at hand. Mr. Hawkins told the bank and also me that there were over 70 acres in the bench and I asked him to advise you, which he said he would. Yours truly, “F. H. Reeser.” “Hamilton, Montana, Jan. 12th, 1910. “Edwin Shoudy, “New York City. “Sir: I received your telegram and was sorry to learn that you didn’t receive blue-prints, and tracing. I am inking in the detail and sending that to you. If you just want 65 acres of orchard land I would advise you to buy, because that is one of the prettiest benches that there is in the valley. I am sorry that I have kept you waiting unknowingly so long. I trust that you heard from the abstract company. It won’t be necessary to make another survey to get your title examined. Hoping this is satisfactory. - Truly yours, “O. J. Hawkins.” On January 21 defendant Reeser wrote plaintiff as follows: “I have just returned from St. Paul * * * . It would have been better had you looked into these matters when you were here. Mr. Hawkins told me that you wanted him to find out if there was more than 70 acres in the bench and he said when he found there was he stopped chaining.” The letter by Reeser under date of January- was apparently in reply to the following, written by plaintiff about December 1,1909. “Mr. F. JEL Reeser, “Hamilton, Mont. “My dear Mr. Reeser: I have received the option forwarded to me by the First National Bank but have not yet received a report from Mr. Hawkins. If he reports approximately 68 acres in the tract of which we spoke I shall almost certainly exercise my option. Yours very truly, “ J. E. Shoudy.” On January 24 Hawkins telegraphed plaintiff: “Hamilton, Jan. 24, 1910. ’ ( ‘To Edwin J. Shoudy, “No. 27 Williams St., New York City. “There is at least 65 acres in the upper bench. “O. J. Hawkins.” Hawkins did not furnish the map. Relying upon the information received from him as to the result of the survey, however, the plaintiff determined to exercise the option, and thereupon his attorney prepared the contract of sale in accordance with the instructions already given. This was executed and delivered on February 1. It provided for the payment of $9,000, of which $2,100, including the $100 paid for the option, was in cash; $3,000 to be paid on or before March 15, and $3,900 on or before May 1, both of these sums to bear interest from the date of the contract at the rate of ten per cent per annum. The formal conveyance was deposited in the First National Bank, where the deferred payments were to be made, to be delivered to plaintiff upon the deposit by him of the last payment. The payments were duly made and the conveyance delivered on May 1, 1910. Though the plaintiff took immediate possession, he did not discover any discrepancy in the area of the bench until about the middle of June. This he did by means of a survey which he had made by one Oertli, a professional engineer of experience, the county surveyor of Ravalli county. He then ascertained that the area of bench land did not exceed thirty-five acres. This engineer testified it would be impossible for a surveyor to find sixty-five acres on the bench unless he made a mistake, and that he could not do this “through his eye or instrument.” Other than the high bench there was no land of that character within the arsa sold to plaintiff. Defendant Reeser had bought the land from one Cooper in February, 1909. Prior to that time Cooper had listed it with Reeser for sale; when he did this he told Reeser that there were about forty acres of bench land. Reeser, called as a witness for plaintiff, testified that in accordance with the request from plaintiff, he saw Hawkins and asked him to make his report. He stated that he had been informed by plaintiff before he went to New York that the latter had arranged with Hawkins to make the survey, but did not know when Hawkins made it. The foregoing is the substance of the evidence introduced by the plaintiff. The defendants both testified in their own behalf. Reeser corroborated the statements of the plaintiff as to the course of the negotiations resulting in the sale. He failed to deny, however, that he represented to the plaintiff that there were sixty-nine or seventy acres in the bench land, or that he knew that Hawkins’ statement to the plaintiff was not true. He did not remember the statement made to him by Cooper but he did not deny that it was made or that it was true. He denied that he had any knowledge of the survey by Hawkins or had any communication with him other than when he communicated with him upon request of plaintiff in order to hasten the report of the survey, or as to the character of the report the latter was to make to the plaintiff, except such as he ascertained from Hawkins at that time. He denied that he had induced or attempted to induce Hawkins to make a false report. The defendant Julia K. Beeser stated that she knew Hawkins but had never suggested to him to make a false report to the plaintiff. Incidentally the fact was elicited from her that Hawkins had at various times been employed by her husband to make maps for him in connection with his real estate transactions. One Blakeslee, an engineer called by the defendants, testified that he had made a survey for the defendants in June, 1910, and found 69.04 acres of what he classed as bench land in the entire tract, but only 43.03 in the upper bench. Hawkins was not called as a witness; nor was his deposition offered, though the place of his residence was known to defendants. It does not appear from the testimony of any witness why Blakeslee was employed to make the survey at that time, unless it be explained by the fact that about the time the survey was made, the plaintiff discovered the discrepancy in the area of bench land and thereupon negotiations were entered into between him and Beeser with a view of adjusting the controversy arising out of it. These negotiations were pending until a short time prior to the beginning of this action. It will be noted that the testimony introduced by the defendants does not seriously controvert the case as made by the plaintiff, or tend to rebut or destroy the inferences to be drawn from the facts .and circumstances established by it. The uncontroverted facts, with the legitimate inferences therefrom, are: That plaintiff desired to purchase the land because it included the bench which he deemed especially suited for fruit growing; that he did not care to purchase unless the. area was approximately sixty-eight acres; that he was not a judge of acreage, which Reeser knew; that Reeser represented to him that the area of the bench was sixty-nine or seventy acres; that Reeser knew that this was not true; that he knew that the plaintiff, in order to inform himself, had employed Hawkins to make a survey; that he knew that plaintiff, being about to return to New York, was dependent upon the integrity and loyalty of Hawkins; that Hawkins’ report was false, and, knowing that the sale would not be consummated if plaintiff was informed of the discrepancy in acreage, Reeser told Hawkins, as stated in his letter written in January, 1910, to report that there were seventy acres when in truth there were not more than half that number; and that he knew when he signed the contract and afterward when he accepted plaintiff’s money, that he was doing it upon the basis of false information furnished by Hawkins, or his concealment of the truth, whereas if Hawkins had made an honest report, plaintiff would not have taken and paid for the option, or thereafter consummated the purchase. When we read together Hawkins’ letters and telegram to the plaintiff, the conclusion becomes irresistible not only that he deliberately betrayed his unsuspecting employer, but also that he had a purpose in doing so. Hesitating at first to make a false statement as to the result of his work, though advising the purchase, he gave no definite information, thus indicating an indisposition to betray his employer. Finally in the telegram of January 24—the only communication making a definite statement—he deliberately made the false report: “There is at least 65 acres in the upper bench.” Why did he encourage the plaintiff to make the purchase? Why did he refrain from telling the truth as he knew it at the beginning? Why did he finally make a deliberately false statement as to the number of acres in the bench? There can be but one explanation, viz., that in some way he became interested in having the sale consummated; for it cannot be conceived that the average man will make a deliberately false statement unless he is prompted to do so by some motive. Whether he received a consideration for betraying the plaintiff does not appear. His conduct may be explained by his friendly relation with Reeser growing out of his former employment in a professional way by the latter. But what his inducement was is not important to inquire. So far as he is concerned, it is sufficient that he not only suppressed the truth, but made a misrepresentation of the fact which he had been employed to ascertain and communicate. That Reeser was in collusion with Hawkins is a legitimate inference from the fact that, knowing that Hawkins’ communication to the bank was false and that he intended to make the same report to the plaintiff, Reeser nevertheless told him to make it. The letters written by Reeser to plaintiff—-particularly the one without date, evidently written in reply to inquiries by plaintiff—do not furnish the basis for any other inference, unless it be that Reeser, though he knew that Hawkins’ statement as to the acreage was false, made use of it to lead plaintiff to take up the option and finally make the purchase. The result is the same whether we indulge the one inference or the other; for the fact is established that even if Reeser was not in collusion with Hawkins, he told Hawkins to forward information which he as well as Hawkins knew to be false. Whether we regard this communication as a deliberate misrepresentation or suppression of a fact that he was under the circumstances bound to disclose, he practiced a palpable fraud upon the plaintiff. (Rev. Codes, sec. 4978; Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950.) Since the plaintiff had employed Hawkins to make the survey in order to gain the information he desired, defendant might have remained silent with perfect safety. Nothing else appearing, he was not called on to make any disclosure whatever. While “actual fraud is always a question of fact” (Rev. Codes, see. 4980), and while it is usually the province of the jury to draw the proper inferences from the facts and circumstances proven, under the evidence as presented here the court might properly have assumed the guilt of Reeser as a matter of law and submitted to the jury the question of damages only; for it dis closes without substantial conflict all the elements necessary to make a case of fraud, viz.: (1) That defendant made a representation intending that plaintiff should act upon it; (2) that it was false; (3) that plaintiff believed and relied on it; and (4) that he acted upon it to his damage (Power & Bro. v. Turner, supra); and this is true whether we indulge the inference that Reeser was in collusion with Hawkins or not. "Where the facts are not controverted and furnish the basis for but the one inference—that the defendant is guilty of the fraud alleged—the court may infer the fraud as a matter of law and direct a verdict as in any other case. (Fruit Dispatch Co. v. Russo, 125 Mich. 306, 84 N. W. 308; Reynolds v. Munch, 91 Minn. 380, 98 N. W. 187; Bender v. Kingman, 62 Neb. 469, 87 N. W. 142; 20 Cyc. 123.) The contention that the evidence is insufficient to establish fraud is therefore wholly without merit. The court submitted the ease to the jury on the theory that the fraud which the evidence tended to establish was the result of a conspiracy between Hawkins and Reeser, whereby they suppressed the information which the plaintiff employed Hawkins to procure for him. As we have seen, the evidence was sufficient to warrant a recovery either on this theory or upon the theory that Reeser voluntarily confirmed Hawkins’ false statement and then availed himself of the result. The instructions were correctly formulated on the theory adopted, except in one paragraph in which the jury were told, in substance, that the plaintiff would be entitled to recover if it was established by a preponderance of the evidence that the facts as to the area of bench land had been suppressed by Hawkins and this had been done “through collusion or knowledge of the defendants.” This was clearly erroneous; for, as has already been said, if Reeser had. taken no part in misleading the plaintiff, he could not have been held accountable for Hawkins’ misconduct even though he had knowledge of it. Hawkins was the agent of the plaintiff and his fidelity to his employer was of no concern to Reeser. Since, however, the evidence conclusively establishes his parti cipation in Hawkins’ wrongdoing, the error in the instruction could not have wrought prejudice. Under the evidence, defendant Julia K. Reeser did not participate in the negotiations, nor did she take any part in the transaction further than to join in the execution of the contract of sale and the formal conveyance. She has, however, made joint cause with her husband throughout, and no suggestion has been made in her behalf that the judgment ought not to be allowed to stand as to her. We have, therefore, not felt required to notice this feature of the case or to grant her relief which she does not demand. ,The judgment and order are affirmed. Affirmed. Mr. Justice Holloway and Mr. 'Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. Under the grant of July 2, 1864, section 23, township 3 south, range 8 east, and section 31, township 4 north, range 10 east, in Park county, were transferred by the government to the Northern Pacific' Railroad Company. The Northern Pacific Railway Company succeeded to the ownership of these lands, and some time prior to the first Monday of March of this year it conveyed section 23 to Bernhard Blome, and section 31 to another purchaser. Each deed contained this provision: “Excepting and reserving unto the grantors its successors and assigns, forever, all mineral of any nature whatsoever upon or in said land including coal and iron, and also the use of such surface ground as may be necessary for exploring for and mining or otherwise extracting and carrying away the same.” These reservations were listed for taxation, and, to forestall action by the county treasurer, the railway company commenced this suit to cancel the assessments and to restrain the collection of the tax. It is alleged that no exploration has been made upon section 23 for minerals or coal and it is unknown whether the land contains either. With reference to section 31, the complaint alleges: “That no coal, iron or other mineral has ever been extracted from said land, but as plaintiff is informed and believes and alleges said land contains coal.” The trial court sustained a general demurrer to the complaint, and the railway company, electing to stand upon its pleading, suffered judgment to be entered against it and appealed. We are called upon to determine whether that which the company reserved to itself in each of these parcels of land constitutes property which is subject to taxation under the Constitution and laws of this state. That neither deed conveys the entire estate to the land described is apparent. That each carves out some interest which the grantor retains is not open to question, and that this interest is an estate in land must be conceded. The coal deposits which underlie section 31 form a part of the real estate within the definition given in section 2501, Revised Codes; and the reservation of those deposits, with the right to mine, constitutes an interest in real estate. While subsequent development may demonstrate that there are not any minerals or coal in section 23, still the right to explore for minerals, which includes the right to the possession of any portion, or all, of the'surface if necessary, is an interest" in the land as a whole. Section 2501, above, provides that “the term ‘real estate’ includes: The possession of, claim to, ownership of, or right to, the possession of land.” And this would be the rule independently of statute. “The word ‘property’ includes moneys, credits, bonds, stocks, franchises and all matters and things real, personal and mixed, capable of private ownership.” (Mont. Const., sec. 17, Art. XII; Buck v. Walker, 115 Minn. 239, Ann. Cas. 1912D, 882, and note, 132 N. W. 205; Benavides v. Hunt, 79 Tex. 383, 15 S. W. 396; Gordon v. Million, 248 Mo. 155, 154 S. W. 99; Board of Commissioners v. Lattas Creek Coal Co. (Ind.), 100 N. E. 561.) But the particular character of these property rights is not of consequence now. Each reservation is property, and all property in this state is subject to taxation, except such as is exempt. (Sec. 2498, Eev. Codes.) The only property specifically exempted is enumerated in section 2499, Eevised Codes, as follows: “The property of the United States, the state, counties, cities, towns, school districts, municipal corporations, public libraries, such other property as is used exclusively for agricultural and horticultural societies, for educational purposes, places of actual religious worship, hospitals, and places of burial not used or held for private or corporate profit, and institutions of purely public charity are exempt from taxation, but no more land than is necessary for such purpose is exempt.” Since these reserved rights do not fall within any of the classes of exempt property, they are subject to assessment for taxation, unless by some provision of the state Constitution they are relieved from the burden. The contention of appellant is that they are exempt by virtue of section 3, Article XII, which provides: “All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper, lead, coal or other valuable mineral deposits, after purchase thereof from the United States, shall be taxed at the price paid the United States therefor, unless the surface ground, or some part thereof, of such mine or claim, is used for other than mining purposes, and has a separate and independent value for such other purposes, in which case said surface ground, or any part thereof, so used for other than mining purposes, shall be taxed at its value for such other purpose, as provided by law; and all machinery used in mining, and all property and surface improvements upon or appurtenant to mines and mining claims which have a value separate and indeA pendent of such mines or mining' claims, and the annual net proceeds of all mines and mining claims shall be taxed as provided by law. ’ ’ Our Constitution is not a grant of power, but a limita tion—particularly a limitation upon legislative action. In section 2 of Article XII the framers declared what property shall be, and what other property may be, exempted from the burden of taxation. Generally speaking, the public property of the United States and of the state and its subdivisions constitutes the first class, and the property of eleemosynary and educational institutions and places of burial not used for profit comprise the second. Having thus determined what property should or might be relieved from the necessity of contributing to the expense of government, the problem before the constitutional convention was, not how to exempt mining property from taxation, but rather how to compel it to respond to the reasonable demands of the state for revenue, and at the same time protect it against such exactions as would or might discourage prospecting or development. The debates of the convention, so far as they are available in their unpublished form, disclose this fact, and the history of our mining legislation furnishes added evidence of the correctness of this conclusion. The first revenue measure adopted in 1864 specifically exempted mining claims from taxation. (Baamaek’s Statutes, p. 411.) The next statute in terms exempted mines and mining claims. (Fifth Session, p. 41.) The succeeding Act exempted “mines and mining claims except those held under a patent from the United States.” (Laws 7th Sess., p. 600.) By an Act approved February 21, 1879, the net proceeds of mines were made subject to taxation, and it was further provided: “That from and after the passage of this Act, no direct tax shall be levied upon any placer claim, quartz lead, or lode, except to the extent, of the price paid for any mining claim in obtaining patent therefor from the .government of the United States, and the only taxation of the proceeds thereof shall be that provided in this Act.” (Laws 11th Sess., p. 65.) This was succeeded by the Act of March 10, 1887, which specifically exempted from taxation “mines, except on the net proceeds thereof, and mining claims, except those held under a patent from the United States, the surface of which shall be taxed as other real estate.” (Comp. Stats. 1887, Fifth Div., p. 1108.) This was the status of mining property before the revenue law, at the time the constitutional convention met in 1889. During the life of the territory, public property was always exempt; but in addition certain private property as well shared the privilege of being relieved from the burden of maintaining the government. Doubtless, as an aid to the encouragement of the mining industry, mines and mining claims were placed in the exempt class, except for the period from 1872 to 1879, during which time patented mining claims were subject to taxation as other property; but this was corrected by the Act of the Eleventh Session above, and, at the time section 3 of Article XII was under consideration, mines and mining claims, as such, were exempt from taxation. The net proceeds of mines were taxed as other taxable personal property, and the surface of a patented mining claim was subject to taxation as other taxable real estate. When, then, the framers of the Constitution removed this species of property from the exempt to the taxable class, they must be held to have acted deliberately with the purpose, as disclosed by their debates, of subjecting mines and mining claims to what in their judgment was the equitable proportion of the burden of governmental expense. Instead of section 3, Article XII, being a provision exempting property from taxation, it is in fact a revenue measure. It fixes an arbitrary valuation upon the surface of patented mining claims, as such, and provides the method by which the value of a mine shall be determined, viz., by the net value of its proceeds; but neither is relieved from producing its proportion of the revenue upon the basis thus established. While this provision does not exempt the nonproducing mine, by implication at least it determines that such a mine, independently of its surface, does not have any value for the purpose of taxation, whatever value it may have as a speculative or commercial enterprise, and likewise that minerals, while in a núne or mining claim, have no taxable value. Counsel for appellant apparently concede that most of what has been said is correct, but insist that since the surface of each of these parcels of land has been assessed to the purchaser, and since neither parcel has ever yielded any net proceeds from mining operations, there is not anything upon which to fix a valuation for the purpose of assessment, and consequently nothing to tax. The indispensable premise to this conclusion, however, is that the thing which is reserved in each instance is a mine or it is something without value. That definitions of the word “mine” sufficiently comprehensive to include the reservation in section 31, and possibly that in section 23, may be found, must be .conceded at once. To indicate their scope, a few illustrations will suffice: A mine is: “An opening or excavation in the earth for the purpose of extracting minerals.” (Anderson’s Law Dictionary.) “An excavation in the earth for the purpose of obtaining minerals.” (Bouvier’s Law Dictionary.) “A pit or excavation in the earth from which metallic ores or other mineral substances are taken by digging.” (Black’s Law Dictionary.) “An excavation in the earth from which some useful product is extracted. A deposit of useful material.” (English’s Law Dictionary.) “An opening in the earth made for the purpose of taking out minerals, and in case of coal mines, commonly a worked vein.” (Kinney’s Law Dictionary & Glossary.) “A work for the extraction of minerals by means of pits, shafts, levels, tunnels,” etc. (Rapalje & Lawrence’s Law Dictionary.) “An underground excavation made for the purpose of getting minerals.” (Stroud’s Judicial Dictionary.) “Quarries or places where anything is digged.” (Jacob’s Law Dictionary.) “An excavation properly underground for digging out some useful product as ore, metal or coal. Any deposit of such material suitable for excavation and working, as a placer mine.” (Standard Dictionary.) “An excavation in the earth made for the purpose of getting metals, ores or coal. When the term ‘mine’ is used it is generally understood that the excavation so named is in actual course of exploitation, otherwise some qualifying term is required.” (Century Dictionary.) “The underground passage and workings by which the minerals are gotten, together with these minerals themselves.” (Bainbridge on Mines, p. 2.) “A miDe is not properly so called until it is opened; it is but a vein of coal before.” (Astry v. Ballard, 2 Mod. 193, 8 Morr. 316.) “It may be conceded that the term ‘mine’ when applied to coal is generally equivalent to a worked vein, for by working the vein it becomes a mine.” (Westmoreland Coal Co.’s Appeal, 85 Pa. 344.) “Coal Mine: A mine or pit from which coal is obtained.” (7 Cye. 266.) “The mode •of obtaining the material and not the nature of the material itself is to be considered in order to come to a decision whether it constitutes a mine.” (Denman, C. J., in Rex v. Dunsford, 2 Ad. & E. 568, 4 L. J. M. C. 59.) In speaking of the terms “known mine” ás used in the pre-emption statute, the supreme court said: “It will thus be seen that, so far as the decisions of this court have heretofore gone, no lands have been held to be known mines unless at the time the rights of the purchaser accrued there was upon the ground an actual and opened mine which had been worked or was capable of being worked.” (Colorado Coal etc. Co. v. United States, 123 U. S. 307, 31 L. Ed. 182, 8 Sup. Ct. Rep. 131.) In Davis v. Weibbold, 139 U. S. 507, 35 L. Ed. 238, 11 Sup. Ct. Rep. 628—a ease involving the townsite of Butte—the court speaks of mines which lay buried, unknown in the depths of the earth. These definitions serve no other purpose than to disclose the wide range covered by lexicographers, courts and text-writers in their attempt to define what would appear at first blush to be a very simple term, and to confirm Mr. Ross Stewart, the learned Scotch law-writer, in his assertion that “the terms ‘mine’ and ‘mineral’ are not definite terms; they are susceptible of limitation according to the intention with which they are used; and in construing them, regard must be had not only to the deed or statute in which they occur, but also to the relative position of the parties interested and the substance of the transaction or arrangement which the deed or statute embodies. Consequently, in themselves, these terms are incapable of a definition which would be universally applicable.” (Stewart on Mines, p. 1.) The determination of this controversy depends upon the meaning attached to the term “mine.” Of necessity any definition adópted must be formulated more or less arbitrarily—grounded, as it will be, upon the intention of the framers of the Constitution as that intention is gathered from the Constitution itself and from contemporaneous history. Starting our investigation with the premise that in formulating section 3 the constitutional convention had under consideration the subject “revenue,” and was concerned with the question of producing sufficient funds to support the government, the elementary rules of construction, as well as the dictates of reason, require that, if there is a doubt as to the sense in which the term “mine” is used in that section, the doubt should be resolved in favor of a definition under which public revenue will be raised, rather than one which will defeat the obvious purpose of the convention. Conscious of the fact that the meaning of this term will be varied largely by the context or by the character of the instrument in which it is found, it devolves upon us to determine, if possible, the particular significance which the framers of the Constitution attached to the word “mine,” independently of the surface ground, when they employed it in section 3 of Article XII. The idea of taxing the net proceeds of a mine was not new to them. For more than ten years the plan had prevailed in the revenue laws of the territory. Its operations had been tested, and its results were matters of history. There was not any room for doubt as to the meaning of the word “mine” in those statutes. They spoke from the standpoint of raising revenue. The Act of 1879 is entitled “An Act to provide for the taxation of the proceeds of mines,” and section 1 provided that every person, corporation, or association engaged in mining upon any quartz vein or lode or placer mining claim should furnish to the assessor annually a verified statement of the gross yield and necessary expenses of his or its mining operations, and that a tax should be levied upon the net proceeds. That legislative assembly in effect declared that the developed but dormant mine was without any value for the purpose of taxation, while the diminutive products of mining claims doubtless furnished sufficient excuse for the failure to mention them. The one predominant idea running through the legislation was that consideration was given only to the active, open and working mining property whose development had proceeded past that point which marks the boundary between a mining claim and a mine. To the members of the eleventh territorial legislative assembly the word “mine” meant a developed mining property, yielding or in a condition of development capable of yielding revenue upon the basis of the value of its gross output, less the necessary cost of mining operations and expense of reduction. The very subject matter under consideration, the plan adopted for carrying their ideas to practical results, the language employed to give expression to their views, and their knowledge of existing exemption statutes, preclude the possibility that any hidden, unknown or undeveloped deposit of ore or coal was ever contemplated as within the meaning of the term “mine.” When the framers of the Constitution formulated their ideas into Article XII, they caused all private property, except that enumerated in section 2, to be transferred from the exempt to the taxable class. In their zeal to compel every species of property to contribute to public expense, they included, as subject to taxation, the net returns from development or representation work on mining claims, however insignificant they might be. They also impliedly declared that a nonproducing mine has no taxable value, and there is not the slightest evidence that they used the term “mine” in any different sense from that employed in the Act of 1879. On the contrary, aside from the persuasive fact that they were dealing with the subject “revenue” and must have contemplated something in a condition which would or might produce revenue, we have the added force and effect of a legislative construction of section 3, from the time of its adoption in 1889, to the present time. There has been no. period in the history of the state when the provisions of the Act of 1879, in every substantial particular, have not been in full force and effect. They were reproduced in the first revenue measure enacted after statehood (Laws 1891, p. '93, see. 50 et seq.), carried into the Political Code of 1895 (secs. 3760-3768), and are now found as the existing law upon the subject, in sections 2563-2571, Revised Codes. The identity of expression, the harmony of plan, and the unity of purpose, pervading these several measures, forbid the imposition of a different definition for the term “mine” in our state statutes, from that which-was attached by the legislative assembly of 1879. For twenty-four years that definition has been accepted and acted upon by the legislative branch of our state government, and we thus have a construction of section 3—a construction manifestly in harmony with the views of the framers of that section themselves—but whether so or not, in the absence of anything to indicate a contrary purpose, that construction is entitled to most respectful consideration. (State ex rel. Haire v. Rice, 33 Mont. 365, 83 Pac. 874; Johnson v. City of Great Falls, 38 Mont. 369, 16 Ann. Cas. 974, 99 Pac. 1059.) It will not do for us to adopt a particular definition of the word “mine” merely because some other court has chosen the same definition. For example: In Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313, 14 Morr. Min. Rep. 183, the supreme court of the United States held that the term “mining claim,” as used in the Nevada statute, referred only to an unpatented claim held under the mineral laws; but such a definition never could have prevailed in Montana, for, from our first territorial legislation to the present time, a mining claim included one held under patent as well as one held merely by location before patent. The most elementary rules of construction require that we ascertain the intention of the framers of the Constitution and this we may do only so far as that intention is disclosed in the language employed when considered with the context, in the light of our history, the sur rounding circumstances, the subject matter under consideration, and the object sought to be attained. While it is impossible for anyone to know with certainty what meaning the framers of our Constitution attached to the terms “mines” and “mining claims” in section 3, the application of those tests, denominated rules of construction, adopted and acted upon by courts throughout the civilized world, leads us to the conclusion that a mining claim, as therein used, indicates a tract of land to which the right of possession or the title has been acquired pursuant to the Acts of the Congress relating to the disposition of mineral lands, including coal lands, and that a mine, independently of the surface, in the revenue sense as therein employed, is a mineral deposit, whether metallic or nonmetallic, developed to the point of production and actually yielding, or capable of yielding, proceeds. The character of legislation, under which title or right of possession is acquired, is not a controlling factor at all. A mine upon a patented homestead is not less a mine because title from the government was acquired under laws providing for the disposition of agricultural lands only; and an undeveloped body of ore is not a mine though title to it was secured under the mineral laws, but it is merely a part of the real estate itself. In providing a fundamental law for the new state, the framers of our Constitution spoke in comprehensive terms; but we decline to believe that they used the word “mine” in section 3, in a sense which would include hidden, unknown or undeveloped deposits of ore or coal. In that section they spoke with reference to revenue and referred to something which would or might produce revenue in its present state of development. It was not necessary for them to consider rich deposits developed to the point of production but not operated. They were men of broad experience in this western country. They.knew something of human nature, something of the prospector’s daydreams of wealth, something of humanity ’s greed for gold. The avarice of man was doubtless deemed a sufficient dynamic force to subject all paying properties to constant employment, and justified their implied declaration that an unworked mine is not of sufficient value to justify the expense of taxation. Our conclusion is that neither reservation involved in this. controversy constitutes a mine within the méaning of that term as employed in section 3, Article XII, of the Constitution, but each is an interest in real estate. Land may be divided horizontally as well as vertically. .That several estates in the same land may be owned by different parties is recognized generally. One may own the surface, another the growing timber, and a third the minerals underground, and each estate be subject to taxation. (Smith v. Mayor, 68 N. Y. 552.) It will not do to say that, because neither of these reservations produces revenue, it is not of any value. From the very act of making the reservation, the presumption arises that each interest has some appreciable value, or the reservation would not have been made. Taxation is the rule, exemption is the exception; and, if either of these rights in fact is valueless, the burden is upon the party, claiming to come within the exception, to allege and prove the facts necessary to bring his property within the favored class. (State v. Downman (Tex. Civ. App.), 134 S. W. 787.) The asserted right to tax these reservations rests entirely upon the fact that each constitutes an interest in real estate, and that neither is a mine or a mining claim within the meaning of section 3, Article XII, of our Constitution. Section 1 of Article XII imposes upon the legislative assembly the duty to “prescribe such regulations as shall secure a just valuation for taxation of all property, except that specifically provided for in this article.” But this is only one of several injunctions laid upon the lawmakers by the Constitution. Of course, the legislative assemblies should give heed to these commands, but if they fail there is not any remedy. They cannot be coerced except by public opinion. We doubt, however, that anything more was contemplated by this provision of the Constitution than has been provided by law. Section 2502 declares that “all taxable property must be assessed at its full cash value.” The duties of the county assessor are prescribed. A tribunal is created to review Ms acts, and every opportunity is afforded a dissatisfied taxpayer to present his grievances and have them determined or his assessment duly equalized. The difficulty which may confront the assessor in determining the full cash value of a property interest of this character cannot operate as a factor in characterizing the interest itself. In the absence of any allegation bringing either of these rights within the definition of a mine, or disclosing that they are, or •either of them is, valueless, the complaint fails to state a cause of action. If this conclusion in its ultimate analysis involves a classification of property, which will result in denying to any person within this jurisdiction the equal protection of the laws— and we do not think that it does—the responsibility must rest upon the framers of our Constitution, who, in their zeal to promote the mining industry, arbitrarily gave to mines and mining claims a status before the law not enjoyed by other species of property. The judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. Action by appellant to recover damages for personal injuries caused by an explosion of dynamite in a mine of the respondent company on January 18, 1911. Nonsuited upon the trial, he appeals from the judgment. The allegations of the complaint touching the cause and manner of the accident are as follows: “That on the 18th day of January, 1911, and for some time prior thereto, the defendants negligently stored and kept and thawed in said mine, where said mining operations were carried, on, large quantities of dynamite and other- highly explosive substances, and, as plaintiff is informed and believes, largely in excess of 3,000 pounds, and at a point in said mine about seventy-five feet from said incline shaft, and at said shaft where, in its downward course, it reached the 200-foot ievel, and where, should an explosion of same occur, escape by those working in said mine, in the employ of the defendant company using said incline shaft as a means of egress, would.be cut off, and where, should an explosion of said dynamite occur, the lives of the said employees of said defendant company, working in said mine and near said incline shaft, would be imperiled; * * * that the said defendants so storing and keeping said dynamite and other highly explosive substances, as aforesaid, and at the place designated negligently placed a portion of same in a tight compartment for storage preparatory to use, and, for the purpose of thawing the same and the said dynamite and other explosive substances so placed in said compartment for the purpose of being thawed, the defendants negligently used and caused to be used electricity to such an extent that said dynamite and other, highly explosive substances so being thawed, as aforesaid, were heated to excess; and plaintiff further avers that the use of electricity for the purpose named, as a thawing agency and in the manner stated and at the place named and to the extent used, was highly dangerous—all of which facts the defendants knew, or, in the exercise of reasonable diligence, could have known; and plaintiff avers that the use of electricity in the manner in which the same was used there by defendants for the thawing of said dynamite was gross and wanton negligence on their part; * ® * that on the 18th day of January, 1911, said dynamite and other explosives so being thawed, as aforesaid, and through and by reason of electricity being used for thawing the same, and by reason of said dynamite so being thawed being heated to excess through the use of said electricity in the manner in which it was, exploded, and through the explosion of same all of the dynamite so stored in said mine, as aforesaid, exploded, and through the explosion of said dynamite and other explosives, as aforesaid, and by reason of the force of such explosion, said plaintiff so working in said incline shaft received injuries,” etc. No special difficulty is presented in the dissection of these allegations; and, for the purpose of determining what proof was admissible under them, and whether a sufficient case was made to go to the jury, we say they fairly and sufficiently allege that the appellant’s injuries, occasioned by the explosion, were due to the negligence of respondents in the following particulars: In having ¡more than 3,000 pounds of explosives in the mine; in having explosives stored at a place in the mine where, should they explode, escape by those in the mine would be cut off; in having explosives stored at and near the shaft where, should they, explode, the lives of the persons working in the shaft would be imperiled; and in the method used for “thawing,” to-wit, the use of electricity in such a manner and to such a degree that the portion of the explosives being thawed became heated to excess. So construing the complaint, we proceed to ascertain the value of the ease made, having in mind the rule that the appellant was not required to prove negligence in all the particulars alleged (Beeler v. Butte & London Dev. Co., 41 Mont. 465, 110 Pac. 528), but that it was sufficient to take the case to the jury if the evidence presented in this behalf tended to establish that negligence in any of these particulars caused his injuries. (Hoskins v. Northern Pac. R. Co., 39 Mont. 394, 102 Pac. 988.) The allegation of negligence in storing more than' 3,000 pounds of explosives in the mine charges the violation of a specific duty imposed by section 8546, Revised Codes, and such a violation is negligence per se. (Conway v. Monidah Trust, 47 Mont. 269, 132 Pac. 26; Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441; Neary v. Northern Pac. R. Co., 41 Mont. 480, 110 Pac. 226; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243.) The respondents, insisting that the presence of negligence per se is of no importance unless it was a proximate cause of the injury, call our special attention to the case of St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 57 L. Ed. 1179, 33 Sup. Ct. Rep. 858, and assert that “there is no showing in pleading or in evidence that the excessive quantity of powder had anything to do with the explosion. ” It is a rule so fundamental as to be axiomatic, to which the McWhirter Case adds nothing, that before negligence, however established, can become a basis of recovery, causal connection must be shown between it and the injury complained of. This court has so held on several occasions, including that of Monson v. La France Copper Co., supra, which we are assured is decisive against the appellant. The Monson Case aptly expresses the rule, and as aptly indicates the limit of its application. That action was for the death of a miner who, it was alleged, had fallen from a cage in the defendant’s mine because of the operation of the cage without the gates required by statute—a clear charge of negligence per se. In the course of the decision this court, speaking through the Chief Justice, said: “We find the neglect of duty on the part of the defendant and the death of the deceased established beyond question, * * # but no fact or circumstance appears from which any reasonable conclusion may be drawn that this neglect of duty bears a direct, proximate, causal relation to the death of deceased. There is no direct evidence that the deceased got into the cage at the 1,400-foot level, but, assuming that this fact is established, * * * there is no evidence as to how the deceased got out of the cage; * * * there is nothing to show whether he died from natural causes, or from the violence of a fall, or from being squeezed by the cage as it passed the timbers. ’ ’ How wide the divergence is between the situation thus disclosed and that at bar is manifest. Here it is established that the dynamite which was being kept in the Keating mine—whether more or less than the law allows— exploded and produced appellant’s injuries. When a quantity of dynamite by exploding produces injury, there is a causal connection between the dynamite and the injury; and if the existence of that quantity in that place is negligence, a causal connection is made by the explosion between that negligence and the injury. It does not answer to say that a quantity of dynamite less than 3,000 pounds may or would have exploded under the same circumstances, or that the explosion of a quantity less than 3,000 pounds, under the same circumstances, may or would have produced the same injury. To suppose that a specific causal connection must be shown between the injury and the existence or explosion of that portion of the dynamite which exceeded 3,000 pounds would entirely defeat the statute, considered as a foundation of civil liability. The appellant’s injuries were caused by the explosion of a quantity of dynamite kept in respondents’ mine, which it is claimed was greater than that allowed by law; this, if true, was sufficient; for “where the cause of an injury is specifically ascertained, the law will not stop to speculate upon what might have occurred had such cause been absent.” (Thompson on Negligence, secs. 45, 49.) Whether at the time the explosion occurred there were to exceed 3,000 pounds in the mine is a matter about which men may differ upon reading the record; but, having in view the rule that upon a motion for nonsuit the evidence must be taken in its most favorable light, and to establish whatever it fairly tends to prove, it is deducible from the testimony that such was the fact. Hence, upon this aspect of the case, a sufficient showing was made to take it to the jury. The allegation of negligence in storing the dynamite at a place in the mine where, should it accidentally explode, escape by those working in the mine would be cut off, also charges the violation of a specific duty imposed by section 8546, Revised Codes. Such a violation is negligence per se; but it is obviously of such a character that no causal relation can exist between it and any injuries save those suffered by persons .whose escape had in fact been cut off by the explosion. The appellant was not one of these; he was above the place of storage, above the point of explosion, and his means of egress were in no wise affected by it. The lack of causal connection between his injuries and the place of storage—considered as a potential danger, by stopping egress in case of explosion—is perfectly clear. But the place of storage presents another aspect under the allegation of negligence in storing the dynamite at a place where, should an explosion occur, the lives of persons working in the shaft, among whom was the appellant, would be imperiled. As to this he invokes the doctrine that the master is obliged to use reasonable care to furnish his employee with a reasonably safe place in which to work, the respondents insisting that the complaint does not charge a violation of that duty, and that “the doctrine of a safe place is not in the case.” While it is true that the words customarily used in formulating this charge do not appear in the complaint, the language actually employed is their equivalent. In O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724, the only plea of negligence was that, at a point about forty feet from where the plaintiff was working, the defendants “had negligently and wrongfully stored and were keeping a large and dangerous quantity of dynamite, ’ ’ which exploded and killed Daniel O’Brien; but we held that under it the measure of the master’s liability was to use reasonable care to provide the servant with a reasonably safe place in which to work. Turning, then, to the evidence, we observe: That the appellant was engaged in the shaft at a point about fifty feet above the 200-foot level; that a large quantity, of dynamite was kept at the 200-foot level, near the shaft in which appellant was working; that it was stored at a point about seventy-five feet from the “thawer,” in which dynamite was being heated so as to be rendered more readily explosive; that the dynamite both in the thawer and at the shaft, exploded; that by the explosion appellant was injured, his life imperiled, and the life of one of his companions destroyed. It is said that in point of fact there is no analogy here with the O’Brien Case, because caps were stored with the dynamite in that ease. The difference is one of detail, not of principle. So far as we can tell, there was no exigency or custom that required the storing of the dynamite so close to the shaft that the effect of its explosion could be felt therein, or so near to the thawer as to increase the danger of explosion; and if, as may be inferred from the facts shown, the danger of explosion was increased by storing the large quantity of dynamite at a point so near the thawer, then, for the reasons stated in the O ’Brien Case, enough was shown to take this case to the jury on the question whether the respondents had negligently failed to furnish appellant with a reasonably safe place in which to work. The appellant also insists that, independently of the foregoing contentions, a sufficient showing was made as to the negligent cause of the explosion, under the allegations of the complaint touching the methods of thawing. According to the testimony, the purpose of using a thawer is to heat cold dynamite which is not sufficiently sensitive for mining purposes, so as to make it more readily explosive. The more it is heated the more it will respond to the instrumentalities capable of inducing explosion. The thawer was a cabinet within a cabinet, situated along a drift about twenty-five or thirty yards from the shaft; the outer cabinet consisted of an excavation in the drift inclosed by a front made of scrap lumber set into the walls and floor of the drift, “put up to make a fairly close covering,” and covered with gunnysaeks and rags; the entrance to this outer cabinet was through a door large enough for a person to pass through conveniently. The inner cabinet was a box 2x3 feet in size; the whole front side of it being removable. It was constructed of new lumber. Within it were four shelves made of boards, some of which were perforated, and two 32-eandle power, and three 16-candle power, incandescent electric lights. In thawing the dynamite was laid upon the shelves in the inner cabinet, where the heat generated by the electric lamps brought it to or beyond the desired stage. Thawed dynamite was also kept in boxes in the outer cabinet, preparatory to distribution among the miners as needed. How much heat was generated by the means employed is not shown, and there was no thermometer or other device in the cabinet by which it could be ascertained; nor is there any testimony showing the exact degree to which dynamite should be thawed in order to be available for mining purposes and at the same time be reasonably safe, considering the nature of the substance. The record, however, is replete with testimony that it was often too hot. Some of the witnesses testified that it was sometimes so hot as to be sweaty and mushy; when in that condition it was especially sensitive and dangerous to handle. On two occasions it was so hot when delivered to the miners that they felt impelled to cool it before using, for fear of a premature explosion. Surely it was a question for the jury whether a method capable of producing such results was a reasonably safe one, or whether, as employed, it was unsafe in the respect alleged; and, as the master is obliged to use ordinary care to select such methods or appliances as are reasonably safe, having in mind the nature of the business in hand, it is clear that ample proof was made of negligence in this regard. The respondents argue, however, that since the appellant charges the explosion to have occurred through the overheating of the dynamite, his case has failed, because there is no evidence that heat will explode dynamite, or that the thawer was generating a degree of heat sufficient to effect that result. The witness Boulware distinctly testified that the dynamite could be exploded by heat alone; “getting hot in the sun might explode it,” he said. But we do not understand the appellant to have been so limited by his complaint that he was obliged to show a spontaneous explosion from heat alone; his allegation touching the overheating of the dynamite posits a conditio sine qua non, which, if established by the proof and shown to be negligent, is sufficient. (Lundeen v. Livingston E. Light Co., 17 Mont. 32, 41 Pac. 995; Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130; O’Brien v. Corra-Rock Island Min. Co., supra; Stewart v. Stone & Webster E. Corp., 44 Mont. 160, 119 Pac. 568.) The question, therefore, is whether there was sufficient evidence that overheating of dynamite caused the explosion, either directly or as an-indispensable condition. When the explosion happened, there was in operation a thawer capable of heating dynamite to excess, and dynamite was being heated in it. On the very day of the explosion, dynamite had come from this thawer overheated to the stage called “mushy.” Unthawed dynamite, such as the deposit near the shaft, does not readily explode, even with cap and fuse. Dynamite thawed to the degree proper for mining purposes does not commonly explode unless cap and fuse are applied, but dynamite heated to excess may explode from heat alone. No mining operations were carried on in the drift where the thawer was. The appellant had nothing to do with its handling. No one went in or out at that level but the powderman, and he was in the level below when the explosion occurred. After the explosion there was nothing left of the thawer but scattered pieces of wood, and the rock was displaced where it had been. In the absence of a countervailing explanation, and upon the circumstances stated, it is proper to ascribe the explosion to but one source, the thawer, and to but one cause, the overheated condition of the dynamite therein. Whether, thus overheated, the dynamite exploded spontaneously or because susceptible to some impulse otherwise inadequate, it was not necessary for the appellant to show; but it was his privilege to account for the explosion, if he could, in such a manner as to cut off all escape from liability. In his effort to accomplish this, he was met by many adverse rulings, of which he complains. There was testimony that the bulbs in the thawer were so situated, with reference to the holes in the shelves, that moisture, if generated in the cabinet, could get to them; that the dynamite was sometimes heated to such a degree as to have moisture upon the sticks; that an electric bulb, when inclosed, may get so hot as to burn wood or set clothing afire; that it can be heated by electricity so that the heat itself will break the glass, or that the glass would be broken by a drop of water striking it; that when a bulb breaks there is a report “sometimes like a 30-30 or a 32 revolver cartridge.” One witness also testified that, heated to the degree it sometimes was by the thawer, dynamite will explode from a jar or concussion such as would be caused by the bursting of an electric light bulb of the same character as those used in the thawer. But other testimony to the same effect was excluded. It is true that the witnesses from whom this evidence was sought claimed-no precise knowledge of the constituents of dynamite, or of the exact, degree to which it must be heated to be thus responsive; but they were all practical miners who had observed and handled dynamite and knew its properties from the practical point of view. Speaking generally, and without reference to those instances in which the rulings may have been justified on strictly technical grounds, we think the testimony was competent and admissible. Whether the collapse of a bulb would suffice to explode dynamite when heated to a degree possible in the thawer, and whether a bulb might reasonably be expected to collapse under the conditions existing in the thawer, were not irrelevant inquiries; for if the collapse of a bulb was a matter to be reasonably anticipated, and if such a collapse would suffice to explode dynamite heated to a degree possible in the thawer, then it was negligence to employ a system in which these conditions might concur; and if they did concur, escape from liability would be impossible. The bursting-bulb theory may or may not be worthy of consideration under the facts as finally established; but to the extent that it might be warrantably credited by the jury, it tended to re-enforce the contention of appellant under the allegations in question. Appellant also sought to show by several witnesses who were miners, and who had worked in several mines besides the Keating, that electricity was not elsewhere employed as a thawing agency. This evidence was rejected upon objections by respondents, their theory, as advanced in the trial court, being that the master might select any method he saw fit for the conduct of his business. Needless to say, this was incorrect; the master may select any method which is reasonably safe; and, “while not conclusive on the question of negligence, evidence is generally admissible in an action for personal injuries, to show whether or not a master’s machinery, appliances, ways and methods are such as are in ordinary and common use by others in the same business.” (26 Cyc. 1108; Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843; Kinsel v. North Butte Min. Co., 44 Mont. 445, 120 Pac. 797.) If, therefore, the complaint had tendered the issue that the use of electricity for thawing, without regard to the manner of use, was negligence, the evidence would have been admissible. But as we read the complaint, it does not charge that it was negligence to thaw by electricity in any event, but to use electricity for thawing in the manner and to the extent employed. Under this construction, the exclusion of the evidence was proper. In another series of questions the appellant sought to elicit the opinions of certain witnesses as to whether, having in view the overheating of’the powder on previous occasions, the method employed for thawing was a safe one. In some instances the witness was not sufficiently qualified, but otherwise there is no force in any of the objections addressed to these questions in the court below. The method in question was the use of electricity in the manner and to the extent employed, and the inquiry was relevant and material; for, although it may be said that, given the facts, the jury could tell whether the method was a safe one, yet it cannot be said that the jury were necessarily as competent to pronounce upon this subject as were some of the witnesses whose opinions were rejected. (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42; Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 464, 113 Pac. 467.) Other rulings were made adverse to appellant in the course of the examination of witnesses which are assigned as error. As to them we find that whatever error was committed was' cured by the subsequent admission of the testimony, and so they are of no avail on this appeal. Some space is given in the briefs to the discussion of the ruling admitting, over objection, the testimony of Boulware before the coroner’s jury, and the refusal of the court to strike it out on motion. It could not be stricken in its entirety, for the very reason that it should not have been admitted in its entirety, viz., parts of it—and parts only—-were admissible. The only purpose that any of it could serve was to show that at the inquest Boulware had made statements, touching the accident, at variance with those given on the trial, and such of these as it contained were admissible if denied or if recollection of them were disclaimed (Rev. Codes, sec. 8025) ; but the testimony of Boulware at the inquest contained much matter of opinion, and some of pure hearsay, which in no way tended to contradict the particular facts or opinions given by him upon the trial. The admission in toto of his testimony before the coroner’s jury was wrong, but as the ease did not reach the jury, we are unable to see how the appellant was prejudiced by it. The final question is whether the ease as presented by the appellant discloses assumption of risk. We think not. The only risk which it is claimed he assumed is that of the explosion of the dynamite at the shaft. Whatever the condition of that dynamite may have been, and however likely the explosion from causes within his knowledge, the explosion was not so caused according to the record, and he had no knowledge of the conditions from which it prima facie did proceed. To make a ease of assumption of risk it is not enough that the injured party knew of the thing from which harm might come; he must know and appreciate the danger from which he suffered. (O’Brien v. Corra Rock-Island Min. Co., supra; Osterholm v. Boston & Mont. etc. Co., 40 Mont. 508, 529, 107 Pac. 499.) Paraphrasing the language of this court in Moyse v. Northern Pac. R. Co., 41 Mont. 272, 108 Pac. 1062, we may say: He assumed the risk of all dangers incident to the dynamite at the shaft as he saw them; but he had no cause to think, when he went to work at the point above that the dynamite would be exploded by the negligent use of a thawer seventy-five feet away, out of his sight, and with which he had nothing to do. The judgment is reversed and the cause is remanded for retrial. Reversed amd remanded. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

PER CURIAM It is ordered that the appeal in the above-entitled cause be, and the same is hereby,- dismissed without prejudice, in accordance with motion of appellant on file herein.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. Action to recover $6 damages for trespass and $280 penalty for the wrongful rescue of fourteen head of trespassing animals. The cause originated in a justice of the peace court, was appealed to the district court, and from a judgment therein favorable to the plaintiff, the defendant has prosecuted this appeal. 1. Section 2091 of the Revised Codes provides a penalty “of not less than five nor more than twenty-five dollars for each animal” wrongfully rescued from one upon whose premises such animals are trespassing, and, since the complaint discloses that fourteen animals were rescued, it is contended that the justice of the peace court had no jurisdiction because plaintiff might have recovered $350, the maximum penalty prescribed. Subdivision 4 of section 6286, Revised Codes, reads as follows: “The justice courts have jurisdiction: * * * (4) In actions for a fine, penalty, or forfeiture, not exceeding three hundred dollars, given by statute, or the ordinance of an incorporated city, or town. * * * ” The meaning intended to be conveyed by this statute is that the jurisdiction of the justice of the peace court extends to an action for the recovery of a fine, penalty, or forfeiture given by statute or ordinance, where the amount in controversy does not exceed $300. Under such a statute the jurisdiction of the court is not dependent upon the amount which plaintiff might recover, but upon the amount which he demands. This question has been determined so often that it is now beyond the range of controversy. (11 Cyc. 775; 1 Eney. PL & Pr. 703; Brown on Jurisdiction, 2d ed., sec. 19b.) The principle of the rule is recognized by the Code (sec. 7052, Rev. Codes), which allows the prevailing party to remit any excess over the amount fixed as the limit of the jurisdiction of a justice of the peace court. 2. In the justice’s court the defendant interposed a demurrer for misjoinder of causes of action, and now contention is made that the objection raised should have been sustained. Section 7008, Revised Codes, provides that a defendant in a justice of the peace court may demur to the complaint upon any ground of demurrer enumerated in the district court Practice Act, except the one ground “that causes of action have been improperly united.” In this exception is disclosed the legislative design to make the justice of the peace court a forum serviceable to the people, where litigation may proceed without the aid of attorneys or those familiar with the rules of pleading, and to encourage the assertion by a party of all existing claims in one action and avoid multiplicity of suits. The legislature thus opened the way for the joinder, in one complaint, of all the causes of action which a plaintiff has against his adversary, provided only that they be of such character that the justice of the peace court has jurisdiction of each of them, and that the aggregate of the demands does not exceed $300. The language employed in Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695, is to be understood in the light of the facts of that ease. There was not any question of misjoinder involved, and this court’s observation upon subdivision 4, sec. 66, Code of Civil Procedure (now subdivision 4 of section 6286, above), was designed to characterize a single cause of action which might arise under that statute, and was not intended to establish a rule that such a cause of action cannot be joined with any other. The judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. Action by appellants to quiet title to a portion of the East Brooklyn lode, Granite county, Montana, which is in apparent-conflict with a prior location of the Speculator lode, claimed by respondents. The trial was to the court, Honorable Geo. B. Winston presiding without a jury, and he made findings of fact and conclusions of law in favor of appellants. Thereafter respondents, having filed their notice of intention to move for a new trial and having caused their bill of exceptions to be signed and settled by Judge Winston, filed an affidavit disqualifying him from further proceeding with the motion. Thereupon the Honorable J. Miller Smith, of the first judicial district, was called in to hear and determine the motion, and the same, having been submitted to him, was granted. From the order granting respondents’ motion for new trial, this appeal is taken. Much space is given in the briefs to a discussion of the question whether the ruling of a judge called in to pass upon a motion for a new trial is to be tested by exactly the same standards of discretion as would be applied to that of the judge who tried the case if he had ruled thereon. The question is an interesting one and unsettled in this state; but we do not deem the present case an opportune one for its consideration for reasons which will presently appear. The contention of appellants is: (1) That the markings of the Speculator as now claimed by the respondents are not the same as originally made upon the ground, and therefore the respondents abandoned tbeir claim; and (2) if the markings of the Speculator as now claimed by the respondents are the original markings upon the ground, then the location was void ab mitio because of a substantial departure from the calls of the declaratory statement. The subjoined drawing will illustrate the situation; the + representing the point of discovery; the double line representing the Speculator as now claimed by the respondents; the single line representing the Speculator as originally marked upon the ground, according to appellants; and the broken line representing the claim as it would appear if in literal conformity to the calls of the declaratory statement. As to whether the Speculator was ever marked upon the ground in the manner asserted by appellants (shown by the single line), there is a sharp conflict in the evidence, but no good purpose would be served by reciting the testimony at length, for the reason that the trial court did not specifically find upon the subject. The finding, so far as it touched upon the asserted claims of respondents, is that they “never have been and are not now the owners of the alleged Speculator quartz lode mining claim # * * and are not and have not been at any time the owners of the area in conflict between the said East Brooklyn quartz lode mining claim and the said alleged Speculator quartz lode mining claim.” As we read this finding, it proceeds upon the theory that the location of the Speculator was void and is inconsistent with a valid claim subsequently lost by abandonment. Whether the location of the Speculator was void must be determined by the only criterion upon which it is assailed, viz., a fatal divergence between the declaratory statement as filed and the markings of the claim upon the ground. The statute in force when the Speculator location was made (section 3612, Pol. Code 1895, as amended-by Laws 1901, p. 141) did not require, as it did before and has since, that the declaratory statement contain a description of the corners with the markings thereon, but it was required of the locator that, within thirty days after posting his preliminary notice of location, he “define the boundaries of his claim by marking a tree or rock in place or by setting a post or stone at each corner or angle of the claim,” and that, within sixty days after posting his preliminary notice of location, he file a declaratory statement containing, among other things, “the number of feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein,” and “such description of the location of said claim with reference to some natural object or permanent monu ment as will identify the claim.” Such a statute, it is true, dues not require that the declaratory statement contain a description by metes and bounds (Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654), but it does require that, taking the discovery as the initial point, the boundaries be so definite and certain as that they can be readily traced (Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714), and that the declaratory statement contain directions which, taken with the markings, will enable a person of reasonable intelligence to find the claim and run its lines (1 Lindley on Mines, sec. 381; Gamer v. Glenn, supra; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869). While neither mathematical precision as to measurements nor technical accuracy of expression is expected, the degree of accuracy that is required is indicated by the fact that the locator after his discovery had thirty days in which to definitely ascertain the course of the vein and mark his boundaries and thirty days more in which to file hi^ declaratory statement describing his claim so that it could be identified. (Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037.) That degree of accuracy is not met if the description given is so erroneous as to be delusive and misleading, as when the declaratory statement and the markings upon the ground do not even approximately agree as to the general shape of the claim or as to any point, direction, or distance. (Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725.) Recurring, then, to the declaratory statement of the Speculator, we observe that it calls for a tract- of ground 1,500x600 feet, “800 feet in a northerly direction and 700 feet in a southerly direction along the course of the said lode (which is given as northerly and southerly) from the point of discovery and 300 feet on each side, * * * ” the exterior boundaries of which “are distinctly marked by posts or monuments at each corner, * * * namely: Beginning at the northwest corner No. 1, * * * thence easterly 600 feet to the northeast corner No. 2, * * * thence southerly 1,500 feet to the southeast corner No. 3, * * * thence westerly 600 feet to the southwest corner No. 4, * * * thence northerly 1,500 feet to the place of beginning.” As it is now claimed by respondents to have been always marked upon the ground, the Speculator is shaped as shown by the double line in the drawing above and comprehends a tract of ground 500 feet northerly, 800 feet southerly, 120 feet easterly, and 230 feet westerly from the point of discovery, bounded as follows: Commencing with the northwest corner and running thence south 68° 37', east 498.5 feet to the northeast corner, thenee south 5° 51' west 1,311.41 feet to the southeast corner, thence north 68° 34' west 167.9 feet to the southwest comer, thence north 7° 13' west 1,436.3 feet to the place of beginning. While the sufficiency of the description is essentially a question of fact for the jury or for the court sitting without a jury (Bramlett v. Flick, supra), and while no stress is or can be laid upon the mere departure of the lines from the cardinal directions, since the tract is northerly and southerly, yet the description given in the declaratory statement does suggest that the claim is a rectangle, and hence that one starting from the point of discovery and finding the northern corners might, by proceeding at right angles to the northern line, follow the other lines and pick up the other corners. As a matter of fact, if he did so proceed he would miss the southeast comer by over 500 feet and the southwest corner by over 800 feet. Furthermore, the record discloses that the southerly portion of the claim lies in timber through which the lines were not ‘ ‘ swamped ’1; that the south line is over 100 feet farther from the point of discovery and over 432 feet shorter than called for; and that the claim as laid out in nowise resembles what the declaratory statement suggests. In view of all this it is a rational inference that some difficulty might be expected in any attempt to find the lines and corners with the aid of the declaratory statement, and the record shows that as a matter of fact difficulty was met, and doubt may be entertained as to whether it was wholly surmounted even with the aid of the locator who placed the corners. No liberality of construction will avail to overcome such a condition. Respondents place much reliance upon Bramlett v. Flick, supra, wherein a claim which departed somewhat as to directions and distances from those given in the declaratory statement was sustained. But the departures in that case were neither so many nor so great as are here presented. The directions in the Bramlett notice, if followed with reasonable intelligence, could not mislead, and the jury found as a matter of fact that they were sufficiently clear and definite. But no one, unless told, would suppose the Speculator as marked and the Speculator as described to be one and the same. The conclusion of the trial court that the Speculator had never any lawful existence is supported by the decisive preponderance of the evidence. In these circumstances there was no-room for discretion in the judge who granted the motion; there was nothing for it to rest upon. The motion should have been denied, and the order granting it is reversed. Reversed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTICE SANNER delivered the opinion of the court. By an information filed in the district court of Park county, the respondent, one Peter Harper, was accused of aiding a woman in obtaining transportation from Woodlake, Minnesota, to Livingston, Montana, for the purpose of concubinage, contrary to the provisions of section 1, Chapter 1, Laws of the Twelfth Legislative Assembly (Laws 1911, p. 3). To this information the respondent demurred, principally upon the ground that the court was without jurisdiction. The demurrer was allowed and, because the objection could not be avoided by another or amended information, the respondent was discharged. From the judgment thus entered, the state has appealed. In ruling upon the demurrer the learned judge of the district court filed a memorandum which, omitting the formal parts, is as follows: “The law under which this information is drawn was passed by the twelfth legislative assembly, and was approved by the governor on January 28, 1911, and, it will be observed, in section 1 assumes to prohibit the transportation of women and girls into this state from another state for immoral purposes, and to punish as a felony those who shall aid any such girl or woman in obtaining such transportation. Prior to the passage of this law the Congress of th'e United States had, on June 25, 1910, passed what is known as the Mann Act (Fed. Stat. Ann. 1912 Supplement, 419), in the second section of which it is provided that any person who shall aid or assist in procuring any ticket or any form of transportation to be used by any girl or woman in interstate commerce in going to any place for the purpose of prostitution or debauchery or for any immoral purpose shall be deemed guilty of a felony. “The contention of counsel for the defendant is that the transportation of persons from one state to another, whatever the purpose, is interstate commerce; that the provisions of section 8, clauses 3 and 18, of the federal Constitution,* which confer upon Congress the power to ‘regulate commerce among the several states,’ and ‘to make all laws which shall be necessary and proper’ for that purpose, are exclusive, at least when Congress has assumed to exercise its delegated powers; that, Congress having manifested its purpose in the Mann Act to take possession of the subject of the transportation of girls and women from one state to another for immoral purposes, and to punish those who 'might engage in such traffic or seek to aid in the same, the entire matter must be left under federal control, and that the Act under which the information against the defendant was drawn is the result of an unwarranted assumption of power by the legislature; that the legislature having no legal right to legislate upon the matter, its attempted Act could not .confer upon the state courts any jurisdiction to punish an offender against the Act. . The state law and the federal Act embody substantially the same provisions, and it is clear that it was the intention of Congress to assume control of the subject so far as its power extends. “The transportation of freight or passengers from one state to another, or through more than one state, is interstate com merce; and the regulation thereof by the states is forbidden by the federal Constitution. Such commerce, whether carried on by individuals or corporations, is under the exclusive jurisdiction of Congress. (State of Indiana v. Pullman Palace Car Co. (C. C.), 16 Fed. 193, 11 Biss. 561.) “In Mondou v. New York etc. R. Co. [223 U. S. 1, 56 L. Ed. 327, 38 L. R. A. (n. s.) 44, 32 Sup. Ct. Rep. 169], the supreme court of the United States, referring to commerce clauses of the Constitution, says: ‘They have been considered by this court so often and under such varied connections that some propositions bearing upon the extent and nature of this power have come to be so firmly settled as no longer to be open to dispute, among them being (1) that the term “commerce” comprehends more than the mere exchange of goods. It embraces commercial intercourse in all its branches, including transportation of passengers and property by common carriers, whether carried by water or by land. ’ It is therefore not open to argument but thát the transportation of passengers from one state to another is embraced within the meaning of the words ‘interstate commerce,’ and that Congress has the authority to regulate such transportation. “In the case of Hoke et al. v. United States [227 U. S. 308, Ann. Cas. 1913E, 905, 57 L. Ed. 523, 43 L. R. A. (n. s.) 906, 33 Sup. Ct. Rep. 281], it is held: ‘Congress, in the exercise of its power to regulate commerce, could lawfully enact the provisions of the White Slave Act of June 25, 1910 (36 Stats, at Large, 825, Chap. 395, U. S. Comp. Stats. Supp. 1911, p. 1343), making criminal the transportation of women or girls in interstate commerce for the purpose of prostitution or debauchery, or other immoral purposes, or the obtaining, aiding, or inducing of such transportation. ’ “That the state law under consideration attempts to control a certain phase of interstate commerce is disclosed in the first three lines of the Act' in question, which declare: ‘ The importation of women and girls into this state, or the exportation of women and girls from this state for immoral purposes, is hereby prohibited.’ We then have a state law and a federal law, each dealing ydth the same subject, and are to inquire what effect one has upon the other. Are they of equal potency and effect; are they concurrent, or must one give way to the other ? “Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 4 L. Ed. 579, says: ‘If any one proposition could command the universal assent of mankind, we might expect it would be this: that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it by saying: “This Constitution and the laws of the United States which shall be made in pursuance thereof,” “shall be the supreme law of the land,” and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, “anything in the Constitution or laws of any state to the contrary notwithstanding.” ’ Further on in the same opinion, the court uses this language: ‘This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective states, and cannot be controlled by them. ’ “In Smith v. State of Alabama, 124 U. S. 465, 31 L. Ed. 508, [8 Sup. Ct. Rep. 564], the supreme court of-the United States says: ‘The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.’ “In Covington & Cincinnati Bridge Co. v. Commonwealth of Kentucky [154 U. S. 204, 38 L. Ed. 962, 14 Sup. Ct. Rep. 1087], the supreme court of the United States says: ‘ The adjudications of this court with respect to the power of the states over the general subject of commerce are divisible into three classes: First, those in .which the power of the state is exclusive; second, those in which the states may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive, and the states cannot interfere at all. ’ “It will be admitted without argument that the statute in question does not fall within the third class of cases above mentioned, and that the state under its reserved police power has the right, at least in the absence of congressional legislation, to control the matter of bringing persons into the state, there to engage in immoral practices. In the ease of Hoke et al. v. United States, supra, the supreme court of the United States says: ‘There is unquestionably a control in the states over the morals of their citizens, and, it may be admitted, it extends to making prostitution a crime. It is a control, however, which can be exercised only within the jurisdiction of the states, but there is a domain which the states cannot reach, and over which Congress alone has power; and, if such power be exerted to control what the states cannot, it is an argument for, not against, its legality. ’ It must likewise now be conceded that the statute does not fall within the first class of cases above mentioned, for the reason that in Hoke v. United States, supra, the supreme court has held that the Mann Act is a valid exercise of the power of Congress under the commerce clause of the federal Constitution. “Having, by the process of elimination, removed the Act in question from the first and third classifications made by the su-. preme court in the Covington & Cincinnati Bridge Co. Case, it follows, of necessity, that it must come under the second class— that is, that the powe'r attempted to be exercised is one of those instances in which the state may act in the absence of legislation by Congress—and it remains only to determine what effect the congressional Act has upon the state Act. This subject has been passed upon in a number of recent cases, all holding that in those instances in which the state has power to act in the absence of legislation by Congress, when Congress does, by its Act, manifest a purpose to take possession of a subject within its power under the commerce clauses of the Constitution, all state policies, regulations, and laws upon the subject are superseded by the congressional Act. (Adams Express Co. v. Croninger [226 U. S. 491, 57 L. Ed. 314, 44 L. R. A. (n. s.) 257, 33 Sup. Ct. Rep. 148]; Chicago, B. & Q. Ry. Co. v. Miller [226 U. S. 513, 57 L. Ed. 323, 33 Sup. Ct. Rep. 155]; Northern Pac. Ry. v. State of Washington [222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. Rep. 160], The same holding has been made by the supreme court of Montana in the recent case of Melzner v. Northern Pac. Ry. Co., 46 Mont. 277, 127 Pac. 1002. “Counsel for the state, however, insists that both of these Acts remain in effect, and the jurisdiction over the offense named is concurrent in the federal and state courts; that the United States and the state being different sovereignties, the same Act may be an offense against both. This might be true in some instances, but here we are confronted with the' fact that, so far as the regulation of interstate commerce is concerned, the states have expressly surrendered the entire subject to the general government, and that, when the general government sees fit to exercise the powers delegated and surrendered to it by the states, the state is precluded from saying that the subject, or any matter connected therewith, is under the concurrent control of the two sovereignties. The case of State v. Northern Pacific Ry. Co., 36 Mont. 582 [13 Ann. Cas. 144, 15 L. R. A. (n. s.) 134, 93 Pac. 945], appears to be an answer to these contentions of counsel. In that case the state sought to punish as a crime the violation of what is known as the Sixteen Hour Law, and, while a conviction was sustained on the ground that the federal law covering the same matter had not become effective at the time of this prosecution, the court, in effect, holds that, as soon as the federal law should become effective, prosecutions under the state law could no longer be maintained, thus applying to criminal prosecutions the same rules which have been announced in the civil cases above cited.” This disposition of the matter as presented to the district court is complete. The attorney general, however, contends before us that the position of the district court is untenable, because the state statute in question is not an attempt to directly regulate interstate commerce, since it does not impose any restriction, tax, burden, condition, or prohibition upon the carriers, or upon the freedom of individuals moving from state to state; and therefore, being a reasonable exercise of the reserved police power, it is not open to attack as an interference with interstate commerce. In other words, the statute addresses itself only to citizens of this state upon a matter within the range of its police powers. The argument has some plausibility and might command respect, were it not for the direct answer to be found in Hoke et al. v. United States, cited above. The Mann Act also addresses itself to the citizens of this state in. common with the citizens of all the other states, and it is leveled not merely at the person who transports, but also at the person “who shall cause to be transported or aid or assist in obtaining” interstate transportation for “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” The state statute provides that “whoever shall * * * aid any such woman or girl in obtaining transportation to * * # this state for the purpose of prostitution or concubinage, or for any other immoral purpose, shall be deemed guilty of a felony,” etc. The only difference in these provisions is that where the Mann Act uses the word “debauchery” the state statute says “concubinage”; but this difference is not essential. (Athanasaw et al. v. United States, 227 U. S. 326, Ann. Cas. 1913E, 911, 57 L. Ed. 528, 33 Sup. Ct. Rep. 285.) Now, if, as is the case, the very provision of the Mann Act above referred to has been authoritatively construed to be a direct regulation of interstate commerce, how can it be said that the like provision of the state statute is not of the same character? The assertion that the state statute imposes no restriction, condition, or prohibition upon the freedom of individuals in moving from state to state would seem to carry its own answer. When the statute says that importation into, or exportation from, this state of women and girls for immoral purposes is unlawful, it characterizes not merely the act of the person who furthers the importation or exportation, but also the act of the person imported or exported; and the unlawful character of the act of the person imported or exported is not affected by the circumstance that the penalties of the law are not visited upon her. A person is not at liberty to do an unlawful thing. In the absence of both the federal and state statutes, persons would be at liberty to come into and go out of this state, without regard to sex or purpose. Freedom of movement implies the right to receive assistance when such assistance may be had. To deny to A the right to assist B is to deny to B the right to be assisted and so restrict the movements of B. In the case of women and girls who come and go for immoral purposes, this is the laudable purpose of both the state and federal enactments. “If the facility of interstate transportation- can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to, and the enslavement in prostitution and debauchery of, women, and more insistently of girls.” (Hoke v. United States, supra.) While the transportation of persons is a branch of legitimate commerce, to knowingly transport or aid in the transportation of women and girls for immoral purposes is a proceeding which the best sense of all the world will condemn, and which as a menace to its own welfare, any state may prohibit under its ■police power. Such legislation is doubtless effective so long as Congress remains silent on the subject. (Morgan etc. S. S. Co. v. State Board of Health, 118 U. S. 455, 30 L. Ed. 237, 6 Sup. Ct. Rep. 1114; Cooley v. Post Wardens of Philadelphia, 12 How. 299, 318, 13 L. Ed. 996; Covington etc. Bridge Co. v. Kentucky, supra.) The fallacy of appellant’s position here is that, if a state statute is an exercise of the police power, it may be enforced, although it be a direct regulation of interstate commerce in a respect covered by federal legislation. “The line of distinction between that which constitutes an interference with commerce and that which is a mere police regulation, is sometimes exceedingly dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that Congress has the power to go beyond the mere regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it should be deemed advisable; and that to whatever extent the ground shall be covered by those directions, the exercise of state power is excluded.” (Cooley’s Constitutional Limitations, 7th ed., 856.) Of certain quarantine regulations of the state of Louisiana it was remarked by the supreme court of the United States: “While it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations, and an exercise of the police power, it has been said more than once in this court that, even where such powers are so exercised as to come within the domain of federal authority as defined by the Constitution, the latter must prevail.” (Morgan etc. S. S. Co. v. State Board of Health, supra.) The provision before us declares that, under certain circumstances, women and girls are not legitimate subjects of commerce. No one will dispute it, but the controlling power to make that declaration rests with Congress; otherwise the power vested in Congress to regulate interstate commerce, may be circumscribed by the ability of the state to determine what shall or what «hall not be regulated. “The police power would not only be a formidable rival, but, in a struggle, must necessarily triumph over the commercial power, as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated.” (License Cases (Peirce v. New Hampshire) 5 How. 597, 600, 12 L. Ed. 256, 298.) The foregoing is, of course, intended to apply only to those portions of the first section of Chapter 1, Laws of 1911, which relate to transportation, into this state from without, and must not be taken as an intimation against the validity of any other provision of that section or of any other section of that Act. The judgment is affirmed. Affirmed. Mr. Cheep Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTICE SANNER delivered the opinion of the court. This proceeding, with its separate appeals from the judgment and from an order granting a new trial in the same case, aptly illustrates one of the anomalies of our appellate procedure. As the effect of an order granting a new trial is to set aside the verdict or other decision upon the facts and thus to abrogate the judgment founded thereon, and as the order granting the new trial in this case was entered before the notice of appeal from the judgment was filed, it would seem that there was no judgment to appeal from. The office of an appeal from the judgment is to present questions of law, but its effect, if successful, is to do what in this case has been done, viz., to abrogate the judgment. The effect of the order appealed from is, of course, conditional, and a reversal of it would operate to restore the judgment; so that, from this point of view, we are asked by one of these appeals to undo what by the other it is sought to have done. The order granting a new trial was a general one and must be affirmed if it can be justified upon any of the grounds' urged in vindication of it and stated in the notice of intention. These are: Error in permitting the defendants to plead and to produce evidence in support of their counterclaim; error in the instructions, and that the verdict is contrary to the evidence. Plaintiff, for a cause of action, alleges: That on July 25, 1910, she leased by written instrument to A. W. Waggoner and Melvina Waggoner certain premises in the city of Deer Lodge known as the Scott House, “together with certain personal property therein contained,” for the term of two years at the rental of $100 per month; that in consideration of the lease ■a bond in the sum of $1,500 was executed by the Waggoners as principals, and by the defendants O’Neil, Moe and Smith as sureties, conditioned that the Waggoners should pay the rent and perform all the other agreements imposed upon them by the lease; that the Waggoners entered upon, occupied and used the Scott House as a hotel from August 1, 1910, to February 1, 1911, when, having failed in their hotel business, they abandoned the said premises without the permission or consent of the plaintiff and without notice to her or her agents; that at the time of such abandonment there was due plaintiff the sum of $50, balance of the rent for January,' 1911, and $100 rent for February, 1911, no part of which has been paid; that since August 1, 1911, “many articles of personal property leased by the plaintiff” to the Waggoners “have been broken, destroyed, injured and carried away from the premises, and * * * are now not in or about the -said premises, and injury and waste has been committed in and about the premises to the property leased,” to the plaintiff’s damage in the sum of $240, no part of which has been paid; that notice of all this was given to defendant sureties and payment demanded of them; that there is also due the further sum of $100 rent for the month of March, 1911, no part of which has been paid. A general demurrer to the amended complaint was filed, submitted and overruled; whereupon two separate answers were filed—one by the Wag-goners and one by the other defendants—which answers admitted the execution of the lease and bond, denied all the other allegations of the amended complaint, pleaded certain affirmative defenses based upon an alleged unlawful eviction of the Wag-goners by the plaintiff, and closed with a counterclaim which is to the following effect: That the Waggoners “went into the possession of said premises, under and by virtue of said lease aforesaid, and at great cost and expense prepared said premises for the purposes of conducting a hotel and lodging-house therein, and that they refitted and refurnished said building and put into said building under and by virtue of the terms of said lease aforesaid, the following described personal property of the value of $350, or more”; that on or about the month of February, 1911, plaintiff, without cause or reason therefor, unlawfully evicted and ousted the Waggoners from the premises and at the same time took and has since kept possession of the personal property above referred to, and has refused to surrender the same or pay the value thereof, notwithstanding the demands of the Waggoners and to their damage in the sum of $350. To this counterclaim as pleaded by the Waggoners and as pleaded by the other defendants, demurrers and motions to strike were filed, specifically urging that the counterclaim is not of the character specified in section 6541, Revised Codes. These demurrers and motions were overruled and the essential allegations of the counterclaim were put in issue by replies. ■ It is stated in the brief of appellants, though without any warrant apparent in the record, that the new trial was granted because in the opinion of the district judge the counterclaim was not a proper one, and to this much argument is directed. Section 6540, Revised Codes, provides, among other things, that-an answer may contain a statement of any new matter constituting a counterclaim, but such counterclaim “must tend, in some way, to diminish or defeat the plaintiff’s recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in.the action: (1) A cause of action arising out of the contract or transaction, set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action; (2) in an action on contract, any other cause of action on contract, existing at the commencement of the action.” (Sec. 6541.) That these provisions are designed to enable parties litigant to adjust their differences in one action, so far as that can logically be done, and thereby to prevent multiplicity of suits, is made plain by the further provision that if the defendant omit to set up a counterclaim in the classes mentioned in subdivision 1 of section 6541, neither he nor his assignee can afterward maintain an action against the plaintiff thereon. (Sec. 6547.) For statutes so highly remedial, a broad and liberal construction is required in order that .the purposes designed by them shall be most completely served. 1. Thus premising, we take up the declaration of respondent that “the counterclaim of defendants was a cause of action in tort for conversion of personal property and therefore not the proper subject of counterclaim against plaintiff’s cause of action upon contract.” In the prolonged effort to achieve full understanding of the true meaning, and purpose of the reformed procedure, many decisions have been promulgated which give countenance to this view; but we think that it cannot be correct. Subdivision 1, above quoted, specifies three things as possible bases of counterclaim, viz., the contract sued on, the transaction set forth, and the subject of the action. Either these things are different and distinct, or the provision is “a misleading tautology.” Elementary rules of interpretation require that some different significance be given to these terms; but if they are different and distinct, then counterclaims may exist which do not sound in contract. The reason assigned for the doctrine that a counterclaim sounding in tort cannot be pleaded as against a demand upon contract is the supposed impossibility of legal connection between the two events; but every money demand is either upon contract or upon tort, and the same reason may be and is assigned with stronger emphasis for denying the right to plead a counterclaim in tort as against a demand in tort. If a counterclaim in tort cannot be pleaded as against a demand either upon tort or in contract, then, in the case of' money demands we have a counterclaim which is not a counterclaim—a conclusion which cannot be accepted. As pointed out by Mr. Pomeroy (Code Remedies, Div. 6, subd. 1), the solvent of the difficulty lies in the breadth and scope of the terms “transaction” and “subject of the action.” The term “transaction” is not legal and technical—it is common and colloquial; it is therefore to be construed according to the context and to approved usage. (Rev. Codes, see. 8070.) As so construed it is broader than “contract” and broader than “tort,” although it may include either or both; it is “that combination of acts and events, circumstances and defaults, which, viewed in one aspect, results in the plaintiff’s right of action, and viewed in another aspect, results in the defendant’s right of action” (Pomeroy’s Code Remedies, see. 774), and it “applies to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect or breach of contract.” (34 Cyc. 686; 1 Sutherland on Code Pleading, sec. 633; Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 25 L. R. A. 856, 29 Atl. 76; Story & Isham Com. Co. v. Story, 100 Cal. 30, 34 Pac. 671; Advance Thresher Co. v. Klein, 28 S. D. 177, 133 N. W. 51; Woodruff v. Garner, 27 Ind. 4, 89 Am. Dec. 477; King v. Coe Commission Co., 93 Minn. 52, 100 N. W. 667.) When in this sense of the word a cause of action in favor of the defendant arises from the “transaction” set forth in the foundation of plaintiff’s claim, it is pleadable as a counterclaim, no matter what its technical soundings or those of plaintiff’s demand may be. (1 Sutherland on Code Pleading, sec. 635; Adams v. Schwartz, 137 App. Div. 230, 122 N. Y. Supp. 41; Gross v. Hochstim, 130 N. Y. Supp. 315; Harrington v. Jaeckel, 75 Misc. Rep. 653, 133 N. Y. Supp. 933; Lind v. Demorest, 116 N. Y. Supp. 656; Wadley v. Davis, 63 Barb. (N. Y.) 500; Barber v. Ellingwood, 137 App. Div. 704, 122 N. Y. Supp. 369; Kneeland v. Pennell, 49 Misc. Rep. 94, 96 N. Y. Supp. 403; Deagan v. Weeks, 67 App. Div. 410, 73 N. Y. Supp. 641; Ter Kuile v. Marsland, 81 Hun, 420, 31 N. Y. Supp. 5; Heigle v. Willis, 50 Hun, 588, 3 N. Y. Supp. 497; Xenia Branch Bank v. Lee, 7 Abb. Pr. (N. Y.) 389, 2 Bosw. 694; Tinsley v. Tinsley, 15 B. Mon. (Ky.) 454; Gutzman v. Clancy, 114 Wis. 589, 58 L. R. A. 744, 90 N. W. 1081; McArthur v. Green Bay etc. Canal Co., 34 Wis. 139; Warren v. Hall, 20 Colo. 508, 38 Pac. 767; De Ford v. Hutchinson, 45 Kan. 318, 11 L. R. A. 257, 25 Pac. 641; Judah v. Trustees etc., 16 Ind. 56; Bitting v. Thaxton, 72 N. C. 541; McHard v. Williams, 8 S. D. 381, 59 Am. St. Rep. 766, 66 N. W. 931, and the cases cited above.) It is quite true that some detached sentences in the earlier decisions of this court may be quoted contrary in effect to the conclusions above stated; but these utterances, occasioned by circumstances easily distinguishable from the present case and made arguendo, are no authority for affirming that in no instance can a counterclaim technically in tort arise out of the same transaction as the plaintiff’s demand, when the latter is ex contractu in form. For instance: In Wells v. Clarkson, 2 Mont. 379, the court, distinguishing Roberts v. Carter, 38 N. Y. 107, said: “The facts in that ease appear from the reported decision to have been that Carter brought an action against Roberts on a contract. Before judgment Carter assigned his claim to one Terry, and on the 23d day of July, 1857, a judgment was entered in favor of Terry in the action. Roberts, at the time of this assignment to Terry, was prosecuting an action against Carter for damages for fraud. The claim of Roberts was for unliquidated damages, at the date of this assignment by Carter to Terry, and hence Roberts at the date thereof had no right of setoff, equitable or otherwise, of a claim for unliquidated damages against a claim on contract, where the damages are liquidated. It was not until some time after this assignment that Robert’s demand was merged in a judgment when it would have been the subject of a setoff. Terry then owned the claim, not Carter. Counsel ought to have been able to distinguish between that case and the one at bar.” The pertinence of these remarks as applied to the facts stated is indubitable; but they have no value whatever as a precedent upon the question now in hand, because the claim of, Roberts could not by any sort of reasoning have been held to arise out of the same transaction as Carter’s demand, and as it did not arise out of the same or other contract and was not connected with the subject of Carter’s action, it could not be a counterclaim. In Collier v. Ervin, 3 Mont. 142, the word “transaction” was treated as though it meant the same as “contract,” and upon the authority of Wells v. Clarkson it was categorically remarked ■that a “counterclaim founded upon a tort cannot be set off against a claim founded upon contract.” To appreciate the force of this dictum it is necessary to note the circumstances under which it was uttered, and these are, that the statute then in force (Codified Statutes 1871-72) authorized a counterclaim which consisted of “a cause of action arising out of the transaction set forth in the complaint,” etc., as distinguished from our present provision that a counterclaim may consist of “a cause of action arising out of the contract or transaction,” etc. Whatever reason there might have been, under the statute and under the authorities as they then stood, for construing the term “transaction” as synonymous with “contract,” can have no effect upon the clear implication of the present law that they are not synonymous. Finally, in Potter v. Lohse, 31 Mont. 91, 97, 77 Pac. 419, the opinion quotes the above dictum of Collier v. Ervin. The quotation was unnecessary, if not irrelevant. The action was in conversion and it was sought to plead a judgment wholly unrelated to the foundation of plaintiff’s claim and wholly unconnected with the subject of the action. It was properly held that this could not be done. This conclusion upon the facts was amply supported by the cases cited from New York; but the attitude of the New York courts upon the principles involved is illustrated by the authorities cited above. According to the pleadings at bar, both parties ground themselves upon the relations created by the lease and bond, the execution of which was the beginning of the transaction between them. Then follow the entry into possession by the Waggoners; the occupancy of the premises by them, until the abandonment, as charged by the plaintiff, or until the eviction, as claimed by the defendants; the alleged default in the payment of rent; the re-entry by the plaintiff, including her seizure of the personal property of the Waggoners placed upon the premises under the authority of the lease; her refusal to surrender that property to them, and the divers other incidents and details which go to make up her right to sue and theirs to resist. Without taking each and all of these circumstances into account, the legal rela tions of the parties touching the entire transaction could not be fully determined; out of it the counterclaim arose and it was properly pleaded under subdivision 1 of section 6541. (Gilbert v. Loberg, 86 Wis. 661, 57 N. W. 982; Vilas v. Mason, 25 Wis. 310; Littman v. Coulter, 23 Abb. N. C. (N. Y.) 60, 7 N. Y. Supp. 1; Advance Thresher Co. v. Klein, supra.) There is another consideration. In the late case of First Nat. Bank v. Silver, 45 Mont. 231, 122 Pac. 584, a counterclaim for the conversion of personal property was explicitly allowed in an action upon a promissory note, upon the theory that the implied contract of the taker to pay the reasonable value of the property brought the counterclaim within the provisions of subdivision 2 of section 6541, notwithstanding that no express waiver of the tort appeared on the face of the pleadings. 2. It is further contended by respondent that the counterclaim was improper because it existed, if at all, in favor of Melvina Waggoner alone and it arose after the commencement of this action. While it is true that a cause of action pleaded as upon a right in favor of two or more persons jointly is not sustained by proof of a right in one of them (Brown v. Daly, 33 Mont. 523, 84 Pac. 883; American Livestock & Loan Co. v. Great Northern Ry. Co., ante, p.495, 138 Pac. 1102), still the amended complaint' at bar declares upon a transaction in which the obligations of the defendants were joint and several. It was in pursuance of these obligations that the Waggoners installed in the leased premises certain personal property for the taking of which the counterclaim is made; and although the evidence does disclose some statements on the part of Mrs. Waggoner that the property was bought by her, she being the person who undertook the active management of the hotel, a sufficient interest on the part of Mr. Waggoner is made to appear to satisfy the allegations of the counterclaim. Touching the other feature, it is the settled law of this state that all issues are to be determined as of the date of the commencement of the action (Rairden v. Hedrick, 46 Mont. 510, 129 Pac. 498), and that “a counterclaim must be one existing ■and matured for action in favor of the party asserting the same at the time the action was commenced wherein such counterclaim is sought to be pleaded.” (McGuire v. Edsall, 14 Mont. 359, 36 Pac. 453.) Whether the cause of action constituting the counterclaim existed when the action was begun depends upon whether a demand was necessary and whether any had been made; and whether demand was necessary depends in turn upon whether the plaintiff’s re-entry of the leased premises was justified by the circumstances pleaded in authorization of it. If the re-entry was not so justified, it was wrongful, and a conversion then occurred of whatever personal property belonging to the Waggoners she took into her possession (Tuttle v. Hardenberg, 15 Mont. 219, 38 Pac. 1070), without regard to when demand was made or whether any was made. (Eddy v. Kenney, 5 Mont. 502, 6 Pac. 342; Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.) If, on the other hand, the re-entry by the plaintiff was so justified, then no conversion of the personal property of the Wag-goners occurred until demand and refusal. Upon the question of justification for the plaintiff’s re-entry, as well as upon the question of demand, the evidence was conflicting; it does not so clearly preponderate against the conclusion of justification that the trial judge could be put in error by adopting'it. This he may have done, and if he did, the order directing a retrial was proper. Without making any allowance to the plaintiff on her claim for personal property let to the Waggoners and not accounted for by them, she was entitled under the instructions to accrued rentals in the sum of $150, subject to such offsets as were established under the counterclaim. The verdict of the jury gave her $41, so that the counterclaim of defendants was allowed to the extent of $109 at the very least. The sufficiency of the evidence to justify any such allowance is doubtful; at all events as to anything more than a very small fraction of the amount awarded, it was questionable in quality and met by contradiction. The order granting a new trial might very well have been made upon the ground of dissatisfaction by the court with the conclusions of the jury in this regard. Error is claimed to have occurred in the giving of instruction No. 13, and in the refusal of plaintiff’s proposed instructions numbered'4, 6 and 6y2, sufficient to warrant a retrial, but we cannot assent to this. The instructions should be taken as a whole, and instruction No. 13, taken in connection with the others, is not open to the attack made against it, while the essentials of offered instructions 4, 6 and 6% were fairly presented to the jury. The order appealed from is affirmed and the appeal from the judgment is dismissed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

PER CURIAM The petition of relatrix for a writ of mandate herein, having this day been presented to the court, it is after due deliberation ordered that a peremptory writ issue, directing the court below to issue a writ of possession or make such orders as may be necessary to enforce its decree in the suit of Henry J. Reed et al., Plaintiffs, v. Isabel Dolenty, Executrix, Defendant, rendered in favor of said defendant.

MR. JUSTICE S'ANNER delivered the opinion of the court. The amended complaint alleges that on the night of September 20, 1910, while the respondent was walking along a sidewalk or footpath upon Ohio street, in the incorporated town of Chinook, she fell into an unguarded excavation negligently maintained by said town adjacent to said footpath, sustaining personal injury to her' damage in the sum of $3,400. The answer admits the injury to respondent, the public character of Ohio street—though not the public character of the place where the injury occurred—denies all the other essential allegations of the amended complaint, and, by way of affirmative defenses, alleges contributory negligence and assumption of risk. These affirmative defenses were put in issue by reply. The cause was tried to a jury, by whose verdict the respondent was awarded $1,000. Judgment was entered accordingly. Appellant’s motion for new trial was denied, and the cause is now before us upon appeal from the order denying such motion, as well as from the judgment. As grounds for reversal the appellant urges: Insufficiency of the evidence; error in rulings upon -evidence; error in instructions ; and misconduct of the jury. 1. For some time prior to the accident such work had been going on in Ohio street under the direction of the town of Chinook that embankments were formed on each side of the street, so that the portions of the street intended for sidewalk purposes were left three or four feet higher than the roadway. Along this embankment on the east side and quite close to the edge in places, there was a path which persons were accustomed to travel going north from Second street. On the night of the accident there were no barriers or guards of any kind to prevent the traveler along this path from falling over the embankment, nor any lights to warn against it. Under these circumstances, the respondent, who had never traveled that way before, was homeward bound between 8:30 and 9 o’clock in the evening. She had come eastward on Second street, crossed on the boardwalk from the west to the east side of Ohio street, turned north on the east side of Ohio street, and followed the footpath northward for about thirty-five feet. At this point she stepped into a break or hole in the side of the path, which she could not or did not see, and was precipitated into the roadway. As the result her leg was broken, her ankle was twisted, her earning capacity was much reduced, and she sustained several months of .pain and suffering. From the appellant’s point of view, the case made by the respondent in the district court presented three points of attack, viz.: Whether she was on Ohio street or on private property when the injury occurred; whether Ohio street was in a reasonably safe condition for travel at the time and place of the accident; and whether the respondent was exercising reasonable care for her own safety. The court very commendably submitted special interrogatories to the jury covering these points and the jury answered categorically that the respondent was on Ohio street when the accident happened; that Ohio street was not at the time and place of the accident in a safe condition for travel; and that' the respondent was exercising due care. The evidence germane to these propositions was more or less conflicting, but it was ample to sustain these findings as well as the general verdict of the jury; and no good purpose would be served by reciting it further. The theory of the appellant seems to have been, that, if it was too dark for the respondent to see clearly, she had no business to travel on Ohio street and assumed all the risk of doing so. But this overlooks the rules very accurately applied by the court and jury to the facts: That it is the duty of a city or town to keep its public streets in an ordinarily safe condition for travel; and that the traveler is entitled to assume this to have been done. When the public streets of a city or town “are rendered unsafe by reason of repairs being made therein, or have become defective or unsafe from any cause, and the authorities have notice of the condition, or the circumstances are such as to warrant a presumption of notice, the duty to warn the public by lights or other means, while repairs are made, also arises. The traveler is not bound to make investigations, and he cannot be charged with negligence if he fails to do so.” (McCabe v. City of Butte, 46 Mont. 65, 125 Pac. 133; Nilson v. City of Kalispell, 47 Mont. 416, 132 Pac. 1133; Cady v. City of Seattle, 42 Wash. 402, 85 Pac. 19; see, also, 28 Cyc. 1381 et seq.) 2. Three rulings upon evidence are complained of, but we can find no error in any of them. The direct examination of the.- witness McCoy was addressed to the physical condition in which he had left the street the day before the accident, as to whether 'any barriers or lights had been installed. To this the proposed cross-examination touching his previous experience in road work was not material. The statement of the respondent which it is claimed should have been stricken, out as volunteered was part of her response to a specific interrogatory of counsel. The question asked Lowe was not open to the objection made, and the ruling upon it would not have constituted substantial error even if it had been wrong. 3. Instructions numbered 1 and. 8 are assailed as authorizing the jury to award the sum of $1,000 for loss of earning capacity, whereas under the allegations of the amended complaint such damages could not in any event exceed $946. Instruction No. 1 defined the issues substantially as they were presented by the pleadings. "Whatever mathematical discrepancy there was in the complaint between the claim for special damages and the items recited in support of it was faithfully made to appear in the charge, and the amounts which might be awarded for any of the elements of damage were limited by instruction No. 8 to actual compensation under the proof; so that, not only were both instructions entirely proper, but instruction No. 8 was protective of appellant. We again repeat that it is hopeless at this day and age for counsel to expect reversals for microscopic faults. 4. The particular misconduct charged to the jury is that one of the jurors was intoxicated at the time the jury was deliberat ing on the verdict. This is made to appear by the affidavit of another juror. The rule is that such misconduct cannot be proved in this way. (Sutton v. Lowry, 39 Mont. 462, 471, 104 Pac. 545.) The judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action for damages alleged to have been caused to the lands of plaintiff by the wrongful aet of the defendant. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial. The plaintiff is the owner of lands lying on both sides of the Missouri river, a short distance below the point where the defendant’s line of railway crosses it, near Townsend, in Broad-water county. The general course taken by the river in this locality is from the southwest to the northeast. The course of the railway is from the southeast toward the northwest, crossing the river nearly at right angles. For the distance of more than a mile from the river to the southeast, the lands on either side of the railway are lowlands, elevated only a few feet above the stream at its ordinary stage. Beyond the river to the northeast the condition is the same. Plaintiff’s residence, with appurtenant out-buildings, orchard, garden, and meadow, is situated on a portion of his lands lying on the southeast bank. The main body of his lands lies along the opposite bank. The line of the railway approaches the bridge from the southeast by means of an embankment, which increases in height, from a few inches near Townsend, to about eight feet where it reaches the bridge. This embankment was constructed many years ago when the railway was built. It has no substantial openings to permit the «escape of water which may accumulate on the side toward the southwest from an overflow of the river or from precipitation. Such accumulations can escape only by following the line of the embankment to the river at the bridge. It is not unusual that, during the spring thaws when the ice leaves the river, gorges are formed which, varying in size and duration, impede the flow of the river causing temporary overflows of portions of adjacent lowlands. On March 4, 1910, such a gorge formed at a point about 350 yards above the defendant’s bridge. At the same time a second gorge formed below the bridge nearly opposite the residence of the plaintiff. The upper gorge caused an overflow of water from above, which, being held in check by the volume detained by the lower gorge, accumulated on the upper side of defendant’s embankment, rising in places approximately to its crest and threatening its safety. The general level of the stream and the flood water was then stationary at about five and one-half feet above the normal stage, but was not sufficiently high to flood any substantial portion of plaintiff’s lands on either side of the river. On March 5 a strong wind began to blow from the west, driving the water against the embankment so that it began in places to wash out the material from under and between the ties. Having concluded that a removal of the upper gorge would permit most of the flood waters to escape by the main channel of the river and that the embankment would thus be relieved from danger, the employees of defendant, though they knew of the lower gorge, on the afternoon of March 6 blew it out with dynamite, with the result that the torrent of water thus released, being caught and in part detained by the lower gorge, raised the level of the stream below to a height of ten feet, and caused it to overflow substantially all of plaintiff’s lands to the depth of several feet, flooding plaintiff’s residence, destroying his household effects, and depositing upon his orchard, garden, and meadows, in places, large amounts of boulders, sand, and drift timber, and in others washing away the soil to such an extent as to render these portions of them wholly useless. These facts are not controverted. There was also evidence tending to show that plaintiff’s lands would not have been flooded at all0 but for defendant’s interference with the upper gorge. There was some conflict in the statements of the witnesses upon the question whether on the morning of March 6 the flood water held by the embankment had so far subsided as to remove the threatened danger to the track, and thus the necessity for defendant to blow out the gorge as a protective measure. Under the rule of law applicable to cases of this character, as we shall see later, we think it wholly immaterial whether the necessity arose for action on the part of the defendant or not. At the trial counsel for the defendant assumed the position that when the defendant, engaged as it is in the performance of a public duty, was confronted with the emergency created by the gorge rendering its roadbed and track unsafe, and the necessity was thus created for it to act in order to remedy the dangerous condition and safeguard its passengers and freight, it had the right to adopt any means suitable to that end, and hence that the plaintiff could not recover for any damage suf-. fered by him by reason of the course pursued by the defendant. This position is shown by special requests for instructions tendered by the defendant, the theory of all of which is exemplified by the following: “The defendant railway company, as a common carrier of persons and freight, was in duty bound to exercise the highest degree of care to protect its line of railroad from being injured or destroyed and to take all necessary pre caution to prevent its line of railroad from becoming unsafe or dangerous for the movement and operation of its trains and cars over its said line of railroad. And if you find from the evidence in this case that the existence of the said upper ice gorge, and the accumulation of ice, water and material caused thereby, made it necessary for the defendant company, in order to protect its bridge, roadbed and tracks and to keep the same safe so as to enable it to operate its trains and ears with safety to passengers and freight carried over its line of road, to remove said gorge, and the said ice gorge was so removed by defendant company in order to protect its said bridge, roadbed, and tracks and keep the same safe for public travel, then the plaintiff cannot recover, and your verdict should be for the defendant.” The court refused the instructions and submitted the case to the jury on the theory that, if the plaintiff would not have been damaged but for the act of the defendant in removing the gorge, he was entitled to recover. It is true that it is incumbent upon a common carrier, such as the defendant, to exercise the highest degree of care to keep its track and roadbed safe, and to this end make prompt and energetic use of every means at its command in every emergency to provide for the safety of the passengers and goods intrusted to its care, and that this duty is higher than that which it owes to land owners along the line of its road (Louisville N. A. & C. Ry. Co. v. Thompson, 107 Ind. 442, 57 Am. Rep. 120, 8 N. E. 18, 9 N. E. 357); but the obligation to exercise the care and diligence exacted of it in this regard does not justify the postulate that it may under any stress of circumstances appropriate to its own use or injure the property of such land owner, without rendering itself liable to ’ him for the injury thus done. As an owner of property it has the same rights as any other person, and is under the same obligation to so use its property as not to injure that of an adjoining owner. It has the unqualified right to operate its road in a reasonable and proper manner and to adapt its property to the use for which it was acquired; but it is subject to the same rules of law as are the adjoining proprietors, and, if in. conducting its business it infringes upon the rights of others, it becomes liable for damages to the same extent as a natural person. (Staton v. Norfolk & C. R. Co., 111 N. C. 278, 17 L. R. A. 838, 16 S. E. 181.) If it commits a trespass, it is liable in an action for trespass. If during the conduct of its business it creates a nuisance or suffers one to exist upon its own property, it is liable in an action on the case. In the one ease no question of diligence or skill can arise; liability will attach if the injury done is the result of the active agency of the defendant. In the other it will be liable if the injury is consequential or is the result of negligence or nonfeasance. (Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, 14 L. R. A. (n. s.) 628, 92 Pac. 962.) The requested instructions assume that, inasmuch as a railway is for the benefit of the public, in the authority given by the legislature to construct it, there is an implied subordination of the rights of the adjoining proprietors. This is true in so far as a railway company is given the privilege, by condemnation proceedings, to take or damage property necessary for the construction and operation of its road; but this power cannot be exercised except within the limitations and upon a fulfillment of the condition precedent attached: That no person can be deprived of his property without due process of law, and that just compensation must first be made to the owner. (Const., Art. III, secs. 14, 27.) The subordination of the rights of the private proprietors goes no further. Once the title has been acquired by the railway company, whether by purchase or condemnation, its use of it, as we have already said, must be governed by the same rules as that of private proprietors. Otherwise the guaranties of the Constitution would be of no avail. In Staton v. Norfolk & C. R. Co., supra, it was well said: “It would be of small comfort to the ruined proprietor to be told that he must bear his loss for the benefit of the public, and it would not be unnatural if he answered that if the public good required the destruction of his property an enlightened sense of public justice should demand that he be compensated for his loss. In this he would be sustained by the words of Sir William Blaekstone that ‘the public good is in nothing more essentially interested than in the protection of every individual’s private rights.’ (1 Bl. Com. 138.) ” Counsel insist, however, that the water forced out of the main channel of the river was surface water, that the defendant had the right to treat it as a common enemy, and that any damage caused by its release by blowing out the gorge was damnum, absque injuña. In view of the decision by this court in Fordham v. Northern Pacific R. Co., 30 Mont. 421, 104 Am. St. Rep. 729, 66 L. R. A. 556, 76 Pac. 1040, it is somewhat surprising that this contention should be made. After a review of many of the decisions on the subject, and, recognizing the diversity of the views entertained by the courts as to what is and what is not flood water, the court, through Mr. Justice Holloway, said: “Without attempting to reconcile the diverse decisions, we are of the opinion that the following rule furnishes the safest guide for the determination of a question which has vexed the courts of many of our states as well as those of England, viz.: Whether the water from the overflow of streams is to be considered' as still a part of the watercourse, or to be treated as surface water, shall depend upon the configuration of the country, and the relative position of the water after it has gone beyond the usual channel. If the flood water becomes severed from the main current, or leaves the same never to return, and spreads out over the lower ground, it becomes surface water. But if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel presently to return, it is to be regarded as still a part of the stream.” Further consideration of the subject has convinced us that the rule as here expressed is the only satisfactory one. Taking it as the criterion, the character of the water, and therefore the extent of the right to deal with it, must depend upon the facts as they are made to appear in the particular case. Mr. Farnham, in his work on Waters (sections 879, 880), discusses the subject and expresses, in substance, the same view. The following authorities support it: Riddle v. Chicago, R. I. & P. R. Co., 88 Kan. 248, 128 Pac. 195; Uhl v. Ohio River R. Co., 56 W. Va. 494, 107 Am. St. Rep. 968, 3 Ann. Cas. 201, 68 L. R. A. 138, 49 S. E. 378; Clark v. Patapsco Guano Co., 144 N. C. 64, 119 Am. St. Rep. 931, 56 S. E. 858; Town of Jefferson v. Hicks, 23 Okl. 684, 24 L. R. A. (n. s.) 214, 102 Pac. 79; Chicago etc. R. Co. v. Emmert, 53 Neb. 237, 68 Am. St. Rep. 602, 73 N. W. 540; Lewis on Eminent Domain, 3d ed. 566, 838; 40 Cyc. 639. Under the facts presented in this case, the water which left the main channel above the gorge and finally rested against the embankment was flood water within the rule stated in Fordham v. Northern Pacific Ry. Co., supra; for while it was spread over the country between the embankment and the river, covering a large area, as soon as the gorge was removed and the way was opened for it, it immediately returned to the channel and became a part of the torrent which swept over and inundated the plaintiff’s land, causing the injury of which he complains. While it may be conceded that it was the imperative duty of the defendant to protect the embankment from injury or destruction, the necessity for action gave it no right to turn the water resting against it upon the proprietors .below, to their injury. And though it may be said that the condition was created by natural causes—was the act of God—it was -not in any respect different from an ordinary flood caused by melting snow or excessive rainfall, and under the rule applied in the Fordham Case, the defendant must be held liable for the injury done.. There is no question of negligence involved. The act of the defendant amounted to a direct violation of the plaintiff’s property rights. (Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 Pac. 416.) The judgment and order are affirmed. Affirmed. ¡Mr. Justice Holloway and Mr. Justice Banner concur.

HON. ALBERT P. STARK, Judge of the Sixth Judicial District, sitting in place of MR. JUSTICE SANNER, disqualified, delivered tbe opinion of tbe court. Tbis is an action brought by tbe plaintiff against tbe defendant„ publisher of tbe “Helena Daily Independent,” to recover damages alleged to have been sustained by bim on account of tbe publication in said newspaper of two alleged libels. In tbe first of the two causes of action set out in the amended complaint tbe plaintiff alleges that at all times therein mentioned be was, and still is, commonly known and called by tbe name of “Tom Sontag,” under wbieb said name be advertises and does business, and that said name is bis business and stage name; that the business of plaintiff was, and is, that of a professional wrestler; that be bas been giving wrestling matches throughout tbe state of Montana and elsewhere, for tbe profit or money to be made for himself out of the same, and that be bas devoted all of bis time to sueb business; that in such wrestling matches and exhibitions be would wrestle and engage in wrestling contests for tbe rewards and profits that be might derive thereby; that in carrying on said business it was necessary to advertise, and tbe plaintiff did advertise, such matches and exhibitions extensively in tbe public press, and by means thereof be had become well and favorably known to tbe general public, and that bis success in said business bas been to a very great extent due to tbe good reputation which plaintiff bas always borne as an honorable man, and bis reputation for honest and square dealing with tbe public; that plaintiff bas always borne a good name and reputation for honesty and square dealing among all people where be bas stopped and with whom be bas come in contact, and that until the time of the publication of the article complained of has never been guilty of any base or immoral conduct and has never refused to pay his hotel bills, room rent or other bills. It is then alleged that on May 28, 1912, the defendant published in said newspaper the following article: “Tom Sontag is Under Arrest. “Word from Sheriff of Powell County Prompts Chief Flannery to Jail Wrestler. “By request of Sheriff Joseph Neville, of Powell county, Tom Sontag [meaning the plaintiff], the welterweight champion wrestler of Missoula, who managed an athletic program in which he took part at the Family Theatre Saturday night, was arrested at noon yesterday by Policeman Fred Mundt. The charge is malicious mischief and according to deputy sheriff James Mullin who came over from Deer Lodge on No. 6 this morning to take the wrestler back, Sontag refused to pay room rent when he was there but a short time ago. On returning from Deer Lodge, Sontag, as well as those who accompanied him from Helena, said they had but a $13 house at Deer Lodge, and it is the opinion of many of the local fans that the wrestler merely ran short of funds.” The particular portion complained of and alleged to be libelous is the statement, “Sontag refused to pay room rent when he was there but a short time ago.” By innuendo, it is alleged that by said statement the defendant meant, “that plaintiff had defrauded his landlord of his room rent.” It is further alleged that by reason of said publication, which was false and malicious, plaintiff is greatly prejudiced, discredited and injured in his good ñame, fame, credit and reputation, and is held up and brought into and exposed to public infamy, disgrace, contempt, hatred and ridicule, and by means of the writing or publishing of said libel as aforesaid, the peace and happiness of the plaintiff has been greatly disturbed, and he has suffered anxiety and distress of mind on account thereof, and that his said business has been seriously interfered with, damaged and injured, and that his credit has been greatly injured in consequence thereof. In the second cause of action the allegations are similar to those of the first, except that the publication complained of was made on May 29, 1912-, and is an article apparently published at the instance of the plaintiff for the purpose of enabling him to deny the charge contained in the first publication, which he alleged to be untrue. To this amended complaint the defendant filed a general demurrer, which was sustained by the Court. The plaintiff elected to stand upon his amended complaint, and judgment was thereupon rendered in favor of the defendant for its costs, from which judgment this appeal is prosecuted. The only question presented for consideration is whether the amended complaint states a cause of action. In so far as the plaintiff seeks to show that the alleged libelous publications had a tendency to injure him in his occupation, it is sufficient to say that under the provisions of section 8576, Revised Codes, any person who engages in, instigates, encourages or promotes as principal, aid, second, umpire, or otherwise, any wrestling match, is guilty of a misdemeanor, and that “where an alleged libel is only in respect to an unlawful business carried on by plaintiff, the action cannot be maintained. The illegality of the business is an answer to the complaint.” (Johnson v. Simonton, 43 Cal. 242; 25 Cyc. 329.) Eliminating from consideration, as mere surplusage, all that portion of the pleading in question relating to the business of the plaintiff and the alleged damage thereto, there is left in the first cause of action the published statement: “Sontag refused to pay room rent when he was there but a short time ago.” By innuendo it is alleged that the defendant meant thereby that the plaintiff had defrauded his landlord of his room rent. If the language employed is not libelous per se, no cause of action is stated; for it is the general rule that unless the publication is libelous per se, special damages must be alleged (Ledlie v. Wallen, 17 Mont. 150, 42 Pac. 289), and there is not any allegation of special damages in this complaint. And the innuendo cannot change the character of the publication. If it is not libel ous per se, it cannot be made so by innuendo. (25 Cyc. 450.) In determining whether the language complained of is libelous per se it must be construed in its relation to the entire article in which it appears (Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 Pac. 215; 25 Cyc. 357), and the entire printed statement must be viewed by the court as a stranger might look at it, without the aid of special knowledge possessed by the parties concerned. (Denney v. Northwestern Credit Assn., 55 Wash. 331, 104 Pac. 769.) In the early case of Stone v. Cooper, 2 Denio (N. Y.), 293, Chancellor Walsworth said that to constitute published matter concerning one libelous per se, “the nature of the charge itself must be such that the court can legally presume he has been degraded in the estimation of his acquaintances or of the public, or has suffered some other loss either in his property, character or business, or in’ his domestic or social relations, in consequence of the publication of such charge.” This language has been cited with approval by courts and text-writers generally to the present day and constitutes as precise a test as any known to the law of libel. (Tillson v. Robbins, 68 Me. 295, 28 Am. Rep. 50; Herringer v. Ingberg, 91 Minn. 71, 97 N. W. 460; Goldberger v. Philadelphia Grocer Pub. Co., 42 Fed. 42.) In order for a court to legally presume that published words will expose the person at whom they are aimed to hatred, contempt, ridicule or obloquy, or cause him to be shunned or avoided, such words, as they are used, must be susceptible of but one meaning, and that the one which proprio vigore leads to the injurious consequences. Having arrived at the conclusion that all references in the amended complaint to the plaintiff’s business or occupation, as well as the innuendo pleaded, must be treated as mere surplusage, we have left the published statement: “Sontag refused to pay room rent.” The case then resolves itself into the simple proposition of whether the writing and publication of this statement concerning one who is not engaged in any legitimate business is such an accusation against his good name, fame and reputation as will necessarily “expose him to hatred, contempt, ridicule or obloquy, or cause him to be shunned or avoided” (Rev. Codes, see. 3602), to the extent that the court can say, as matter of law, that from its publication pecuniary loss to the plaintiff necessarily must, «or presumably did, follow as its proximate consequence, and that therefore it would not be necessary for him to allege such damages in order to recover. The decided cases, a large number of which are cited in Nicholas v. Daily Reporter Co., 30 Utah, 74, 116 Am. St. Rep. 796, 8 Ann. Cas. 841, 83 Pac. 573, clearly negative the proposition. The article does not impute to the plaintiff an unwillingness to pay any just debt or obligation, but only a refusal to pay a particular charge made against him, and this he might properly do under any code of law or morals if the charge was excessive or had not been incurred. If the publication of this statement did, as a matter of fact, occasion pecuniary loss to the plaintiff, it was incumbent upon him to specially plead the facts showing such loss and damage, and, having failed to do so, the first count of the amended complaint does not state a cause of action. The same reasoning and conclusion will apply to the seebnd cause of action. From the foregoing it follows that the order of the trial court in sustaining the demurrer to the amended complaint was correct and should be affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

HON.’HARRY H. EWING, a Judge of the Eighth Judicial District, sitting in place of MR. JUSTICE SANNER, disqualified, delivered the opinion of the court. Appeal from an order granting defendant a new trial. The action is for damages for a breach of contract. The contract is in writing, executed by the parties hereto, and recites that the plaintiffs, who are copartners, have agreed to sell and deliver to the defendant about 150 head of horses at $40 per head. A payment of $500, being part of the purchase price stipulated for, was to be made by the defendant at the time the agreement was signed, and the balance was to be paid when the horses were delivered to defendant. It is alleged that the plaintiffs were at all times ready and willing to deliver the horses according to the terms of the contract, and that the defendant refused to accept delivery or to pay the purchase price, to the damage of plaintiffs in the sum of $2,792.30. Among other defenses, the defendant alleges, in substance, that, when the time for delivery arrived, a controversy arose between him and the plaintiffs as to whether the horses tendered were of the character specified in the contract; that, in order to settle and adjust the controversy, it was agreed between McCoy and the defendant that the plaintiffs should retain the $500 cash payment made in accordance with the terms of the contract, and be released from delivering any of the horses, as a complete settlement and discharge of any liability or claim for damages arising in favor of plaintiffs by reason of defendant’s refusal to accept and pay for the horses; that the written agreement should thereupon be wholly canceled and annulled; and that McCoy, acting for the plaintiffs, retained the said sum and the horses, and released and discharged the defendant and acquitted him of all obligation arising under the contract. The $500 payment was made as provided in the contract, but no other payment was ever made. There was a conflict in the evidence'as to whether any such agreement was entered into between the defendant and McCoy, and, while the jury was instructed generally as to this defense, the court refused to give defendant’s offered instruction numbered 8, which is as follows: “The jury are instructed that a contract can be released or extinguished by the parties thereto consenting and agreeing so to do, and, if you' find by a preponderance of the evidence that the plaintiff McCoy did make such an agreement with the defendant Currier, then such release or extinguishment would be binding upon the copartnership of Leitner & McCoy.” The evidence proves .conclusively that there was only an agreement to sell the horses—that the sale was never consummated. There being no sale of the horses by plaintiffs to defendant, there could be no resale of the horses by defendant to plaintiffs; but the court gave the following instruction, being instruction numbered 8; “The jury are instructed that it is a question of fact for you to determine whether the alleged agreement or so-called settlement between the plaintiffs and defendant occurred, and, if it occurred, whether it was, in fact, a settlement of differences or a resale of the horses involved by the defendant back to plaintiffs, and, if you find that, in fact, such transaction was a resale, and not a compromise or settlement of differences, then such resale would come within the provisions of the statute of frauds, and would be void, unless you find that the defendant in his alleged resale made a part payment to the plaintiffs, or unless the plaintiffs accepted some part of the horses in return.” The court, in granting a new trial, was of the opinion that, in giving instruction numbered 8, and refusing defendant’s offered instruction numbered 8, it too narrowly restricted the scope of this special defense, and with this opinion we agree. There are other errors assigned, but it is not necessary to consider them. . The order of the court granting defendant a new trial is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MB. CHIEF JUSTICE BBANTLY delivered the opinion of the court. This action was brought to have determined the extent of the respective rights of the plaintiff and the defendants to the use of the water flowing in Bear creek, in Gallatin county, and the order of their priorities. The stream is formed by two branches, which are referred to in the pleadings and evidence as the east and west forks. The former has its source in the northeast quarter of section 28, township 2 north, range 5 east, and the latter in the southeast quarter of section 21, same township and range. After flowing south through section 33, the branches unite in section 4, township 1 north, range 5 east, forming the main stream, which flows thence toward the southwest through sections, 5, 8 and 7. The defendants Gervais, Merritt, Ballard, and Brownell, though served with summons, did not appear. Plaintiff is the owner of sections 21 and 28 and at different times has had under irrigation, from Bear creek and other sources, about sixty-eight acres, consisting of the areas of lowlands lying along both branches of the stream. The lands owned by the defendant Gee consist of 200 acres, lying in sections 33 and 4 above the junction of the two branches. Not more than sixty-five acres of them are susceptible of irrigation from Bear creek. At the time of the trial the area under irrigation was about forty-five acres. Defendant Beckhorn owns about eighty acres, lying partly above and partly below the junction. At the time of the trial he had under irrigation from Bear creek about nine acres, though there is an additional area of twenty acres susceptible of irrigation, when he has a sufficient supply of water. The defendant Huffine’s lands lie on both sides of the main stream below the junction, in sections 7 and 8. The areas under irrigation by him at the time of the trial covered about fifty-six and a half acres. The plaintiff claims the right to the use of 100 inches, appropriated and diverted by his predecessors or himself from the two branches at different times from October 1, 1877, to July 1, 1885. The defendant Huffine dates his right from May 1, 1868. The appropriation under which he claims, and which is referred to in the record as the Moore right, was made by the construction of a ditch on the east bank of the main stream in May, 1868, by a predecessor who had made settlement upon a portion of the lands now owned by'this defendant. The water was first diverted and used to irrigate lands on the east side of the stream. In all there were about thirty-six acres, including an area of a little more than fourteen acres, which is not now owned by Huffine. Subsequently, but prior to the spring of 1878, the exact date not being disclosed, a second ditch was taken out on the west side by a mesne grantee of the original appropriator. This was used to convey water to all the irrigable lands now owned by Huffine on the west side, amounting approximately to thirty-four acres. The defendants Gee and Beckhorn claim under the same appropriation, alleging interests therein by mesne conveyances from the original appropriator. They also claim under other appropriations made by themselves on July 1, 1885. At the trial the plaintiff conceded the priority of defendants’ rights, so far as they appeared to have been derived from the Moore right, and there is a present necessary use for the water diverted by it, but endeavored to show that the actual necessity served by this right at any time prior to plaintiff’s oldest appropriation required a much smaller amount than the defendants claimed. The court made special findings of the amounts and dates of all the respective claims and entered a decree accordingly. It found that the appropriation of May 1, 1868, amounted to ninety inches; that the defendants are the owners of this right in undivided interests as tenants in common, Huffine having one-half, Gee one-third, and Beckhorn one-sixth; and that they are entitled to use, respectively* forty-five, thirty and fifteen inches. The plaintiff has appealed from the decree and an order denying his motion for a new trial. No complaint is made of the findings.touching the claims of any of the parties other than those based on the Moore right. As to these, complaint is made that the total amount awarded to the defendants is in excess of that actually needed for their efficient use at the time the appropriation was made, or thereafter, at any time prior to the date of plaintiff’s appropriations. Counsel contends that the evidence is insufficient to justify the findings in this regard. Whether this contention has merit is the only question he has submitted for decision. There is no controversy in the evidence that at ordinary stages during the irrigating season the flow of the stream does not exceed 100 inches. Nor is there any question that the ditch taken out in 1868 diverted substantially the entire flow. The same may be said of the west side ditch. The area irrigated on both sides did not at any time, prior to plaintiff’s earlier appropriations, exceed approximately seventy acres. This area was never increased, because it included all the lands susceptible of irrigation from the stream on either side of it. Plaintiff made appropriations in 1878, 1879 and 1882, amounting in all to thirty-five inches. When Huffine acquired his interest in the Moore right does not appear. He never acquired more than an undivided one-half interest. On February 25, 1899, Moore conveyed to one Axtell an undivided one-half interest. This interest was subsequently acquired by the defendants Gee and Beckhorn, the former acquiring an undivided one-third andvthe latter an undivided one-sixth interest. The findings are silent as to the date of the construction of the ditch on the west side of the stream to utilize the Moore right on the lands on that side. Counsel, therefore, argues that, since this is so, the use of any water on that side under the Moore right was excluded from consideration, and that, while the court properly awarded to defendants the proportionate amounts they are entitled to, the gross amount is too large because the evidence clearly discloses that the Moore right was never used to irrigate to exceed thirty-six acres on the east side. To make the statement in another way: Since under the findings the Moore right should have been limited in amount by the necessity for its use on the lands on the east side only, and, since the extent of the defendants’ respective interests must be determined by the extent of this use, the total amount found for all these rights, after making due allowance for a sufficient head to render the use effective, should have been limited to forty or fifty inches. Again he says: Conceding that the total amount of the awards made to the defendants should be limited to the necessary use of the Moore right on both sides of the stream, the award is nevertheless ex cessive because it appears without controversy that at no time in the history of the Moore right could there have been actual necessity for the use of more than sixty inches, because all the lands irrigated by it never exceeded, or could have exceeded fifty-six and a half acres; one inch per acre being the average amount required to irrigate any of the lands .upon which the water has heretofore been used. We do not think the silence of the findings touching the west side ditch is to be given the significance claimed by counsel. The court, in finding as it did that Huffine is entitled to the use of forty-five inches, evidently took into consideration the gross amount of land susceptible of irrigation on both sides of the stream; otherwise the finding that the extent of the Moore right was ninety inches cannot be explained. For it may not be supposed that the court entertained the notion that this amount was ever necessary to irrigate the comparatively small area of thirty-six acres on the east side. In any event, under the dóc trine of implied findings, nothing appearing to require the contrary conclusion, the presumption will be indulged that the court found in favor of the Moore right upon all the issues in this connection not covered by the express findings. (Yellowstone Nat. Bank v. Gagnon, 25 Mont. 268, 64 Pac. 664.) The right to use water on all his irrigable lands on both sides of the stream is alleged affirmatively by Huffine in his answer, and evidence was offered showing that he had necessity for such use. Under these circumstances, we must presume that the amount found for the Moore right, out of which have been acquired the respective rights of the defendants, was fixed in view of the necessity existing for its use at the time the appropriation was made, including also the subsequent enlargement of the use by the application of it to the lands on the west side of the stream. “The test of the extent of an appropriation with reference to a subsequent right to the waters of a stream is dependent upon the capacity of the first ditch before such subsequent appropriation is made. When an owner or possessor of land makes an appropriation of water in excess of the needs of the particular portion of the land upon which he conveys the water, and other portions of his land also require irrigation, his water right is not limited by the requirements of the particular fraction. He may still, despite the fact that another’s water right has attached, construct other ditches through his remaining land, provided that the total amount of water conveyed by all the ditches on his place does not exceed the original capacity of the first ditch. As between his appropriation and the subsequent water right, the capacity of the ditch, by means of which he first made his appropriation, is the test of the extent of it.” (McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648.) Under this rule, the extent of the right of the first appropriator is measured by the capacity of the original ditch. After the use has been installed, however, if the capacity of the ditch exceeds the amount required for reasonable use, the necessity for the use, and not the size of the ditch, is the measure of the extent of the right. (Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575.) The tendency of recent decisions of the courts in the arid states is to disregard entirely the capacity of the ditch and regard the actual beneficial use, installed within a reasonable time after the appropriation has been made, as the test of the extent of the right. (1 Wiel on Water Rights, sec. 476; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Roeder v. Stein, 23 Nev. 92, 42 Pac. 867; Drach v. Isola, 48 Colo. 134, 109 Pac. 748; Larimer County Canal No. 2 Irr. Co. v. Poudre Valley R. Co., 23 Colo. App. 249, 129 Pac. 248; Farmers’ Co-op. Ditch Co. v. Riverside Irr. Dist., 16 Idaho, 525, 102 Pac. 481; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 1102, 102 Pac. 728.) The use of water flowing in the streams of this state is declared ■by the Constitution to be a public use. (Constitution, Art. Ill, see. 15.) The use must be beneficial, and, when the appropriator or his successor ceases to use the water for such purpose, the right ceases. (Eev. Codes, sec. 4841.) If conditions change as time passes, and the necessity for the use diminishes, to the extent of the lessened necessity the change inures to the benefit of subsequent appropriators having need of the use, for, subject to the rule that “as between appropriators the one first in time is first in right” (see. 4845), the prior appropriator may not divert from the stream more than an amount actually necessary for his use (sec. 4844). While, therefore, the extent of the right cannot in any case exceed the capacity of the means of diversion, the ultimate question in every case is: How much will supply the actual needs of the prior claimant under existing conditions ? As has already been said, the Moore right has never been used to irrigate more than approximately seventy acres, this area embracing all the Huffine lands that can be irrigated. Ordinarily the area to which it has been applied has not exceeded approximately fifty-six acres. This is not controverted; nor is it controverted that the soil of these lands consists of a fine black loam, which ordinarily requires a smaller allowance of water than any other. Touching the amount per acre necessary for effective use, the evidence is not very definite. The defendants testified generally that they had been using the Moore right alternately, and that it has required the entire flow of the stream to irrigate their lands. These statements cannot be accepted as of substantial value, when we remember that Beckhom has never at any time had under cultivation more than twenty-nine acres. According to the opinion of these witnesses, three inches per acre are required for effective use on Beekhorn’s land, and a proportionately large amount per acre on the lands of the other defendants. The only definite statement made on the subject by any witness was that of the plaintiff, who said that, making due allowance for a sufficient head to insure effective irrigation, and considering the character of the soil of Huffine’s land, one inch per acre was all that was required. It is not clear whether, in finding the amount of the Moore right, the court accepted the statement of the defendants or made the capacity of the original Moore ditch the measure. While we have no legislation on the subject, the rule has generally been observed by the courts of this state, in fixing the amount required for economical use, to allow one inch per acre, unless the evidence discloses that a greater or less amount is required. All the witnesses who testified on the subject agreed that fifty or sixty inches furnish a sufficient head for effective working purposes. If this is true, and one inch per acre is all that is required, the award made by the court was excessive from any point of view, under the circumstances disclosed by the evidence; and, in view of the rule referred to, we think the court should have accepted the statement of plaintiff as the only substantial evidence on the subject. From this point of view, making the most liberal allowance for the Moore right, the total award should have been fixed at seventy inches, or one inch per acre, for the largest area ever irrigated by it. That the Beckhorn and Gee lands have need for a larger allowance, because of their character or for any other reason, may not be considered as important, because the extent of their rights depends entirely upon the extent of the Moore right at the time they acquired their interests. While it may be conceded, as all the defendants testified, that the amount awarded by the court would enable them to accomplish their work of irrigation more readily, since one inch per acre must be deemed sufficient for practical purposes for lands of the character for which the appropriation was made, defendants may not claim, or be allowed, a larger allowance merely because it will more conveniently serve their wants. In 1889 one Axtell was occupying the lands now owned by Beekhorn and Gee. An action was brought against him by Moore to enjoin him from interfering with the Moore right by diverting water for use on the Beekhorn and Gee lands. Moore claimed that he was entitled to the exclusive use of all the water in the stream. Axtell suffered default, and the result was a decree in Moore’s favor, adjudging him entitled to the relief demanded. In the present action Moore, who testified for the defendants, stated that, prior to the bringing of that action, he saw the plaintiff and told him that he (Moore) was disposed to make him a defendant j that plaiptiff thereupon told him that he .should not do so, for the reason that plaintiff put more water into Bear creek than he took out; and that for this reason plaintiff was not made a defendant. The witness explained that plaintiff’s claim was that by allowing a sufficient volume of waste water to flow into the east branch of Bear creek from a ditch used by him to divert water from Cottonwood creek, which lies some distance to the east, to maintain undiminished the volume of water flowing to the head of Moore’s ditch, he was not interfering with Moore’s right. The plaintiff denied that this conversation ever occurred. Counsel for defendants contend that by his failure at that time to assert a right to divert and use water from Bear creek, and by his acquiescence in the result of the action since that time, plaintiff is estopped to question the extent of Moore’s right. That the plaintiff is not to be held bound by the judgment is clear, because he was not a party to it. (Rev. Codes, sec. 7914.) If it be conceded that his conduct was such as to estop him, the defendants did not plead it as an estoppel, and hence must be held to have waived their right to rely on it. (8 Cyc. PI. & Pr. 10, 13.) Counsel also contend that the findings are not properly before the court for review, because plaintiff did not have a formal bill of exceptions settled under the provisions of sections 6767 and 6768 of the Revised Codes. These provisions point out the procedure to be observed in preparing bills of exceptions when the court refuses to remedy defects in the findings upon application made in that behalf. The findings as made constitute a part of the judgment-roll (section 6806), and the sufficiency of the evidence to justify them may be questioned on the motion for a new trial, and reviewed by this court on appeal, without formal exceptions, the same as the verdict of a jury. For this purpose the law reserves an exception, and no formal bill of exceptions is required. (Rev. Codes, see. 6784.) Sections 6767 and 6768 have no application. The cause is remanded to the district court, with directions to set aside the decree heretofore entered, to amend the finding as to the amount of the Moore right by fixing it at seventy inches, to award to each of the defendants bis undivided interest in tbis amount, and to enter- a decree accordingly. Eaeb. party will pay bis own costs. Me. Justice Holloway and Me. Justice S'annee concur. •

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. The plaintiff recovered a judgment for damages for a personal injury suffered during the course of his employment by the defendant. The defendant has appealed from the judgment and an order denying its motion for a new trial. The plaintiff was employed by defendant -at its logging camp near St. Regis, in Missoula county. The work assigned to him, and in which he was engaged at the time he was injured, was the moving of logs along a skidway to a point at which they could be piled or “decked,” so that they could be conveniently loaded upon sleighs or wagons for transportation to defendant’s mill.- His office was, by the aid of an assistant, to control the movement of the logs by the use of a cant-hook down the decline of the skidway, he being on one side, and the assistant on the other. It is alleged that the defendant failed to exercise ordinary diligence to furnish the plaintiff a reasonably safe place in which to work, in that the pathway along which the plaintiff was required to walk while moving the logs was unsafe and dangerous by reason of the existence therein of a hole caused by the removal of a stump by the defendant in clearing the ground for the skidway; that the hole was covered by protruding roots, leaves and other loose materials, so that it could not be seen; that while moving a log the plaintiff stepped into the hole, and fell; and that, -being thus compelled to release the handle of the cant-hook which he had fastened upon the log, he was caught by it as it was forced over by the weight of the log, and sustained a fracture of his left l°g below the knee, resulting in his permanent disability. The defendant denied negligence in the particular charged, and alleged the usual defenses of contributory negli gence and assumption of risk. The plaintiff having adduced sufficient evidence to make a prima facie case, the defendant undertook to rebut and overcome it by showing (1) that there was no hole or other similar defect in the pathway, and (2) that, upon the assumption that there was, plaintiff contributed to his own injury by the course he pursued in handling the log by which he was caught. The plaintiff was the only witness who testified to the existence and condition of the hole. Several witnesses who were employed by the defendant at the time, including the boss who selected the ground and superintended the construction of the skidway, testified directly to the contrary. These and other witnesses—about an equal number on either side—testified concerning the propriety of the course pursued by the plaintiff in doing the work, the opinions expressed by them being directly in conflict. Counsel argue that the testimony of plaintiff as to the existence of the hole was completely rebutted by the testimony of defendant’s witnesses, with the result that there was no substantial evidence to sustain the finding of the jury on this issue, and hence the district court should have ordered a new trial. We have held in many cases that the effect and value of evidence is addressed exclusively to the jury, and that their finding thereon, when it presents a substantial conflict, and has been examined and adopted by the trial court upon a motion for a new trial, is not subject to review by this court. Counsel’s argument implies the concession that the plaintiff’s unsupported statement required a submission of the case to the jury ■ in other words, that there was substantial evidence to support his case. The fact that several witnesses contradicted him did not render his statement so improbable as to reduce it to a mere semblance or scintilla of evidence insufficient to support a verdict. The court was not authorized to ignore it, for the testimony of a single witness who is entitled to full credit is sufficient for the proof of any fact, except perjury and treason. (Rev. Codes, sec. 7861.) The jury are not bound in any case to decide in conformity with the declaration of any number of witnesses as against a less, number, or against a presumption or other evidence satisfying their minds. (See. 8028.) These rules apply as well to the evidence touching the existence of the hole as to the evidence touching the mode adopted by the plaintiff in doing the work. It is true that the evidence as a whole as it appears in type seems to preponderate against the verdict; but, since it presents a substantial conflict, we may not say that the district court abused the discretion lodged in it in such eases to grant or refuse a new trial. (Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113; Campbell v. City of Great Falls, 27 Mont. 37, 69 Pac. 114; Mullen v. City of Butte, 37 Mont. 183, 95 Pac. 597; Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 Pac. 1038.) The judgment and order are affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MB. JUSTICE SANNEB delivered the opinion of the court. On November 15, 1913, the relator herein filed in the district court of Beaverhead county his final report and account as guardian of the estate of Yenora E. Metlen, incompetent. To this report and account D. E. Metlen, as the husband of Yenora E. Metlen, filed certain objections. By order of court, the respondent, Judge Clark, presiding, the hearing upon the report, account and objections was set for December 9, 1913. On that day the objector and his wife appeared in person and by counsel, and announced their readiness to proceed; the guardian was not present nor represented. Judge Clark then stated that he had received a communication from the relator to the effect that a compromise had been reached in said matter, whereby the relator was to be paid $1,200, in addition to the sums theretofore received by him, as payment for his services rendered therein. To this counsel for Mr. and Mrs. Metlen responded that the agreement was for the payment of a balance of $700 only to the relator. Whereupon the judge, being of the opinion that the relator should be present at the hearing, and that his failure to appear was due to a misunderstanding, ordered “that further proceedings in said matter be continued until Saturday, December 13,1913, at 10 o’clock A. M.” On December 13, 1913, the matter was again called up, counsel for all the parties being present, and the clerk exhibited an affidavit of the relator, filed the preceding day, seeking to disqualify Judge Clark on account of imputed bias and prejudice. This affidavit was ordered stricken from the files because filed after the day fixed for the hearing of the matter, and after the hearing thereof had in fact commenced, and further hearing was again continued “on account of pressure of business of the court” to December 16, 1913, at 4 P. M. The alternative writ of mandate issued out of this court on December 15, 1913, has prevented further action. The respondent is one of the judges of the fifth judicial district, which includes the county of Beaverhead, and the other judge thereof was disqualified by reason of having been an at torney in said matter. The question presented is whether, upon the facts stated—we do not deem the other facts of record as important—a peremptory writ of mandate should issue to Judge Clark, directing that he revoke the order striking the affidavit of the relator from the files, that he restore the same, and that he make an order calling in another district judge to hear and determine the controversy or transfer it to some other district in this state. In our view of this proceeding it is not necessary to decide whether mandamus may be properly invoked to compel a district judge to give effect to an affidavit of disqualification duly filed under the statute. Assuming mandamus to be a proper remedy, we nevertheless think that it is not available to the relator, for the following reasons: The statute involved (Rev. Codes, see. 6315, as amended, Laws 1909, p. 161) provides: “Any # # * judge # * * must not sit or act as such in any action or proceeding: * * * 4. When either party makes and fjdes an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge.' Such affidavit * * * shall be filed * * * at any time before the day appointed or fixed for the hearing or trial of any such action, motion or proceeding.” This provision has been before this court for construction on several occasions, once under such circumstances as to render the views then expressed practically decisive of the instant case. The decision referred to is State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 Pac. 244, and from the statement of facts it appears to have been a hearing upon motions to adopt and to reject the findings of a referee upon an executor’s account to which objections had been filed. The hearing was originally set for February 18th, at which time a motion was made to vacate the setting on the ground that Judge Donlan had not jurisdiction to proceed. This motion was based upon the theory that Judge McClernan, of the same court, who had previously taken cognizance of the proceedings, had upon the redistribution of the work of that court among the three judges théreof, reserved to himself for hearing and determination all matters connected with the settlement of the executor’s account, notwithstanding that proceedings in probate had in general been assigned to the department presided over by Judge Donlan. The motion was overruled by Judge Donlan. During the noon recess Judge Mc-Clernan, without consulting with either of the other judges, made a formal order reserving the hearing to his department. When the court reconvened, Judge Donlan declined to regard this order as binding, but postponed further hearing of the motions until February 25th, and on that day a- further postponement was had to March 4th. In the meantime an affidavit was filed, seeking to disqualify Judge Donlan under the provision above quoted, but Judge Donlan declined to relinquish jurisdiction, and refused to make an order transferring the matter. It will be observed that the difference between the facts in the Nissler Case and those at bar is not material. It does not appear that anything occurred in that case before the postponement, except an assertion by Judge Donlan of his own authority, which did not in any sense touch the merits of the matter before the court. Counsel for the relator at bar suggest that a hearing has begun only when it may be said that a new judge 1 ‘ could not step in and at that very moment proceed with the hearing with a full and complete knowledge of the proceedings. ’ ’ Without either accepting or rejecting this test, we may say that nothing is disclosed in the Nissler Case that would have prevented a new judge from proceeding with the hearing after the affidavit was filed, with full and complete knowledge, yet upon the circumstances of the Nissler Case this court, speaking through the chief justice, said: “Was the affidavit filed in time to disqualify Judge Donlan from hearing the motion upon settling the account? * * * Section 180 # * * declares that the particular disqualification of imputed bias and prejudice shall be made to appear by affidavit filed at any time before the day fixed for the trial or hearing. * * * The intention is clearly manifested that the affidavit is not to be regarded as effective to interrupt a hearing after the arrival of the day fixed for that purpose. * * * The disqualification of imputed bias and prejudice provided for in subdivision 4 of the Act is purely statutory. It does not rest upon the ascertainment of any fact, but only upon an imputation. Such being the case, and the statute being open to so much abuse, we are inclined to construe it strictly according to its express terms, and not broaden it by implication to include conditions not clearly within- them. # # # The statute does not admit of a construction that would permit a litigant to file an affidavit of disqualification after the day -for hearing has arrived, and thus rob the court or judge of the power to proceed.” These views and the application of them to the present case are supported, to a greater or less degree, by the following authorities: Redman v. State, 28 Ind. 205; Allen v. Coates, 29 Minn. 46, 11 N. W. 132; State ex rel. Dearborn v. Merrick, 101 Wis. 162, 77 N. W. 719. It is suggested that, as the statute does not make any express allowance for continuances of any kind, and as a continuance over the term must certainly restore the situation prior to the setting, the- right to disqualify cannot expire on the day before the first setting, but must be carried forward with each continuance for whatever period. The answer is twofold: The failure of the statute to make allowance for continuances as such is persuasive, at least, that no such allowance was intended; and this belief is strengthened when we consider the ease with which such an intention, if entertained, could have been expressed. That the legislature knew how to say what it wanted to say with reference to such matters may be gathered from the other provisions of the Code designed to secure fair trials in the case of actual bias. (Rev. Codes, secs. 7484, 6505, 6987.) Moreover, the passing of a cause over the term necessarily operates as a vacation of the setting, and a very real distinction exists between that situation and a mere continuance, properly so called, however difficult, it may be to. put the distinction into words. Where the effect of an order is to vacate the setting, the case stands for all purposes of the statute under review as though no setting had been made; but where the effect of an order is to stand upon the setting and, reckoning from that, to defer the trial to a day certain, we can see no reason why the day originally fixed for the hearing should not measure the time limit of disqualification for imputed bias. Actual disqualification on the part of a judge may be manifested at any time after as well as before the date fixed for a hearing, and it is therefore available in probate proceedings whenever it is made to appear; but the privilege to impute bias to a judge where none may exist belongs to a different order of things and its existence may fairly be limited to a given time. The disqualification of a judge for. imputed bias is like the peremptory challenge of a juror, which may not be exercised after he has once been passed. (Washoe Copper Co. v. Hickey, 46 Mont. 363, 128 Pac. 584; State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169.) The relator suggests that under the above construction it is possible to restrict the disqualifications for imputed bias to a single judge, contrary to the express provision of the statute. We think the danger is more imaginary than real. Expressly acquitting the relator and his counsel of any impropriety, we say that the statute was not intended to encourage perjury, nor to aid delays, nor to secure postponements which are not deserved. If a litigant really feels that he cannot secure a fair and impartial trial before a certain judge, he is generally conscious of that feeling before the day fixed for the hearing, and long enough to enable him, by a prompt and proper disclosure of it, to secure to himself every substantial right. Conceiving, as we do, that the action of the respondent, Judge Clark, was within the letter of the statute in question and within any wise purpose to be served by it, the proceedings herein should be dismissed; and it is so ordered. Dismissed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Eehearing denied February 6, 1914.

MR. JUSTICE SANNER delivered the opinion of the court. Such of the facts as we deem pertinent to the decision of this case are as follows: An ordinance of the city of Butte was passed and approved in January, 1913, establishing for the first time the grade of Emmett, Diamond, and other streets, and on March 5, 1913, a resolution was passed creating special improvement district No. 137 for the purpose, among others, of bringing these streets to the grade thus established. A contract for this work was let in April, and sometime before June 12, 1913, three per sons were appointed as a board to appraise such damages as might aeerne from the grading operations to the owners of property who had not signed written waivers. One of such owners was William Thomas. The report of this board was thereafter filed, and by it the damages to accrue to the property of Mr. Thomas were assessed, and he, being dissatisfied therewith, on July 7, 1913, filed his notice of appeal to the district court therefrom. The city by special appearance moved to dismiss the appeal upon the ground that the district court had acquired no jurisdiction of the parties or cause, which motion was by the court denied. Whereupon, on affidavits filed herein, reciting the foregoing and other facts, an alternative writ was issued out of this court, forbidding further proceedings by the district court pending the action of this court, and to this writ a motion to quash has been addressed. The jurisdiction of the district court is assailed on a number of grounds, and a consideration of them all together, with the matters urged in resistance of them, would lead us very far afield. There stands, however, at the very threshold of the proceeding an obstacle so formidable that all the other questions raised become purely academic. The cause came before the district court as an appeal from the report of the appraisers under the provisions of sections 3441-3446, Revised Codes, and it does not fall within these provisions, according to the facts admitted of record. The operation of these sections, so far as it has to do with the appointment of appraisers, with an appraisement by them and with an appeal therefrom, is by section 3441 expressly restricted to those cases where a grade has been established by the corporate authority of the city or town, where a building has been erected with reference to such grade, where the grade is afterward changed, and where such change entails the raising or lowering of the building, to the damage of the owner. It is alleged by the relator, and admitted by the motion to quash, that there had been no change of established grade, but that the grading in question was to make the streets conform to the grade established; that whatever change was made or contemplated was not from one established grade to another, but from contour to grade. It is undoubtedly true that the right of the owner of property to redress for damages, in such a case as the facts here disclose, is guaranteed by the Constitution (Article III, sec. 14; Less v. City of Butte, 28 Mont. 27, 98 Am. St. Rep. 545, 61 L. R. A. 601, 72 Pac. 140), and the sections above referred to are an attempt to prescribe and to circumscribe the methods by which such redress may be obtained under certain circumstances. Such a statute is not to be construed to cover conditions to which it does not specifically refer; but as to all .matters not within its provisions, the owner is left to pursue the general methods established by law for the assertion of rights and the redress of wrongs. Moreover, when all the circumstances detailed in section 3441 exist, the power of the city to appoint a board of appraisers and clothe it with any authority is made further to depend upon the inability of the city and the owner to agree. (Sec. 3442.) This, of course, implies some effort, and it does not appear that before the board was appointed any effort to agree was made by the city and Mr. Thomas, or that they were in fact unable to agree. We must therefore hold that the board from whose action the appeal in question was attempted never had any legal existence, nor its report any binding authority; hence there was nothing to appeal from, and the district court is without jurisdiction. A peremptory writ is directed to issue forthwith. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On January 27, 1913, there was filed with the clerk of the district court of Gallatin county a petition for the creation of an irrigation district under the provisions of Chapter 146, Laws of 1909. The petition suggests a name for the proposed district; describes by government subdivisions all lands sought to be in- eluded; gives the names of all holders of title or evidence of title and the postoffice addresses of all who are nonresidents; describes the source of intended water supply and the means of irrigation, and concludes with a prayer for appropriate relief. A map showing the proposed district and irrigation system accompanied the petition and a sufficient bond, duly approved, was furnished. An order was made fixing a time and place for hearing; the statutory notice was given and proof of service made. Before the hearing a protest in writing on behalf of twenty-seven Of the owners named in the petition, and eight others was filed, objecting to the petition and to the organization of the district upon some twelve grounds, among which are: That certain petitioners are not the owners or holders of title or evidence of title to any lands in the proposed district; and that “a majority in number of the holders of title or evidence of title to lands susceptible of irrigation from the same alleged general source and by the same general system of works, have not signed the petition herein, nor proposed the establishment and organization of said system.” At the hearing counsel for the petitioners moved to amend by adding to the petition the names of three other qualified petitioners and the description of certain land. The motion was denied pro forma with leave to renew it, but counsel did not avail themselves of the privilege extended. The petitioners also moved to further amend by striking from the petition the names of Nancy L. Woodward, executrix, and “Garnett Bros.,” and the descriptions of all lands accredited to these parties in the petition. This motion was denied—the court assigning as its reason that “it appears upon the face of the petition that these persons are the owners of lands susceptible of irrigation from the same general source, and included within the boundaries of the proposed district.” The court then proceeded to ascertain whether the petition was in fact signed by a majority 'of the holders of title or evidence of title to the lands described therein, and upon such hearing it was made to appear that two of the signers are homestead entrymen, and a third is a desert entry- man, no one of whom has made final proof; that “Garnett Bros.” consists of J. E. (or Edwin) Garnett, Frank Garnett and Addie Garnett, and that Nancy L. Woodward is the executrix of the last will of A. J. Woodward, deceased; that the estate is in process of administration in the district court of Gallatin county; that the heirs at law of A. J. Woodward are Nancy L., the surviving widow, and seven children; that certain lands are entered upon the assessment-roll to “Garnett Bros.,” but the records indicate that the ownership is in the three Garnetts named; that portions of the Woodward lands aré assessed to “A. 'J. Woodward, ’ ’ and the records of the state land office disclose that they were purchased from the state by “Nancy L. Woodward, Admr.” Upon this showing the district court entered an order dismissing the petition at the cost of the petitioners. The appeal is from that order. The avowed purpose of Chapter 146 above is to provide for the creation, organization and management of irrigation districts. When one of these districts is created it becomes a public corporation with certain enumerated powers, among which are to procure an irrigation system by purchase or construction, and to pay for the same and for the upkeep or running expenses. The management is vested in a board of three commissioners appointed for their initial term by the court, and elected thereafter annually by the land owners of the district who are qualified electors under the Act. Upon this board are conferred very extensive powers. The members are allowed compensation for their services, are permitted to employ clerical help, engineers, common laborers and others, at the expense of the district; to incur indebtedness, to purchase property, etc. The apparent theory of the statute is the naked right of the majority to rule. It requires a majority of the land owners (using the terms “land owners” herein to indicate the holders of title or evidence of title) who also own a majority of the acreage, to initiate the movement for the creation of one of these districts, but a bare majority may succeed in having a district created over the protest and objection of the minority. While there is an initial limit of $10,000 placed upon the power of the board to incur indebtedness for a water system and to charge the district therefor, the written consent of a bare majority of the land owners who own a majority of the acres in the district removes that limitation. Under the Act as it stood at the time this proceeding was instituted, the board could incur an indebtedness against the district to the extent of $5,000 in any one year. Under the amendment made to section 38 by the legislature in 1913, a much wider latitude is allowed. Section 19 prescribes the qualifications of district voters. Neither the nonresident land owner nor the resident land owner who does not possess the qualifications of an elector at our general state or school elections has any voice whatever in the management or control of a district after it is organized. These observations upon the general character of the legislation are made to indicate the extent to which all the proceedings as against a minority land owner are m invitum, and jthe extent to which the minority member is at the mercy of the majority. His property may be encumbered against his will and he may be compelled to respond for debts which he never contracted or authorized. The proceeding is somewhat analogous to that invoked in creating special improvement districts in cities and towns. The power to create one of these districts and certain supervisory control over its affairs after it is created are lodged with the district court. But the court must acquire jurisdiction of the subject matter and of the parties before it can order a district created and the Act provides just how such jurisdiction shall be obtained. When once the subject matter and the parties are before the court, then the provisions of the Act and the rules of procedure are to be given most liberal construction, to the end that the purpose of the Act may be carried into effect. Jurisdiction over the subject matter is acquired when a proper petition is filed with the clerk of the district court. In order to be of any avail—in order to set the machinery of the law in motion, such petition must be signed by a majority in number of the land owners who also own more than half of the acreage in the proposed district. For the purpose of determining whether a petition meets these requirements, the court is authorized by section 4 to take testimony if necessary. A domestic corporation is treated as an individual, and a guardian, executor, administrator or trustee residing in this state is authorized to act for his ward, estate or beneficiary, as the case may be, so far as exercising the voting power is concerned. (Section 19.) In the instant case the petition names sixty-one individual or corporate owners, and in addition thereto names Nancy L. Woodward, executrix of the last will of A. J. Woodward, deceased, and ‘ ‘ Gar-nett Bros.” as owners. The petition is signed by thirty-two, not including either Mrs. Woodward or Garnett Brothers. The fact that Nancy L. Woodward is executrix of the last will of A. J. Woodward, deceased, of itself means nothing. We are not advised as to the provisions of the will or whether Mrs. Wood- • ward is sole devisee of this particular land, but it is unnecessary to determine whether “Nancy L. Woodward, Executrix,” should be counted as one land owner, for the result would not be affected. While an individual might conduct his business under the name “Garnett Brothers,” we think those terms imply, prima facie, more than one person. This must be so if any attention whatever is paid to the ordinary usage of common English words. The word “brothers” is the plural of “brother” and means more than one. Counting Garnett Brothers as two persons, at least, and the petition on its face discloses that it fails to meet the requirements of sections 1 and 2 of the Act. There are at least sixty-four land owners in this district and the petition was signed by only thirty-two, which is not a majority. When the court heard evidence, the deficiencies of the petition were made all the more apparent. Garnett Brothers are three persons, while of the thirty-two who signed, three are clearly not qualified signers under the Act. Neither a homestead nor desert entryman has any title or evidence of title to the land held by him, prior to the time he makes final proof. It is not even necessary to consider the effect of the lien of a bond issue upon the lands held by these three, to determine that the Act never contemplated that government lands are to be included in one of these districts. The ordinary overhead or running expenses of a district are to be met by an annual levy of taxes (section 49) imposed upon all lands therein, “except such lands as have been included within such district on account of the exchange or substitution of water.” (Section 48.) That a settler upon government lands does not have a taxable interest in the land prior to making final proof has been the universal holding, or practically so, of all the authorities. If we deduct the names of the homestead and desert entrymen, the petition has but twenty-nine qualified signers as against a total of sixty-five at least. Doubtless, if the trial court had felt certain that the petition was prima facie sufficient, it would have permitted' it to be amended by the addition of the names of the three other qualified petitioners; but when it appeared that three of the original petitioners were not qualified to sign, the addition of three other names would not have rendered the petition sufficient. As we said above, after it is shown that the court has jurisdiction, the most liberal rules of procedure should be applied; but in the face of a showing that jurisdiction had not been acquired in the first instance, the court cannot be put in error for failing to do what it had no power to do, or what would have been useless. Section 4 contemplates that the court may exclude lands from the proposed district, but certainly the most that can be said of the action of the court, upon petitioners’ request to exclude the Woodward and Garnett lands is, that it exercised its discretion against permitting the amendment and in the absence of any showing of abuse of such discretion, and in the presence of petitioners’ own showing that those lands lie within the proposed district and are susceptible of irrigation from the same general source and by the same general system as the other lands mentioned, the order cannot be disturbed. A very wide discretion appears to be lodged in the district court and rightfully so, if the Act is to be made workable. This procedure is purely statutory. The Act prescribes in detail the steps necessary to be taken to clothe the district court with authority to act, and these statutory requirements must be fully met before the court can proceed. When it thus appeared that the petition was not sufficient to give the court jurisdiction, the order of dismissal was the only one which the court could make. Upon the entry of the order, the objectors filed a memorandum of costs, including therein mileage and per diem, for fourteen witnesses and per diem, for two others, amounting in all to $284. A motion to tax and to strike out every one of these items was made and overruled, and error is assigned. Appellants object to the allowance of any fees to these witnesses because they were not subpoenaed, sworn or examined. An affidavit by counsel for the objectors was filed, setting forth generally that the witnesses were present to testify (1) that the petitioner’s plan for irrigating the lands in the proposed district is impractical; (2) that there is not sufficient surplus or flood water at the intended source of supply to fill the proposed reservoir or to irrigate the lands in the proposed district; and (3) that all of the lands in the district produce crops without artificial irrigation, and the increased yield would not compensate for the added expense. Section 3 of the Act provides for notice of a hearing upon the petition for the creation of a district, and section 4 declares: “Upon such hearing all persons interested whose lands or rights may be damaged or benefited by the organization of the district or the irrigation works or improvements therein or to be acquired or constructed as hereinafter set forth, may appear and contest the necessity or utility of the proposed district, or any part thereof, and the contestants and petitioners may offer any competent evidence in regard thereto.” If, then, the questions of the necessity and utility of the proposed district were properly before the court for determination, it seems clear that the evidence which these witnesses were called to give was relevant, competent and material. Appellants cannot complain that they were not subjected to additional expense for the service of subpoenas upon these witnesses; and neither are they in a position to urge that the witnesses were unnecessary because the petition was insufficient. The objectors were required to be prepared to contest the petition upon its merits if the trial court ruled against them upon the preliminary objections to its sufficiency. No explanation is offered for the presence of the witness Thomas Copenholm. One party to the controversy cannot mulct his adversary for the expense of a witness who was not called or examined, in the absence of some showing that the testimony which he was expected to give could reasonably be offered as relevant, competent or material to the issues raised for trial. The item of $12 charged for that witness should have been eliminated. The cause is remanded to the district court with direction to strike from the cost bill the item of $12 charged for the witness Thomas Copenholm, and with this modification the order of the district court will stand affirmed. Modified and affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur. Behearing denied April 21, 1914.

MR. CHIEF JUSTICE BRANTLY delivered'the opinion of the court. Action for damages for malicious prosecution. The plaintiff had verdict and judgment. The defendants have appealed from the judgment and an order denying their motion for a new trial. On behalf of the defendants the contention is made that the court erred in denying their separate motions for nonsuit, because it was not shown that either of the corporations authorized or had any connection with the prosecution on account of which this action was brought, and because the evidence failed to disclose that Lossl acted without probable cause. The contention is also made that the evidence is insufficient to justify the verdict, and that the court committed prejudicial error in charging the jury. The prosecution of plaintiff arose out of the following circumstances : For the twenty-two months prior to June 12, 1911, the plaintiff had been employed at Divide, in Silver Bow county, as the agent of the Oregon Short Line Railway Company and also of the American Express Company. The defendant J. P. Lossl Company was, during the same time, engaged in a general merchandise business at Wisdom and Dewey, some distance to" the west of the line of railway, in Beaverhead county. The Divide & Gibbonsville Stage Company was engaged in the transportation of freight and passengers from Divide to Wisdom and other points to the west. J. P. Lossl was the president and manager of both corporations, and controlled their business. Goods purchased by the merchandise corporation were received at Divide and conveyed by the other corporation to Wisdom and Dewey. To provide for the payment of freight and express charges, the defendant Lossl would, from time to time, send to the plaintiff cheeks drawn in favor of the railway or express company—oftener in favor of the former—upon the bank at which the deposits of the defendant corporations were kept, usually amounting to $150 at a time. In some instances a single check for this amount was sent, in others two or three checks aggregating this amount, and in others the amount would be larger, according to the amount of the charges to be met at the particular time. The sums thus sent covered also the compensation of plaintiff for the accommodation extended to the defendant corporations. This was fixed at $15 per month. The plaintiff kept an account of the transactions between himself and the defendant corporations. In making his monthly remittances to the accounting officers of the railway and express companies, he would send the checks, which were accepted by these companies as cash, and collected in due course from defendants’ bank. At the end of each month plaintiff remitted to Lossl a statement, which was supposed to contain a list of all the checks received by him on account of either of the defendant corporations, as well as of the items of charges in favor of the railway and express companies. Usually this statement showed a balance in favor of the defendant corporations. This course of business was pursued for the twenty-two months during which the plaintiff was employed. During the early months of 1911 defendant Lossl, upon an examination of the accounts of the defendant corporations, discovered that, out of the whole number of checks received by the plaintiff, the latter had failed to account for several, the aggregate amount of which he did not then know exactly. The amount was then thought by him to be more than $1,000. Thereupon, after consultation with the county attorney of Silver Bow county, he caused the arrest of the plaintiff on a charge of larceny as bailee of moneys belonging to the J. P. Lossl Company to the amount of $1,000. The arrest was made on June 12, 1911, on a warrant issued upon a complaint filed with a justice of the peace. Plaintiff was held until he was admitted to bail. At a preliminary hearing thereafter had by the justice, the plaintiff was discharged. At the trial plaintiff testified that during the time he was acting as agent for the defendant corporations, the defendant Lossl frequently had need of various sums in cash to be used by him personally, or in connection with the business of the corporation, that it was inconvenient for him to obtain cash from the bank, which was at Deer Lodge in Powell county, and that he would on such an occasion draw a check against the account of one or the other of the defendant corporations in favor of the railway or express company, and have plaintiff advance the amount of it in cash out of the funds in his hands belonging to the company to which it was made payable. These checks he said were not included in his monthly statements because they had no connection with the payment of freight and express charges, and hence were properly omitted. There were in all twenty-six of such checks not accounted for. The aggregate amount of them was $2,000. Most of them had been drawn against the account of the J: P. Lossl Company. There was some testimony which corroborated these statements. The claim of Lossl was that all of the checks sent by him were intended to meet freight and express charges, that he never asked for nor received any accommodation from plaintiff in the way of cash advanced upon checks, and that plaintiff appropriated to his own use the amount of the checks omitted from the statement, trusting that Lossl or the accountants of the corporations would not discover his thefts. The evidence introduced by the defendants tended to show that there was substantial foundation for this claim, but the jury refused to accept it. 1. We think the court erred in denying the motion of the Divide & Gibbonsville Stage Company. Though the defendant Lossl was its president and manager, it was not suggested by anything in the evidence that it had any connection with the prosecution of the plaintiff, or that Lóssl instituted the prosecution in its behalf. It is settled law that an action for malicious prosecution will lie against a corporation as well as against a natural person. (Weaver v. Montana C. Ry. Co., 20 Mont. 163, 50 Pac. 414; Pennsylvania Co. v. Weddle, 100 Ind. 138; Boogher v. Life Assn. of America, 75 Mo. 319, 42 Am. Rep. 413; Reed v. Home Savings Bank, 130 Mass. 443, 39 Am. Rep. 468; Williams v. Planters’ Ins. Co., 57 Miss. 759, 34 Am. Rep. 494; Carter v. Howe Machine Co., 51 Md. 290, 34 Am. Rep. 311; Goodspeed v. East Haddam Bank, 22 Conn. *530, 58 Am. Dec. 439.) By the great weight of authority it is also the rule that when an agent of a corporation in the course of the discharge of duties intrusted to him by it, and within the apparent scope of his authority, does an act from which a third person suffers injury, the corporation also is liable for the damages flowing therefrom, even though the agent may have failed in his duty to the principal, or may have disobeyed his instructions. (Rand v. Butte Electric R. Co., 40 Mont. 398, 107 Pac. 87; Golden v. Northern Pac. R. Co., 39 Mont. 435, 18 Ann. Cas. 886, 34 L. R. A. (n. s.) 1154, 104 Pac. 549; Callahan v. Chicago etc. R. Co., 47 Mont. 401, 133 Pac. 687; Weaver v. Montana C. Ry. Co., supra.) If the act is prompted by fraudulent or malicious motives, the fraud or malice of the agent is imputable to the corporation. (Reed v. Home Savings Bank, supra; Vance v. Erie Ry. Co., 32 N. J. L. 334, 90 Am. Dec. 665; Wheless v. Second Nat. Bank, 1 Baxt. (Tenn.) 469, 25 Am. Rep. 783; Carter v. Howe Machine Co., supra; Williams v. Planters’ Ins. Co., supra; Philadelphia W. & R. R. R. Co. v. Quigley, 21 How. (U. S.) 202, 16 L. Ed. 73.). The prosecution having been instituted by Lossl on behalf of the mercantile corporation— that is, to bring the plaintiff to justice for the alleged larceny of its funds—the presumption does not attach that he was acting for the stage company also, although he was its president, and although it appeared incidentally in the evidence that a few of the checks not accounted for were drawn upon its account. It was no more responsible for the -prosecution than would have been any other corporation of which Lossl happened to be president and manager. The situation with reference to the other corporation is entirely different. Upon the face of the proceedings the presumption arises that Lossl was acting for it, for the subject of the larceny was its property, and as its president and manager, he was the proper person to institute the prosecution in its behalf. The motion of Lossl was properly denied. At the close of plaintiff’s case the evidence tended to support the claim of plaintiff that he had cashed the cheeks, not accounted for in his monthly settlements, solely for the accommodation of the defendant. If this was the fact—and for the purposes of the motion it was to be accepted as a fact—the prosecution was wholly without probable cause. This condition of the evidence warranted an inference of malice, for all the authorities agree that, while the plaintiff must prove both the want of probable cause and malice in order to make a prima facie case, they also agree that when the absence of the former has been established, the presence of the latter may be inferred. (Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33.) It being the office of the jury to draw this inference under proper instructions, the motion was properly denied. 2. Counsel for defendants have devoted most of their printed argument to a discussion of the evidence, insisting earnestly that the explanation offered by the plaintiff as to why his monthly statements did not include the missing checks is so palpably improbable that it does not furnish any substantial support for the verdict, especially so in face of the denial by defendant Lossl that he ever obtained cash from the plaintiff for any purpose. Owing to the nature of the transactions between the plaintiff and the defendant, knowledge of them could not be had by others. Therefore, aside from the evidence showing that the prosecution had been terminated; that the defendant had consulted counsel before instituting it, and some circumstances corroborative of the conflicting stories told by the plaintiff and the defendant themselves—the jury were left to determine from these narratives alone where the right of the controversy lay. Of course, if the jury had accepted the story told by the defendant, the inevitable conclusion would have been that the plaintiff was guilty of the charge of larceny made against him, or, in any event, that the prosecution had not been instituted without probable cause. On the other hand, having accepted the story told by the plaintiff, with the legitimate inferences to be drawn from it, the jury were justified in concluding that the charge made was wholly without probable cause; and, having so concluded, they were at liberty to infer that in preferring the charge the defendant was prompted by malicious motives. And although in this character of action it is a complete defense that the defendant acted in good faith and upon the advice of counsel learned in the law, after fully and fairly laying the ease before him, the court has no right and will not undertake to pass upon the credibility of the evidence with the inferences which the jury might be justified in drawing from it in this behalf. (Martin v. Corscadden, supra; Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800; Newell on Malicious Prosecution, sec. 7.) In ¿zeroising the discretion lodged in it by law, the district court accepted the verdict of the jury and denied the motion for a new trial. It is not within our power to interfere, even though upon an analysis of the evidence we might entertain the view that the defendant ought to have prevailed. 3. Instructions numbered 2 and 3 submitted to the jury are the following: “ (2) If the jury believe from the evidence that the defendant caused the arrest and imprisonment of the plaintiff without probable cause and maliciously, as alleged in plaintiff’s complaint, then they will find for the plaintiff, and may assess his damages, if any were sustained, at such sum as they think proper, from the facts and circumstances in the case, not exceeding the sum of $49,760. “ (3) The court instructs the jury that if you believe that the plaintiff was arrested and imprisoned by the defendant upon mere guess, or that the proceedings taken against him were commenced recklessly, and without exercising that care and caution necessary to justify a prudent man in commencing a criminal prosecution against another, then I instruct you that the arrest and imprisonment was without probable cause.” Counsel insists that these instructions wrought prejudice to the defendants, because the issue being tried was whether the defendant had maliciously prosecuted the plaintiff, not whether he had maliciously caused plaintiff’s arrest and imprisonment, and that the court unduly emphasized mere incidents of the prosecution. The distinction between malicious prosecution and false imprisonment is this: If the arrest and imprisonment are brought about by legal process, but the prosecution has been instituted and carried on maliciously and without probable cause, it is malicious prosecution. If the arrest and imprisonment have been accomplished without legal process, it is false imprisonment. (Colter v. Lower, 35 Ind. 285, 9 Am. Rep. 735; Herzog v. Graham, 9 Lea (Tenn.), 152; 26 Cyc. 8.) The latter is an unlawful violation of the personal liberty of another (Rev. Codes, sec. 8324), and is the subject of an action whether the wrongful actTs prompted by malice or not. There is some diversity in the decisions on the subject, but the weight of authority seems to be in favor of the view that in an action for malicious prosecution it is not indispensable that the plaintiff show that he was arrested or imprisoned or was held to bail, and that it is sufficient to sustain the action if it appears that the plaintiff has maliciously and without probable cause been vexed and harassed by a criminal prosecution. Whether the action will lie for the malicious prosecution of a groundless civil suit we need not now consider. The evidence shows that the plaintiff suffered both arrest and technical imprisonment. In drawing the attention of the jury to these facts the court seemed to indicate an opinion that proof of them was indispensable. This was error, but was error in favor of the defendants rather than against them, and therefore was not prejudical because it east a greater burden upon the plaintiff than he was required to sustain. Furthermore, in view of other portions of the charge, wherein the court defined clearly and correctly the rule of law applicable, we do not think the jury were misled. In instruction No. 4 the jury were told that if they found for the plaintiff, they should award him damages in such an amount as would compensate him for the injury sustained, including loss of time, “his anxiety and suffering,” etc. It is argued that since the complaint does not allege specially damages accruing from mental suffering, the instruction permitted the jury to consider an element of damage which was wholly without the issues. It is not clear what the court meant by the expression “anxiety and suffering,” but upon the assumption that it refers to mental suffering, the contention is without merit. In such an action the plaintiff is entitled to recover general compensatory damages for whatever injury he has suffered as the natural and necessary result of the charge made against him by the defendant. Bodily pain and suffering are the natural result of bodily harm, and compensation for them comes under the head of general damages. So mental anxiety and suffering flow naturally and directly from a groundless and malicious prosecution upon a charge of an infamous crime, the very foundation of which is the indignity inflicted by it; special allegations on the subject are therefore unnecessary. (Shatto v. Crocker, 87 Cal. 629, 25 Pac. 921; Lytton v. Baird, 95 Ind. 349; 13 Ency. Pl. & Pr. 452; 2 Sutherland on Damages, see. 421.) Counsel for the defendants requested the court to instruct the jury that the fact that the plaintiff had been discharged by the justice of peace was not any evidence of a want of probable cause for the criminal prosecution, and could be considered by them only, as evidence that the prosecution had terminated. The request was refused. Counsel insist that the refusal was prejudicial error, and cite Martin v. Corscadden, supra, as conclusive of their contention. The case is not in point. The court there held that the portion of the justice’s docket containing a finding that the prosecution was groundless, and adjudging the costs against the prosecuting witness, was inadmissible because it was in effect a judgment upon the very question at issue, viz., whether the prosecution was without probable cause and malicious. This is not a holding that the discharge by the justice was not any evidence of a want of probable cause. It must appear by admissions in the pleadings or from the plaintiff’s evidence, that the prosecution on account of which he is suing for damages is at an end, otherwise he has failed to make out a case for the jury. The complaint in this ease alleges, and the answer admits, that the proceeding before the justice terminated by a discharge of the plaintiff. The necessity for the introduction of evidence on the subject was therefore dispensed with. The rule prevails in most jurisdictions that this fact, when shown, is prima facie evidence of a want of probable cause. (Plassan v. Louisiana Lottery Co., 34 La. Ann. 246; Straus v. Young, 36 Md. 246; Frost v. Holland, 75 Me. 108; Madison v. Pennsylvania Ry. Co., 147 Pa. 509, 30 Am. St. Rep. 756, 23 Atl. 764; Jones v. Finch, 84 Va. 204, 4 S. E. 342; Final v. Core, 18 W. Va. 1; Bigelow v. Sickles, 80 Wis. 98, 27 Am. St. Rep. 25, 49 N. W. 106; Fox v. Smith, 26 R. I. 1, 3 Ann. Cas. 110, 57 Atl. 932; Sharpe v. Johnston, 76 Mo. 660; Chapman v. Dodd, 10 Minn. 350 (Gil. 277); 26 Cyc. 38.) In Davis v. McMillan, 142 Mich. 391, 113 Am. St. Rep. 585, 7 Ann. Cas. 854, 3 L. R. A. (n. s.) 928, 105 N. W. 862, the supreme court of Michigan disapproves the doctrine of these eases, and declares it to be the better view that the fact of the discharge by the justice, standing alone, is no evidence of a want of probable cause. We shall not at this time enter into a discussion of the merits of these different views. We are of the opinion that where, as in this case, the order of discharge has been made after a full investigation of all the facts within the knowledge of the prosecuting witness, it is some evidence at least that the prosecution was groundless. From this point of view the requests of the defendants were properly refused. The one remaining assignment made by counsel we do not think of sufficient merit to demand special notice. As to the Divide & Gibbonsville Stage Company, the judgment and order are reversed, and the district court is directed to dismiss the action. As to the other defendants, the judgment and order are affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. The complaint of respondent alleges in substance that about May 15, 1906, he entered into an oral contract with Olive Ahrens, now deceased, in and by which it was agreed that he should perform work and labor in the care and management of her ranch during her lifetime in consideration that she should furnish him food, clothing, and other necessaries of life and that she should devise her said ranch property to him at her death; that he thereupon entered upon the duties thus imposed upon him and continued to discharge them until her death on December 14, 1910, and fully performed the contract on his part; that in March, 1910, “the said agreement was by mutual consent so modified that he, instead of receiving each year an unliquidated sum as and for necessaries under said agreement, took a lease of the premises which provided that he should receive one-half of the proceeds thereof, which was executed in lieu of the provision in said agreement for necessaries”; that his services rendered to her under the agreement were of the reasonable value of $75 per month, or $3,450 in all, no part of which has been paid; that Olive Ahrens died testate, but her will, which was duly admitted to probate, contained no devise or bequest whatever to him; “that thereafter, and after publication of notice to creditors of the estate of the said Olive Ahrens, deceased, had been made and before the time in said notice specified for the presentation of claims against the said estate had expired, and on or about the 19th day of September, 1911, the plaintiff * * * presented his claim for the reasonable value of the services aforesaid # * * duly verified, * * * to the defendant herein as administratrix, # * * which claim was rejected; that thereafter, and on or about the 7th day of October, 1911, and before the time for presentation of claims against the said estate had expired,” the plaintiff presented an •amended statement of his claim, duly verified, which claim received no action on the part of the administratrix, though more than ten days have elapsed. The answer admits that in the will of Olive Ahrens there is not any devise or bequest to plaintiff; that plaintiff presented his claim on September 19, 1911, which was rejected; that he presented his amended claim on October 7, 1911, and that more than ten days have elapsed since said presentation; alleges that if plaintiff ever did any work for Olive Ahrens he has been fully paid for the same, and that in the will of Olive Ahrens ft is stated that the reason she makes no special bequest to him is because she feels that she has provided for him as much as the situation demands. Otherwise than as above set forth, the answer denies all the allegations of the complaint and also pleads a counterclaim upon a promissory note for $100, given by the respondent to Olive Ahrens on November 24, 1909. The reply admits the execution of the note but otherwise denies all the allegations of new matter contained in the answer. The cause was tried to the court sitting with a jury, and the verdict was for the respondent, upon which judgment was entered to the effect that respondent “have and recover from said Louise C. Trump, as administratrix,” the sum of $3,694.50, with costs amounting to $105.50. Appellant made and presented her motion for new trial, which was denied, and from the order denying a new trial, as well as from the judgment, she appeals. But three questions are presented, viz.: Does the complaint state a cause of action ? Does the evidence support the verdict ? Is the judgment valid in form? Of these in their order. 1. The burden of the attack upon the complaint is that the action is under a special statute authorizing suits to vindicate rejected claims against estates; that the plaintiff must in every such case bring himself within the statute by appropriate averments to the effect that his claim was presented in time; that the complaint does not show this, the allegations relative thereto and quoted above being mere conclusions instead of direct allegations from which the necessary conclusions might be drawn by the proper authority. The eases cited by counsel all hold that conclusions of law are ineffective for any purpose in pleading—a proposition indisputable and last enunciated by this court in Ridpath v. Heller, 46 Mont. 586, 129 Pac. 1054—but that a claim was presented within the time prescribed in a notice is a clear matter of fact implying proof of the time of presentation as well as of the notice and its terms, leaving the deter- urination of the legal effect to the court. It may be conceded that the allegation in question is not in the best possible form, but it is an obvious attempt to state the fact in its ultimate, issuable aspect and at most is an inference rather than a conclusion of law. Argumentative and inferential averments are, it is true, as obnoxious to good pleading as are conclusions of law, but their value is not the same. Conclusions of law, unsupported by the essential averments of fact, are always ineffective; but, as against an attack for lack of substance, the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties (Rev. Codes, see. 6566), and whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred. (County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81.) Where the inferential allegations of a pleading are not attacked by special demurrer or motion, as may be appropriate, we know of no modem authority which denies the right of the pleader to make proof under them; and that such an allegation as the one before us will support proof was intimated in Jones v. Rich, 20 Mont. 289, 50 Pac. 936, and expressly decided in Wise v. Hogan, 77 Cal. 184, 19 Pac. 278. To all this we add the statutory injunction that no judgment shall be reversed by reason of any error or defect in the pleadings which does not affect the substantial rights of the parties. (Rev. Codes, sec. 6593.) 2. That the original agreement between the respondent and Olive Ahrens was substantially as alleged in the complaint, and that for over three years the respondent cared for and managed her ranch under it, is abundantly proved. The complaint, however, conceding that it was not fully performed according to the original terms, pleads a modification, and the questions of fact seriously debated are: Was there such a modification? and, if there was, did the respondent perform the agreement so far as performance was required of him? We are urged by appellant’s counsel to remember in approaeh ing this question that claims such as the one at bar are easy to make and hard to disprove; that the only witness who could specifically deny the alleged modification, establish nonperformance of the agreement, or show that full compensation had been made, is dead; that no defense is possible save as it may be found in the improbability of the stories of the plaintiff’s witnesses when tested by comparison with other evidence in the case or by ordinary rules of human conduct under similar circumstances. In so far as this admonition implies that courts generally should scrutinize with more than usual care the quality of the proof presented in such cases, assent may be given; and, in so far as the proof consists of oral declarations of the deceased, caution was enjoined upon the trial court and jury by the statute. (Rev. Codes, sec. 8028; Escallier v. Great Northern R. Co., 46 Mont. 238, 127 Pac. 458.) We can find, however, no authority in our Code for the application of any different rule as to the quantum of proof from the one prescribed for civil actions generally or for the assertion that this court may or should employ any different canons of review from those which obtain in other actions at law. The jury, who were the judges of the weight and credibility of the testimony, the trial judge, who, if he thought the verdict contrary to the weight of the evidence, could have set it aside, have expressed their satisfaction'with the respondent’s contention. It is to be presumed that they exercised all the caution and scrutiny enjoined upon them by the law, and it is not to be supposed that they were any the less solicitous for the integrity of decedents’ estates than are we. The question before us is, therefore, the same as in other appeals in actions at law, viz., whether there is any substantial evidence to support the verdict of the jury. Turning, then, to the evidence, we ascertain that after respondent had cared for and managed the property under the original agreement for the period of forty-six months and until March, 1910, he then took the ranch for a year on shares. In October, 1910, after the harvest ’ season, he left the place and took a position with one Joslyn, and the place was leased to one Markwell for the period to expire March 1, 1912. Doubtless these naked facts, if unexplained, would suffice to defeat the respondent, for they would show that he had not performed his contract and would suggest that it had been terminated by mutual consent. But there are items of evidence which show the situation from and after March 1, 1910, when respondent took the ranch on shares, to have been otherwise than either an abandonment of the contract or a failure to perform by him. He testifies: “The agreement I had with Mrs. Ahrens was modified and I took the ranch on shares March 1, 1910, to March 1, 1911. * * * After I got married Mrs. Ahrens said, ‘John, you better take the place and lease it; your wife will need money and won’t feel like coming to me for it; and you lease the place and whatever you make off the crop when you need money you will be able to get it for yourself.’ Mr. Joslyn came down there to buy some hogs; he first came down to buy some cows; we sold him the cows and then he came back the next day and he said, ‘I would like to get hold of a man like you.’ I. told Mrs. Ahrens what Mr. Joslyn was going to give me, and she said, ‘You go up there and try it a year. ’ I was there (at the Ahrens place) off and on up to the time of her death; when I came down town I would stop there.” Phil. Wagner testified: “I had some talks with Mrs. Ahrens regarding the situation after John moved off the place; one thing was he was getting good wages and another thing they didn’t have any suitable place for him to live and.they couldn’t very well live there together; she intended to build across the road from there. * * * I think it was last fall, a year ago, that he left the Ahrens place. Markwell moved into the little house that Gauss occupied, and Mrs. Ahrens told me she had rented the place to- him for the next year. ’ ’ Mrs. Markwell testified: “We moved onto this land October 9, 1910; we were to have the place until the 1st of March, 1912; I told her (Mrs. Ahrens) we did not want to rent it for one year, and she said she did not think Mr. Gauss would be gone for more than a year. Mrs. Ahrens told me that Mr. Gauss was going to Dakota to look after some property belonging to his wife.” George Johnson testified: “The last time I saw Mrs. Ahrens was at my house about the middle of October, before she died; she said she had her will made and she was giving the bulk of her property to John Gauss. John was not living on the ranch at that time; she said he had gone over to Joslyn’s temporarily.” C. B. Calkins testified that sometime in 1906 or 1907 Mrs. Ahrens had executed a will in his possession in which all her property was devised to John Gauss. In their able brief for appellant, counsel say: “The reason he did not stay there and take care of the ranch until the death of Mrs. Ahrens was because the parties had made some new separate agreement which Mrs. Ahrens, now dead, cannot detail and which John Gauss chooses not to state.” This may indeed be. It could be wished that the evidence were more satisfactory, for there are circumstances which tend to give color to the theory of a mutual abandonment of the agreement. But these circumstances were all before the jury; the inferences to be drawn from the testimony were within their province; and, though there was room for a contrary conclusion, it is also a legitimate inference from the testimony that the change from the agreement as originally made to the lease on shares and from that to the temporary sojourn at Joslyn’s were with Mrs. Ahrens’ entire approval and without any understanding that the agreement was to be affected thereby. If this were the fact, nothing could prevent a recovery on quantum meruit against her had she lived and afterward repudiated the agreement. She alone had the right to say whether he had, up to that time, kept the agreement to her satisfaction or whether she should regard his conduct as a breach thereof (Burns v. Smith, 21 Mont. 251, 69 Am. St. Bep. 653, 53 Pac. 742); if she did not so regard it, if she acquiesced with apparent satisfaction in what he had done, but thereafter determined not to abide by the agreement, her subsequent death could not deprive him of the same remedy. 3. The form of the judgment is assailed, and rightly so. It provides that the plaintiff “have and recover” from the defendant, as administratrix, the amount of the verdict and costs, whereas, it should simply have .adjudged that the defendant, as administratrix, pay in due course of administration the amount ascertained to be due. (Rev. Codes, see. 7536.) But this does not affect any substantial right and forms no ground of reversal. It is ordered that, upon the return of the cause on remittitur, the district court correct the judgment to comply with section 7536, Revised Codes, the judgment to stand affirmed as corrected. The order denying a new trial is also affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. On April 20, 1908, the defendant, claiming to be the exclusive owner of the Divide quartz lode mining claim, situate in the Little Rocky mining district, in Chotear^ county, made its application to the United States for a patent therefor through the land office at Glasgow. The plaintiffs, each claiming an undivided one-sixth interest therein as a tenant in common with the defendant, brought this action to have their rights established and determined as an adverse claim in pursuance of the requirements of the federal statute. (U. S. Rev. Stats., see. 2326; 5 Fed. Stats. Ann. 35; U. S. Comp. Stats. 1901, p. 1430.) The pleadings were framed and the issues made up in accordance with this theory. At the trial, however, the plaintiffs omitted to introduce evidence showing that they had obtained a stay of the patent proceedings by filing their adverse claim in the land office, apparently having adopted the theory that, though the patent should issue to the defendant, it would be held trustee for the plaintiffs to the extent of their respective interests, and that the filing of the adverse claim and bringing timely action thereon was unnecessary. In any event, the trial proceeded as in an ordinary action to quiet title or to determine an adverse claim under section 6870 of the Revised Codes. The court found the issues in favor of the plaintiffs and entered a decree accordingly. Pending a motion for a new trial, Hon. Frank N. Utter, the judge a quo, was disqualified. He thereupon ordered that the action be transferred to the other department of the court over which Hon. John W. Tattan presides, who sustained the motion and ordered a new trial. The plaintiffs have appealed. The notice of intention assigns as grounds for the motion irregularities in the proceed ings, insufficiency of the evidence to justify the findings, and errors in law occurring at the trial. The order does not indicate upon which of these grounds it was based; therefore, under the rule heretofore observed in such cases, it must be affirmed if it can be justified upon any one of the grounds assigned. (Welch v. Nichols, 41 Mont. 435, 110 Pac. 89.) The plaintiffs insist that the court abused its discretion in granting the order, for the reason that upon the facts as disclosed by the evidence the right to the interests claimed by them was clearly established, and that under the rules of law applicable the court could not have found and decreed otherwise than it did. Counsel for defendant insist that the motion was properly granted on any one of four different grounds, viz.: (1) That the court erred in excluding material evidence; (2) that it was incumbent upon the plaintiffs to prosecute the action as an adverse suit, in conformity with the provisions of the federal statute, at the peril of losing their rights; (3) that the evidence discloses conclusively that the plaintiffs were guilty of laches in asserting their claims; and (4) that the interests of plaintiffs were abandoned by them long prior to the bringing of this action. In making this statement of the contentions of counsel, we have for convenience deviated somewhat from the order pursued in the brief. The facts disclosed by the evidence are in brief the following: The claim was located by Thomas Carter and William McKenzie on January 1, 1894. On October 24 in the same year each of them, by deed duly acknowledged and recorded, conveyed an undivided one-sixth interest to Thomas O’Hanlon, who resided in Choteau county, and was engaged in merchandising at Chinook. The conveyances were made pursuant to an agreement entered into prior to the location of the claim between O’Hanlon and Carter and McKenzie, to the effect that O’Hanlon was to furnish the latter supplies to enable them to locate and hold mining claims, and that they were to convey to him a one-third interest in any claims discovered and located by them. The claim, together with others which were located un der the agreement, 'was thereafter held by the three in common, Carter and McKenzie doing the representation work under the agreement until February 15, 1898, when Thomas O’Hanlon died intestate, leaving his two sons, Thomas J. and Henry, his only heirs. One L. V. Bogy was appointed administrator upon the estate, and continued to serve in that capacity until May 19, 1900, when he resigned. The plaintiff, Henry J. 0’Han-lon, a brother of the decedent, was appointed in his stead and served until the estate was finally distributed. The two sons were minors at the time their father died, but attained their majority during the course of the administration, the former in 1899, and the latter early in 1901. Though Bogy knew of the interest of O’Hanlon in the Divide claim, he did not include it in the inventory, nor was it mentioned in the decree of distribution. On June 22, 1901, Henry O’Hanlon conveyed to Thomas J. O’Hanlon, by writing duly acknowledged and recorded, his entire interest in the estate, subject to the debts of the decedent, but without specific mention of the Divide claim. On February 1, 1902, by a similar writing, Thomas J. O’Hanlon conveyed an undivided one-half interest to Henry J. O’Hanlon. The residue of the estate was distributed to Thomas J. and Henry J., the plaintiffs herein. The claim was not mentioned in the decree. So far as the record shows, Henry O’Hanlon remained in Choteau county. Soon after the death of his father, Thomas J. O ’Hanlon went to Boston, Massachusetts. He there enlisted in the United States army, and served in the Philippine Islands until his discharge in 1901, when he returned to Choteau county. On February 5, 1900, Carter and McKenzie served on Bogy a notice addressed to bim as “administrator of Thomas O’Hanlon Estate,” that they had done the annual representation work, amounting to $100 for the year 1899, necessary to hold the claim in conformity with section 2324, United States Revised Statutes (5 Fed. Stats. Ann. 19, U. S. Comp. Stats. 1901, p. 1426), and that, unless he should pay his proportion of this amount within ninety days from that date, his interest as co-owner would be held forfeited. Bogy paid no attention to the notice, and did not, nor did anyone else thereafter, pay any part of the expenses for that or any subsequent year, though Carter and McKenzie, and the defendant as their successor, had possession of the claim, and did the work for each year until the beginning of this action. In addition to the work of representation, Carter and McKenzie also did a large amount of development work during the years prior to 1905. During the year 1904 or 1905 the defendant, with a view to acquiring the claim, obtained a lease and bond from Carter and McKenzie. It went into possession, and did development work upon it costing, according to the estimate of some of the witnesses, more than $40,000, uncovering deposits of valuable ores, with the result that on September 6, 1906, it determined to purchase, and did purchase, the claim at the price of $25,000 in cash. The plaintiffs were fully aware of what was being done, and also that Carter and McKenzie, and the defendant as their successor, were claiming to be the exclusive owners under the forfeiture notice given to Bogy in 1900, yet neither protested, or objected, or made any claim of interest, the first assertion of their claim being made by the bringing of this action. During June or July, 1901, Thomas J. O’Hanlon visited Carter, who lived on or near the claim. He made inquiry concerning the interest of his father’s estate, and was then told by Carter that the interest of the estate had been forfeited. He was given the notice which had been served on Bogy, and, having read it, returned it to Carter, saying, “That is all right.” He had been informed as early as the winter of 1901 that Carter and McKenzie were claiming that the interest of his father had been forfeited. On another occasion, prior to the purchase by the defendant, he went to the claim, and endeavored to'induce Carter to sign notes for an account found charged against Carter and McKenzie upon his father’s books. This account was about $800, and all but about $270 of it had apparently been charged as the price of supplies furnished to Carter and McKenzie while they were prospecting for the joint benefit of themselves and the father, and keeping up the representation work upon the claims located by them. Again, some time prior to the date at which defendant paid to Carter and McKenzie the purchase price for the claim, Henry J. ■ 0 ’Hanlon questioned B. D. Phillips, the president of the defendant, as to whether-it would be possible for him to collect from or through the defendant the amount of the account claimed to be due from Carter and McKenzie. He did not then assert an interest in the claim. The defendant continued to develop and mine the claim, until application was made for patent. There is no material conflict in the evidence. It is true Thomas J. O’Hanlon stated that he had no recollection of reading the notice of forfeiture on the occasion of his visit to Carter in 1901; but he admitted that he had learned in the winter of that year of the claim of Carter and McKenzie that his father’s interest had been forfeited, and that during the conversation with Carter the latter had asserted that the 0 ’Hanlon interest had been forfeited. 1. When the defendant offered in evidence a copy of the notice, it was rejected as immaterial. An offer to show by Bogy that, when he received the notice, he “notified” Thomas J. and Henry 0 ’Hanlon both 'that it had been served on him, was also rejected. The theory of the court in excluding the notice was that, since it was addressed to the administrator alone, it was wholly insufficient, because an administrator is not, by virtue of his office, a co-owner with the cotenants of his decedent in a mining claim, within the meaning of the federal statute, supra, because the legal title to property belonging to the estate descends, not to the administrator, but directly to the heirs, subject only to a lien in favor of the administrator for the payment of debts. So far as the notice, with proof of service upon Bogy, was evidence of the forfeiture, the view of the trial court was correct. “The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the district court, and to the possession of any administrator appointed by that court for the purposes of administration.” (Rev. Codes, sec. 4819.) The administrator was not, therefore, by virtue of his office a co-owner with Carter and McKenzie; hence the service of the notice upon him could not be deemed a service upon the actual co-owners. The federal statute provides: “Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures.” (U. S. Rev. Stats., sec. 2324; 5 Fed. Stats. Ann. 19; U. S. Comp. Stats. 1901, p. 1420.) The purpose of the provision is to afford a speedy, convenient and effective method of taking from one eotenant his interest in the property and giving it to another without the intervention of courts or juries. (1 Lindley on Mines, see. 646.) Therefore, when one cotenant asserts that he has devested his cotenant of his interest in the common property, the courts make examination of the circumstances under which the alleged divestiture has been brought about, and deny the claim, unless the facts exist authorizing the invocation of the provision, and the personal or constructive notice prescribed has been given in strict conformity with its requirements. In Turner v. Sawyer, 150 U. S. 578, 37 L. Ed. 1189, 14 Sup. Ct. Rep. 192, the court held that the statute is one of forfeiture, and as such must be strictly construed; hence a notice given by one who was not at the time actually a co-owner, but vested only with an equity under a sheriff’s certificate of sale, was not effective to work a forfeiture, though he had done the full amount of work necessary to preserve the claim. So, where the delinquency was not shown by the facts presented by the evidence (Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067), or the required work for the particular year was excused by Act of Congress (Royston v. Miller (C. C.), 76 Fed. 50), or tbe delinquent co-owner to whom the published notice was addressed was dead (Billings v. Aspen M. & S. Co., 51 Fed. 338, 2 C. C. A. 252), it was held that the attempt to work a forfeiture was ineffective. In Elder, Admr., v. Horseshoe Mining etc. Co., 9 S. D. 636, 62 Am. St. Rep. 895, 70 N. W. 1060, the published notice was addressed “to Rufus Wilsey, his heirs, administrators, and to all whom it may concern.” Wilsey, the delinquent co-owner, was dead. There was no administrator, the one originally appointed having died. The court held that, since the address included all persons who could have had an interest in the property in controversy, it was sufficient. In the same case, on error to the supreme court of the United States (194 U. S. 248, 48 L. Ed. 960, 24 Sup. Ct. Rep. 643), in affirming the judgment, Mr. Justice Peckham said: “This statute provides a summary method for the purpose of insuring the proper contribution of co-owners among themselves in the working of the mine, and it provides a means by which a delinquent co-owner may be compelled to contribute his share under the penalty of losing his right and title in the property because of such failure. It was not necessary, in our judgment, that the notice should specifically name the heirs of the deceased owner. The Act does not require it. If the notice be such that the former owner is particularly named and identified thereby, and his heirs are notified by the publication, it is a sufficient notice to them for the purpose of making it necessary for them to comply with the terms of the statute within the time designated therein, by the payment of their share of the expenses of working the mine, or else to lose their right, title, and interest therein. * * * A general address to the heirs of the person named and the proper publication of the notice is sufficient. It did not become insufficient because, in addition to being addressed to them, it was also addressed to their intestate by name. An address to a deceased person did them no harm, so long as it was also addressed to them.” It may be noted that both courts, while stating that the statute does not require the notice to be addressed to anyone, imply by the language used that it should be so addressed as to include all persons interested as co-owners. It may be noted, also, that, while neither definitely decides the question whether notice to the administrator is sufficient, both impliedly hold that it is not. The notice under consideration was addressed to Bogy alone as the co-owner. If, under the rule as stated in Turner v. Sawyer, supra, the notice must be given by a co-owner, by the same rule it must, in order to be effective, be served upon the real co-owner, whether the service be personal or constructive. As we have seen, Bogy had no interest, and hence the notice to him could not be effective, for, if the word “co-owner” is us'ed in a restrictive sense when applied to the co-owner giving the notice, it. must be used in the same sense when applied to the delinquent co-owner. But counsel insist, that if they had been permitted to do so, they would have shown that the notice served on Bogy was called to the attention of both the sons, and hence that it became as effective as if it had been addressed to them and personally served upon them. In support of this position, they cite Evalina Gold Min. Co. v. Yosemite Gold M. & M. Co., 15 Cal. App. 714, 115 Pac. 946. In that case the facts were these: The Slap Jack mine was owned by six persons as tenants in common. Two of them failed to do any portion of the representation work for the year 1898. In December of the following year the four other cotenants, having done the work, gave personal notice to the delinquent in writing, demanding contribution in pursuance of the provisions of the statute. The latter, having at that time conveyed away their interests, immediately delivered the notice to their grantee under a prior unrecorded deed. The court held that, since the latter actually received the notice, though it was not addressed to it by name, and also had knowledge that the work had been done by the cotenants of its grantors, the notice was sufficient to forfeit its right, because the grantee, the real owner, had had full opportunity to protect itself from forfeiture. The case is distinguished in its facts widely from the present case. Here the cotenants, seeking to work the forfeiture, knew that Bogy was not their eotenant; they knew that 0 ’Planlon had heirs who upon his death had succeeded to his estate, and that they would continue to hold as owners unless their title should be devested by sale during the administration. Since they had been associated with O’Hanlon in their prospecting enterprise, it is fair to presume that they knew of the two sons and'that they were the only heirs. But, whether they did or not, they could have given notice by publication without making any inquiry. Besides, the offer to show by Bogy that he notified the sons that he had received the notice falls far short of showing that the notice actually came into their hands, or that the facts which the statute requires to be brought to the knowledge of the delinquent were thus communicated to them. Neither the notice nor the fact that Bogy conveyed to the sons the information merely that he had received it was, we think, material on the question of forfeiture. Nor, if it be assumed that Thomas J. O’Hanlon read the notice in 1901, was this sufficient to devest him of his title, for the time during which he might have complied with the demand it made for payment had long since expired. Even if the ruling of the California court should be accepted without question as sound, it ought not to be held applicable to a state of facts entirely different from that presented in the ease before the court. We think, however, that the evidence was competent and material as reflecting upon the subsequent conduct of plaintiffs, and, together with the other facts shown, as furnishing a basis for an inference of inexcusable delay in asserting their claim. The plaintiff Thomas J. O’Hanlon and his brother would thus have been shown to have known of the claim of Carter and McKenzie as early as February 5, 1900. So the plaintiff Henry J. O’Hanlon, having become the administrator on May 19, 1900, must likewise have known of it soon after, for his official duty required him to know, and the presumption must be indulged that he did know. Both knew of the development work that was being done by Carter and McKenzie and the defendant, and that they were claiming exclusive ■ ownership. The evidence should have been admitted and considered upon the question whether the plaintiffs should be charged with laches. The trial court found that they were not open to this charge. What conclusion it should have reached if the excluded evidence had been admitted and considered, we are not now required to decide, as that is a question to be determined in the first instance by the court below upon consideration of all the material evidence. The error committed in excluding this evidence was sufficiently substantial to entitle the defendant to a new trial as a matter of right. The evidence was also competent and material upon the question of abandonment. As the term “abandonment” is defined in the books in this connection, it means a leaving of the claim by the owner with the intention, expressed or implied, of never returning to it, or, in other words, leaving it open and free to location by anyone who chooses to take it. (McKay v. McDougall, 25 Mont. 258, 87 Am. St. Rep. 395, 64 Pac. 669; Badger G. M. & M. Co. v. Stockton G. & C. M. Co. (C. C.), 139 Fed. 838.) In this sense one cotenant cannot abandon a claim, because he cannot by any course of conduct destroy the interest of his cotenant so that the claim reverts to the United States; nor can his conduct inure to the benefit of the other cotenant. But, when his conduct is such that, if he were the sole owner, he would-be held to have abandoned his right in a technical sense, may he thereafter assert title to the interest so renounced? To illustrate: A and B are tenants in common. Because A concludes that the claim is valueless, he leaves it, expressing the intention never to return. Without reference to what the subsequent events may have been, when his conduct has been made to appear, ought the court to -say that, because the claim has been kept alive by B, and perhaps has been shown to be valuable, A’s interest still remains as a valid, subsisting right? We do not think so. Having renounced his right, it is of no concern to him what thereafter becomes of the claim. He is not concerned with the question whether his abandonment inures to the benefit of B, or whether B asserts title to the whole; nor is he concerned about whether the federal authorities will issue a patent conveying full title to B. Bo far as the court is concerned, he is entitled to no relief, because he shows no right. So far as his interest is concerned, it stands as if the claim had never been located. ' Under these or other circumstances justifying an inference that he has abandoned his interest, ought the court to treat his claim with any indulgencé ? On the contrary, he should be left under the disability he has brought upon himself, and be adjudged to have no standing in court to assert an interest or to question the interest of his cotenant or any other person whomsoever. On another trial the evidence should be considered as the basis for such inference as the court thinks it ought to draw from it in this behalf. 2. Counsel for defendant made no objection in the court below to the course pursued by the plaintiffs in the trial of the case. They are therefore not now in position to insist that the court erred in treating the action at. plaintiffs ’ instance as an ordinary one to quiet title, instead of an adverse suit under the federal statute. While it is true that the excluded cotenant may bring his adverse suit and have his rights determined, so that the patent will convey directly to him whatever interest he shows himself entitled to (Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. 310; Badger etc. Co. v. Stockton etc. Co. (C. C.), supra; Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067; Turner v. Sawyer, 150 U. S. 578, 37 L. Ed. 1189, 14 Sup. Ct. Rep. 192; 1 Lindley on Mines, secs. 646, 728), yet he is not bound to do so. He may ordinarily, if he chooses, wait until the conclusion of the patent proceedings, and then assert his equities in the patent title, and have the patentee declared a trustee for his benefit to the extent of his interest. (Brundy v. Mayfield; Turner v. Sawyer, supra.) This he may do by virtue of the well-settled rule that “cotenants stand in a certain relation toward each other of mutual trust and confidence; that neither will be permitted to act in hostility toward che other; and that a distinct title acquired by’ one will inure to the benefit of all.” (Turner v. Sawyer, supra.) If this course is permissible, then, for the same reason, the excluded eotenant may bring his action in the ordinary way, without reference to the patent proceedings, and proceed to judgment which will be effective to establish his right. The pendency of the patent proceedings could not be alleged to oust the state court of jurisdiction, for, if it is not too late to bring the action after the patent has issued, it certainly cannot be a fatal objection to it if brought pending the patent proceedings. We know of no rule by which, under the conditions presented in this case, so far as the objection urged by counsel avails, the plaintiffs are to be held bound by their election to bring the action as they did, or that precluded the trial court from treating the allegations touching the patent proceedings as surplusage, and proceeding with the case as an ordinary action to quiet title. Cases may arise in which the ousted eotenant must proceed under the federal statute; but the statute was intended to apply only to those cases in which there are adverse claims arising out of conflicting locations, or where the adverse claimants derive title from different sources. In any event, the facts of this case bring it clearly within the rule as announced in Turner v. Sawyer and Brandy v. Mayfield, supra, which hold directly in point against the contention of counsel. We know of no case which supports the text of Mr. Lindley, who expresses the opinion that, where one cotenant has wrongfully excluded another under circumstances which in law create an adverse holding, and set the statute of limitations in motion, the ousted cotenant must assert his right in the patent proceedings. (Lindley on Mines, sec. 728.) We do not regard the case of Tabor v. Sullivan, 12 Colo. 136, 20 Pac. 437, cited by counsel, as even persuasive in support of their contention. The parties in that case claimed under different deeds from the same source, executed prior to the issuance of patent. The question at issue was whether the grantor of plaintiff, who held under the one of the deeds which had first been recorded, had acquired his title as an innocent purchaser, and hence had conveyed a perfect title to the plaintiff. The court held that he had. Justice Elliott, in concurring, expressed the opinion that, since the claims of the parties were “always conflicting, always adverse, never friendly, never confidential, ’ ’ the parties never became tenants in common, and hence that the defendants had lost any rights they had acquired under their deed by suffering patept to issue without asserting them by adverse proceedings under the federal statute. 3. The discussion in the foregoing paragraphs covers such consideration of the other two contentions made by counsel as may properly be devoted to them on this appeal. Another question presented by the record, but not discussed by counsel, requires a brief notice. It is alleged in the complaint and shown by the evidence that, when the action was brought, the defendant was in possession of the disputed ground, claiming to be the owner, and excluding the plaintiffs therefrom. The trial proceeded as if the action had been brought under section 6870 of the Bevised Codes, instead of under section 6882 in pursuance of the provisions of the federal statute. Under the latter section it is immaterial which party is in possession of the disputed ground, it being sufficient to confer jurisdiction upon the court for all purposes, “if it appears from the pleadings that the application for patent has been made and an adverse claim thereto filed and allowed in the proper land office.” The former section (Code Civ. Proc. 1895, sec. 1310) was examined in the original opinion in Montana Ore Purchasing Co. v. Boston & Mont. Con. C. & S. Min. Co., 27 Mont. 288, 70 Pac. 1114, and also in the opinion delivered on rehearing in the same case, 27 Mont. 536, 71 Pac. 1005. It was distinctly held in that case that the purpose of the section was to confer upon courts of equity the power to entertain actions to quiet title in eases in which they therefore did not lie, viz., in eases in which the plaintiff is in possession and an adverse claim is asserted by the defendant, and in cases -in which neither plaintiff nor defendant is in possession and the defendant is asserting an adverse claim. It was also pointed out that the plaintiff out of possession must, as against the defendant in possession asserting an adverse claim, resort to an action in ejectment, because under such circumstances he has an adequate remedy at law, and may not resort to a court of equity. Under this interpretation of the section, the complaint in this case does not state a cause of action, and upon the evidence adduced the defendant was entitled to judgment. If upon another trial the plaintiffs furnish proof of the- filing of the adverse claim, this infirmity in their case will be cured; otherwise they cannot maintain the action at all. The order is affirmed. 'Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 18 (Gallatin)

Affirmed Dist. 6 (Park)

Affirmed Dist. 13 (Yellowstone)

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 1 (Lewis and Clark)

Granted in part Original Proceeding Supervisory Control

Affirmed Dist. 11 (Flathead)

Affirmed Dist. 21 (Ravalli)

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Theron James Blake appeals an order of the Tenth Judicial District Court, Fergus County, denying his motion to dismiss charges against him. We address: Whether the District Court prejudiced Blake when it conducted an in-chambers conference in Blake’s absence. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On January 9, 2013, the State of Montana filed an Information charging Blake with eight offenses: seven sex offenses involving three alleged victims—two minors, B.S. and L.L., and one adult, K.L.—and one offense of tampering with evidence. Blake pled not guilty to all eight charges, and a trial was scheduled for June 25, 2013. Less than one week before trial, the State filed several motions, seeking to: (1) add a witness, (2) exclude certain evidence from trial, and (3) amend the Information as to form. Also just before trial, the State provided discovery that included a 911 recording, a Montana Crime Lab report, and police reports of two witness interviews, one of whom was an alleged minor victim. On June 21,2013, Blake filed a motion to dismiss the case with prejudice, contending that the State’s motions were untimely, that the State committed “violations of discovery by disclosing information, exculpatory and otherwise, less than one week before trial,” and that this information would have impacted Blake’s plea negotiations. That same afternoon, the District Court conducted an emergency in-chambers conference. Blake did not appear at the conference. His counsel appeared telephonically. When asked whether she had any concerns about Blake not being present at the conference, Blake’s counsel stated: “if we reach a point where I believe he needs to be present I will alert the Court.” During the conference, the District Court vacated the June 25,2013 trial date and continued the jury trial to August 26, 2013. After the conference, the District Court issued a written order continuing the trial to August 26, 2013. The District Court also issued a written order denying Blake’s motion to dismiss, ruling that Blake’s counsel waived Blake’s right to be present at the June 21, 2013 hearing, and finding that the continuance mooted Blake’s complaints regarding the State’s late-filed discovery disclosure. ¶4 The District Court held a jury trial from August 26 through 29, 2013. The jury found Blake guilty of three offenses: one count of sexual assault of L.L. and two counts of sexual assault of B.S. On November 25, 2013, the District Court sentenced Blake to fifty years at Montana State Prison for each of the three convictions. The District Court also designated Blake as a Level II sex offender and required him to complete Phases I and II of sex offender treatment in prison. Blake appeals the District Court’s order denying his motion to dismiss, claiming that he was prejudiced by his absence at the June 21, 2013 emergency hearing, and that his convictions should therefore be reversed and remanded for a new trial. STANDARD OF REVIEW ¶5 “We exercise plenary review over constitutional questions, including alleged violations of a criminal defendant’s right to be present at critical stages of the proceedings against him.” State v. Wilson, 2013 MT 70, ¶ 9, 369 Mont. 282, 297 P.3d 1208. DISCUSSION ¶6 Whether the District Court prejudiced Blake when it conducted an in-chambers conference in Blake’s absence. ¶7 Under both the Montana Constitution and the United States Constitution, a defendant has the right to be present at all “critical stages” of the criminal proceedings against him. Wilson, ¶ 11. A critical stage includes “any step of the proceeding where there is potential for substantial prejudice to the defendant.” State v. Charlie, 2010 MT 195, ¶ 40, 357 Mont. 355, 239 P.3d 934 (citation omitted). The right to be present thus attaches “whenever the defendant’s presence ‘has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” State v. Reim, 2014 MT 108, ¶ 36, 374 Mont. 487, 323 P.3d 880 (quoting Charlie, ¶ 40). ¶8 In determining whether a district court violated a defendant’s right to be present, we typically consider: (1) whether the defendant was excluded from a critical stage of the proceedings; (2) whether the defendant waived his right to be present at the critical stage; and (3) whether the defendant was prejudiced by his absence. State v. Price, 2009 MT 129, ¶¶ 23-24, 350 Mont. 272, 207 P.3d 298. In this case, we conclude that Blake was not prejudiced by his absence from the emergency conference; therefore, we do not consider the initial questions of whether the conference constituted a critical stage or whether Blake validly waived his right to be present. See Price, ¶ 25. We will assume for the purposes of our analysis that the conference constituted a critical stage, and that Blake did not validly waive his right to be present. See Price, ¶ 25. ¶9 Prejudice to the defendant is presumed if the error is structural in nature. See Charlie, ¶ 40. “Structural defects are constitutional violations which so infect and contaminate the framework of a trial as to render it fundamentally unfair, requiring automatic reversal.” Charlie, ¶ 40. In Charlie, the defendant argued that the district court violated his right to be present at a critical stage because he was absent from a telephonic conference in which the parties agreed to continue his trial to allow his counsel time to review a newly-discovered videotape introduced by the State. Charlie, ¶ 37. We held that, although the conference was a critical stage, the violation of Charlie’s right to be present was not structural. Charlie, ¶ 41. Similarly, in Price, further discussed below, we held that a defendant’s absence from eleven in-chambers conferences throughout his trial was not structural when “In loth mg that occurred at the conferences concerned or affected the framework within which Price’s trial proceeded or necessarily rendered the trial fundamentally unfair.” Price, ¶ 33. Here, as in Charlie, the sole purpose of the emergency conference was to discuss scheduling and ensure the parties had sufficient time to prepare for trial given the late-filed discovery. Blake’s absence from the conference was not a structural error because it was not a “constitutional violation[] which so infect[ed] and contaminated] the framework of a trial as to render it fundamentally unfair.” Charlie, ¶ 40; accord Price, ¶ 33. ¶10 When the violation of a defendant’s right to be present at a critical stage is not structural, we apply a harmless error analysis under which the State has the burden to demonstrate that there is no “reasonable possibility” that the defendant’s absence from the critical stage caused him prejudice. Charlie, ¶ 41. “Where the record shows that the defendant was not prejudiced, we have affirmed.” Price, ¶ 24 (citing State v. Godfrey, 2009 MT 60, ¶ 25, 349 Mont. 335, 203 P.3d 834). In Price, the defendant argued that he was prejudiced by his absence from several conferences in which the district court excluded certain evidence and one conference in which the district court removed a juror. Price, ¶¶ 21, 34. We held that Price’s absence from the conference during which the court removed a juror did not cause him prejudice because the juror knew a key defense witness and indicated that she would view that witness’s testimony with skepticism. Price, ¶ 40. We further held that Price was not prejudiced by his absence at the conferences during which the district court excluded evidence because the evidence was properly excluded, and Price’s presence would not have changed that determination. Price, ¶¶ 41-43. In Charlie, we held that the defendant was not prejudiced because, “[b]y postponing the trial date in order to ensure that Charlie’s counsel had time to review the videotape, the District Court and all parties were acting to protect Charlie’s right to a fair trial.” Charlie, ¶ 46. ¶11 At the time of the conference, Blake’s trial was just four days away. The District Court stated that the purpose of the conference was not to address substantive matters, but rather to ensure the parties had sufficient time to prepare for trial. The Court indicated that it was inclined to continue the trial until late August or early September to allow Blake to complete discovery, but was receptive to comments from both parties. Blake’s counsel responded that, while the District Court’s concerns were legitimate, “[w]e will not waive speedy trial and we did not ask for a continuance of the trial.” The State requested that the District Court give Blake’s case priority if it did continue the trial due to speedy trial concerns and the fact that Blake was incarcerated while awaiting trial. In his motion to dismiss, Blake claimed that having sufficient time to review the new evidence was critical to his case. Blake’s trial was held within the speedy trial deadline, and he has not alleged that his right to a speedy trial was violated. As in Charlie, by postponing the trial date so that Blake’s counsel had time to review the newly-disclosed evidence, all parties were acting to protect Blake’s right to a fair trial. See Charlie, ¶ 46. ¶12 Moreover, at no point during the conference did the District Court or any of the parties discuss the substance of the late-filed discovery or its impact on the case; the evidence was discussed only to the extent that it impacted the trial schedule. Although Blake contends that he was denied the opportunity to argue that the late disclosure of evidence impacted his plea negotiations, the District Court did not allow the parties to argue the merits of the evidence or of Blake’s motion to dismiss. As in Price, Blake’s presence would not have changed the District Court’s consideration of that issue. Therefore, there was no reasonable possibility that Blake’s absence from the emergency conference caused him prejudice. Finally, because Blake was not prejudiced by his absence from the conference, his counsel’s waiver of his right to be present could not have prejudiced him. CONCLUSION ¶13 We affirm the District Court’s decision and order. CHIEF JUSTICE McGRATH, JUSTICES COTTER and RICE concur.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 The Water Use Act provides a comprehensive permit based system for new appropriations of water in Montana. The Act permits certain groundwater appropriations to be exempt from the permitting process. Relevant here, § 85-2-306(3)(a)(iii), MCA, provides an exemption when a groundwater appropriation does not exceed 35 gallons per minute and 10 acre-feet per year. However, the subsection also provides an “exception]” to the exemption when a “combined appropriation” from the same source by two or more wells or developed springs exceeds 10 acre-feet per year, regardless of flow rate. ¶2 The term “combined appropriation” is not defined within the Water Use Act. Since the adoption of § 85-2-306(3)(a)(iii), MCA, the state agency charged with administering the Act, the Department of Natural Resources and Conservation (DNRC), has taken contradictory positions regarding the meaning of the term. Specifically, within a period of six years, the DNRC promulgated consecutive rules with conflicting interpretations as to whether groundwater developments must be physically connected to constitute a “combined appropriation.” Initially, in 1987, three months after the Legislature adopted the “combined appropriation” language, the DNRC promulgated Admin. R. M. 36.12.101(7) (1987), which provided that “[gjroundwater developments need not be physically connected nor have a common distribution system to be considered a ‘combined appropriation.’ ” However, in 1993, the DNRC reversed its position and adopted the current administrative rule, Admin. R. M. 36.12.101(13), which states that the term “combined appropriation” means “groundwater developments, that are physically manifold into the same system.” ¶3 After an adverse ruling from the DNRC Hearings Examiner, a group of senior water users—Katrin Chandler, Betty Lannen, Polly Rex, Joseph Miller, and the Clark Fork Coalition (collectively, the Coalition)—challenged the validity of Admin. R. M. 36.12.101(13) in the First Judicial District Court, Lewis and Clark County. The Coalition maintained that the DNRC’s definition of “combined appropriation” was inconsistent with the applicable statute arguing that the statute does not require physical connection. The District Court agreed. The court invalidated Admin. R. M. 36.12.101(13), reinstated Admin. R. M. 36.12.101(7) (1987), and directed the DNRC to formulate a new administrative rule consistent with the court’s order. The Montana Well Drillers Association, the Montana Association of Realtors, and the Montana Building Industry Association (collectively, the Well Drillers) appeal from that order. We affirm. ¶4 We address the following issues on appeal: 1. Whether the District Court erred by invalidating Admin. R. M. 36.12.101(13). 2. Whether the District Court erred by reinstating Admin. R. M. 36.12.101(7) (1987). 3. Whether the District Court erred by directing the DNRC to institute rulemaking consistent with the court’s order. FACTUAL AND PROCEDURAL BACKGROUND ¶5 In 1973, the Montana Legislature instituted the current water rights system by adopting the Montana Water Use Act, § 85-1-101, MCA, et seq. The Act sets forth the statutory framework under which water rights are obtained, administered, and adjudicated. A critical component of the Act is the permit system administered by the DNRC. With certain exceptions, the Act requires those seeking new appropriations of water to apply to the DNRC for a permit. Section 85-2-301, MCA. The primary function of this permit based system is the protection of senior water rights from encroachment by prospective junior appropriators adversely affecting those rights. Section 85-2-101(4), MCA. ¶6 Consistent with this purpose, the Act imposes both substantive and procedural protections for water right users. Substantively, before the issuance of a new water appropriation, the Act requires that a prospective junior appropriator show that water is legally and physically available, the proposed use of water is for a beneficial use, and the new appropriation will not adversely affect existing water rights of senior prior appropriators. Section 85-2-311(l)-(2), MCA. Procedurally, a prospective junior appropriator must provide notice, through the DNRC, to senior users who may be affected by the proposed appropriation and must permit senior users an opportunity to object to the prospective water right. Section 85-2-307, MCA. If objections do arise from senior users, the DNRC must hold a contested hearing on the objections. Section 85-2-309, MCA. ¶7 Senior users are afforded even more protection in highly appropriated basins in Montana that have been closed from further surface water appropriations. In these “closed basins,” where water claims often exceed water availability, the DNRC may not issue new surface water permits. Section 85-2-360(l)-(3), MCA. The DNRC may consider groundwater permits, but the process for obtaining a groundwater permit in a closed basin is demanding. In addition to the general requirements for obtaining a permit, the appropriator must commission a hydrogeological report to determine if the proposed appropriation could result in a net depletion of surface water. Section 85-2-360(2), MCA. If the report indicates a hydrogeological connection, then the appropriator must show that there will be no net depletion of water. Section 85-2-360(3)(b), MCA. ¶8 The Act provides certain exemptions to the rigorous permitting process. Section 85-2-306(1)-(9), MCA. If an appropriation qualifies for an exemption, none of the permitting procedures under the Act constrain the proposed appropriation. See generally § 85-2-306 (l)-(9), MCA. A prospective appropriator need not show that water is legally and physically available; that the new appropriation will not deplete surface flow; or that the water will not be used inconsistently with senior rights. See generally § 85-2-306(1)-(9), MCA. Nor does the appropriator need to provide notice to senior users or allow senior users an opportunity to object. See generally § 85-2-306 (1)-(9), MCA. Similarly, the more onerous requirements for obtaining an appropriation in a closed basin are inapplicable. See generally § 85-2-306 (l)-(9), MCA. ¶9 Relevant to this case, § 85-2-306(3)(a)(iii), MCA, provides an exemption for groundwater appropriations considered de minimis; that is, those appropriations that do not exceed 35 gallons a minute and 10 acre-feet per year. In 1987, the Legislature incorporated the term “combined appropriation” into the de minimis groundwater exemption. Section 85-2-306(3)(a)(iii), MCA (1987), provided: a permit is not required before appropriating groundwater by means of a well or developed spring with a maximum appropriation of less than 100 gallons per minute, except that a combined appropriation from the same source by two or more wells or developed springs exceeding this limitation requires a permit. Shortly after the incorporation of the “combined appropriation” language into the statute, the DNRC promulgated Admin. R. M. 36.12.101(7) (1987) (hereinafter, the 1987 rule). The 1987 rule provided that wells or developed springs “need not be physically connected nor have a common distribution system to be considered a ‘combined appropriation.’ ” Instead, the 1987 rule instructed that two or more groundwater developments constitute a “combined appropriation” if used together for a single “project or development.” ¶10 In 1991, the Legislature amended the statute. The Legislature reduced the permissible flow rate and imposed a volume limitation on the exemption, but retained the term “combined appropriation.” Section 85-2-306(3)(a)(iii), MCA, as amended in 1991, provides: a permit is not required before appropriating ground water by means of a well or developed spring with a maximum appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year, except that a combined appropriation from the same source from two or more wells or developed springs exceeding this limitation requires a permit. ¶11 In 1993, the DNRC promulgated Admin. R. M. 36.12.101(13) (hereinafter, the 1993 rule), significantly altering the administrative definition of the term “combined appropriation.” The 1993 rule defines “combined appropriation” as “two or more groundwater developments, that are physically manifold into the same system.” Under the 1993 rule, appropriations from the same source are exempt from the permitting process as long as the groundwater developments making up the appropriations remain physically unconnected and do not exceed 10 acre-feet per year. Thus, the current rule allows an appropriator to avoid the permitting process for an infinite number of appropriations from the same source—with each appropriation consuming up to 10 acre-feet per year—so long as the appropriator does not physically connect the groundwater developments. ¶12 In 2013, the Legislature again amended the statute. The Legislature further reduced the permissible flow in stream depletion zones, left the permissible flow rate unaltered outside stream depletion zones, and once again retained the term “combined appropriation.” Section 85-2-306(3)(a)(iii), MCA, as amended in 2013, provides, in relevant part: a permit is not required before appropriating ground water by means of a well or developed spring: (iii) when the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and does not exceed 10 acre-feet a year, except that a combined appropriation from the same source by two or more wells or developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit; or (iv) when the appropriation is within a stream depletion zone, is 20 gallons a minute or less, and does not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more wells or developed springs exceeding this limitation requires a permit. ¶13 The Coalition cites data compiled by the DNRC that, since the DNRC’s promulgation of the 1993 rule, exempt appropriations under § 85-2-306(3)(a)(iii), MCA, have grown steadily by approximately 3,000 each year. The DNRC estimates that there are now 113,000 exempt appropriations in Montana, consuming significant amounts of water. The DNRC anticipates that exempt appropriations will continue to grow rapidly. By the year 2020, the DNRC projects that there could be an additional 78,000 exempt appropriations in Montana. Closedbasins have not been immune from this trend. The DNRC estimates that 30,000 new exempt appropriations will be added in the next two decades in closed basins alone, resulting in an additional 20,000 acre-feet per year of water consumed in these already over-appropriated basins. The DNRC has recently acknowledged the concerns of senior users that the cumulative effects of these exempt appropriations are having a significant impact in terms of reducing groundwater levels and surface water flows and that the cumulative impact of the appropriations may be harming senior water users’ existing rights. ¶14 On November 30, 2009, the Coalition petitioned the DNRC for a declaratory ruling that the 1993 rule was inconsistent with the exemption under § 85-2-306(3)(a)(iii), MCA, asserting that the term “combined appropriation” as used in the statute does not require physical connectivity between ground water developments. In the petition, the Coalition requested that the court invalidate the 1993 rule, reinstate the 1987 rule, and order the DNRC to conduct further rule making. ¶15 On August 17, 2010, the DNRC Hearings Examiner denied the Coalition’s petition. The examiner concluded that the administrative rule was not in conflict with § 85-2-306(3)(a)(iii), MCA, reasoning that “a common, perhaps the most common definition, of ‘combined’ is physically joined together.” The examiner acknowledged, however, that the administrative rule had caused the proliferation of exempt appropriations in a way that was not anticipated by the Legislature. As a result, the examiner ordered the DNRC to initiate proposed rulemaking to repeal the 1993 rule and adopt a new administrative rule that would align more closely with legislative intent. The DNRC thereafter attempted to repeal and replace the 1993 rule, but, for reasons not made entirely clear by the record, failed to do so. ¶16 On September 14,2010, the Coalition filed a complaint in District Court, challenging the DNRC Hearings Examiner’s denial of its petition. The court invalidated the 1993 rule, reinstated the 1987 rule, and directed the DNRC to formulate a new administrative rule consistent with the court’s order. The court provided three reasons for its decision to invalidate the administrative rule. First, after examining the 1987 legislative debate surrounding the incorporation of the term “combined appropriation” into the statute, the court explained that clearly, “the legislature was under the impression that the reference to ‘combined’ did not require two wells to be physically connected.” Second, the court noted that the DNRC promulgated the 1987 rule, which did not require physical connection, immediately after the incorporation of the term into the statute. Lastly, the court explained that the 1993 rule fails to protect senior water users in accordance with the Act’s express purpose. The court explained through the use of a hypothetical that the administrative rule allows large consumptive water uses to be established, without going through the permitting process, at the expense of senior users: The current definition of “combined appropriation” allows 1,000 new wells as part of a 1,000 lot subdivision to escape review under DNRC permitting... [and] allowfs] up to 10,000 acre feet a year of water to be potentially diverted from senior water rights holders neighboring or near the new 1,000 lot subdivision without any review. ¶17 The Well Drillers timely appealed from the District Court’s decision. STANDARD OF REVIEW ¶18 “The interpretation of a statute is a question of law that we review for correctness.” Mont. Dep’t of Revenue v. Priceline.com, Inc., 2015 MT 241, ¶ 6, 380 Mont. 352, 354 P.3d 631. “Whether an administrative regulation impermissibly conflicts with a statute is a question of law to be decided by the court.” Gold Creek Cellular of Mont. L.P. v. State, 2013 MT 273, ¶ 9, 372 Mont. 71, 310 P.3d 533. “We review a district court’s conclusions of law to determine if they are correct.” Gold Creek Cellular, ¶ 9. DISCUSSION ¶19 1. Whether the District Court erred by invalidating Admin. R. M. 36.12.101(13). ¶20 When we assess the validity of an agency rule, we must begin with an examination of the statute itself. Our objective in interpreting a statute is to implement the objectives the Legislature sought to achieve. Montana Wildlife Fed’n v. Sager, 190 Mont. 247, 264, 620 P.2d 1189, 1199 (1980). The legislative intent is to be ascertained, in the first instance, from the plain meaning of the words used. Boegli v. Glacier Mountain Cheese Co., 238 Mont. 426, 429, 777 P.2d 1303, 1305 (1989). If the intent of the Legislature can be determined from the plain meaning of the words used in the statute, the plain meaning controls and the Court need go no further nor apply any other means of interpretation. Phelps v. Hillhaven Corp., 231 Mont. 245, 251, 752 P.2d 737, 741 (1988). In determining the statutory mandate given to a statute by the Legislature, it is important to remember that our role “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Words and phrases used in a statute are to be construed according to the context in which they are found, and according to their normal usage, unless they have acquired some peculiar or technical meaning. Section 1-2-106, MCA. “When the legislature has not defined a statutory term, we consider the term to have its plain and ordinary meaning.” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 18, 354 Mont. 15, 221 P.3d 666. For the same reason that a contract term is not rendered ambiguous merely because the parties disagree as to its meaning, a statutory term is not rendered ambiguous because of subsequent inconsistent rules implemented by the agency. See, e.g., Scottsdale Ins. Co., ¶ 32; Dollar Plus Stores, Inc. v. R-Montana Assoc., L.P., 2009 MT 164, ¶ 17, 350 Mont. 476, 209 P.3d 216; Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 42, 336 Mont. 429, 154 P.3d 1189. ¶21 Section 85-2-306(3)(a)(iii), MCA, is one amongst several statutory exemptions to the water permit process and provides: When the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and does not exceed 10 acre-feet a year, except that a combined appropriation from the same source by two or more wells or developed springs exceeding 10 acre-feet, regardless of flow rate, requires a permit; ¶22 The statute thus allows an exemption from the permitting process and provides for a lawful appropriation when the amount of appropriation does not exceed 35 gallons per minute and 10 acre-feet per year. However, even if this criterion is satisfied, a combined appropriation from the same source of two or more wells or developed springs is “except! ed I” from the exemption if the combined appropriation exceeds 10 acre-feet per year, regardless of flow rate. The exception applies when (1) there are two or more wells or developed springs, (2) that are from the same source, (3) where the combined appropriation exceeds 10 acre-feet per year. The exception removes any consideration of flow rate, but adds volume considerations when appropriations are from the same source, thus expressing the Legislature’s intent to limit the impact of the appropriation that would occur on any particular source of water to less than 10 acre-feet per year. ¶23 To “appropriate” means to “divert, impound, or withdraw ... a quantity of water for a beneficial use ....” Section 85-2-102(1), MCA (emphasis added). An appropriation refers to the amount of water one has the legal right to use as determined through the process sanctioned by the Act. “Combined” means “to bring into such close relationship as to obscure individual characters,” to “merge,” “intermix,” “blend,” or “unite into a single number or expression.” Webster’s Collegiate Dictionary 228 (10th ed. 1993). In § 85-2-306 (3)(a)(iii), MCA, “combined” is used as an adjective to modify the noun “appropriation” and therefore refers to the combined quantity of water which an appropriator has the legal right to use. The word “combined” does not precede “wells” or “developed springs” and therefore does not modify either form of ground development in a manner which would indicate a “combined well” or “combined developed spring,” as Well Drillers contend. “In ascertaining plain meaning, we have ‘long adhered to ordinary rules of grammar.’ ” Bates v. Neva, 2014 MT 336, ¶ 15, 377 Mont. 350, 339 P.3d 1265 (quoting Thompson v. J.C. Billion, Inc., 2013 MT 20, ¶ 22 n. 5, 368 Mont. 299, 294 P.3d 397). See also Jay v. Sch. Dist. No. 1 of Cascade Cnty., 24 Mont. 219, 225, 61 P. 250, 252 (1900)). Consistent with these common sense meanings and statutory definitions, § 85-2-306(3)(a)(iii), MCA, provides that a “combined appropriation” may not exceed the combined quantity of 10 acre-feet per year, when there is more than one well or developed spring. Indeed, the very statutory definitions of “well,” defined in § 85-2-102(31), MCA, as “an artificial opening or excavation in the ground ...,” and “developed spring,” defined in § 85-2-102(11), MCA, as “any point where ground water emerges naturally, that has subsequently been physically altered, and from which ground water flows under natural pressures or is artificially withdrawn,” suggest two or more distinct and unconnected things. We accordingly reject the Well Drillers’ interpretation that “combined” modifies wells or developed springs; combined modifies appropriation, which speaks specifically to the quantity of water which may be withdrawn for a beneficial use. ¶24 Based upon the plain language of the statute, it is evident that the intent of the Legislature in enacting subsection (3)(a)(iii) was to ensure that, when appropriating from the same source, only a de minimus quantity of water, determined by the Legislature to be 10 acre-feet per year, could be lawfully appropriated without going through the rigors of the permitting process. An exception to the exemption for quantities exceeding 10 acre feet per year, regardless of flow rate and number of wells or developed springs utilized for the appropriation, protects other water rights utilizing the same water source. This is consistent with the purpose of the Act as a remedial statute designed to strictly adhere to the prior appropriation doctrine and to provide for the “administration, control, and regulation of water rights ... and confirm all existing water rights ....” Section 85-2-101(2X4), MCA. We have explained that “the Water Use Act was designed to protect senior water rights holders from encroachment by junior appropriators adversely affecting those senior rights.” Mont. Power Co. v. Carey, 211 Mont. 91, 98, 685 P.2d 336, 340 (1984). This fundamental purpose is reflected throughout the Act and many of the subsections of the Act begin with a policy declaration stating that the protection of senior water rights and the prior appropriation doctrine is the Act’s core purpose. See, e.g., § 85-1-101(4), MCA (the Act’s purpose is to “protect existing uses”); § 85-2-101(4), MCA (it is “a purpose of this chapter to recognize and confirm all existing rights”); § 85-2-101(4), MCA (the purpose of permitting is to “provide enforceable legal protection for existing rights”). Accordingly, based upon the plain language of the statute and the stated purpose of the Act, we conclude that “combined appropriation” refers to the total amount or maximum quantity of water that may be appropriated without a permit and not to the manner in which wells or developed springs may be physically connected. ¶25 Although we have interpreted the plain language of § 85-2-306(3)(a)(iii), MCA, what remains to be addressed is the validity of the 1993 rule in light of the statute’s plain meaning. When adopting a rule, the agency must comply with the requisites for rule validity codified in § 2-4-305(6), MCA, of the Montana Administrative Procedure Act. This section provides that “I wlhenever by ... statute a state agency has authority to adopt rules[,]... a rule is not valid or effective unless it is: (a) consistent and not in conflict with the statute; and (b) reasonably necessary to effectuate the purpose of the statute.” Section 2-4-305(6), MCA. In interpreting the statute, we have stated: The courts have uniformly held that administrative regulations are “out of harmony” with legislative guidelines if they (1) “engraft additional and contradictory requirements on the statute” (citations omitted); or (2) if they engraft additional, noncontradictory requirements on the statute which were not envisioned by the legislature, (citations omitted in original.) Board of Barbers v. Big Sky College, 192 Mont. 159, 161, 626 P.2d 1269, 1270 (1981) (citation omitted). We have also held that “[rjules adopted by administrative agencies which conflict with statutory requirements or exceed authority provided by statute, are invalid.” Haney v. Mahoney, 2001 MT 201, ¶ 6, 306 Mont. 288, 32 P.3d 1254 (internal quotations omitted). See also State ex rel. Swart v. Casne, 172 Mont. 302, 564 P.2d 983 (1977) (holding agency rules void because a statute cannot be changed by administrative regulations), overruled on other grounds, Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, 315 Mont. 210, 69 P.3d 663. With these principles in mind, we must decide whether the 1993 rule defining the term “combined appropriation” is inconsistent with § 85-2-306(3)(a)(iii), MCA. ¶26 The 1993 rule defined “combined appropriation” as requiring that “the ground water developments” be “physically manifold into the same system.” First, there is no language anywhere in the Act which suggests that wells or developed springs must be physically manifold or connected in order to be deemed a “combined appropriation.” We therefore conclude, without any difficulty, that the 1993 rule engrafted an additional requirement on the statute and must be deemed invalid if: (1) it is contradictory or inconsistent with the statute, or (2) adds a requirement not envisioned by the Legislature. ¶27 As the District Court correctly observed, the 1993 rule allows an unlimited quantity of water to be appropriated from the same source as long as the ground water developments are not physically manifold or connected. The 1993 rule, therefore, unquestionably expands the exemption by limiting the number of appropriations which must be excepted, rendering meaningless the underlying limit on volume or quantity of 10 acre-feet per year from the same source. That portion of § 85-2-306(3)(a)(iii), MCA, allowing for an exemption—a well or developed spring appropriating no more than 35 gallons per minute and 10 acre-feet per year—has no qualifying language relating to the same source. However, the exception to the exemption does; that is, regardless of flow rate and the number of wells or developed springs no combined quantity of water may exceed 10 acre-feet when it is from the same source. The 1993 rule directly contradicts this plain language by adding a connectivity requirement to the wells or developed springs, effectively swallowing up the underlying exception that the Legislature created. ¶28 We conclude that the 1993 rule was inconsistent with the plain language of § 85-2-306(3)(a)(iii), MCA, and that it engrafted an additional requirement on the exempt well statute that wells or developed springs be “physically manifold into the same system.” By narrowing the exception to only those wells or developed springs physically connected, the 1993 rule expanded the narrow exemption to the permitting process provided by § 85-2-306(3)(a)(iii), MCA, and was inconsistent with the stated statutory purpose of the Act. ¶29 As a final matter, we think, in light of the several statutory amendments to § 85-2-306, MCA, it important to address a remaining argument of Well Drillers in relation to the validity of the 1993 rule. Well Drillers argue that the Legislature abrogated the former meaning of “combined appropriation” when it imposed a volume limitation and lowered the flow rate in 1991 and added subsection (3)(a)(iv) to § 85-2-306, MCA, in 2013. Citing Grenz v. Mont. Dept. of Natural Res. & Conservation, 2011 MT 17, 359 Mont. 154, 248 P.3d 785, Well Drillers maintain that the 1993 rule represents a long-standing rule that has withstood numerous amendments and that this Court presumes the Legislature acts with knowledge of the prior construction of related rules and to have adopted that construction when amending statutes. ¶30 Preliminarily, we note that throughout the amendments, the text of the relevant clause of the statute has remained as originally enacted in 1987 continuing to its final amendment in 2013. Further, Well Drillers acknowledge that the Legislature could not have intended the term “combined appropriation” to denote physical connectivity when it added the term into the 1987 statute given the legislative debate surrounding incorporation of the term into the statute, that the statute did not contain a volume limitation, and the DNRC’s immediate promulgation of the 1987 rule expressly stating that physical connectivity was not required. As the relevant text of the statute has remained unchanged, our conclusion that its plain language does not require physical connectivity applies for each statutory amendment. This conclusion remains valid even in light of the additional text and subsections to the statute made in 1993 and 2013. Nonetheless, Well Drillers argue legislative intent and Grenz support their interpretation that the statutory amendments incorporated the 1993 rule. ¶31 The Well Drillers’ position ignores a common canon of statutory construction that “[w]ords and provisions used in the original act or section are presumed to be used in the same sense in the amendment.” 1A Norman J. Singer, Sutherland’s Statutes and Statutory Construction, § 22:33 (6th ed. 2002). And, in accordance therewith, courts “construe words in a new statute that are identical to words in a prior statute as having the same meaning.” Bakersfield Energy Partners, LP v. Comm’r, 568 F.3d 767, 775 (9th Cir. 2009). Pursuant to § 1-2-203, MCA, where “a part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted.” Consistent with these principles, where a section of a statute has been amended but certain words have been left unchanged, we must accord the untouched provisions the meaning they had when they were originally incorporated into the statute. See State ex rel. Montgomery Ward & Co. v. District Court, 115 Mont. 521, 527, 146 P.2d 1012, 1014 (1944) (explaining that where the Legislature amended the statute but left in place the word “returned,” it cannot be explained by new matter added years later, but rather must be interpreted as originally understood); Northern Pacific Railway v. Dunham, 108 Mont. 338, 346, 90 P.2d 506, 510 (1939), (explaining that “[b]y retaining the [particular] clause [in a statute] without any change, we must assume that the legislature intended that the words should be given the same meaning as they had at the time of the passage of [the original act].” ¶32 The parties do not dispute that when the term “combined appropriation” was first utilized by the Legislature it did not have the meaning the Well Drillers attach to it. Section 85-2-306(1), MCA (1987), provided: a combined appropriation from the same source from two or more wells or developed springs exceeding [100 gpm] requires a permit. The 1991 amended statute, § 85-2-306(3)(a)(iii), MCA (1991), provided: a combined appropriation from the same source by two or more wells or developed springs exceeding [10 acre-feet] requires a permit. Finally, the 2013 amended statute, § 85-2-306(3)(a)(iii), MCA (2013), provides: (iii) when the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and does not exceed 10 acre-feet a year, except that a combined appropriation from the same source by two or more wells or developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit; or (iv) when the appropriation is within a stream depletion zone, is 20 gallons a minute or less, and does not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more wells or developed springs exceeding this limitation requires a permit. ¶33 The Legislature retains power to abrogate an existing statutory interpretation. See Langemo v. Mont. Rail Link, Inc., 2001 MT 273, ¶ 24, 307 Mont. 293, 38 P.3d 782. However, there is no indication that the Legislature intended to do so here. By leaving the term “combined appropriation” untouched, its original meaning was preserved. If the Legislature wished to abrogate that meaning, “it would have employed definite language in doing so, rather than to adopt the circuitous method suggested [by the Well Drillers] here.” Dunham, 108 Mont. at 346, 90 P.2d at 510. The term “combined appropriation” utilized in the original 1987 statute has remained intact and unchanged in the subsequent statutory amendments of 1991 and 2013. When the 1987 Legislature incorporated the disputed language into the statute, the 1991 Legislature adopted the former Legislature’s original meaning by leaving the language in place. ¶34 Finally, Grenz does not support the Well Drillers’ argument. In Grenz, we adopted the agency’s interpretation of a statute and, in doing so, followed a well-known canon of statutory construction that provides that when the Legislature amends a statute we generally presume that it acts with knowledge of existing administrative rules interpreting the statute and adopts the agency’s interpretation. Grenz, ¶ 41. Here, however, when the Legislature substantively amended § 85-2-306, MCA, in 1991, the then applicable administrative rule was the 1987 rule, which did not require physical connection between groundwater developments. Thus, following the above-referenced canon of construction used in Grenz—that the Legislature adopts an existing agency interpretation when it amends a statute—counsels against the Well Drillers’ interpretation of the statute, not in favor of it. ¶35 We reject Well Drillers’ argument that amendments to § 85-2-306, MCA, incorporated the 1993 rule. Such an argument is inconsistent with the plain language of the statute, the relevant portion of which has remained unchanged since 1987, and is likewise an incorrect application of § 1-2-203, MCA, and Grenz. The 1993 rule is invalid because it conflicts with the plain language of § 85-2-306, MCA, and because the Legislature, as is its prerogative, has not abrogated the original meaning it placed on “combined appropriation” since the legislature first incorporated the term in 1987. ¶36 2. Whether the District Court erred by reinstating Admin. R. M. 36.12.101(7) (1987). ¶37 The Well Drillers argue that the District Court erred by reinstating the 1987 rule after invaliding the 1993 rule, reasoning that the court lacked authority to reinstate the former rule. The Coalition counters that the proper course for the District Court was to reinstate the 1987 rule after invaliding the 1993 rule, reasoning that when an administrative rule is invalidated the effect should be, by default, to reinstate the former rule. ¶38 The issue of whether a former agency rule is reinstated by the invalidation of the current rule is a question of first impression for this Court. Federal law provides guidance on the subject. Under federal case law, the “effect of invalidating an agency rule is to reinstate the rule previously in force.” Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005). Although the federal Administrative Procedure Act does not expressly state that the prior rule is reinstated, the “common rationale” for doing so is “that the current rule being invalid from its inception, the prior regulation is reinstated until validly rescinded or replaced.” Cumberland Med. Ctr. v. Sec’y of Health & Human Services, 781 F.2d 536, 538 (6th Cir. 1986). ¶39 We find this reasoning persuasive. Like the federal Administrative Procedure Act, the Montana Administrative Procedure Act is silent in regard to the effect of the invalidation of the current rule on the former administrative rule. It serves to reason, however, that when a court invalidates the current rule, the effect is to return to the previous status of the law, which necessarily means in most instances that the former rule is reinstated. ¶40 We follow this same reasoning in the context of invalidated statutes. We have explained that an invalidated statute “is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it has never been passed.” State ex rel. Woodahl v. District Court, 162 Mont. 283, 290, 511 P.2d 318, 322 (1973). The “natural effect of this rule is that the invalidity of a statute leaves the law as it stood prior to the enactment of the invalid statute.” Woodahl, 162 Mont. at 291, 511 P.2d at 322. Thus, under Montana law, when an amended statute is invalidated the statute is left in the same position that it was in before the amendment was introduced. In re O’Sullivan, 117 Mont. 295, 304, 158 P.2d 306, 310 (1945). ¶41 We see nothing in the Montana Administrative Procedure Act that would argue against adopting the federal approach and the approach we utilize in the context of invalidated statutes. Therefore, we now hold that where, as here, a court invalidates an administrative rule that has been invalid since its inception, the default remedy is to reinstate the former administrative rule. Accordingly, the District Court did not err by reinstating the 1987 rule. ¶42 3. Whether the District Court erred hy directing the DNRC to institute rulemaking consistent with the court’s order. ¶43 The Well Drillers take issue with the portion of the District Court’s order requiring that the DNRC conduct further rule making “consistent” with the court’s order. Well Drillers argue that the court lacked authority to order that such rulemaking be “consistent” with its order because, in doing so, the court was directing the outcome of the rulemaking process. ¶44 We disagree with the Well Drillers that the District Court erred by requiring that any further rulemaking be done consistent with the court’s order. The District Court is vested with judicial authority as set forth in Article VII, Section I of the Montana Constitution. That authority includes not only the power “to say what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803), but also the power “to make binding orders or judgments.” State ex rel. Bennett v. Bonner, 123 Mont. 414, 425, 214 P.2d 747, 753 (1950). The court must have authority to “pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” Shea v. N.-Butte Mining Co., 55 Mont. 522, 537, 179 P. 499, 504 (1919). ¶45 Although, the District Court did not err by requiring that a rule promulgated by the DNRC must be consistent with its order, it is the responsibility of the administrative agency to “adopt rules necessary to implement and carry out the purposes of this chapter.” Section 85-2-113(2), MCA. Such authority includes whether, in the judgment of the DNRC, a rule other than the reinstated 1987 rule should be implemented. Accordingly, we reverse and remand to the District Court for the limited purpose of removing its mandate to the DNRC to initiate rulemaking. It is up to the DNRC to determine whether initiating rulemaking to change the reinstated 1987 rule is appropriate. ¶46 For the reasons stated, the judgment of the District Court is affirmed, with the exception of the requirement that the DNRC initiate rulemaking. The 1987 rule is reinstated until further action implementing a new rule is initiated by the DNRC. CHIEF JUSTICE McGRATH, JUSTICES COTTER, BAKER, WHEAT and SHEA concur. The DNRC has chosen not to appeal the District Court’s decision. No public hearing on this rule change adding a physical connectivity requirement was held and no public comments were received. The DNRC similarly did not provide a statement as to why the change from the 1987 rule was necessary as the DNRC was required to do pursuant to § 2-4-305, MCA. The DNRC responded to an inquiry by the Administrative Rules Committee that the 1987 definition of “combined appropriation” was “too ambiguous and therefore difficult to administer.’

JUSTICE COTTER delivered the Opinion of the Court. ¶1 Paul L. Kurth died at the age of 82 on January 26, 2000, in a Missoula, Montana, hospital. Prior to his death, Kurth had resided with his niece and her husband, Sinda and Marty Puryer, in Kalispell for several years. On February 19,1998, Marty hand wrote a document entitled “Instructions and Last Will and Testament of Paul L. Kurth.” Marty claims Kurth dictated the contents of this document to him and then signed it in his presence, as well as in the presence of a long term caregiver. The Puryers did not petition to probate this will until March 8, 2013. The will was challenged by Bruce Barstis, Kurth’s nephew. Following lengthy discovery and litigation, the Eleventh Judicial District Court, Flathead County, ruled that Kurth had died intestate. Puryers appeal. We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Paul Kurth never married nor had children. He was survived by three of his five siblings and nine nieces and nephews. For the last several years of his life, he lived with niece Sinda Puryer and her husband, Marty. According to Marty, approximately two years before Kurth’s death, Kurth instructed him to take down his testamentary instructions leaving everything he owned to Sinda and Marty. Marty and Sinda assert that Kurth signed the handwritten holographic statement and intended it to be his last will and testament. ¶3 During many of the years Kurth lived with Sinda and Marty, Sinda’s parents, Mike and Mary Mattovich (Mary was Kurth’s sister) also lived with them. Mary died in October 1997 and Mike died in June 1998. Mike left Kurth $8,214, distributable after Kurth’s death. Following Kurth’s death in 2000, Sinda hired an attorney in 2001 to administer Kurth’s estate. The attorney collected the funds from the Mattovich estate and distributed them to Kurth’s estate. The attorney collected the personal assets of Kurth’s estate for distribution to the Puryers, pursuant to an affidavit signed by Sinda in which she attested that she was Kurth’s heir under the terms of the holographic will and had received these distributions. Thereafter, the Puryers did not probate Kurth’s will. Subsequently, Sinda and her sister and co-representative of their father’s estate signed statements closing the Mattovich Estate. ¶4 In addition to the personal property Kurth held upon his death, he also held a real property interest in mineral rights in eastern Montana. The attorney hired by Sinda did not pursue probate or effect the transfer of these real property interests to Puryers. ¶5 In February 2013, an oil and gas company wanting to lease minerals in Roosevelt and Sheridan Counties contacted Bruce Barstis, one of Kurth’s nephews. Barstis retained an attorney and notified all of Kurth’s heirs that Kurth’s estate needed to be probated to effect transfer of Kurth’s real property interests. Barstis offered to act as the estate’s personal representative. In response to the notice, on March 8, 2013, Marty filed a Petition for Formal Probate of Will, and Appointment of Personal Representative. Claiming that under § 72-3-122(1)(e), MCA, the time for probating the will had not expired, Marty attached Kurth’s holographic will to the Petition and asserted that the requested probate was “to establish an instrument to direct or control the ownership of property distributable after decedent’s death, pursuant to the decedent’s Will.” ¶6 Barstis challenged the alleged will on multiple grounds, including that the time for probate had passed and no exceptions to the time limitations applied. Discovery and litigation ensued and in April 2015, Barstis moved for partial summary judgment expressly arguing that Marty had waited too long to seek probate of the alleged will and the exceptions set forth in § 72-3-122(l)(d) and (e), MCA, did not apply. Barstis therefore maintained that as a matter of law, Kurth died intestate. ¶7 On November 24, 2015, the District Court granted Barstis’s motion for partial summary judgment. The court’s dispositive ruling in this case determined that § 72-3-122(1), MCA, barred probate of Kurth’s alleged will. Section 72-3-122(1), MCA, requires that probate of a will, with some exceptions, must take place within 3 years after the decedent’s death. The court analyzed the two potentially applicable exceptions set forth in § 72-3-122(1)(d) and (e), MCA, and ruled that neither exception applied. Having so concluded, the District Court held that Kurth died intestate and the Estate must proceed under Montana’s intestacy statutes. The District Court awarded costs to Barstis. ¶8 Puryers appeal. ISSUES ¶9 A restatement of the dispositive issues on appeal is: ¶10 Did the District Court err in granting Bruce Barstis’s motion for summary judgment on intestacy? ¶11 Did the District Court err by awarding litigation costs to Barstis following summary judgment on intestacy? STANDARDS OF REVIEW ¶12 The interpretation of a statute is a question of law which we review de novo for correctness. Kulko v. Davail, Inc., 2015 MT 340, ¶ 9, 381 Mont. 511, 363 P.3d 430. See also In re Estate of Harris, 2015 MT 182, ¶ 9, 379 Mont. 474, 352 P.3d 20. ¶13 We review a district court’s summary judgment ruling de novo, applying the same rule, M. R. Civ. P. 56(c)(3), that a district court does when making a summary judgment ruling. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); Victory Ins. Co. v. Mont. State Fund, 2015 MT 82, ¶ 10, 378 Mont. 388, 344 P.3d 977 (citations omitted). ¶14 We review a district court’s ruling on a motion for leave to amend for an abuse of discretion. Seamster v. Musselshell Cnty Sheriff’s Office, 2014 MT 84, ¶ 6, 374 Mont. 358, 321 P.3d 829 (citation omitted). ¶15 We review for correctness a district court’s conclusion regarding the existence of legal authority to award attorney fees. If legal authority exists, we review a district court’s order granting or denying attorney fees for abuse of discretion. Mont. Immigrant Justice Alliance v. Bullock, 2016 MT 104, ¶ 15, 383 Mont. 318, 371 P.3d 430. DISCUSSION ¶16 Did the District Court err in granting Bruce Barstis’s motion for summary judgment on intestacy ? ¶17 Puryers present multiple arguments to support their claim that Kurth’s will is legitimate, valid, and capable of being probated thirteen years after Kurth’s death. We address their claim that the statutory exceptions to the 3-year time bar set forth in § 72-3-122(1), MCA, are applicable. ¶18 Section 72-3-122(1)(d) and (e), MCA, provide: (1) No informal probate or appointment proceeding or formal testacy or appointment proceeding ... may be commenced more than 3 years after the decedent’s death, except: (d) an informal appointment or a formal testacy or appointment proceeding may be commenced after the time period if no proceedings concerning the succession or estate administration have occurred within the 3-year period after the decedent’s death, but the personal representative has no right to possess estate assets provided in 72-3-606 beyond that necessary to confirm title to the property in the successors to the estate, and claims other than expenses of administration may not be presented against the estate; and (e) a formal testacy proceeding may be commenced at any time after 3 years from the decedent’s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent’s death from one other than the decedent when the property is to be appointed by the terms of the decedent’s will or is to pass or be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the terms of the decedent’s will. ¶19 In Marty’s petition to probate Kurth’s will filed in March 2013, he claimed that probate was not time-barred because § 72-3-122(l)(e), MCA, applied and extended the time allowed for seeking probate. Significantly, Marty did not refer to or rely upon § 72-3-122(l)(d), MCA. Barstis objected to the proposed probate and to the appointment of Marty as personal representative. The District Court set a December 25,2013 deadline for amending pleadings or joining additional parties. ¶20 On February 3, 2014, Barstis moved to amend his objection. Claiming newly discovered evidence revealed in Marty’s January 16, 2014 deposition, Barstis sought to add Sinda as a party and to present new counterclaims against both Marty and Sinda. On April 29, 2014, the District Court granted Barstis’s motion to amend over Puryers’ objection. Following further proceedings, Puryers filed their answer to Barstis’s counterclaims on January 12, 2015, asserting for the first time that the time for formal probate had not expired under the provisions of § 72-3-122(l)(d), MCA. ¶21 In April 2015, Puryers moved for leave to amend their petition to add § 72-3-122(1)(d), MCA, as a defense. Shortly thereafter, Barstis moved for partial summary judgment arguing Kurth had died intestate. On June 5, 2015, the District Court denied Puryers’ motion to amend their petition noting that Puryers were seeking to change the legal theory upon which their original petition—filed two years earlier—had been based. The court reasoned that the motion was untimely under the deadlines set in the scheduling order and that the Puryers failed to show good cause justifying the amendment. The District Court noted that the couple did not claim newly discovered evidence nor did they assert that the defense available under § 72-3-122(1)(d), MCA, was neither known nor available to them at the time Marty filed his original petition in March 2013 or prior to the December 25, 2013 deadline for amending pleadings. The court disagreed with the Puryers’ assertion that their original petition was based upon § 72-3-122(l)(d), MCA, by pointing out several record-based examples that refuted such a claim. Lastly, the District Court ruled that Barstis would be unduly prejudiced by the Puryers’ proposed amendment. Even though the District Court denied Puryers’ motion to amend the probate petition, it nonetheless addressed the applicability of § 72-3-122(l)(d), MCA, to the case at bar and determined that the statute did not provide the Puryers with an exception to the 3-year filing deadline. Thereafter, it granted Barstis’s motion for summary judgment. ¶22 Puryers argue on appeal that the District Court erred in refusing to allow them to amend their petition, given that the court had allowed Barstis to amend his objection to their petition for probate. They maintain that had the court ruled correctly on these motions, genuine issues of fact would have precluded summary judgment in favor of Barstis. ¶23 It is well established that a “court should freely give leave [to amend] when justice so requires.” M. R. Civ. P. 15(a)(2). “Although district courts have discretion in granting leave to amend, we have held that Rule 15(a) ‘favors allowing amendments.’ ” Seamster, ¶ 14. Further, “[w]e have articulated circumstances justifying a court’s denial of a motion to amend. Such situations include when the denial is ‘for an apparent reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, futility of the amendment, etc.’ ” Seamster, ¶ 14 (internal citations omitted). ¶24 In reviewing Barstis’s motion for leave to amend, the District Court analyzed the foregoing factors and found no evidence of bad faith, intentional delay, improper purpose, or prejudice. Given that the newly discovered evidence upon which Barstis based his motion to amend had come to light in Marty’s deposition taken two weeks earlier, the court concluded the motion to amend was timely and reasonable. Addressing futility, the District Court stated it was “satisfied that it cannot be said that Mr. Barstis will be unable to develop facts entitling him to the relief sought.” We conclude the court did not abuse its discretion in granting Barstis’s motion to amend. ¶25 Conversely, in denying the Puryers’ motion to amend, the District Court set forth facts indicative of both undue delay and undue prejudice, as well as bad faith or a dilatory motive. The court found that Puryers sought to amend their petition in order to assert a defense that was available at the time Marty filed his original petition. The court noted that Marty could have asserted the applicability of § 72-3-122(1)(d), MCA, at any time between March 8, 2013, and the scheduling order deadline for pleading amendments of December 25, 2013, but failed to do so. The court noted that Puryers’ petition for probate of the Kurth will was not filed until thirteen years after his death, and yet more than two years later, Puryers continued to allege inconsistent facts and shift theories in an effort to secure title to the property at issue. Finally, it concluded that because Barstis had conducted discovery for over two years premised upon § 72-3-122(1)(e), MCA, he would be unduly prejudiced by such a late change in legal theories. We find the District Court’s analysis reasonable, and conclude it did not abuse its discretion in denying Puryers’ motion to amend their petition. Therefore, we decline to consider § 72-3-122(1)(d), MCA, as grounds for tolling the 3-year statute of limitations period for the probate of the Kurth will. ¶26 Puryers also argue on appeal that the District Court erred in declining to apply the exception contained in § 72-3-122(1)(e), MCA, so as to allow late probate of the will. They argued in the District Court that this exception was available to them because Sinda testified in her deposition that the $8,214 left to the Kurth estate by the Mattovich estate still remained to be distributed to the Kurth estate. The District Court acknowledged that this exception would allow late probate of the Kurth estate had such distribution not taken place. However, the court noted that Sinda had filed a sworn statement to close the Mattovich estate in 2001, stating therein that she had received this distribution, and further that Puryers had not pursued recovery of these funds for the ensuing thirteen years. The court concluded that Puryers had failed to establish that genuine issues of material fact precluded summary judgment in favor of Barstis on the application of this statute, citing the multiple inconsistent positions taken by Puryers. ¶27 We have previously cautioned that parties cannot create a material factual issue by taking a contrary position to an earlier position. In Stott v. Fox, 246 Mont. 301, 805 P.2d 1305 (1990), we instructed that Stott’s contradiction between his deposition and his affidavit did not create a genuine issue of material fact. We stated: While the district courts must exercise extreme care not to take genuine issues of fact away from juries, ‘[a] party should not be allowed to create issues of credibility by contradicting his own earlier testimony.’ Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplementing previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Stott, 246 Mont. at 309, 805 P.2d at 1309-10 (internal citations omitted). ¶28 Based upon the foregoing, we conclude that the District Court did not abuse its discretion in its disposition of the procedural petitions filed by the parties. We further conclude that the District Court did not err in concluding that because neither of the statutory exceptions set forth in § 72-3-122, MCA, applied, Barstis was entitled to summary judgment on his contention that the estate must proceed under Montana’s intestacy statutes. ¶29 Did the District Court err by awarding litigation costs to Barstis following summary judgment on intestacy ? ¶30 Section 72-12-206, MCA, expressly provides: When the validity or probate of a will is contested through court action, the attorney fees and costs, as provided in 25-10-201, incurred in defending the validity or probate of the will must be paid by the party contesting the validity or probate of the will if the will in probate is confirmed. If the probate is revoked, costs, as provided in 25-10-201, but not attorney fees, must be paid by the party who resisted the revocation or out of the property of the decedent, as the court directs. ¶31 The District Court correctly interpreted and applied this statute. We affirm the court’s award of costs. CONCLUSION ¶32 For the foregoing reasons, we affirm the District Court’s conclusion that Kurth died intestate and that Kurth’s estate must be distributed in accordance with Montana’s intestacy statutes. We further affirm the court’s statutory award of costs. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, WHEAT and RICE concur.

OPINION AND ORDER ¶1 Appearing as a self-represented litigant, Matthew Montgomery appeals a November 10,2015 Ravalli County District Court’s summary denial of his motion to vacate his conviction and dismiss the charges. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 This Court is familiar with Montgomery’s criminal history. Montgomery entered a no-contest plea to felony incest in Ravalli County District Court and received a twenty-year suspended sentence in 2004. In May 2006, Montgomery was charged with numerous felony counts of sexual assault and sexual abuse of four children. Montgomery pleaded guilty to two counts of felony sexual assault in exchange for the dismissal of the remaining counts and withdrawal of a persistent felony offender notification. In January 2007, the District Court sentenced Montgomery to twenty years in Montana State Prison (MSP) with ten years suspended for each felony, to run consecutively. The court also revoked Montgomery’s suspended sentence from his 2004 conviction and committed him to MSP for twenty years with ten years suspended, to run consecutively with the sexual assault convictions. ¶3 Montgomery filed motions to withdraw his pleas to all of the above-described charges. In October 2008, the District Court denied the motions in both cases. Montgomery appealed. This Court affirmed the denial, concluding the motions were time-barred. State v. Montgomery, 2010 MT 193, ¶¶ 14-19, 357 Mont. 348, 239 P.3d 929 (Montgomery I). ¶4 He subsequently filed a petition for a writ of habeas corpus, claiming his incarceration was illegal and his three convictions for sexual offenses were invalid because the court lacked the authority to accept a no-contest plea in a sex offense case. Montgomery v. Law, No. OP 10-0489, 2010 Mont. LEXIS 605 (Dec. 7, 2010) (Montgomery II). We rejected his petition, noting that Montgomery could have raised these issues in an appeal “but elected not to do so and instead accepted the benefit of his bargain.” Montgomery II, *3. We concluded he was therefore procedurally barred from raising these issues via habeas corpus. ¶5 In May 2013, Montgomery again sought habeas corpus relief on the grounds that “his convictions [were] ‘generally and/or facially invalid.’ ” Montgomery v. Green, No. OP 13-0279, 2013 Mont. LEXIS 294, 311 P.3d 444 (table) (May 29, 2013) (Montgomery III). We reiterated that “Montgomery did not appeal from his 2004 or 2007 convictions.” Montgomery III, *2. Citing § 46-22-101(2), MCA, we stated that “[t]he writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal.” Montgomery III, *2 (citing Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337). ¶6 In October 2014, Montgomery, appearing pro se, filed a motion to vacate his conviction and dismiss the charge. The District Court also denied this motion. He appealed, claiming that the District Court erred in concluding that it had subject matter jurisdiction over the State’s case against Montgomery. We affirmed the order of the District Court. State v. Montgomery, 2015 MT 151, ¶ 2, 379 Mont. 353, 350 P.3d 77 (Montgomery IV). In August 2015, Montgomery filed another petition for habeas corpus relief, challenging the May 2006 commencement of his prosecution in the Ravalli County District Court. Montgomery v. Green, No. OP 15-0507, 2015 Mont. LEXIS 527, 381 Mont. 544, 357 P.3d 337 (table) (Sept. 1, 2015) (Montgomery V). In denying his petition, we stated that “[h]e raises the same argument that this Court already rejected in his direct appeal.” Montgomery V, *3. ¶7 On October 26, 2015, Montgomery filed a “Motion To Vacate Conviction and Dismiss Charges” with the Ravalli County District Court. The court summarily denied the motion with a hand-written notation on November 10, 2015. This appeal follows. STANDARD OF REVIEW ¶8 “We review a district court’s denial of a motion to dismiss in a criminal case de novo for correctness.” State v. Maloney, 2015 MT 227, ¶ 12, 380 Mont. 244, 354 P.3d 611 (citing State v. Betterman, 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971). DISCUSSION ¶9 Montgomery filed a motion in the District Court to vacate his conviction and dismiss the charges against him, which the court summarily denied. He now appeals because of “a new rule of law ....” Montgomery complains that “the lower court side-stepped the constitutionally mandated procedure (vehicle) for making [a probable cause] determination.” (Emphasis in original.) He further complains that as a pro se litigant he should have meaningful access to the courts. ¶10 The Attorney General for the State of Montana counters “that there must be an end to litigation at some point.” State v. Perry, 232 Mont. 455, 464, 758 P.2d 268, 273 (1988) (internal citation omitted), overruled in part on other grounds, State v. Clark, 2005 MT 330, ¶¶ 30-32, 330 Mont. 8, 125 P.3d 1099. It argues that meaningful access to the courts is not a “license to relitigate a cause or to burden the resources of the court with successive claims which could have been brought in one action.” Perry, 232 Mont. at 463, 758 P.2d at 273. The State maintains that Montgomery’s appeal is barred by the doctrine of res judicata, and argues that Montgomery’s successive appeals and petitions must come to an end. Montgomery replies that res judicata does not apply here. ¶11 Before we resolve the arguments presented, we address why we have referenced Montgomery’s petitions for habeas corpus relief with this Court. This Court recognizes “the familiar principle that res judicata is inapplicable in habeas proceedings.” Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 1073 (1963) (citing Fay v. Noia, 372 U.S. 391, 423, 83 S. Ct. 822, 840 (1963)). See also Coleman v. State, 194 Mont. 428, 438, 633 P.2d 624, 630 (1981) (“Historically the principle of res judicata was not seen to apply to writs of habeas corpus or petitions for relief under [the Federal Act, 22 U. S. C.] § 2255.”) However, when viewed in the aggregate, all of Montgomery’s challenges constitute collateral attacks against his convictions. We have stated that “[r]es judicata cannot be applied in such a manner as to deprive [a petitioner] of the right to file a post-conviction procedure. However, res judicata can be used to bar the rehearing of issues already litigated under the rule in Sanders.” Coleman, 194 Mont. at 438, 633 P.2d at 630 (citing Sanders, 373 U.S. at 15, 83 S. Ct. at 1077). See Dawson v. State, 2000 MT 219, ¶ 162, 301 Mont. 135, 10 P.3d 49 (“The doctrine of res judicata may also pose a procedural bar to postconviction relief.”). ¶12 The doctrine of res judicata bars relitigation of issues in criminal cases if three criteria are met: (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Kills on Top v. State, 279 Mont. 384, 399, 928 P.2d 182, 192 (1996) (citing State v. Baker, 272 Mont. 273, 282, 901 P.2d 54, 59 (1995)). See also State v. Southwick, 2007 MT 257, ¶ 17, 339 Mont. 281, 169 P.3d 698. ¶13 The doctrine of res judicata (claim preclusion) applies squarely to the instant appeal. McDaniel v. State, 2009 MT 159, n.2, 350 Mont. 422, 208 P.3d 817. Montgomery has previously raised the same arguments he now raises as to the legality of his convictions and sentences. “ ] C llairri preclusion’ refers to the preclusive effect of a judgment...” and forecloses litigation of matters that should have been raised in earlier, timely proceedings. Perry, 232 Mont. at 464, 758 P.2d at 274. This Court denied his two prior appeals on the merits, determining they were time-barred and invalid, respectively. Montgomery I; Montgomery IV. This Court also denied his habeas corpus petitions as procedurally barred. Montgomery II; Montgomery III; Montgomery V. He now raises the same arguments we have previously rejected. The ends of justice will not be served by reaching the merits of Montgomery’s latest appeal. CONCLUSION ¶14 Based upon the foregoing, this Court affirms the Ravalli County District Court’s summary denial of Montgomery’s motion to dismiss his conviction and vacate the charges. ¶15 IT IS HEREBY ORDERED that, prior to filing any pleading or original petition with this Court regarding his prior convictions or sentences as imposed in the Ravalli County District Court in 2004 and 2007, Montgomery must file with this Court a motion for leave to file the pleading or petition. The motion must be sworn under oath before a notary public, must not exceed three pages in length, and must make a preliminary showing that the motion has merit and is not barred under the foregoing criteria. Only when this Court has reviewed the motion and issued an order granting leave to file may the Clerk of Court file the pleading or petition. The Clerk shall reject any nonconforming pleading or petition that Montgomery seeks to file and shall so inform Montgomery. DATED this 12th day of July, 2016. /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/JAMES JEREMIAH SHEA /S/ BETH BAKER /S/JIM RICE Since 2009, Montgomery has filed three direct appeals, two of which were consolidated, and four original proceedings for habeas corpus relief with this Court. He has also sought rehearing on multiple occasions.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Rimrock Chrysler, Inc., appeals the order of the Thirteenth Judicial District Court, Yellowstone County, denying Rimrock’s motion to vacate an administrative proceeding and its motion to dismiss for lack of jurisdiction. We restate the issues on appeal as follows: 1. Whether the District Court erred by assuming subject matter jurisdiction to review Lithia Motors’ administrative protest of New Chrysler’s Notice of Intent to establish an additional Chrysler-Jeep dealership in Billings, Montana. 2. Whether the District Court erred by dismissing Rimrock’s petition for judicial review on the grounds of mootness and lack of a justiciable controversy. ¶2 We affirm the District Court’s order denying Rimrock’s motion to dismiss and motion to vacate the administrative decision of the Montana Department of Justice, Motor Vehicle Division (Department). We reverse the District Court’s order dismissing Rimrock’s petition for judicial review and remand for further proceedings. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Lithia Motors, Inc., acquired a Dodge franchise in Billings in 2003. At that time, Dodge was a division of Chrysler, LLC (Old Chrysler). In April 2009, Old Chrysler filed for bankruptcy. As part of the bankruptcy restructuring, Old Chrysler rejected 789 existing dealer agreements, including that of Rimrock in May 2009. Most of Old Chrysler’s assets were sold to Chrysler Group, LLC (New Chrysler). In July 2009, New Chrysler awarded a Chrysler-Jeep franchise to Lithia to sell all of the Chrysler line in Billings. ¶4 Rimrock successfully pursued arbitration of its franchise termination under § 747 of the United States Consolidated Appropriations Act of 2010. Consolidated Appropriations Act of 2010, Pub. L. No. 117, § 747(d), 123 Stat. 3034, 3220 (2009). In June 2010, Rimrock was awarded the sole remedy provided in § 747, a “customary and usual letter of intent” to enter into a dealer agreement. Section 747(e), 123 Stat. at 3221. Thereafter, New Chrysler filed with the Department, as required by § 61-4-205(3), MCA, a notice of intent to establish a Chrysler-Jeep dealership at Rimrock. ¶5 Soon after New Chrysler filed its notice of intent, Lithia filed an administrative protest pursuant to § 61-4-206(1), MCA. Lithia’s protest was based on Lithia being an existing franchise of the same line-make in the same community. See § 61-4-206(1), MCA. The Department appointed a hearing officer to conduct a contested case hearing pursuant to § 61-4-206(2), MCA. The hearing officer issued proposed findings of fact and conclusions of law sustaining Lithia’s protest and concluding that New Chrysler was not authorized to establish an additional Chrysler-Jeep dealership at the Rimrock location. Both New Chrysler and Rimrock filed exceptions to the hearing officer’s decision. Following oral argument, the Department issued a final decision adopting the hearing officer’s proposed order. ¶6 Rimrock filed a petition for judicial review before the District Court pursuant to §§ 61-4-206(7) and 2-4-702, MCA, requesting reversal of the Department’s decision. New Chrysler did not join Rimrock’s petition or file its own. Lithia filed a motion to dismiss Rimrock’s petition based on New Chrysler’s failure to request review. The court granted Lithia’s motion on August 25,2014, concluding that because New Chrysler had abandoned any interest in the proceeding, effective relief could not be rendered and the matter was moot. Rimrock appealed to this Court. ¶7 In the meantime, New Chrysler had named Rimrock as a defendant in a declaratory judgment action in federal court in Detroit, Michigan. Rimrock moved to dismiss itself from the Michigan litigation on the ground that resolution of the issues in the Montana administrative proceeding would “conclusively resolve the issues concerning Rimrock.” Rimrock and New Chrysler entered into a settlement agreement in the Michigan case on May 6, 2011. The Settlement Agreement provided for the dismissal with prejudice of New Chrysler’s claims against Rimrock and of all defenses, claims, and counterclaims that could have been raised by Rimrock. It provided further that “Rimrock unequivocally states that it will not assert any argument, in any forum or proceeding, that § 747 generally preempts Montana state dealer laws or, in particular, precludes a protest of the establishment of Rimrock pursuant to the Arbitration Order.” As provided in the Settlement Agreement, Rimrock and New Chrysler stipulated to dismiss the federal litigation with prejudice, and the Michigan federal court dismissed Rimrock from the litigation on May 10, 2011. ¶8 Before this Court issued a decision in Rimrock’s first appeal, the Sixth Circuit Court of Appeals ruled in the Michigan case that § 747 preempted state regulation of new dealerships issued under dealership protest laws in Michigan and Nevada. Chrysler Group LLC v. Fox Hills Motor Sales, Inc., 776 F.3d 411, 423-24 (6th Cir. 2015). The Sixth Circuit held: Michigan’s and Nevada’s state dealer protest laws, in particular, frustrate Congress’s purpose in enacting § 747 because they permit state officials to delay and possibly nullify the effect of federal arbitration. Congress intended the federal arbitration to determine whether there is good cause for a terminated dealer to be added to New Chrysler’s dealer networks. To that end, Congress placed within the discretion of the arbitrator the decision of “whether the franchise agreement at issue is to be renewed, continued, assigned or assumed by the covered manufacturer.” § 747(d). State dealer protest laws create a process by which a state official subsequently and independently determines whether there is good cause for the new dealerships to have a sales and service agreement. This second, parallel determination of good cause impermissibly grants state officials the power to review the federal arbitral decisions. Chrysler Group LLC, 776 F.3d at 424. This Court dismissed Rimrock’s appeal without prejudice and remanded it to the District Court to consider the Sixth Circuit’s decision and to rule upon issues of subject matter jurisdiction, federal preemption of state law, and whether § 61-4-206(l)(b), MCA, added by the Legislature in 2013, had any effect on the case. Rimrock Chrysler, Inc. v. Mont. Dep’t of Justice, Motor Vehicle Div., No. DA 14-0590, Or. (Mont., June 9, 2015). ¶9 On remand, Rimrock filed a motion to vacate the administrative proceeding and dismiss on the ground that § 747 preempted Montana dealer protest laws and deprived the State of Montana of subject matter jurisdiction to hear the administrative claim. New Chrysler and Lithia filed briefs in opposition, arguing that the Sixth Circuit’s decision was mistaken and that Rimrock had waived its preemption arguments. The District Court denied Rimrock’s motion and dismissed the appeal on the basis of its August 2014 order. The court concluded that it had subject matter jurisdiction over the action and that Rimrock had expressly agreed to adjudicate its dispute in the Montana administrative forum. The court held that although § 747 may preempt Montana law in very “narrow, and unique circumstancel s I” going forward, it did “not affect the outcome already reached” in this case, and § 61-4-206(l)(b), MCA, was not applicable. Rimrock appeals. STANDARDS OF REVIEW ¶10 We review de novo a district court’s determination regarding its subject matter jurisdiction. Comm’r of Political Practice for Mont. v. Bannan, 2015 MT 220, ¶ 7, 380 Mont. 194, 354 P.3d 601. A district court’s decision to grant or deny a motion to dismiss for lack of subject matter jurisdiction is a question of law that we review for correctness. Interstate Explorations, LLC v. Morgan Farm & Ranch, Inc., 2016 MT 20, ¶ 6, 382 Mont. 136, 364 P.3d 1267 (citing Pickett v. Cortese, 2014 MT 166, ¶ 11, 375 Mont. 320, 328 P.3d 660). ¶11 Mootness is a question of a law that we review de novo. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 20, 367 Mont. 401, 291 P.3d 1120. DISCUSSION ¶12 1. Whether the District Court erred by assuming subject matter jurisdiction to review Lithia’s administrative protest of New Chrysler’s Notice of Intent to establish an additional Chrysler-Jeep dealership in Billings, Montana. ¶13 In 2008, the federal government sought to address the problems affecting the auto industry through the Automotive Industry Financing Program (AIFP), a component of the Troubled Asset Relief Program (TARP). Old Chrysler received a $4 billion loan through TARP in exchange for a security interest in all of Old Chrysler’s assets, to be held by the United States Treasury. Chrysler Group LLC, 776 F.3d at 415 (citing In re Chrysler LLC, 405 B.R. 84, 89-90 (Bankr. S.D.N.Y. 2009)). After Old Chrysler and General Motors filed for bankruptcy, resulting in the termination of a significant number of local dealerships across the United States, Congress sought to protect the interests of the rejected auto dealers by enacting § 747 of the Consolidated Appropriations Act of 2010. Chrysler Group LLC, 776 F.3d at 417-18. Section 747 was intended to “establish a disclosure and arbitration process to determine whether dealers that had their franchise agreements terminated or not assumed by a successor company should be added to dealer networks of automobile manufacturers partially owned by the Federal Government.” Chrysler Group LLC, 776 F.3d at 418 (citing H.R. Rep. No. 111-366, at 942) (2009) (Conf. Rep.)) (internal quotation marks omitted). ¶14 Section 747 creates an arbitration right for covered dealerships terminated during the franchisor’s bankruptcy. “A covered dealership may elect to pursue the right to binding arbitration with the appropriate covered manufacturer.” Section 747(d), 123 Stat. at 3220. A “covered dealership” is an automobile dealership that had a franchise agreement for the sale and service of vehicles of a brand or brands with a covered manufacturer in effect as of October 3, 2008, and such agreement was terminated, not assigned in the form existing on October 3, 2008, to another covered manufacturer in connection with an acquisition of assets related to the manufacture of that vehicle brand or brands, not renewed, or not continued during the period beginning on October 3, 2008, and ending on December 31, 2010. Section 747(a)(2), 123 Stat. at 3220. A “covered manufacturer” is “an automobile manufacturer in which the United States Government has an ownership interest, or to which the Government has provided financial assistance under [TARP].” Section 747(a)(1)(A), 123 Stat. at 3219. The parties do not dispute that Rimrock is a “covered dealership” within the scope of § 747. ¶15 In considering whether a covered dealership should be added to the dealer network of a covered manufacturer, § 747 commands the arbitrator to balance the economic interest of the covered dealership, the economic interest of the covered manufacturer, and the economic interest of the public at large and ... decide, based on that balancing, whether or not the covered dealership should be added to the dealer network of the covered manufacturer. Section 747(d), 123 Stat. at 3220. If the arbitrator rules in favor of the covered dealership, the covered manufacturer “shall ... provide the dealer a customary and usual letter of intent to enter into a sales and service agreement.” Section 747(e), 123 Stat. at 3221. ¶16 Section 747(f) allows the parties to opt out of the arbitration process and participate in voluntary negotiation: “Any legally binding agreement resulting from a voluntary negotiation between a covered manufacturer and covered dealership(s) shall not be considered inconsistent with this provision and any covered dealership that is a party to such agreement shall forfeit the right to arbitration established by this provision.” Section 747(f), 123 Stat. at 3221. ¶17 Montana’s dealer protest laws, passed in 1977, allow an existing franchisee to object to the establishment of a new or additional motor vehicle dealership of the same line-make by filing a written objection with the Department. Section 61-4-206(l)(a), MCA. Section 61-4-207(3), MCA, provides specific criteria that guide the Department in determining whether good cause exists for entering into an additional franchise of the same line-make. ¶18 The District Court held that Montana’s dealer protest laws were “substantially similar” to both § 747 and Michigan’s good cause statutes. The District Court concluded, however, that § 747 did not preempt Montana’s dealer protest laws in this case because “it was not intended to be applied retroactively,” and because “Lithia’s protest, the administrative hearing, and this Court’s dismissal all took place before the Sixth Circuit issued its Chrysler Group decision.” ¶19 The District Court concluded also that Rimrock had waived its opportunity to argue preemption. The court based its waiver decision on the fact that Rimrock had sought to “avoid litigation in Federal Court in Michigan” by entering into the Settlement Agreement with New Chrysler in which it agreed to proceed in Montana and to not raise the issue of preemption. According to the court, Rimrock “expressly and conclusively agreed to be bound in several different documents by the decisions in Montana. It cannot now reverse course by abrogating a settlement agreement upon which both Lithia and Chrysler have relied.” ¶20 Rimrock argues first that the District Court “confused the issue of the retroactive application [of] state law under the 2013 Montana amendment with the application of federal preemption under Section 747.” Rimrock contends that the procedural posture of the case and the timing of the Sixth Circuit’s decision are “irrelevant to whether subject matter jurisdiction existed in 2011” because § 747 preempted Montana law upon its enactment in 2010. The Sixth Circuit decision, according to Rimrock, “was merely enforcing federal law on the books since 2010.” Therefore, Rimrock argues, “this proceeding has been void from the beginning.” ¶21 Rimrock argues next that the District Court erred by holding that Rimrock waived its ability to contest subject matter jurisdiction by entering into the Settlement Agreement and then participating in the Montana proceeding, “because subject matter jurisdiction is never waived.” Rimrock points out that in our July 9, 2015 Order, this Court ruled that subject matter jurisdiction may be raised at any time and that a party cannot waive or consent to jurisdiction when there is no basis for jurisdiction in law. Thompson v. State, 2007 MT 185, ¶ 28, 338 Mont. 511, 167 P.3d 867. Rimrock argues, “Once the Sixth Circuit ruled Congress preempted state law, that decision affected the State of Montana and Rimrock had every right to bring that legal development to the attention of the Montana Supreme Court.” ¶22 Finally, Rimrock contends that Lithia’s argument that federal preemption is a waivable affirmative defense “misstatelsl the law.” Rimrock argues that the case law on which Lithia relies fails to take into consideration the distinction in the law between preemption of law, which may be waived, and preemption of forum, which may not. ¶23 Lithia argues that the District Court properly held that Montana had subject matter jurisdiction because Rimrock voluntarily chose to waive its preemption defense. Relying on Winslow v. Montana Rail Link, Inc., 2005 MT 217, ¶¶ 37-38, 328 Mont. 260, 121 P.3d 506, Lithia claims that “[w]hen preemption is an affirmative defense, it may be waived.” Lithia argues that Rimrock made a “voluntary business decision,” upon which Lithia relied, “to proceed under and be bound by Montana state law in connection with the Montana administrative proceedings.” ¶24 We begin by addressing whether Rimrock waived its ability to argue preemption. Generally, “an affirmative defense is waived if not set forth affirmatively.” Winslow, ¶ 38 (quoting Nitzel v. Wickman, 283 Mont. 304, 312, 940 P.2d 451, 456 (1997)) (internal quotation marks omitted). This rule applies to a defense of federal preemption of state law. See Winslow, ¶ 38 (concluding that ERISA preemption in benefits-due actions “must be pleaded timely as an affirmative defense”). ¶25 The United States Supreme Court has held, however, that where a federal preemption defense affects the choice of forum rather than the choice of law it is a matter of jurisdiction and not waivable. Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 390-91 & n.9, 106 S. Ct. 1904, 1912 & n.9 (1986). In Davis, the Supreme Court considered whether the International Longshoremen’s Association (ILA) had waived its argument that the National Labor Relations Act, 29 U.S.C. §§ 151-169, preempted state law when it failed to comply with state procedural rules governing affirmative defenses. Davis, 476 U.S. at 385-86, 106 S. Ct. at 1909. The Court held that the ILA had not waived its preemption argument by noncompliance with state procedural rules and that the state court “erred in declining to address that claim on the merits.” Davis, 476 U.S. at 399, 106 S. Ct. at 1916. The Court concluded that “when a state proceeding or regulation is claimed to be pre-empted by the NLRA... the issue is a choice-of-forum rather than a choice-of-law question. As such, it is a question whether the State or the [National Labor Relations] Board has jurisdiction over the dispute.” Davis, 476 U.S. at 391, 106 S. Ct. at 1912. The Court noted, however, that its decision in Davis “does not apply to pre-emption claims generally but only to those pre-emption claims that go to the State’s actual adjudicatory or regulatory power as opposed to the State’s substantive laws.’’ Davis, 476 U.S. at 391 n.9, 106 S. Ct. at 1912 n.9. ¶26 Accordingly, courts must consider whether a party’s preemption argument “is in the nature of an affirmative defense that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court’s power to adjudicate that may be raised at any time.” Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1496 (9th Cir. 1986) (citing Davis, 476 U.S. at 381-82, 106 S. Ct. at 1907). If the latter, a party is not barred from first raising the issue on appeal. Gilchrist, 803 F.2d at 1497. See also Wolf v. Reliance Standard Life Ins., 71 F.3d 444, 449 (1st Cir. 1995) (holding that “ERISA preemption in a benefits-due action is waivable, not jurisdictional, because it concerns the substantive law but does not implicate the power of the forum to adjudicate the dispute”). ¶27 Whether the “nature” of a preemption claim is one of choice of law or choice of forum “depend[s] on congressional intent in enacting the particular pre-empting statute.” Davis, 476 U.S. at 391 n.9, 106 S. Ct. at 1912 n.9. The issue is not whether Congress intended to replace state law with a federal regulatory scheme but “whether jurisdiction provided by state law is itself pre-empted by federal law vesting exclusive jurisdiction over that controversy in another body.” Davis, 476 U.S. at 387-88, 106 S. Ct. at 1910. The Davis Court “found a strong congressional intent to oust the state court as a forum” based on its belief that Congress intended to confide primary interpretation and application of its rules to a specific and specially constituted tribunal, namely, the National Labor Relations Board which would follow a specially constituted procedure, which would develop knowledge of, and expertise in, labor relations, and which would develop and apply nationally uniform labor-relations principles and practice. And, the Court apparently believed that Congress intended this to the point where Congress (sub silentio in the statutes) refused to permit parties to submit such a dispute to the courts even where the parties themselves wished to do so. Sweeney v. Westvaco Co., 926 F.2d 29, 38-39 (1st Cir. 1991) (citing Davis, 476 U.S. at 389-91, 106 S. Ct. at 1911-12) (emphasis in original) (internal citations and quotation marks omitted). In other words, where Congress has designated another forum for the resolution of a certain class of disputes, such designation deprives the courts of jurisdiction to decide those cases. See Sweeney, 926 F.2d at 37. ¶28 In contrast with the NLRA considered in Davis courts considering choice of law versus choice of forum issues in other acts of Congress have found no intent “to oust the state as a forum.” In Sweeney, the First Circuit Court of Appeals held that Section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), unlike Sections 7 and 8 of the NLRA, concerns what law a decision maker must apply, not what forum decides the dispute. Sweeney, 926 F.2d at 39. In that case, a party had argued that LMRA concerns choice-of-forum preemption because it “reflects a congressional intent that arbitrators (not courts) develop and explain the meaning of terms in a collective bargaining agreement.” Sweeney, 926 F.2d at 38. The court disagreed based on its belief that Congress did not intend to “foreclose parties from submitting such disputes to judicial fora.” Sweeney, 926 F.2d at 39 (emphasis omitted). The court observed that the law “clearly permits parties to opt out of arbitration-based dispute-resolving mechanisms, and to have courts decide those disputes instead.” Sweeney, 926 F.2d at 39. The court noted further that, because “the law does not require that collective bargaining agreements provide for grievance and arbitration procedures,” in some cases courts, not arbitrators, must decide disputes arising under the agreement. Sweeney, 926 F.2d at 39. Finally, the court observed that, “even if an agreement does provide for such mechanisms ..., the parties to a dispute may waive the benefit of these procedures.” Sweeney, 926 F.2d at 39. ¶29 In Wolf, the First Circuit held that the argument that a state law claim was preempted by ERISA affected the choice of law, not the choice of forum. Wolf, 71 F.3d at 449. The court considered the plain language of ERISA’s jurisdictional provision, which provides, “ ‘State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions.’ ” Wolf, 71 F.3d at 448 (quoting 29 U.S.C. § 1132(e)(1)) (emphasis in original). The court concluded that the plain language of the statute “tells us that if a plaintiff brought a ‘benefits-due’ action in state court and the defendant pleaded ERISA preemption, this would not deprive the court of jurisdiction over the subject matter; rather, ERISA preemption in that situation would dictate the applicable law.” Wolf, 71 F.3d at 448. The court considered Congressional intent, concluding that “the interests in uniformity which Congress hoped to serve in ERISA did not extend to permitting defendant corporations, often more sophisticated about ERISA than individual plaintiffs, to sit on their hands and not claim the defense until the last minute.” Wolf, 71 F.3d at 448. ¶30 In this case, although Congress provided an express remedy of federal arbitration for terminated dealers, § 747 “clearly permits parties to opt out of arbitration-based-dispute resolving mechanisms,” Sweeney, 926 F.2d at 39, and to allow parties to create legally binding agreements through voluntary negotiations instead, Section 747(f), 123 Stat. at 3221. Section 747(f) expressly provides that “[a]ny legally binding agreement resulting from a voluntary negotiation between a covered manufacturer and covered dealership(s) shall not be considered inconsistent with this provision.” Section 747(f), 123 Stat. at 3221 (emphasis added). The conference report on § 747 demonstrates further Congress’s intent to afford parties alternate avenues of dispute resolution: The conference agreement would permit covered manufacturers and dealers to [sic] also, where they both prefer, to use voluntary negotiation outside the arbitration process where possible to resolve issues of possible dispute, including equitable compensation. H.R. Rep. No. 111-366, at 943 (2009) (Conf. Rep.). Thus, it is evident that Congress did not intend to “vest[ ] exclusive jurisdiction” in the federal arbitration process. Davis, 476 U.S. at 388, 106 S. Ct. at 1910. Although it did not provide explicit authority for concurrent state and federal court jurisdiction, Congress permitted covered dealers and covered manufacturers to negotiate outside of federal arbitration if they agreed to do so. Rimrock and New Chrysler unequivocally did agree to do so when they entered a written agreement to be bound by the Department’s proceedings. ¶31 Based on the foregoing analysis, we conclude that § 747 preemption is “in the nature of an affirmative defense that must be asserted in the trial court or be considered forever waived.” Gilchrist, 803 F.2d at 1496. Consequently, Rimrock waived its § 747 preemption defense when it entered into the Settlement Agreement and agreed that it would not raise § 747 preemption as a defense. Accordingly, the District Court concluded correctly, albeit for slightly different reasons, that it “retain[ed] subject matter jurisdiction” over this case. Having determined that Rimrock waived its § 747 preemption defense, we decline to examine whether § 747 preemption applies in this case. We affirm the District Court’s November 12, 2015 Order. ¶32 2. Whether the District Court erred by dismissing Rimrock’s petition for judicial review on the grounds of mootness and lack of a justiciable controversy. ¶33 In its August, 25, 2014 Order, the District Court dismissed Rimrock’s petition for judicial review on the grounds of mootness and lack of a justiciable controversy. The court concluded that under the Montana Dealer Act, New Chrysler bears the burden of proof to establish good cause to add Rimrock as another Chrysler-Jeep franchisee in Billings. Thus, according to the court, “it is impossible for Rimrock to establish itself as a Chrysler-Jeep franchisee without the approval of and action by Chrysler to enter into a dealer agreement.” The court concluded that because New Chrysler decided not to appeal the Department’s final decision, the court “has no jurisdiction to enter a judgment” requiring that New Chrysler “take any action whatsoever.” The court noted that, without New Chrysler, the issues set forth in Rimrock’s petition for judicial review “are merely abstract or hypothetical questions” and would require the court to issue “an impermissible advisory opinion.” As such, the court concluded that New Chrysler’s decision not to appeal the Department’s final decision “is an intervening change in the status of the parties that makes it impossible for [the District Court] to render effective relief on appeal.” ¶34 Rimrock has asked this Court to incorporate by reference its opening and reply brief from its appeal of the District Court’s August 2014 Order. In that appeal, Rimrock argued that the District Court was wrong “in both its premise and conclusion.” Rimrock contended that the court could have granted relief because Rimrock had asked only that the court order the Department to take action—by reversing its decision and approving New Chrysler’s notice of intent to issue a license to Rimrock. Rimrock contended further that New Chrysler was a party to the case because the court had jurisdiction over it when New Chrysler acknowledged service and filed an answer. Therefore, according to Rimrock, “Chrysler will be bound by the Court’s decision whatever that may be.” Finally, Rimrock argued that it had the right to seek judicial review of the administrative decision regardless of New Chrysler’s involvement. Rimrock asserted that the Montana Administrative Procedures Act (MAPA) “does not require the original applicant to join in a petition for judicial review. On the contrary, MAPA expressly provides that any person who has exhausted all administrative remedies and who is aggrieved by final decision is entitled to judicial review.” Rimrock contends that our jurisprudence is consistent with its interpretation of MAPA. ¶35 Lithia argued in the first appeal, and argues again here, that the District Court correctly dismissed Rimrock’s petition for judicial review due to mootness and lack of justiciable controversy. Lithia argues that “[i]t is disingenuous for Rimrock to suggest that it is not asking this Court to require Chrysler to take any action” because “any order this Court could issue that would be favorable to Rimrock would either require Chrysler to participate on remand in further administrative proceedings or to comply with the letter of intent to establish the Rimrock dealership.” Lithia argues further that the cases cited by Rimrock in its first appeal brief are “distinguishable” because they “fail to account for the unique statutory framework of the Montana Dealer Act, which mandates the participation of the manufacturer in an establishment proceeding.” ¶36 The Montana Dealer Act, found in Title 61, Chapter 4, Part 2, MCA, regulates the distribution of new motor vehicles in the State of Montana. The Act regulates specifically the relationship between franchisors and new motor vehicle dealers. See § 61-4-203, MCA (“The department shall supervise and regulate all persons required by this part to be licensed.”). A franchisor may not establish an additional dealership in any community in which the same line-make is represented unless there is good cause and it is in the public interest. Section 61-4-205(2), MCA. An existing same line-make dealer has the right to protest where a franchisor gives notice under § 61-4-205(4), MCA, that it intends to establish an additional dealership in the community in which the same line-make is represented already. Section 61-4-206(1), MCA. “Upon hearing or upon objection to the establishment of a new motor vehicle dealership, the franchisor bears the burden of proof to establish that good cause exists to terminate, not continue, or not establish the franchise.” Section 61-4-206(3), MCA. Section 61-4-206(7), MCA, allows any party to the hearing to appeal the Department’s final decision in accordance with the MAPA procedures for judicial review. Shamrock Motors, Inc. v. Chrysler Corp., 1999 MT 39, ¶ 14, 293 Mont. 317, 974 P.2d 1154. ¶37 MAPA affords an opportunity for judicial review of an administrative decision to “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final written decision in a contested case.” Section 2-4-702(l)(a), MCA. “Copies of the petition must be promptly served upon the agency and all parties of record.” Section 2-4-702(2)(a), MCA. A petition for judicial review resembles an appeal. Hilands Golf Club v. Ashmore, 277 Mont. 324, 330, 922 P.2d 469, 473 (1996). The parties are required to have “exhausted all administrative remedies available within the agency” before seeking judicial review. Section 2-4-702(l)(a), MCA. “As a result, the parties already have been defined through their appearance at, and participation in, the administrative proceedings.” Forsythe v. Great Falls Holdings, LLC, 2008 MT 384, ¶ 20, 347 Mont. 67, 196 P.3d 1233 (citing Hilands Golf Club, 277 Mont. at 331, 922 P.2d at 474). Thus, the mailing of a copy of the petition upon a party is sufficient to vest the District Court with jurisdiction over that party. Hilands Golf Club, 277 Mont. at 332, 922 P.2d at 474. On judicial review, the district court may affirm the agency’s decision, remand the case for further proceedings, or reverse the agency’s decision if the appellant’s substantial rights have been prejudiced. Section 2-4-704(2), MCA. ¶38 “[W]e encourage a liberal interpretation of procedural rules governing judicial review of an administrative decision, rather than taking an overly-technical approach, so as best to serve justice and allow the parties to have their day in court.” Hilands Golf Club, 277 Mont, at 330, 922 P.2d at 473. In this case, Rimrock is a party “aggrieved by” the Department’s decision. Section 2-4-702(l)(a), MCA. Rimrock served the petition on New Chrysler, Lithia, and the Department by mail. Although New Chrysler filed an answer disavowing participation in the appeal, Rimrock’s mailing of the petition to New Chrysler was “sufficient to vest the District Court with jurisdiction” over New Chrysler. Hilands Golf Club, 277 Mont. at 332, 922 P.2d at 474. ¶39 The judicial power of Montana courts “is limited to ‘justiciable controversies.’ ” Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567. A justiciable controversy is “one upon which a court’s judgment will effectively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical or academic conclusion.” Clark v. Roosevelt Cnty., 2007 MT 44, ¶ 11, 336 Mont. 118, 154 P.3d 48. Mootness is a category of justiciability. Plan Helena, Inc., ¶ 8. A matter is moot “if the court is unable due to an intervening event or change in circumstances to grant effective relief or to restore the parties to their original position.” Alexander, ¶ 28 (citing Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.3d 867; Greater Missoula Area Fed’n of Early Childhood Educators v. Child Start, Inc., 2009 MT 362, ¶ 23, 353 Mont. 201, 219 P.3d 881). “The intervening events which may render a case moot are of varied character” and include the “conduct of the parties.” 2 Am. Jur. 2d Administrative Law § 573 (1962). “But intervening events do not render a controversy moot where it is still possible for the reviewing court, if it should decide the case in favor of the party seeking relief, to grant him some effectual relief....” 2 Am. Jur. 2d Administrative Law § 573. ¶40 New Chrysler’s failure to participate in the judicial review proceeding does not prevent the court from granting Rimrock some effectual relief. Rimrock’s petition requested that the court “review and reverse the [Department’s] decision to disallow the establishment of Rimrock as an additional Chrysler Jeep dealership in [Billings].” In the alternative, Rimrock requested that the court remand the matter to the Department with instructions to make findings concerning all existing circumstances relevant to the establishment of Rimrock... [and] to make findings concerningthe public interest in the establishment of Rimrock ... and, in making such findings, to note the purpose of Section 61-4-205(2), MCA is to protect existing dealers from arbitrary or capricious action by the manufacturer and resulting substantial injury. Contrary to Lithia’s argument, the District Court could grant Rimrock “effective relief’ on its petition without ordering New Chrysler to do anything. Alexander, ¶ 28. If the court were to reverse the Department’s decision, it would “restore [Rimrock] to [its] original position.” Alexander, ¶ 28. That is, Rimrock would be in the same position as it was before Lithia filed its protest—the recipient of a letter of intent from New Chrysler. If at that point, Rimrock were to request that New Chrysler honor the letter of intent and enter into a dealer agreement with Rimrock, such an action would be a matter between Rimrock and New Chrysler, wholly distinct from the current case. Similarly, if the court were to remand the case to the Department, that would not be a judgment enforceable against New Chrysler. It would simply return Lithia’s protest to the Department, at which time New Chrysler may choose whether to contest the protest and attempt to establish good cause. Furthermore, if the District Court were to hold against Rimrock by upholding the Department’s decision, still, New Chrysler would not be compelled to take any action as a result of the District Court’s ruling. Rather, New Chrysler would remain bound by the Department’s decision, issued in a proceeding in which it participated and from which it did not appeal. If the court were to affirm the Department’s decision, it simply would leave New Chrysler in the same position that it was in prior to the appeal. The foregoing analysis establishes that judicial review of and final order on the merits of Rimrock’s petition would “effectively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical or academic conclusion.” Clark, ¶ 11. Accordingly, Rimrock’s petition for judicial review involved a justiciable controversy and the court erred in concluding otherwise. CONCLUSION ¶41 We affirm the District Court’s November 12, 2015 Order denying Rimrock’s motion to vacate the Department’s administrative decision and to dismiss the judicial review proceeding for lack of subject matter jurisdiction. We reverse the District Court’s August 25, 2014 Order dismissing Rimrock’s petition for judicial review. The matter is remanded for further proceedings consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES SHEA, COTTER and RICE concur. Lithia also was named as a defendant, as the dealer who would be impacted by Rimrock’s establishment. Lithia also was dismissed from the Michigan litigation. In 2013, the Montana Legislature added a provision to § 61-4-206, MCA, that prohibits an existing franchise from protesting the proposed establishment of an additional franchise of the same line-make “if the proposed additional franchise was first terminated by a franchisor and the franchise was subsequently awarded back by a legal or administrative proceeding to the franchisee from whom the franchise was terminated.” Section 61-4-206(l)(b), MCA. On remand from this Court’s June 9, 2015 Order, the District Court determined that the 2013 amendment expressly prohibited retroactive application and was not applicable in this case. The parties do not contest this ruling. New Chrysler filed a brief in this case stating that it was never a party to the judicial review and is not an appellant or appellee in this case. It affirmed that it participated through the administrative proceeding and then elected not to proceed further. New Chrysler states that it “takes no position in this appeal” and “asserts no position with regard to Rimrock’s legal arguments or factual assertions, or those of [Lithia].” Employment Income Retirement Security Act of 1974, 29 U.S.C. §§ 1001-1461. Rule 12 of the Montana Rules of Appellate Procedure requires that an argument section of a brief “contain the contentions of the appellant with respect to the issues presented, and the reasons therefor with citations to the authorities, statutes, and pages of the record relied on.” M. R. App. P. 12(l)(g). “Simply put, appellate arguments must be contained within the appellate brief, not within some other document,” and parties are precluded “from incorporating trial briefs or any other kind of argument into appellate briefs by mere reference.” Stock v. State, 2014 MT 46, ¶ 17 n.3, 374 Mont. 80, 318 P.3d 1053. In this case, however, because we remanded the first appeal for consideration of threshold issues without considering the merits, we will consider both Rimrock’s and Lithia’s briefs from the first appeal. Although it does not prove critical to our analysis here, we observe that the language of the statute appears contradictory with other provisions in the part governing the establishment of an additional new motor vehicle dealership. Because the franchisor is the party that files a notice of intention “to enter into a franchise for additional representation of the same line-make,” § 61-4-205(3), MCA, it is confusingto say thatthe franchisor then bears the burden of showing good cause exists to “not establish the franchise,” § 61-4-206(3), MCA (emphasis added). The confusion arose when the statute was amended in 1997: the phrase, “or not establish the franchise,” was added in place of a former sentence that read, “When there is an objection to the establishment of a new motor vehicle dealership, the burden of proof that good cause does exist shall be with the franchisor.” 1997 Mont. Laws ch. 221, § 10. The Legislature may wish to revisit this section.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Timothy Cheetham Sr. appeals the findings, judgment, and sentence entered by the Fifth Judicial District Court, Jefferson County, on a jury verdict finding him guilty of one count of sexual intercourse without consent, one count of sexual assault, and one count of sexual abuse of children. We restate the issues on appeal as follows: 1. Whether the District Court abused its discretion by failing to conduct an adequate inquiry into Cheetham’s request for substitute counsel. 2. Whether Cheetham was denied effective assistance of counsel. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In January 2014, the State charged Cheetham with the following felony offenses: sexual intercourse without consent in violation of § 45-5-503, MCA; sexual assault in violation of § 45-5-502, MCA; and sexual abuse of children in violation of § 45-5-625, MCA. The offenses were alleged to have occurred in 2004 when Cheetham—who was thirty-two years old at the time —and the victim, N.S.—who was approximately five years old at the time—were living together with N.S.’s grandmother, J.P., in Whitehall, Montana. ¶4 At trial, N.S. testified that Cheetham had touched her inappropriately on her chest and her vagina in 2004. She also testified that Cheetham forced her to watch pornographic movies with him that depicted children having sexual intercourse. N.S. also testified that Cheetham had forced intercourse with her on one occasion. ¶5 N.S. was interviewed four times before trial. N.S. had two forensic interviews, one in 2006 and one in 2013. She was interviewed in early 2014 by a detective from the Jefferson County Sheriffs Office, and again before trial by an investigator working with defense counsel. On cross-examination, Cheetham’s counsel, Steven Scott, questioned N.S. about inconsistencies in her statements in the four interviews. N.S. explained that she remembered things during later interviews and at trial that she did not remember during earlier interviews. She testified that she did not remember most of the events until a few years after they occurred—beginning in 2006. She also testified that while she recalled the inappropriate touching earlier, she did not recall the penetration incident until she saw Cheetham in a store and began having flashbacks. ¶6 N.S.’s therapist testified regarding counseling sessions she had with N.S. relating to the sexual abuse. She testified that she often sees instances of delayed disclosures from sexual abuse victims. The State’s child abuse expert confirmed that delayed disclosure is common, as is post-traumatic stress disorder (PTSD). Scott called an expert forensic psychologist, who pointed out that N.S. provided different details about the alleged rape that the expert would consider as “core details of the experience” that N.S. should have been unlikely to have forgotten. ¶7 N.S’s mother, J.L., and J.P. also testified at trial and were questioned about what N.S. told each of them about Cheetham. J.L. and N.S’s therapist testified about the ways in which the events have continued to negatively affect N.S.’s life—including nightmares, trouble in school, depression, and suicidal behavior resulting in three months of inpatient treatment at Shodair Children’s Hospital in 2014. ¶8 The jury found Cheetham guilty on all three counts. Prior to sentencing, Scott filed a motion to dismiss for negligent destruction of evidence, arguing that the State failed to provide and preserve an exculpatory medical report of a forensic medical examination performed in 2006 on N.S. by Dr. Salisbury. He did not attach the medical report to the motion or brief but quoted the document as stating, “[N.S.’s] exam was within normal limits with copious amounts of hymen intact. [This] does not negate the possibility of a penetration injury. The narrowing noticed in the above exam, could be consistent with patient’s history and suspicious of a previous injury.” ¶9 Scott represented in his brief that he attempted to obtain the medical report from the County Attorney but was told that it could not be obtained through Child Protective Services (CPS). Noting that CPS once referenced the report, Scott concluded that the report must have been negligently destroyed. In response to the motion to dismiss, the State argued that the prosecution tried to obtain, but never possessed, the 2006 medical report in question. In any event, the State argued, the report was not favorable to Cheetham because it did not negate the possibility of penetration injury. ¶10 Eventually Scott obtained the medical report as a result of a subpoena to Dr. Salisbury. Before the court ruled on the motion, however, Scott filed a notice withdrawing the motion to dismiss for negligent destruction of evidence. ¶11 On the day of the sentencing hearing, the District Court received a letter from Cheetham addressed to the court and the chief public defender alleging several instances of ineffective assistance of counsel in relation to the medical report. In the letter Cheetham claimed that the medical report “provides cause for reasonable doubt that a penetration rape of a 5 year old child by a grown man lasting 5-8 minutes could leave the child’s hymen intact.” Based on Scott’s failure to use the medical report, Cheetham requested that Scott “be dismissed [and] replaced.” After questioning Cheetham, Scott, and the State’s counsel, the court declined to address the substance of Cheetham’s allegations and determined that there was “no total breakdown of communication” between Cheetham and Scott that would require that the sentencing hearing be continued. ¶12 The court proceeded with the hearing and sentenced Cheetham to the Montana State Prison for 100 years with 50 years suspended for each of the three counts, to run consecutively. Cheetham appeals. STANDARDS OF REVIEW ¶13 A request for substitute counsel is within the sound discretion of the district court, reviewed for abuse of discretion. State v. Edwards, 2011 MT 210, ¶ 14, 361 Mont. 478, 260 P.3d 396. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284. ¶14 Ineffective assistance of counsel claims present mixed issues of law and fact that we review de novo. State v Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. This Court reviews claims of ineffective assistance of counsel on direct appeal if the claims are based solely on the record. Clary, ¶ 12. “[I]f the record does not demonstrate ‘why’ counsel did or did not take an action which is the basis of the claim, the claim is more suitable for a petition for postconviction relief where a record can be more fully developed.” State v. Heavygun, 2011 MT 111, ¶ 8, 360 Mont. 413, 253 P.3d 897 (quoting State v. Sartain, 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032) (internal quotation marks omitted). DISCUSSION ¶15 1. Whether the District Court abused its discretion by failing to conduct an adequate inquiry into Cheetham’s request for substitute counsel. ¶16 Cheetham argues that the District Court erred by failing to conduct an adequate inquiry into his complaints. Cheetham claims that State v. Schowengerdt, 2015 MT 133, 379 Mont. 182, 348 P.3d 664, is an “instructive similar case” and notes that Scott also served as trial counsel in that case. Cheetham asserts that his complaint regarding Scott’s failure to investigate the medical report and introduce it at trial is an “obvious one presenting a ‘seemingly substantial’ allegation of [ineffective assistance of counsel].” Accordingly, Cheetham argues, the District Court should have inquired “into the substance” of his complaints. ¶17 The State argues that the District Court adequately inquired into Cheetham’s complaints about counsel. The State points out that the court asked Cheetham and Scott about the conflict and, based on their responses, concluded that they did not have a breakdown in communication and could communicate civilly. The State contends that Cheetham and Scott’s disagreement about the medical report was simply a “disagreement about the tactics being taken” and thus “do[es] not establish a ground for new counsel.” As such, the State asserts that Cheetham’s claims were not “seemingly substantial” and that the court did not abuse its discretion when it declined to hold a hearing or appoint new counsel. ¶18 The right to effective assistance of counsel under the United States and Montana Constitutions “does not grant defendants the right to counsel of their choice.” State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30 (citing State v. Craig, 274 Mont. 140, 149, 906 P.2d 683, 688 (1995)). “So long as appointed counsel is rendering effective assistance, a defendant may not demand dismissal or substitution of counsel simply because he or she lacks confidence in, or does not approve of, his or her appointed counsel.” Dethman, ¶ 15 (citations omitted). ¶19 Our case law establishes that for the court to replace a defense attorney, the defendant bears the burden of presenting material facts that establish a “complete collapse” of the attorney-client relationship, a total lack of communication, or ineffective assistance of counsel. Edwards, ¶ 32; State v. Kaske, 2002 MT 106, ¶ 30, 309 Mont. 445, 47 P.3d 824. ¶20 When a defendant raises complaints against his attorney and seeks substitution of counsel, the district court must make an adequate initial inquiry into the nature of those complaints and determine if they are “seemingly substantial.” State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371. “In reviewing a district court’s inquiry, we do not examine whether counsel was ineffective, but instead, whether the district court’s inquiry into the claim was adequate.” State v. MacGregor, 2013 MT 297, ¶ 25, 372 Mont. 142, 311 P.3d 428. A district court’s inquiry is adequate when the “court considers the defendant’s factual complaints together with counsel’s specific explanations addressing the complaints.” Schowengerdt, ¶ 17 (citation and internal quotation marks omitted). Accord., Dethman, ¶ 16; Gallagher, ¶ 15; City of Billings v. Smith, 281 Mont. 133, 137, 932, P.2d 1058, 1060 (1997). In contrast, a district’s court inquiry is inadequate if it fails to conduct “even a cursory inquiry” into the defendant’s complaints, in which case remand is justified. Schowengerdt, ¶ 17. ¶21 If the district court’s adequate inquiry finds that the defendant’s complaints are seemingly substantial, a hearing must be held to determine their validity. Gallagher, ¶ 14. Conversely, a hearing is not required if the court finds that the defendant’s complaints are insubstantial. MacGregor, ¶ 26. If a defendant’s complaint is based on the allegation that counsel is rendering ineffective assistance, the complaint is “seemingly substantial” if it makes “some showing of fact indicating that counsel’s performance was deficient, and that the deficient performance prejudiced the defendant. Those facts must make a showing of deficiency to overcome the presumption that a defendant was provided with effective assistance of counsel.” MacGregor, ¶ 26 (internal citations omitted). If the defendant does not meet his burden, he has the choice of continuing with his present counsel or having counsel dismissed and proceeding pro se. State v. Zackuse, 250 Mont. 385, 386, 833 P.2d 142, 142 (1991). ¶22 In Dethman, the defendant had asserted that his attorney “was not defending him in the manner he felt he needed to be defended because he refused to present witnesses, testimony, and evidence Dethman requested.” Dethman, ¶ 19. We determined that while Dethman’s assertions indicated that he and his attorney “may have had a difference in opinion as how to proceed with Dethman’s case, it is a time honored rule ... that courts must accord great deference to defense counsel’s exercise of judgment in determining appropriate defenses and trial strategy.” Dethman, ¶ 19 (citation and internal quotation marks omitted). Accordingly, we concluded that further investigation by the district court was “unnecessary” and the district court did not abuse its discretion by denying Dethman’s motion for substitute counsel. Dethman, ¶ 19. ¶23 In contrast, in Schowengerdt, we held that the district court failed to conduct an adequate inquiry into Schowengerdt’s complaints because it did not give him the opportunity to explain why he was dissatisfied with his attorney. Schowengerdt, ¶¶ 18-19. We noted that the court interrupted Schowengerdt whenever he tried to give an explanation, ordered Schowengerdt to follow the Office of the Public Defender’s (OPD) process for appointment of new counsel, and failed to conduct further proceedings when OPD administratively denied the request. Schowengerdt, ¶ 18. ¶24 Here, the court received Cheetham’s letter requesting substitute counsel on the morning of the sentencing hearing. At the beginning of the hearing, prior to conducting any other business, the court addressed the letter. The court began by questioning the State’s counsel about the letter and then questioned Scott, asking him what his thoughts were “procedurally or substantively.” Scott responded, Your honor, my client does not want me to proceed any further on this case with him as his attorney. He wants me to be removed. He’s made it very clear in the letter. We’ve talked earlier today, civilly, but he’s made it very clear that he does not want me to be any further part of this particular case. As for the substance of the letters, I am certainly not going to go into that, as that would violate attorney/client privilege under Rule 1.6, so I’m not going to address any of the allegations that are in the letter against me. Scott also informed the court that Cheetham had begun taking steps to obtain new counsel through OPD. The court agreed that it was unnecessary to “deal with the substance” of the allegations at that time but asked Scott for “more information about [his] thoughts on the potential for a different attorney.” The court noted that Scott had described his and Cheetham’s discussions as “civil” and thus the court suggested that Cheetham’s concerns were “merely a difference of view about how to proceed.” Scott agreed with the court’s suggestion, stating, “I would believe that could be accurate. I’m not sure if Mr. Cheetham believes that there has been an entire attorney/client relationship breakdown at this point or not.” Scott requested that the court continue the sentencing hearing to “see if [Cheetham] can be appointed new Counsel or if he can hire Counsel.” The court also questioned Cheetham. Cheetham agreed that he and Scott could communicate civilly but maintained that they disagreed upon the course of action with respect to the medical report. ¶25 The court decided to proceed with the sentencing hearing. The court noted that Cheetham’s concerns “can best be dealt with or must be dealt with by way of a petition for postconviction relief following an appeal.” The court also commented that it had reservations about “whether an attorney should be appointed for Mr. Cheetham different from the able Counsel he has benefited from so far.” The court explained that by “able counsel” it meant “that everything the Court has encountered is Mr. Scott has effectively, in the courtroom before the Court, fulfilled his duties properly.” Finally, the court expressed reservations about whether it was “permissible for a Defendant to at this stage of the game create a viable basis for a different attorney unless there is a total breakdown of communication between attorney and client.” ¶26 We conclude that the District Court’s initial inquiry into Cheetham’s complaints was adequate. The court questioned both Scott and Cheetham about their attorney-client relationship. Acknowledging that “it would be improper to ask [Scott] to disclose [his] entire defense strategy,” State v. Novak, 2005 MT 294, ¶ 21, 329 Mont. 309, 124 P.3d 182, the court did not question either Scott or Cheetham about the specifics of the complaint. The court did, however, consider the factual complaints in the letter to conclude that Cheetham and Scott had “a difference of view about how to proceed” with respect to the evidentiary matter raised in Cheetham’s letter. Unlike Schowengerdt, where the court did not allow Schowengerdt to explain his reasons for requesting new counsel, here, the court read the specific allegations in Cheetham’s letter and then questioned Cheetham sufficiently to ascertain that his complaints all were based on Scott’s failure to use the medical report. The court considered Cheetham’s “factual complaints” in the letter together with “counsel’s explanations” addressing the complaints—to the extent that counsel could provide an appropriate explanation at that time without divulging privileged information. Gallagher, ¶ 15. ¶27 We acknowledge that a total breakdown of communication may be a separate ground for obtaining new counsel from a claim that counsel is rendering ineffective assistance. The Sixth Amendment right to counsel “ ‘envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.’ ” State v. Davis, 2016 MT 102, ¶ 37, 383 Mont. 281, 371 P.3d. 979 (quoting Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063 (1984)). Thus, a defendant is “entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. The District Court’s suggestion that a total breakdown of communication was required to obtain new counsel was made with the observation that “at this stage of the game,” when all that remained was the sentencing hearing, that was the relevant inquiry. ¶28 Considering the basis for Cheetham’s complaints of ineffective assistance, we conclude that the District Court did not err in failing to inquire further. The District Court’s initial inquiry is not designed to determine the merits of the claim, but rather “to establish whether a defendant has a substantial claim.” State v. Gazda, 2003 MT 350, ¶ 32, 318 Mont. 516, 82 P.3d 20. Cheetham did not raise a “seemingly substantial” complaint of ineffective assistance. While Cheetham and Scott “had a difference in opinion as how to proceed with [Cheetham’s] case, it is a time honored rule ... that courts must afford great deference to defense counsel’s exercise of judgment in determining appropriate defenses and trial strategy.” Dethman, ¶ 19. Because the court’s initial inquiry did not reveal serious questions as to whether Scott performed the role of counsel envisioned by the Sixth Amendment, it was not required to hold a separate hearing to consider the merits of Cheetham’s claims. MacGregor, ¶ 26. ¶29 A claim of ineffective assistance based on differences between the defendant and his counsel about trial strategy and production of evidence is available in, and better suited for, a postconviction proceeding where counsel may divulge more freely—with appropriate safeguards (In re Gillham, 216 Mont. 279, 282, 704 P.2d 1019, 1021 (1985))—his or her communications with the defendant and strategic decisions. By its terms, the procedure we directed in Gillham applies to petitions for postconviction relief when a response from defense counsel is necessary. Gillham, 216 Mont. at 282, 704 P.2d at 1021. We have not obligated district courts to compel that procedure prior to entry of final judgment in a criminal case and we decline to impose such a requirement in this case. As such, given the nature of the claims Cheetham raised here, we conclude that further investigation by the District Court was “unnecessary.” Dethman, ¶ 19. The District Court did not abuse its discretion by denying Cheetham’s request for substitute counsel. ¶30 2. Whether Cheetham was denied effective assistance of counsel. ¶31 Cheetham argues that he was denied effective assistance of counsel both pretrial and during trial. Cheetham argues that Scott “failed to [identify], investigate, and introduce at trial” the same allegedly exculpatory medical record about which Cheetham complained to the District Court. Cheetham claims that “[s]uch error was prejudicial as it tended to establish that no penetration or rape took place.” Cheetham contends that if the report had been introduced at trial, it would have “undoubtedly affected the jury’s consideration of [his] guilt and certainly creates a reasonable probability that the jury would have decided the case differently.” ¶32 Cheetham claims that Scott told him that the medical report likely would be inadmissible under Montana’s rape shield statute and argues, “Such post-trial justification lacks reasonableness when it is clear Scott was not aware of this information, did not review or investigate further the State’s disclosure regarding this information, and did not reasonably attempt to discover the contents of the medical record.” Cheetham argues further that if Montana’s rape shield statute precluded his use of the medical report, Scott should have challenged its constitutionality. ¶33 The alleged error, according to Cheetham, is “firmly based on the record.” Cheetham argues that Scott “was given an opportunity to explain or excuse his actions on the record, but declined to do so based on the attorney-client relationship.” As such, Cheetham contends, the appropriate procedure should have been for the court to issue a Gillham order—which permits a defendant’s attorney to reveal confidential information on a claim of ineffective assistance upon court order. Cheetham requests that this Court reverse his convictions and order a new trial, or “[a]t a minimum,” that he receive a hearing on his ineffective assistance of counsel allegations. ¶34 The State argues that Cheetham’s claim is not record-based and should not be reviewed on direct appeal. The State contends that “I a llthough the record contains Cheetham’s claims about the medical report, it does not contain other information that is necessary to assess Scott’s performance.” For instance, the State contends that it is “not clear from the record what information Scott had regarding the medical report,” whether Scott was “aware of the reference in the CPS report to the medical record,” whether he “failed to investigate the reference,” “what testimony would have been offered if the medical report had been admitted,” or whether “Dr. Salisbury would have testified that the medical findings were inconsistent with N.S.’s allegations against Cheetham.” As such, the State argues that Cheetham’s claim is more appropriate for a postconviction proceeding and should be dismissed without prejudice. ¶35 “A party may raise only record-based ineffective assistance claims on direct appeal.”Novak, ¶ 18 (citing State v. Earl, 2003 MT 158, ¶ 39, 316 Mont. 263, 71 P.3d 1201). When determining whether an ineffective assistance of counsel claim is appropriate for direct, record-based review, we examine “whether the record discloses why counsel took, or failed to take, action in providing a defense.” Novak, ¶ 18. “A record that is silent about the reasons for counsel’s actions or omissions seldom provides sufficient evidence to rebut the ‘strong presumption’ that counsel’s actions fell ‘within the wide range of reasonable professional assistance.’ ” Clary, ¶ 30 (quoting Sartain, ¶ 30). ¶36 Here, the record does not fully disclose why Scott failed to investigate or introduce the medical report at trial. While Cheetham, in his letter, contends that Scott decided not to use the report because he believed it is inadmissible under the rape shield statute, because “it’s not 100% exculpatory,” and because using it would make Cheetham “look even worse like this exam was done then due to suspicion against [him],” Scott himself never discussed the reasons for his decisions or actions with respect to the report. His notice to withdraw the motion to dismiss based on negligent destruction of evidence does not contain any reasoning or explanation, and Scott permissibly did not address the substance of the allegations against him at the sentencing hearing. Because the record is largely silent about the reasons for Scott’s actions, there is insufficient evidence to “rebut the strong presumption that [his] actions fell within the wide range of reasonable professional assistance.” Clary, ¶ 30. Further, there exists at least a plausible justification for Scott’s decision. See Sartain, ¶ 31. As the State recounts, a “multitude of outside factors” may have led him to decide not to use the medical report. Sartain, ¶ 31. Without a fully developed record of Scott’s reasons, the issue cannot be resolved and we therefore decline to address it on direct appeal. A postconviction proceeding would allow Scott to explain his tactical decisions. Cheetham’s ineffective assistance of counsel claim is therefore dismissed without prejudice to raising it in a postconviction relief proceeding. CONCLUSION ¶37 For the foregoing reasons, the District Court’s judgment is affirmed. JUSTICES SHEA, COTTER and WHEAT concur. The State amended the charge in August 2014 to correct Cheetham’s age at the time of the events in question. The State urges this Court to adopt the analysis applied by federal courts, which held that a criminal defendant has a right to new counsel only if the defendant demonstrates good cause such as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict, rather than allowing inquiry prior to judgment into counsel’s effectiveness. In light of our discussion here, we find it unnecessary to adopt a new standard in this case. Cheetham refers to “State v. James Morris Colburn (DA 14-0181),” which at the time he filed his Opening Brief was on appeal to this Court. Since that time, however, we decided State v. Colburn, 2016 MT 41, 382 Mont. 223, 366 P.3d 258, and did not declare the statute unconstitutional.

Affirmed Dist. 20 (Lake)

OPINION AND ORDER ¶1 Before the Court is a Petition for Declaratory and Injunctive Relief seeking to invoke this Court’s original jurisdiction pursuant to M. R. App. P. 14(4). The Petition challenges the constitutionality of Initiative No. 181 (1-181) and seeks an order enjoining the Secretary of State from certifying 1-181 for the November 2016 general election ballot. At the Court’s invitation, Respondent Montanans for Research and Cures has submitted its written opposition to the Petition. For the reasons explained below, the Court denies the Petition. BACKGROUND ¶2 1-181 proposes to enact the “Montana Biomedical Research Authority Act” (Act), a law to establish the Montana Biomedical Research Authority (Authority) to review proposals and award grants, funded by state general obligation bonds, to non-profit and for-profit entities for the purpose of promoting the development of therapies and cures for brain diseases and injuries and mental illnesses, including Alzheimer’s disease, Parkinson’s disease, brain cancer, dementia, traumatic brain injury, and stroke. The measure would authorize the creation of state bond debt up to $20 million per year for a period of ten years. ¶3 The proposed legislation authorizes the Authority to request issuance of bonds or incurrence of debt, to invest funds not required for immediate use, and to contract in its own name for investment of funds or for any other purposes the Authority considers appropriate to carry out its duties under the Act. 1-181 would authorize creation of state debt up to a cumulative $200 million, establish a biomedical research fund “outside the state treasury,” require the board of examiners to issue and sell bonds of the state upon the Authority’s request, and express to the Legislature the people’s “inten[t] and request” for implementing legislation to appropriate startup costs and to provide for a statutory appropriation of monies in the biomedical research fund. ¶4 The initiative was prepared and sponsored by Montanans for Research and Cures, a Montana registered ballot issue committee. Respondents Randy Gray and Molly Bell are the registered officers of Montanans for Research and Cures. Secretary of State Linda McCulloch determined on July 14, 2016, that sufficient valid signatures had been submitted to qualify 1-181 for the November 8, 2016 general election ballot. If passed, the measure would take effect January 1, 2017. DISCUSSION ¶5 The 2007 Montana Legislature revised the statutes governing legal challenges to ballot measures, authorizing this Court to exercise original jurisdiction over initiatives and referenda for purposes of reviewing challenges to proposed ballot statements for the measures and to the Attorney General’s legal sufficiency determinations. Section 3-2-202(3)(a), MCA. “The statute does not confer original jurisdiction for any other purposes.” Hoffman v. State, 2014 MT 90, ¶ 10, 374 Mont. 405, 328 P.3d 604. We confirmed the significance of these amendments in Hoffman when we declined to exercise original jurisdiction to determine the constitutionality of Initiative 171, which would have prohibited expansion of the Montana Medicaid Program and prevented the State of Montana from using funds, personnel, or resources to administer or enforce a federal health care law. Hoffman, ¶ 2. As we pointed out in Hoffman, Prior to the 2007 amendments, the statute provided for this Court’s consideration of a “constitutional defect in the substance of a proposed ballot issue[.]” Section 3-2-202(3)(a)(ii), MCA (2005). That provision was removed. 2007 Mont. Laws ch. 481, § 1. ... Further, the Legislature has expressly preserved “the right to challenge a constitutional defect in the substance of an issue approved by a vote of the people.” Section 13-27-316(6), MCA (emphasis added). Hoffman, ¶ 10. ¶6 Avoiding reference to these statutes, Petitioners argue that the Court retains authority to entertain a facial constitutional challenge like the one they have brought because the issues are purely ones of law, the case involves a matter of statewide importance, and urgency prevents an adequate remedy through litigation in the district court and the normal appeal process. M. R. App. P. 14(4). Petitioners invoke this Court’s statutory authority to issue an injunction in an original proceeding “where the state is a party, the public is interested, or the rights of the public are involved.” Section 3-2-205(2), MCA. ¶7 No doubt, “[i]f a law is repugnant to the Constitution, ... the courts ... ‘have the power, and it is their duty, so to declare.’ ” Hoffman, ¶ 9 (quoting In re Clark’s Estate, 105 Mont. 401, 411, 74 P.2d 401, 406 (1937)). But 1-181 is not a “law.” More, “[t]he two recent cases in which ballot measures were stricken from the ballot for substantive constitutional infirmity were not original proceedings, but cases that originated in the district courts and were decided by this Court in the ordinary course of appeal.” Hoffman, ¶ 10 (citing MEA-MFT v. McCulloch, 2012 MT 211, 366 Mont. 266, 291 P.3d 1075; Reichert v. State, 2012 MT 111, 365 Mont. 92, 278 P.3d 455). As for the question of urgency, Petitioners filed this action on July 28, 2016, exactly four weeks before the Secretary of State’s deadline for certifying ballot measures to election administrators for printing ballots. Even were there authority to exercise original jurisdiction here, this Court is not eager to rush consideration of constitutional questions of public importance in a hasty pre-election review of an idea that is not, and might never become, a law. ¶8 We express no opinion on the merits of any of Petitioners’ constitutional claims. ¶9 IT IS THEREFORE ORDERED that the Petitioners’ request that this Court exercise its original jurisdiction to declare 1-181 unconstitutional on its face and enjoin its certification for the November 2016 general election ballot is DENIED without prejudice to the filing of an appropriate civil action should the measure become law. ¶10 The Clerk is directed to provide notice of this Order to all counsel of record and to the Montana Secretary of State. DATED this 18th day of August, 2016. JUSTICES WHEAT, COTTER, McKINNON and RICE concur. The board of examiners is made up of the governor, the secretary of state, and the attorney general. Section 2-15-1007, MCA. State law empowers the board to issue and sell bonds of the state for purposes authorized by the Legislature, such as coal severance tax bonds (§ 17-5-707, MCA), bonds for the water pollution control and drinking water state revolving fund programs (§§ 75-5-1121 and 75-6-225, MCA), renewable resource bonds (§ 85-1-617, MCA), and hard-rock mining reclamation bonds (§ 82-4-313, MCA). A statutory appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the need for a biennial legislative appropriation or budget amendment. Section 17-7-502(1), MCA. The other cases Petitioners cite for pre-election review all were decided prior to the 2007 statutory amendments. Burgan & Walker, Inc. v. State Highway Comm’n, 114 Mont. 459, 137 P.2d 663 (1943); State ex rel. Steen v. Murray, 144 Mont. 61, 394 P.2d 761 (1964); State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984).

Affirmed Dist. 4 (Missoula)

Affirmed Dist. 1 (Lewis and Clark)

Denied Original Proceeding Habeas Corpus

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Article II, Section 24, of the Montana Constitution, grants individuals accused of crimes the right to a speedy trial. At issue here is whether the right to a speedy trial is violated when, among other things, an accused is deprived of access to rehabilitation programs he would otherwise attend but for his unduly lengthy incarceration in county jail. After conducting a balancing of the applicable factors, the District Court found no violation. We reverse. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Jack Dean Mayes (Mayes) has an extensive criminal record, including primarily drug offenses and other offenses likely related to drugs. Thus, Mayes was already on parole for a prior felony drug conviction when his parole officer arrested him, searched his home in Butte, and found a syringe containing liquid in a jacket pocket that field tested positive for methamphetamine. On August 7, 2014, the State arrested Mayes and charged him with felony criminal possession of the syringe in violation of § 45-9-102, MCA. Mayes made his initial appearance in Justice Court the next day, where his bond was set at $5,500. ¶3 The State filed an information on August 15,2014. Mayes pleaded not guilty on August 28, 2014, and an omnibus hearing was held on September 18, 2014. At the omnibus hearing, the District Court set trial for February 9, 2015, 186 days after his arrest. At the time of Mayes’ arrest, the State Crime Lab had a substantial backlog of cases and notified the State that any analysis would require between seven and nine months to complete. On August 11, 2014, four days after Mayes was arrested, the Sheriff s Office received notification from the State Crime Lab that the contents of the syringe had to be placed into a vial for purposes of analysis. Despite having received such notification, the State waited until November 17, 2014, or 102 days after Mayes’ arrest, to submit the substance for testing. There is no dispute that the State controlled the syringe and its contents during this 102 day period. During the hearing on the motion to dismiss, the State conceded that “there’s 100 days there that the substance sat in the sheriffs department and didn’t get transferred.” Ultimately, the State could not explain why submission of the sample languished for nearly three and one-half months. ¶4 Since it appeared the lab would not complete its analysis in time for trial, the State filed a motion on January 20, 2015, to continue the February 9, 2015 trial date. Mayes objected, arguing that the continuance would leave him incarcerated for an excessive amount of time and place the trial date beyond the threshold period of 200 days established in Ariegwe. The District Court granted the continuance and reset Mayes’ trial for May 19, 2015, which was 285 days after his arrest. On April 2, 2015, Mayes filed a motion to dismiss for speedy trial violations. The State responded and the District Court entertained argument on the motion, ultimately issuing an order denying the motion on May 12, 2015. On May 13,2015, Mayes pleaded guilty, but reserved the right to appeal the denial of his speedy trial motion. Thereafter, he received a five-year sentence to run concurrently with the sentence for which he was on parole. Mayes remained incarcerated in county jail from the time of his arrest on August 7, 2014, until he entered his guilty plea on May 13, 2015, a total of 279 days. ¶5 In its order denying Mayes’ speedy trial motion, the District Court analyzed each Ariegwe factor. The court first acknowledged that the delay was beyond the 200 day threshold that would trigger a speedy trial analysis. In addressing the reasons for the delay, the District Court found the delay between Mayes’ arrest and his trial date was attributable to the State for purposes of balancing, but with a lesser degree of culpability. As for the specific delay arising from the State’s late submission of the sample to the lab, a delay of approximately 100 days, the court rejected Mayes’ argument that this delay was a tactical decision by the State to secure “better evidence.” Instead, the court found the delay was institutional, akin to negligence or a lack of diligence, which is the middle tier of the culpability scale in an Ariegwe analysis. The District Court recognized that Mayes had timely asserted his interest in a speedy trial by objecting to the State’s motion to continue trial, and then by motion on April 2, 2015. With respect to whether the delay caused Mayes prejudice, the court found that Mayes was incarcerated after December 11, 2014 as a result of his parole violation and not because of the new drug charges. Therefore, the court found no prejudice attributable to delay in the case pending before it for the new charges. The court also concluded Mayes had failed to provide sufficient evidence that: (1) the delay caused him aggravated anxiety or concern beyond what any person accused of a crime would face; (2) that Mayes had missed opportunities to participate in DOC treatment and rehabilitation programs; and (3) that Mayes’s defense had otherwise been compromised because of the delay. STANDARD OF REVIEW ¶6 We review a district court’s findings of fact underlying a speedy trial claim for clear error. A court’s findings of fact are clearly erroneous when they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Whether there has been a constitutional violation of the right to speedy trial is reviewed de novo to determine whether the lower court’s interpretation and application of the law are correct. Ariegwe, ¶ 119. DISCUSSION ¶7 An accused’s right to a speedy trial is guaranteed by United States Constitution Amendments Six and Fourteen, and by Article II, Section 24, of the Montana Constitution. A reviewing court must analyze a potential speedy trial violation by balancing four factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the accused asserted his right to a speedy trial; and (4) whether prejudice to the accused resulted from the delay. Ariegwe, ¶ 20. When balancing the four factors, no single factor is dispositive and each is to be considered under the totality of relevant circumstances. Ariegwe, ¶ 112. The speedy trial clock commences once the accused is arrested, a complaint is filed, or an indictment or information is filed. Ariegwe, ¶ 42. A reviewing court must first address the length of delay as a threshold matter to determine if a speedy trial claim merits analysis. Ariegwe, ¶ 38. A minimum 200 days must elapse between the speedy trial clock’s commencement and the date of trial before a speedy trial claim merits consideration. Ariegwe, ¶ 41. Factor One: The Length of the Delay ¶8 We consider the extent to which the delay stretches beyond the 200 day trigger date because a presumption of prejudice intensifies as the delay exceeds the trigger date: the greater the excess over the trigger date, the more likely the accused suffered prejudice. Ariegwe, ¶ 49. Here, Mayes was arrested on August 7, 2014 and pleaded guilty on May 13, 2015, a total of 279 days. This period exceeds the 200 day threshold by 79 days and, as the delay extends, it establishes an intensifying presumption of prejudice in Mayes’ favor. This factor favors Mayes’ motion to dismiss. Factor Two: The Reason for the Delay ¶9 A court reviewing a speedy trial claim does not consider in its analysis any action by either the State or the accused which does not postpone the trial date. Ariegwe, ¶ 63. The reviewing court must consider the cause and motive, or reason, behind the particular delay. Ariegwe, ¶ 67. Deliberate delays designed to undermine the defense are heavily weighed, while negligent or institutional delays are weighed less heavily. Ariegwe, ¶ 68. Institutional delays are those inherent in the criminal justice system, and beyond control of prosecutors. Ariegwe, ¶ 68. Negligence is equated with a lack of diligence in bringing the accused to trial. Ariegwe, ¶ 69. ¶10 We have previously recognized that where the State knows the State Crime Lab is significantly backlogged, the failure to inquire about independent lab analysis or other options constitutes a lack of diligence, even when the backlog is due to circumstances beyond the control of the prosecutor. State v. Velasquez, 2016 MT 216, ¶¶ 19-20, 384 Mont. 447, 377 P.3d 1235. In Velasquez, an accused facing felony drug charges was incarcerated in Roosevelt County Jail the entire 309 days he awaited trial. Weeks before his first trial date, the State moved for a continuance because the lab analysis of the evidence had not been completed. As here, the State Crime Lab had informed the State that evidentiary samples were backlogged by an estimated nine months. The District Court granted the continuance despite Velasquez’ objection that he would be denied his right to a speedy trial. The District Court granted two more continuances to allow for completion of lab results. In denying Velasquez’ speedy trial motion, the District Court categorized the delay as institutional, and not attributable to negligence or lack of diligence on the part of the State. Velasquez, ¶¶ 1-5. We reversed, concluding that the failure of the State to pursue possible alternatives to testing at the State Crime Lab, coupled with the State’s awareness that the lab was backlogged by nine months, constituted a lack of diligence which weighed more heavily against the State and tipped the prejudicial scale in favor of the defendant in the Ariegwe analysis. Velasquez, ¶¶ 51-53. ¶11 As in Velasquez, the District Court here mischaracterized the prosecution’s inaction in submitting the sample as part of “the ordinary time required to initiate and prosecute a felony criminal action.” The delay in Velasquez—309 days—and the delay here—279 days—both resulted from the State’s failure to obtain a lab analysis necessary to prosecute a simple drug possession charge. The focus in both Velasquez and here is the State’s failure to take affirmative measures to move its case to trial and not the conduct of the lab. Furthermore, here, the delay by the State of 102 days in submitting the sample weighs more heavily against the State than in Velasquez because the State was in control of the sample and the timetable for its submission to the lab. Although the delay remains unexplained, we decline to adopt Mayes’ position, on this record, that the State’s actions amounted to a deliberate bad faith effort to prejudice the defense. However, we cannot characterize the delay as merely a lack of diligence by the State when, all other considerations aside, failing to submit the sample constituted over one-half of the time necessary to trigger a speedy trial inquiry. Indeed, as the United States Supreme Court has cautioned, the speedy trial factors that make up our Ariegwe test “have no talismanic qualities.” Ariegwe, ¶ 101 (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 2193 (1972)). We therefore weigh the reason for the delay heavily against the State, but refrain from concluding that there was a deliberate bad faith delay by the State. It is the State’s burden to bring the accused to trial and a defendant has no burden to ensure the State’s diligent prosecution of his case. Ariegwe, ¶ 64. Such a burden should not be shouldered lightly by the State, especially when there are legitimate institutional delays, such as crowded dockets and availability of witnesses, which must be accounted for. Here, the record is devoid of any explanation for the State’s failure to submit an evidentiary sample to the lab for 102 days. As such, the reason for the delay weighs heavily against the State. Factor Three: The Accused’s Response to the Delay ¶12 Ariegwe not only requires that the District Court determine whether the accused timely asserted his right to a speedy trial, but also whether he actually wanted a speedy trial, given the circumstances. Ariegwe, ¶¶ 76, 79. We agree with the District Court that Mayes timely asserted his right by objecting to the State’s motion to continue and by filing his motion to dismiss on April 2, 2015. We also agree with the District Court that there is no evidence in the record that the Defendant acquiesced or consented to the delay he endured. ¶13 We are compelled, however, to address the State’s argument that Mayes did not actually want a speedy trial because he ultimately pleaded guilty instead of proceeding to trial. Although Ariegwe acknowledges that a guilty plea stops the speedy trial clock, an accused’s constitutional right to a speedy trial is not compromised by the entry of a guilty plea. See Ariegwe, ¶ 43. It would be a mistake to align these distinct constitutional interests—the right to a speedy trial; the relinquishment of the right to trial; and all other constitutional rights attendant to trial—such that relinquishment of one constitutional right would compromise others that are distinguishably different. Ariegwe does not anywhere diminish the interests of an accused who chooses to enter a plea instead of proceed to trial, and we decline to do so here. Instead, we find that the Mayes met his burden of asserting his right to speedy trial. Factor Four: Prejudice to the Accused ¶14 Under factor four, the reviewing court must examine the interests of the defendant that the speedy trial right was designed to protect. Ariegwe, ¶ 86 (citing Barker v, 407 U.S. at 552, 92 S. Ct. at 2193). The United States Supreme Court enumerated these interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired because of dimming memories and the loss of exculpatory evidence. Ariegwe, ¶ 88 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)). A reviewing court may find prejudice to the accused under any one or all of these factors. Ariegwe, ¶ 88. A. Whether Mayes’ pretrial incarceration was oppressive. ¶15 We have repeatedly recognized that the delay that can be tolerated for a relatively simple street crime is considerably less than, for example, a complex conspiracy charge. Ariegwe, ¶ 91. In State v. Billman, 2008 MT 326, 346 Mont. 118, 194 P.3d 58, Billman was charged with felony DUI and related driving offenses. Billman remained incarcerated and unable to post bail for 278 days while his trial was continued five times because of docket conflicts and a missing witness. Billman, ¶¶ 4-6. We recognized that Billman’s time incarcerated represented a “considerable amount of delay” and required the State to make a compelling and persuasive showing that this amount of delay did not prejudice him. Billman, ¶ 18. Even though Billman did not challenge the conditions of his incarceration, we found that the length of his incarceration in conjunction with the simple charges he faced sufficed to establish prejudice against him. Billman, ¶ 41; see also Velasquez, ¶ 35. Here, Mayes prosecution was also for a simple charge: possession of dangerous drugs. The charge against Mayes had only two elements: (1) possession; (2) of dangerous drugs. Section 45-9-102, MCA (2013). Therefore, the delay, ostensibly for the purpose of establishing the syringe contained a dangerous drug, is less tolerable and weighs against the State. ¶16 Mayes’ case additionally raises concerns regarding foregone rehabilitative opportunities, such as drug treatment and counseling, which we have not previously considered in the speedy trial balancing analysis. These considerations are most appropriately made in the context of whether the pretrial incarceration has been oppressive. The District Court determined that, as of Mayes’ December 11,2015 parole hearing, Mayes’ incarceration was due to his parole violation and not the pendency of the new drug charges. On that basis, the court concluded that it “cannot find that the Defendant’s pretrial incarceration has been oppressive under the circumstances. He was subject to continued custody regardless of the fact that the original trial date was vacated.” ¶17 We disagree with both the court’s finding of fact and its application of the law when it determined Mayes was not prejudiced because he was incarcerated pursuant to a parole violation. The record establishes that Mayes would not receive a disposition on his parole violation while the new charges in the instant proceedings remained unresolved. At Mayes’ probable cause hearing for his parole violation, held the day before he met with the parole board, Mayes’ parole officer advised, “[a]ny sanction I would impose, would be determined by... the outcome of those pending charges. ... IB lasically what I am telling you [Mayes] is that you’re stuck here [in Butte-Silver Bow county jail] until those [charges] are adjudicated.” The record further establishes that Mayes was prescreened and accepted for Connections Corrections, followed by pre-release, but that such a placement could not occur until resolution of the new possession charges. Similarly, Mayes was an appropriate referral for NEXUS, but any placement would not occur until resolution of the new felony charges. Parole Officer Martin testified at the speedy trial hearing and explained Mayes’ situation succinctly: Q: Now going to the December 11 [parole board] hearing, what was the result of that hearing? A: There was probable cause found by the Hearings Officer Kelley that the [parole] violations had occurred, and he was ordered to be returned back before the Board of Pardons and Parole. Q: Now, from August 7, the date of his arrest, until currently, has he been able to apply for or enter any programs that the DOC offers? A: I had him pre-screened for Connections prior to his arrest on August 7. And then after his arrest..., he was pre-screened at the Great Falls Pre-Release Center and accepted. Q: Okay. But he couldn’t go to those programs because of the August 7 arrest? A: Yes, sir. Q: Okay. While he’s been in the county jail, could he apply for any other DOC type of programs? A: Yes. Q: Like what? A: We could screen him for NEXUS, pre-releases and that, just getting that process taken care of for the outcome of the pending charges. Q: So even though he may have applied for the programs, he couldn’t go until these charges are resolved? A: No. No. He could not go. He’s not eligible for community placement until the felony charges are adjudicated or dismissed. ¶18 Mayes has established that he was prescreened and accepted for at least one rehabilitative drug program, followed by a community placement, which he could have participated in but for his incarceration in the county jail on new drug charges. We further observe that the sentence Mayes received was imposed concurrently to the sentence he received his at parole hearing and for which his parole officer recommended participation in a drug rehabilitation program followed by community placement. It appears counterproductive, to say the least, to delay drug rehabilitation treatment for an offender obviously suffering from a drug addiction in order to test the substance in a syringe recovered from his person—submission of which did not occur for 102 days, or nearly twice as long as it would take for the offender to complete treatment at Connection Corrections. ¶19 We consider efforts to rehabilitate drug addiction as important, and opportunities to receive treatment are frequently limited, requiring many circumstances to align to effectuate the treatment opportunity. Here, the record established that Mayes had such an opportunity; he had been prescreened and could be placed in a drug rehabilitation program. However, the pending possession charges in the instant proceedings prevented him from doing so. In contrast to the speculative prospects for rehabilitation presented in State v. Betterman, 2015 MT 39, 378 Mont. 182, 342 P.3d 971, aff'd, Betterman v. Montana, _ U.S. _, 136 S. Ct. 1609 (2016), Mayes has met his burden of establishing the availability and placement into drug rehabilitation programs which he was unable to realize because of the pending new drug charges. Thus, we consider the inability of Mayes to participate in drug rehabilitation as a consideration of oppressive pretrial delay and weigh it against the state. B. Whether Mayes’ anxiety and concern was caused by or aggravated by the delay. ¶20 “[T]he crucial question here is whether the delay in bringing the accused to trial has unduly prolonged the disruption of his or her life or aggravated the anxiety and concern that are inherent in being accused of a crime.” Ariegwe, ¶ 97 (citing United States v. Macdonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982)). In evaluating this interest, the court may infer from evidence that the unresolved charges disrupted the accused’s life, causing him anxiety and concern that led to prejudice. Ariegwe, ¶ 97. But a certain amount of disruption when facing criminal charges is to be expected, and finding prejudice from anxiety and concern hinges on duration and intensity. Ariegwe, ¶ 97. ¶21 Here, the record shows that Mayes alleged anxiety and concern. Mayes alleged that he suffered financially from his incarceration in that he was not employed, and was not able to graduate from college on time with his peers. He alleged that he suffered depression and emotional impairment as the result of his extended confinement. Although Mayes alleged a number of ways he has suffered anxiety and concern, he failed to present any evidence to the District Court to support his allegations. Ariegwe permits a reviewing court to infer from evidence that unresolved charges have disrupted the accused’s life, but Mayes failed to set forth any additional evidence for review under this factor. While Mayes’ testimony alone of his anxiety and concern is evidence for the court to consider, we attribute little, if any, prejudice to Mayes on this factor. C. Whether the accused’s defense was impaired. ¶22 Preventing impairment of the defense remains the most serious interest the speedy trial right was designed to protect. Ariegwe, ¶ 98. Even though this interest focuses on specific aspects of potential impairment, such as witness reliability and evidence spoliation, an accused who fails to set forth any evidence of specific impairment is not precluded from a finding of prejudice. Ariegwe, ¶¶ 99-100. Rather, a lack of evidence showing impairment allows the court to focus on other speedy trial factors to determine whether the pretrial delay has prejudiced the defense. Billman, ¶ 47. The extent to which an accused may rely on the presumption of prejudice depends on the extent to which the delay exceeds the 200 day trigger date. Ariegwe, ¶¶ 51, 151. ¶23 In Ariegwe, we concluded that Ariegwe’s delay of208 days past the trigger date (408 days total) required the State to make a compelling justification for the delay, and a persuasive showing that he had not been prejudiced by the delay. Ariegwe, ¶¶ 123, 151. However, we further concluded that the extent of that delay, substantial as it was, did not completely absolve Ariegwe from showing at least some particularized prejudice. Ariegwe, ¶ 151. By contrast, we concluded in Velasquez that a record with only a modicum of evidence showing an impaired defense would suffice to adequately support presumptive prejudice and direct a reviewing court to analyze the other factors. Velasquez, ¶¶ 48-50. Similarly, in Billman, we acknowledged the accused’s failure to submit affirmative proof of prejudice would not be fatal to the defendant’s speedy trial claim and would instead focus our attention on other factors. Billman, ¶ 47; see also State v. Butterfly, 2016 MT 195, ¶ 38, 384 Mont. 287, 377 P.3d 1191 (“[C]onsidering the lack of evidence of impairment in light of all other factors, we conclude Butterfly was not prejudiced by the delay.”); State v. Redlich, 2014 MT 55, ¶ 53, 374 Mont. 135, 321 P.3d 82 (affirming the District Court’s ruling that there was no prejudice to the defendant where he alleged a defense impairment, but provided no detail how exactly his defense was hindered); State v. Zimmerman, 2014 MT 173, ¶ 37, 375 Mont. 374, 328 P.3d 1132 (concluding that there was no prejudice despite the defendant’s mere allegation of a defense impairment where witness memories were marginally dimmed by the erosion of time, but events were easily reconstructed by video evidence). ¶24 Here, the District Court found that Mayes failed to identify any evidence showing that potential evidence was lost, that witnesses have become unavailable, or that Mayes demanded an independent examination of the evidence. Indeed, the court found, “the Defendant has not alleged or shown any specific limitation on his ability to present an effective defense.” We agree with the District Court. Although “consideration of prejudice is not limited to the specifically demonstrable,” the complete lack of evidence that the defense was impaired should be considered under the totality of the circumstances. Ariegwe, ¶ 151 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93). Here, Mayes’ inability or unwillingness to substantiate with evidence other than his own allegations some impairment to the defense weighs in favor of the State. Balancing the Factors ¶25 Whether the accused was deprived of his right to a speedy trial is determined by the facts of the case and by weighing each of the factors addressed above. Zimmerman, ¶ 38. We conclude that the State’s failure to submit the lab analysis for 102 days following Mayes’ arrest, while not proven to be in deliberate bad faith, weighed very heavily against the State in the balancing of Areigwe factors. These charges were simple and the State’s reasons for delay, backlog at the State Crime Lab and an unexplained failure to timely submit the evidence, were insufficient when balanced against rehabilitative opportunities Mayes was unable to participate in as a result of the unresolved drug charges. When we consider the State’s reason for the delay, the simplicity and nature of the charges, the prejudice to Mayes by his inability to participate in drug rehabilitation programs and community placement, in conjunction with Mayes’ obvious need for treatment, we conclude that Mayes was denied his right to a speedy trial. ¶26 The remedy for violation of a speedy trial is dismissal of the charges. Betterman, ¶ 24. We therefore reverse the District Court’s denial of Mayes’ motion to dismiss and remand for dismissal of the charges. JUSTICE SHEA, WHEAT and COTTER concur. Mayes also raises on appeal the District Court’s failure to credit his period of incarceration with 125 days. Based upon our resolution of the speedy trial issue, it is unnecessary to address Mayes’ second issue. See State v. Ariegwe, 2007 MT 204, ¶ 41, 338 Mont. 442, 167 P.3d 815.

Affirmed Dist. 8 (Cascade)

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Appellant Geremy Lee Pepper (Pepper) appeals from an order entered in the Twenty-Second Judicial District Court, Carbon County, denying his motion to dismiss. The issue to be determined on appeal is whether Pepper’s statutory right to speedy trial guaranteed under § 46-13-401(2), MCA, was violated. We affirm. PROCEDURAL BACKGROUND ¶2 Pepper was charged with two counts of theft and two counts of deceptive practices in the City Court of Red Lodge on March 26, 2014. The charges alleged that Pepper made purchases on two credit cards that did not belong to him. Pepper pleaded not guilty to the offenses on April 3, 2014, at his initial appearance. ¶3 The City Court issued its first scheduling order on April 25, 2014, directing the Appellee City of Red Lodge (City) to provide discovery by May 22, 2014; setting an omnibus hearing for July 3, 2014; setting a motions hearing for July 31,2014; and a jury trial for August 15,2014. ¶4 The City provided Pepper with some discovery on April 16, 2014. However, missing from that discovery was a recorded interview of Pepper, recorded interviews of several witnesses; a video that allegedly showed one of the criminal acts; written statements from Pepper and a witness; and a police report. On June 19,2014, Pepper’s counsel sent a letter to the City’s attorney informing her of the several key pieces of missing discovery which had not been provided in compliance with the court’s scheduling order. Pepper’s counsel also communicated to the City’s attorney by email that given the amount of discovery outstanding, she planned to continue the omnibus hearing, “along with other deadlines in the Scheduling Order,” and asked if there was any objection. The City’s attorney did not object. ¶5 On July 3,2014, Pepper filed a Motion to Vacate Scheduling Order and Reset Omnibus. The motion detailed the numerous items of discovery still not produced by the City, and requested “the Court to vacate the deadlines in the April 25, 2014 Scheduling Order and reset the omnibus hearing in this matter.” Pepper’s counsel indicated that “Igliven the dearth of information currently in Defendant’s possession, Defendant does not have the ability to address the issues that should be discussed during the omnibus hearing.” The court granted Pepper’s motion and rescheduled an omnibus hearing for August 7, 2014, but did not vacate or address any of the other dates set forth in the April 25, 2014 scheduling order. ¶6 On July 15,2014, Pepper’s counsel sent another email to the City’s attorney and inquired, again, of the missing discovery. The City responded that the officer involved in the case had been on vacation, but that the missing discovery would be provided shortly. Pepper subsequently received the City’s entire discovery on July 30, 2014. Thereafter, on August 6, 2014, Pepper filed a Motion for Scheduling Order requesting a new motions deadline; new motions hearing; and a new trial date. Pepper represented that he now had the necessary discovery to prepare his motion to suppress. ¶7 On August 8, 2014, the City Court issued a second scheduling order that set a motions deadline of August 21, 2014; an omnibus hearing of September 11, 2014; a final pretrial hearing of September 25, 2014; and a jury trial of September 26, 2014. ¶8 On September 16, 2014, the City filed a motion to continue trial, representing that one of its witnesses had moved to Arizona and that the jury trial date of September 26, 2014, did not allow sufficient time to purchase an airline ticket without being cost prohibitive. Pepper objected to any continuance. The court addressed the City’s request for continuance at the motions hearing and inquired whether any party had previously moved for a continuance. In response to the City’s representation that he had previously requested a continuance, Pepper maintained that he had to ask for the continuance in order to prepare his motion to suppress because the City had not complied with discovery deadlines previously imposed by the court. After considering that the City Attorney was not available for trial on dates which would have been within the six-month statutory speedy trial deadline—as well as the need for the court to have adequate time to consider the motion—the court set Pepper’s jury trial for October 31, 2014, nearly one month outside the six-month statutory speedy trial period. ¶9 On October 23, 2014, Pepper filed a motion to dismiss due to a violation of his statutory six-month speedy trial right. The City Court denied Pepper’s motion, concluding that the speedy trial statute was inapplicable because Pepper had requested a new scheduling order. Additionally, the court found good cause because of the financial hardship to secure a material witness and the need to consider and resolve Pepper’s motion to suppress, which was more complicated than initially appeared from the written submissions of the parties. ¶10 Pepper was tried on October 31, 2014, and found guilty of one count of deceptive practices. Following imposition of sentence in City Court, Pepper appealed his conviction to the District Court. The District Court stayed Pepper’s sentence pending the outcome of his appeal. Pepper challenged on appeal, among other issues, the City Court’s denial of his motion to dismiss for violation of his statutory speedy trial right. The District Court affirmed the City Court’s order. Pepper appeals to this Court the denial of his statutory speedy trial right under § 46-13-401(2), MCA, and to conform the oral pronouncement of his sentence with the written judgment. STANDARDS OF REVIEW ¶11 On appeal from a municipal court, the district court functions as an intermediate appellate court. Sections 3-5-303, 3-6-110, MCA; City of Kalispell v. Gabbert, 2014 MT 296, ¶ 12, 377 Mont. 17, 338 P.3d 51. In its appellate capacity, the district court is confined to review of the record and questions of law. Section 3-6-110, MCA; Gabbert, ¶ 12. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. Gabbert, ¶ 12; City of Helena v. Broadwater, 2014 MT 185, ¶ 8, 375 Mont. 450, 329 P.3d 589. ¶12 Whether the statutory right to a speedy trial has been violated is a question of law. Gabbert, ¶ 13; State v. Luke, 2014 MT 22, ¶ 10, 373 Mont. 398, 321 P.3d 70; State v. Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132. We review the trial court’s legal conclusions to determine whether the court’s interpretation of law is correct. Gabbert, ¶ 13. The trial court’s underlying factual findings are reviewed to determine whether those findings are clearly erroneous. Gabbert, ¶ 13. DISCUSSION ¶13 Pepper argues that his right to a speedy trial pursuant to § 46-13-401(2), MCA, was violated. Section 46-13-401(2), MCA, provides: After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months. ¶14 This Courthas explained that § 46-13-401(2), MCA, mandates the dismissal of any misdemeanor charge not brought to trial within six months only if two conditions are met: (1) the defendant has not asked for a continuance; and (2) the State has not shown good cause for the delay. City of Helena v. Roan, 2010 MT 29, ¶ 9, 355 Mont. 172, 226 P.3d 601. We have also explained that “any pretrial motion for continuance filed by a defendant which has the incidental effect of delaying the trial beyond the six month time limit could be said to ‘postpone trial’ for purposes of § 46-13-401(2), MCA.” State v. Fitzgerald, 283 Mont. 162, 166-67, 940 P.2d 108, 111 (1997). In Fitzgerald, the defendant filed two requests to continue the omnibus hearing which had the incidental effect of continuing the trial. Although finding that the trial date fell within the “good cause to the contrary exception” of § 46-13-401(2), MCA, this Court rejected Fitzgerald’s suggestion that we limit the statutory speedy trial right to only those cases where a defendant specifically requests that a trial date be extended beyond the six-month period. In City of Helena v. Heppner, 2015 MT 15, ¶ 16, 378 Mont. 68, 341 P.3d 640, however, we specifically determined the statutory speedy trial right is inapplicable where a defendant files a motion to vacate his trial date for a change of plea. Because Heppner had moved to vacate the initial trial date for a change-of-plea hearing and then moved, first individually and then jointly with the State, to continue the change-of-plea hearing, we determined that Heppner’s actions removed him from the statutory protections of § 46-13-401(2), MCA. ¶15 Pepper filed a motion to continue the omnibus hearing and requested that all of the dates in the scheduling order be vacated. These dates included the motions hearing and scheduled trial date. Although Pepper argues he was forced to request the continuance because the City had not provided its discovery in time for him to prepare his motion to suppress, Pepper could have raised any discovery violations at the omnibus hearing without implicating or otherwise jeopardizing his statutory right to a speedy trial under the statute. In light of the clear and unequivocal language of § 46-13-401(2), MCA, which conditions mandatory dismissal on the defendant having not previously filed a motion which causes the trial to be postponed, Pepper should have availed himself of other options: for example, a motion to compel discovery or a motion for sanctions. Instead of pursuing either of these options, Pepper chose to file a motion to vacate all of the scheduled dates, including the trial date. ¶16 The plain language of § 46-13-401(2), MCA, allows for dismissal on speedy trial grounds only if “trial has not been postponed upon the defendant’s motion.” Here, it is undisputed that Pepper filed at least one motion to continue and to vacate the trial date. Therefore, under the plain language of the statute, Pepper is not entitled to rely on § 46-13-401(2), MCA, for dismissal of his charges. ¶17 Asa final matter, Pepper maintains his written judgment does not accurately reflect the sentence the City Court imposed and requests this Court to order the City Court to amend the written judgment. At Pepper’s sentencing hearing, the City Court sentenced Pepper to six months at Yellowstone County Detention Facility (YCDF), with all but twenty days suspended, and did not prevent Pepper from participating in the YCDF work program. The written judgment, however, orders Pepper to serve six months at YCDF “with all but twenty (20) days of jail unsuspended” and that the “work program at YCDF is not authorized.” The State has not responded to this issue. As the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and the oral pronouncement controls, State v. Lane, 1998 MT 76, ¶ 40, 228 Mont. 286, 957 P.2d 9, we remand for correction of the written judgment. See also § 46-18-116(3), MCA. CONCLUSION ¶18 The City Court did not err in determining that Pepper waived his right to the six-month speedy trial requirement of § 46-13-401(2), MCA, when he filed on July 3, 2014, his motion to vacate the scheduling order and to reset the omnibus hearing. Because Pepper filed a motion to vacate the scheduling order which included the trial date, he may not avail himself of the statutory protections afforded by § 46-13-401(2), MCA. For this reason, it is not necessary to address whether the City had good cause for continuing the September 26, 2014 trial date. ¶19 The order of the District Court affirming the City Court’s denial of Pepper’s motion to dismiss is affirmed. We remand, however, for correction of the written judgment to conform to the City Court’s oral pronouncement of Pepper’s sentence. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER and RICE concur. We remand for the limited purpose of conforming the written judgment to the oral pronouncement of Pepper’s sentence.

Denied Original Proceeding Supervisory Control

JUSTICE SHEA delivered the Opinion of the Court. ¶1 C.V. appeals from a May 8, 2015 Order of the Seventh Judicial District Court, Dawson County, granting the State’s petition for involuntary commitment. ¶2 We address the following issues on appeal: Issue One: Whether the District Court erred in finding there was sufficient evidence to commit C.V. to the Montana State Hospital. Issue Two: Whether C.V.’s right to remain silent was violated. Issue Three: Whether C.V.’s right to due process was violated. ¶3 We affirm in part and reverse in part. PROCEDURAL AND FACTUAL BACKGROUND ¶4 On April 29, 2015, the Dawson County Attorney petitioned the District Court for the involuntary commitment of C.V., alleging that as the result of a mental disorder, she was unable to provide for her own basic needs of safety, there was an imminent threat of injury to herself or others, and her recent acts or omissions would, if untreated, predictably result in deterioration of her mental condition to the point at which she would become a danger to herself or others or would be unable to provide for her own basic need of safety. The petition included mental health professional Albinus Heidt’s report detailing his diagnosis of C.V. with a delusional disorder, and his conversations with two complaining witnesses, Tara Oakland and Kristin Thompson, regarding their interactions with C.V. ¶5 Mr. Heidt met with C.V. at the Glendive Medical Center to conduct a mental health evaluation, in which C.V. chose not to participate. In rambling speech and tangential responses to Mr. Heidt’s questions, C.V. denied any serious mental illness, and communicated that she believed an acquaintance, Cy Wyse, was cheating her out of money and the Oakland family was blacklisting her from employment. C.V. was unable or unwilling to tell Mr. Heidt where she lived. When Mr. Heidt asked C.V. whether she was employed, she replied that this information “was either secret or confidential and she could not divulge that” to him. Mr. Heidt received information about C.V. from Oakland, Thompson, Wyse, Katie Mills of the Dawson County Sheriffs Office, and Dr. Joe Leal, C.V.’s treating physician. Because C.V. refused to participate in the mental health evaluation, Mr. Heidt relied heavily on information from these other sources—which included interviews with complaining witnesses and documents filed with Sheriff s Office by the complaining witnesses andC.V., herself—to reach his diagnosis that C.V. suffers from a delusional disorder. ¶6 The District Court found the petition established probable cause that C.V. suffers from a mental disorder that requires her commitment. Between April 30 and May 8,2015, an initial hearing, an adjudicatory hearing, and a dispositional hearing were held. ¶7 At the initial hearing on April 30, 2015, C.V. argued the State did not have probable cause to file the commitment petition, and the District Court proceeded with the hearing to establish probable cause at which Mr. Heidt, Thompson, and Oakland testified. ¶8 Mr. Heidt testified as an expert witness and mental health professional regarding his diagnosis of C.V.’s delusional disorder, and that her own safety and the safety of others were at risk because of her delusional disorder. Mr. Heidt stated that C.V. does not recognize that she has a delusional disorder, and explained that a person with a delusional disorder distorts reality. When asked how a person with a delusional disorder is affected, Mr. Heidt testified: “What happens is that the individual ends up—in this case ends up saying and doing things which has [sic] been escalating other people in the community to become scared for their own safety and the safety of their children.” The District Court scheduled the commitment hearingfor May 4,2015, and appointed Cindy Heidt as the professional person ordered to conduct a mental health evaluation and submit a written report. The District Court appointed Linda O’Connor as C.V.’s Appointed Friend. ¶9 At the initial hearing, Thompson, the office manager for Oaks Disposal Trucking, testified that C.V. has repeatedly called Oaks Disposal Trucking regarding employment despite being told there were no openings. Thompson stated C.V. would berate and harass her and other employees during phone calls and messages to the point Thompson considered quitting her job. During one voice message, C.V. stated she knew Thompson’s home address, which caused Thompson concern for her family’s safety. Thompson stated she was seeking an order of protection against C.V., and although she had never seen C.V. in person before the hearing on April 30, 2015, their interactions over the phone caused Thompson to change her behavior when out in the community. ¶10 Oakland, the owner of several businesses in the community including Oaks Disposal Trucking, also testified at the initial hearing. Oakland stated C.V. frequently called seeking employment or trying to contact Wyse, who does not work for any of Oakland’s businesses, and that C.V.’s calls always reverted to complaining about a car and asserting that Wyse owed her money. When C.V. called demanding a job application for driving trucks, Oakland informed C.V. that Oakland does not own or work for the trucking business and instructed her to not call back. Oakland testified C.V. called up to five times a day every couple of months since July 2013, and the intensity of the calls increased over the last two months. C.V. also called Oakland’s father-in-law’s insurance company and Oakland’s accountant. C.V. demanded a W-2 form from Oakland’s accountant even though C.V. was never employed by Oakland’s businesses. Oakland testified C.V. filed three complaints with federal agencies regarding employment with Oakland’s businesses, and made false allegations to those federal agencies and local law enforcement. Oakland stated that the phone calls and complaints caused her to alter her activities because she was concerned C.V.’s behavior was escalating. ¶11 Finding unrebutted testimony that C.V. suffers from a delusional disorder, the District Court found C.V. posed an imminent threat of injury to herself and others, noting: “[WJhile she may not be a direct risk to others or herself, the danger in part is the response of the people that she’s stalking and harassing and how they’re going to react to protect themselves.” ¶12 On May 4, 2015, Ms. Heidt filed her report with the District Court, and at the May 4,2015 adjudicatory hearing, Ms. Heidt testified to a reasonable degree of medical certainty that C.V. suffers from a delusional disorder mixed type with grandiose and persecutory features. Ms. Heidt explained the delusional disorder is a thought disorder and available treatment includes antipsychotic medications, teaching reality thinking and cognitive types of therapy. Ms. Heidt testified there was an imminent threat of injury to C.V. as a result of her delusional disorder because: Some of the things that she’s been doing is going to people’s places and she has gone to Mr. Wyse’s home on several occasions at night and sometimes when he has been sleeping. And that could be a danger either to him or to herself because sometimes people, if they don’t know and there is a prowler, sometimes they protect themselves. And that would be a significant concern. Based on her observations of C.V. and C.V.’s refusal of treatment at the Glendive Medical Center, which lacks a psychiatric ward, Ms. Heidt stated C.V. required treatment at the Montana State Hospital due to the escalation of C.V.’s behavior and the risk she posed to herself and others. ¶13 Also on May 4, 2015, O’Connor filed her report with the District Court. C.V. refused to speak with O’Connor, and referred O’Connor to her attorney. O’Connor’s report had to rely on documents provided by the County Attorney detailing C.V.’s activities and behavior. At the adjudicatory hearing, O’Connor recommended C.V. be committed for treatment. ¶14 At the May 8, 2015 dispositional hearing, the State called Ms. Heidt to testify regarding her recommendations, and C.V. called one lay witness, Charles Nemec, to testify regarding his interactions with C.V. Ms. Heidt recommended C.V. be placed at the Montana State Hospital for treatment. Nemec testified that he previously evicted C.V. from an apartment for having an unauthorized dog, and found C.V.’s apartment to be well kept and her demeanor under the circumstances very pleasant. Following the dispositional hearing, the District Court issued its written findings of facts, conclusions of law, and order of commitment (Order). The District Court found C.V. suffers from a delusional disorder and that there was an imminent threat of injury to herself or others from C.V.’s acts or omissions. The District Court committed C.V. to the Montana State Hospital for a period not to exceed ninety days as the least restrictive placement because no alternative treatment exists within the community. STANDARDS OF REVIEW ¶15 We review a district court’s civil commitment order to determine whether the court’s findings of fact are clearly erroneous and its conclusions of law are correct. In the Matter of S.L., 2014 MT 317, ¶ 20, 377 Mont. 223, 339 P.3d 73. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if we are left with a definite and firm conviction that a mistake has been made after reviewing the entire record. S.L., ¶ 20. We view the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court's findings. In the Matter of the Mental Health of A.S.B., 2008 MT 82, ¶ 17, 342 Mont. 169, 180 P.3d 625 (citation omitted). Due process claims arising from an involuntary civil commitment are subject to plenary review. In the Matter of M.K.S., 2015 MT 146, ¶ 10, 379 Mont. 293, 350 P.3d 27. DISCUSSION ¶16 Issue One: Whether the District Court erred in finding there was sufficient evidence to commit C.V. to the Montana State Hospital. ¶17 C.V. argues the District Court erred in concluding that the State met its burden to commit her to the Montana State Hospital because the mental health professionals’ reports relied on sources that contained hearsay and the complaining witnesses did not sufficiently substantiate that C.V. posed an imminent threat of harm to herself or others. See § 53-21-126, MCA; see also In the Matter of the Mental Health of T.J.D., 2002 MT 24, 308 Mont. 222, 41 P.3d 323; In the Matter of the Mental Health of D.L.T., 2003 MT 46, 314 Mont. 297, 67 P.3d 189, overruled on other grounds by Johnson v. Costco Wholesale, 2007 MT 43, ¶ 16, 336 Mont. 105, 152 P.3d 727. C.V. contends that because neither Thompson nor Oakland testified that C.V. made an articulated or specific threat during her phone calls and they saw C.V. in person for the first time during the April 30, 2015 initial hearing, their testimony failed to meet the statutory standard of showing an imminent threat to self or others. C.V. also contends the mental health professionals relied on hearsay information regarding C.V.’s interactions with Wyse to form the bases of their opinions, and without that inadmissible hearsay, their opinions were not sufficient to show C.V. posed an imminent threat of harm to herself or others. See D.L.T., ¶¶ 16-17; T.J.D., ¶ 14. ¶18 The State argues C.V. failed to raise any timely objections, including hearsay objections, to the mental health professionals’ delusional disorder diagnosis during the District Court proceedings, and therefore waived appellate review of the hearsay claims. See In the Matter of K.M.G., 2010 MT 81, ¶ 36, 356 Mont. 91, 229 P.3d 1227. The State also argues any alleged inadmissible hearsay that Ms. Heidt relied on to diagnose C.V. and formulate her opinion was harmless error, because Ms. Heidt relied on other evidence that was not hearsay, including witness testimony and admissions filed by C.V. with the clerk of court. See M. R. Evid. 801(d)(2); A.S.B., ¶ 36. ¶19 In involuntary commitment cases, the district court must find the respondent suffers from a mental disorder to a reasonable medical certainty, and then determine whether the respondent requires commitment. Section 53-21-126, MCA. To determine whether the respondent requires commitment, the court considers criteria listed in § 53-21-126(1), MCA. Satisfaction of any of the criteria justifies commitment. Section 53-21-127(7), MCA. The State relied on the two following criteria in this case: (c) whether, because of a mental disorder, there is an imminent threat of injury to the respondent or to others because of the respondent’s acts or omissions; and (d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the respondent will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety. Predictability may be established by the respondent’s relevant medical history. Section 53-21-126(1)(c)-(d), MCA. ¶20 The standard of proof in a hearing on an involuntary commitment petition is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters. Section 53-21-126(2), MCA; A.S.B., ¶ 23. “Imminent threat of self-inflicted injury or injury to others must be proved by overt acts or omissions, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” Section 53-21-126(2), MCA; A.S.B., ¶ 23. ¶21 Pursuant to § 53-21-126(2) and (4), MCA, the State is obligated to introduce evidence of the Respondent’s recent overt acts or omissions separate from the professional person’s testimony. D.L.T., ¶¶ 16-17. “The written report of the professional person indicating the diagnosis ‘may be attached to the petition, but any matter otherwise inadmissible, such as hearsay matter, is not admissible merely because it is contained in the report.’ ” T.J.D., ¶ 14 (quoting § 53-21-126(3), MCA). In T.J.D., we held the district court erroneously relied on inadmissible hearsay statements contained in the professional person’s report, and reversed T.J.D.’s commitment because the report’s hearsay information was the only evidence of an imminent threat of injury in the record. T.J.D., ¶¶ 16-18. Similarly, in D.L.T., we held that the district court abused its discretion by admitting hearsay testimony through the professional person, who was the only witness at the hearing, and solely relying on that inadmissible hearsay testimony as sufficient evidence to support D.L.T.’s involuntary commitment. D.L.T., ¶¶ 10, 18. ¶22 Unlike in T.J.D. and D.L.T., where the State presented evidence about the respondent’s acts through the professional person’s testimony alone, in this case, the State presented additional evidence of C.V.’s overt acts through witness testimony that showed C.V. posed an imminent threat of injury to herself or others and, if left untreated, her mental health would deteriorate. Moreover, Ms. Heidt relied on admissions made by C.V. in filings with the Dawson County clerk of court. M. R. Evid. 801(d)(2) (providing a statement offered against a party that is the party’s own statement is not hearsay). Two witnesses testified C.V.’s harassing phone calls and stalking behavior were escalating, and Ms. Heidt opined these were threats that showed C.V. posed an imminent threat of harm to herself or others and that, if left untreated, C.V.’s condition would deteriorate. Section 53-21-126(l)(c)-(d), MCA. Viewing the evidence in a light most favorable to the State as the prevailing party, we conclude the State met its burden of establishing that C.V. posed an imminent threat of harm to herself or others and that, if left untreated, her condition would continue to deteriorate. The District Court’s finding that there was an imminent threat of injury to C.V. is supported by substantial credible evidence, and is not clearly erroneous. ¶23 Issue Two: Whether C.V.’s right to remain silent was violated. ¶24 C.V. argues both the mental health professionals’ reports and the District Court’s findings relied in part on C.V.’s exercise of her right to remain silent and refusal of a mental health evaluation to determine whether C.V. suffers from a delusional disorder. The State argues C.V. never objected to the reports or the delusional disorder diagnosis during the District Court proceedings. The State also argues C.V. failed to adhere to M. R. App. P. 12(1)(g), which requires an Appellant’s argument “contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statues, and pages of the record relied on.” State v. Gunderson, 2010 MT 166, ¶ 12, 357 Mont. 142, 237 P.3d 74 (holding it is not the Court’s obligation to conduct legal research or develop legal analysis that might support a party’s position). We agree. ¶25 C.V. never raised objections to the mental health professionals’ diagnoses. We generally will not review a claim to which a party has failed to object or otherwise properly preserve for appeal in the district court. K.M.G., ¶ 36. We will not reverse a district court that was not given an opportunity to correct the alleged error. Siebken v. Voderberg, 2015 MT 296, ¶ 19, 381 Mont. 256, 359 P.3d 1073 (citation omitted). C.V. also fails to support her argument that the District Court violated her right to remain silent with any legal authority or legal analysis. Therefore, we hold C.V. waived appellate review of this issue by failing to object during the District Court proceedings. ¶26 Issue Three: Whether C.V.’s right to due process was violated. ¶27 The District Court stated in its Conclusions of Law VII: “Should the Respondent not comply with discharge recommendations from the Montana State Hospital, Warm Springs, the Respondent be immediately taken back to the Montana State Hospital, Warms Springs, Montana to continue treatment.” ¶28 C.V. argues the District Court’s Order gave Montana State Hospital officials the discretion to return C.V. to the hospital for further treatment after discharge if hospital staff determine at any time she does not follow the discharge recommendations in violation of § 53-21-128, MCA, which regulates the extension of the initial three-month commitment period. C.V. asserts that the Order violates due process because it makes no provision for any further hearings or determinations by the District Court as to an alleged violation of the discharge recommendations and leaves commitment to the sole discretion of hospital staff. ¶29 “[I]t is not only counsel for the patient-respondent, but also courts, that are charged with the duty of safeguarding the due process rights of individuals involved at every stage of the proceedings, and must therefore rigorously adhere to the standards ... mandated under Title 53, Chapter 21.” In the Matter of the Mental Health of K.G.F., 2001 MT 140, ¶ 92, 306 Mont. 1, 29 P.3d 485. As we have long held, these statutes must be strictly followed. T.J.D., ¶ 20; D.L.T., ¶ 8. ¶30 Section 53-21-128, MCA, provides extensive due process safeguards for the extension of the initial three-month commitment period: (1) the professional person in charge of the respondent at the hospital must petition the district court for an extension not less than two weeks prior to the end of the three-month commitment; (2) a written report about the respondent’s mental and physical condition must accompany the petition; and (3) the report must include descriptions of the tests, evaluations, and past and future courses of treatment. Once the petition to extend the commitment is filed with the district court: (1) notice must be given to the respondent, next of kin, counsel, and appointed Friend of the respondent; (2) a hearing must be held if requested, which shall follow the same procedure as an original hearing under § 53-21-126, MCA, with the exception of the right to a jury trial; and (3) if no hearing is requested, the district court shall enter an order of commitment not to exceed six months. Section 53-21-128(1), MCA. ¶31 The District Court’s Order provided for no safeguards or due process before allowing for C.V.’s recommitment if it is alleged that she has failed to comply with discharge recommendations. Section 53-21-127(4), MCA, provides: “[ejxcept as provided in [§ 53-21-127(3)(b)(ii), MCA, regarding commitments within the community], a treatment ordered pursuant to this section may not affect the respondent’s custody or course of treatment for a period of more than 3 months.” Once a respondent is discharged after a ninety-day commitment, the State must initiate new proceedings to commit the respondent for treatment again. The District Court erred by allowing for C.V. to be immediately taken back to the Montana State Hospital to continue treatment if she did not comply with discharge recommendations after the ninety-day commitment. CONCLUSION ¶32 For the foregoing reasons, we affirm the District Court’s decision that there was sufficient evidence to commit C.V. to the Montana State Hospital. We reverse and remand to the District Court to strike the condition that C.V. shall be immediately taken back to the Montana State Hospital to continue treatment if she does not comply with discharge recommendations to comply with Title 53, chapter 21, MCA. CHIEF JUSTICE McGRATH, JUSTICES COTTER, BAKER and WHEAT concur.

Affirmed Dist. 1 (Lewis and Clark)

OPINION AND ORDER JUSTICE RICE delivered the Opinion and Order of the Court. ¶1 While the appeal in this matter was pending, Appellees First American Title Company and U.S. Bank Trust, N.A. (Appellees) filed a joint motion requesting an order declaring Appellant John P. Stokes (Stokes) to be a vexatious litigant and requiring either anything he files be pre-approved by the district court or, alternatively, certified by a licensed Montana lawyer in good standing as meritorious under M. R. Civ. P. 11. ¶2 In the appeal, John and Pamela Stokes (Mr. and Mrs. Stokes) challenged an order that had been entered by the Twentieth Judicial District Court, Lake County, Honorable James Manley presiding, which dismissed their lawsuit against the Appellees. We affirmed the District Court’s dismissal order in a memorandum opinion, issued in conjunction herewith. Stokes v. First American Title Co., 2017 MT 274N, DA 17-0161. Mr. and Mrs. Stokes were initially represented by counsel, who withdrew early in the case. ¶3 Article II, Section 16 of the Montana Constitution guarantees every person access to the courts of Montana: “Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character ... Right and justice shall be administered without sale, denial, or delay.” However, the right to access Montana’s legal system is not absolute, and may be limited with the showing of a rational relationship to a legitimate state interest. Peterson v. Great Falls Sch. Dist. No. 1 & A, 237 Mont. 376, 380, 773 P.2d 316, 318 (1989) (collecting cases). ¶4 The Rules of Appellate Procedure provide that litigants can be sanctioned for frivolous or vexatious litigation conduct: The supreme court may, on a motion to dismiss, a request included in a brief, or sua sponte, award sanctions to the prevailing party in an appeal, cross-appeal, or a motion or petition for relief determined to be frivolous, vexatious, filed for purposes of harassment or delay, or taken without substantial or reasonable grounds. Sanctions may include costs, attorney fees, or such other monetary or non-monetary penalty as the supreme court deems proper under the circumstances. M. R. App. P. 19(5). We have previously cited Rule 19 in the imposition of pre-filing orders for vexatious litigants. See, e.g., Hartsoe v. Tucker, 2013 MT 256, ¶¶ 14-18, 371 Mont. 539, 309 P.3d 39. Montana does not have a statute specifically authorizing the imposition of restrictions upon vexatious litigants, but our common law includes such authority. Motta v. Granite Cty. Comm’rs, 2013 MT 172, ¶¶ 19-23, 370 Mont. 469, 304 P.3d 720. In Motta, we cited a five-factor test utilized by the Ninth Circuit Court of Appeal to determine whether a pre-filing order is justified: (1) the litigant’s history of litigation and, in particular, whether it has entailed vexatious, harassing, or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation; e.g., whether the litigant has an objective good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties. Motta, ¶ 20 (citing Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007)). ¶5 Under the first factor, Stokes’ history of litigation in the district courts is significant and has entailed vexatious, harassing, or duplicative lawsuits. Stokes has been before this Court ten times. In several of these cases, Stokes was represented by counsel, and there was no assertion that the appeals had been taken unreasonably. However, Stokes’ pro se appeals have repeatedly been found to be insufficiently presented, including a failure to provide a sufficient record or a failure to raise cognizable arguments, and have usually been affirmed in a memorandum opinion based upon the failure to meet the appellant’s burden. In this matter, we conclude that Mr. and Mrs. Stokes’ appeal was taken without substantial or reasonable grounds. As noted in our memorandum opinion, their briefing lacked citations to the record, citations to authority, and cognizable legal argument. ¶6 Further, the briefing asserted numerous serious and unsupported accusations against party opponents, judges, and officials. With no citation to the record, Mr. and Mrs. Stokes alleged fraud, fabrication, collusion, harassment, and intimidation by their bankruptcy trustees; bias and prejudice by Judge Manley; and that Appellees were a “scam enterprise and laundering front for the Drug Cartel....” The brief also stated that John Stokes personally removed a majority of the judges in Flathead County and implied a threat to initiate a federal suit against Judge Manley in California. We find such serious and wholly unsupported statements to be harassing and vexatious. ¶7 Appellees also attached complaints in four other suits brought by Stokes pro se, one which was entitled “COMPLAINT FOR EMBEZLEMENT [sic], EXTORTION AND DAMAGES.” They include outlandish allegations of a harassing and abusive nature. Appellees quote from district court orders expressing frustration with Stokes’ litigation tactics: Stokes’ brief is a litany of confused “facts,” in which he attempts to intertwine at least three separate lawsuits ... Stokes wholly fails to respond to the Plaintiffs’ argument that Stokes has pled no actual cause of action ... Once again, Stokes mixes motions, relies on outdated case law and in general impermissibly attempts to re-litigate matters ... Stokes seeks to add the individual attorneys and the law firm as third party defendants. He alleges that the individuals and the law firm have prepared false affidavits, have withheld documents in a separate lawsuit, and have a financial interest in continuing the litigation ... Once again, the Court is faced with superfluous pleadings, which have no basis in fact or law and which consume limited Court resources. Gardner v. Stokes, No. DV 07-0729(B) (Mont. 11th Judicial Dist. July 17, 2008). A different district court judge stated, “Stokes has filed an incomprehensible motion, accompanied by an equally convoluted brief...” and concluded it was “yet another example of [Stokes’] blatant disregard of legal procedures and rules.” Anderson v. Stokes, No. DV 01-023C (Mont. 11th Judicial Dist. April 28, 2008). ¶8 Stokes did not file a response to the motion seeking his declaration as a vexatious litigant, but argued in his appellate reply brief that, by citing his filings in other cases, Appellees have offered inadmissible evidence in support of their motion. However, this Court may take judicial notice of other court proceedings, and we do so here. M. R. Evid. 202. While it would be preferable for a pre-filing order to be entered by a trial court upon fact-finding, we cannot ignore vexatious actions, particularly those that occur in this Court. We conclude the first factor of the Motta test is satisfied. ¶9 Under the second factor, we find Stokes does not have an objective good faith expectation of prevailing in the foreclosure matter that was the subject of his appeal. His pro se motions and briefs were procedurally unrecognizable and lacking in proper legal arguments. One federal judge commented: “Stokes is not an attorney, and while he zealously argues his positions, the record of his unsuccessful results in litigation is uniform and speaks for itself.” In re Stokes, No. 09-60265-11, 2009 Bankr. LEXIS 3030, at *52 (U.S. Bankr. D. Mont. Sep. 21, 2009). ¶10 The third factor, whether Mr. Stokes is represented by counsel, is an important consideration here and affects the breadth of the remedy ordered. The vexatious behavior exhibited by Stokes has occurred prevalently while he was acting pro se, exemplified by the present appeal, wherein his counsel withdrew and Stokes thereafter filed a number of harassing pleadings while representing himself. Similarly, in Motta, we concluded that the pre-filing order at issue, which restricted Motta’s pro se filings, was narrowly tailored and appropriately entered. Motta, ¶¶ 17, 22. ¶11 Under the fourth factor, it is clear from the actions described above that Stokes has caused needless expense to other parties and posed an unnecessary burden on the courts. In the litigation at issue in this appeal, Stokes filed an action to prolong the foreclosure process, and then later argued the court lacked jurisdiction to address the very action he initiated, an effort that merely caused confusion and turmoil. ¶12 Finally, we conclude that sanctions other than a pre-filing order would be inadequate. Stokes has previously litigated over significant debt and initiated bankruptcy proceedings. A financial sanction of costs or fees would appear to give a litigant with Stokes’ history little pause in pursuing further vexatious behavior in the courts. Indeed, district courts have imposed such fees on Stokes in the past, with little or no discernible impact. In his appellate briefing here, Stokes has already threatened future litigation against the same parties and the presiding judge. Further, given the broad range of litigation Stokes has brought in multiple judicial districts, we see no way to effectively narrow the pre-filing order to a particular type of claim. ¶13 We conclude the applicable Motto test is satisfied and that the necessity of a pre-filing order has been established when Stokes is litigating pro se. Consistent with the Montana Constitution, an order has a direct relationship to the state interest of protecting other parties from the unnecessary expense of litigating against Stokes and protecting the courts from the unnecessary expenditure of judicial resources. Therefore, ¶14 IT IS HEREBY ORDERED that the joint motion to declare John P. Stokes a vexatious litigant is GRANTED IN PART. Before Stokes can file any pleadingpro se in a Montana district court or the Montana Supreme Court, he is required to obtain pre-filing approval from the court in which he seeks to file. The court may prohibit any such filing upon a determination that the claims asserted are harassing, frivolous, or legally not cognizable. This pre-filing requirement also applies to pro se filings by Stokes in cases where his counsel, if any, has withdrawn from representation of Stokes. Although this order does not apply to Pamela Stokes, courts should not permit John Stokes to engage in vexatious litigation tactics under her name. ¶15 The Clerk of this Court is directed to provide copies of this Order to counsel of record, all Montana district courts, and to John P. Stokes and Pamela J. Stokes, personally. DATED this 7th day of November, 2017. JUSTICES SHEA, SANDEFUR, McKINNON and BAKER concur. Section 37-61-421, MCA, does provide that “[a]n attorney or party to any court proceeding who, in the determination of the court, multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct.” In Motta, we adopted a similar four-factor test to review the entry of a pre-filing order by a trial court, which considered: (1) whether the litigant was given notice and a chance to be heard before the order was entered; (2) whether the trial court has compiled an adequate record for review; (3) whetherthe trial court has made substantive findings about the frivolous or harassing nature of the plaintiff s litigation; and (4) whether the vexatious litigant order is narrowly tailored to closely fit the specific vice encountered. Motta, ¶ 20 (citing Molski, 500 F.3d at 1057-58). We utilized that test and considered the findings entered by the District Court. Motta, ¶ 21. However, because we are here not reviewing the entry of a pre-filing order in the trial court, but instead undertaking initial consideration of the matter based upon the motion made in this Court, we will utilize the five-factor test. We are here only addressing John Stokes’ status as a vexatious litigant, and not Pamela Stokes. Although Pamela has been involved as a co-party in much of John Stokes’ litigation, her status was not raised as part of the motion and we do not consider it here. See Amco Bldg. Sys. v. Stokes, No. 98-635, 2000 MT 66N, 2000 Mont. LEXIS 463; Stokes v. State, 2005 MT 42, 326 Mont. 138, 107 P.3d 494; Anderson v. Stokes, 2007 MT 166, 338 Mont. 118, 163 P.3d 1273; Stokes v. State, 2007 MT 169, 338 Mont. 165, 162 P.3d 865; State v. Stokes, No. DA 06-0629, 2007 MT 318N, 2007 Mont. LEXIS 568; State v. Skyline Broadcasters, Inc., 2009 MT 193, 351 Mont. 127, 211 P.3d 189; Stokes v. Duncan, 2015 MT 92, 378 Mont. 433, 346 P.3d 553; Stokes v. State, No. OP 06-0647, Or. (Mont., Oct. 25, 2006); Stokes v. Anderson, No. OP 06-0756, Or. (Mont., Nov. 29, 2006); and the memorandum opinion in the underlying case here.

Affirmed Dist. 10 (Fergus)

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Elizabeth West, acting as Guardian Ad Litem for Peter Lee, and United Services Automobile Association and USAA Casualty Insurance Company (collectively USAA) dispute the effect of TRICARE medical payment hens on USAA’s responsibility to promptly pay Lee’s liability settlement claim against its insured. Lee asserted that USAA acted in bad faith by conditioning payment on resolving the TRICARE hens. The Eighth Judicial District Court agreed and held USAA liable for its insured’s $1,464,000 consent judgment. ¶2 We conclude that USAA had a reasonable basis in law to condition its payment of policy limits upon resolution of the TRICARE hens, and we therefore reverse. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In December 2012, Lee and three other passengers were injured in a single vehicle accident. Lee sustained catastrophic injuries. The driver, Julian Perez, held a USAA insurance policy. All of the passengers were military servicemen covered by TRICARE, a government insurance program for military members and their families. TRICARE paid medical benefits for the passengers and therefore had a statutory right to recover the benefits it paid. TRICARE’s hens for the passengers’ combined medical expenses totaled over $215,000; more than $204,000 of the total were for Lee’s expenses alone. ¶4 USAA insured Perez under an automobile liability policy with coverage limits of $50,000 per person and $100,000 per accident. After conducting a liability investigation, USAA determined that Perez was 100% at fault for the accident. Because of the extent of Lee’s injuries, USAA informed Perez that he may be potentially liable for damages exceeding his coverage limits. ¶5 On August 21, 2013, Lee’s counsel—who represented all four injured passengers—made a settlement demand on USAA for Perez’s $100,000 policy limits. The letter stated that the offer would be withdrawn and that the claimants would seek to recover all of their damages from USAA if USAA did not agree to pay the policy limits in twenty days. One week later, USAA’s claims examiner contacted Lee’s counsel and offered to pay the full policy limits, provided that the TRICARE liens were addressed. Lee’s counsel immediately responded with a letter stating that his clients would indemnify and hold USAA harmless from any responsibility for the TRICARE liens. ¶6 On September 9, 2013, USAA responded, stating that the offer to indemnify was not sufficient to protect Perez or USAA from the TRICARE liens. USAA confirmed in writing its offer to pay the policy limits, provided either that TRICARE be included as a payee on the settlement check or that Lee’s counsel first secure lien releases from TRICARE. Lee’s counsel followed with a letter two days later, stating that his clients would indemnify both USAA and Perez from any responsibility for the TRICARE liens. The letter gave USAA a deadline of September 21. USAA did not respond by the deadline. In the meantime, both USAA and Lee’s counsel attempted to determine the status of TRICARE’s liens. In early November 2013, USAA received letters from the Air F orce providing notice of its claims and requesting payment of the liens pursuant to 42 U.S.C. § 2651. TRICARE finally agreed to waive its liens at the end of January 2014, and USAA issued a check for the policy limits of $100,000 six weeks later. ¶7 Lee had filed suit against Perez in October 2013, and he continued his suit after receiving the policy limits payment from USAA. In January 2015, Perez agreed to a consent judgment in the amount of $1,464,000, and assigned his claims against USAA to Lee. On behalf of Lee, West filed a separate suit that same month alleging bad faith against USAA. The District Court granted West summary judgment, concluding that USAA did not have a reasonable basis in law for conditioning payment of the settlement check. The court held therefore that USAA was liable to Lee for the consent judgment. USAA filed a motion to alter or amend the judgment that was deemed denied when the District Court did not rule. USAA appeals. STANDARD OF REVIEW ¶8 We review summary judgment rulings de novo, applying the standards set forth in M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs, 2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555; accord State Farm Mut. Auto. Ins. Co. v. Freyer, 2013 MT 301, ¶ 22, 372 Mont. 191, 312 P.3d 403. Generally, questions of reasonableness are factual matters properly answered by the finder of fact. Estate of Gleason v. Cent. United Life Ins. Co., 2015 MT 140, ¶ 60, 379 Mont. 219, 350 P.3d 349; Freyer, ¶ 48. But an insurer’s reasonableness is a question of law for the court to decide when the insurer’s basis in law is grounded on a legal conclusion and no issues of fact remain in dispute. Estate of Gleason, ¶ 60; Freyer, ¶ 48. DISCUSSION ¶9 Whether the District Court correctly concluded that USAA did not have a reasonable basis in law for conditioning the settlement check upon resolution of the TRICARE liens. ¶10 Because insurers have the authority under their policies to settle third-party claims, insurers in Montana have a duty to accept reasonable settlement offers within the policy limits. Freyer, ¶ 46. When an insurer acts in bad faith and “fails to settle a bona fide third party liability claim against its insured, within policy coverage limits,” that insurer “takes the risk of a judgment by the trier of fact in excess of the coverage limits.” Freyer, ¶ 47 (citation and internal quotations omitted). An insurer does not act in bad faith, however, and therefore is not liable, “for failing to settle within policy limits when it had a reasonable basis in law or fact for contesting coverage.” Freyer, ¶ 47. In determining whether an insurer has a reasonable basis in law for contesting coverage, “it is first necessary to survey the legal landscape as it existed during the relevant time period.” Freyer, ¶ 48 (citation and internal quotations omitted). The “determinative question” in our inquiry “is whether the law in effect at the time, caselaw or statutory, provided sufficient guidance to signal to a reasonable insurer that its grounds for denying the claim were not meritorious.” Freyer, ¶ 48. We are not to ask whether we agree “with the plaintiff s theories of liability in the underlying suit but, rather, whether the insurer’s grounds for contesting those theories were reasonable under existing law.” Freyer, ¶ 48 (citation and internal quotations omitted). ¶11 Soon after filing her complaint in this action, West moved for summary judgment. She argued that USAA acted in bad faith by failing to promptly settle the claim. USAA responded, arguing on the authority of Freyer that it had a reasonable basis in law to condition payment of the settlement upon resolution of the TRICARE liens. USAA contended that federal law—specifically 42 U.S.C. § 2651—and our decision in Conway v. Benefis Health Systems, Inc., 2013 MT 73, 369 Mont. 309, 297 P.3d 1200, established TRICARE as a secondary payer and obligated USAA either to include TRICARE as a co-payee or to secure a waiver of the liens before making payment to West. Despite Justice Cotter’s assertion to the contrary, Dissent, ¶ 30, USAA has asserted throughout litigation that the principal issue is whether its grounds for conditioning the settlement payment were reasonable under existing law because TRICARE is a secondary payer. ¶12 The District Court recognized as much, identifying the issue before it as follows: “Did USAA engage in bad faith settlement practices by refusing to pay an admitted liability settlement unless TRICARE was named as a co-payee on Lee’s settlement check or TRICARE waived its statutory lien?” The court ruled that USAA lacked a reasonable basis in law to delay payment of policy limits because of the TRICARE liens. The court focused its analysis on USAA’s condition to include TRICARE as a payee on the settlement check. The court first noted that the parties had not identified any cases “addressing this narrow issue.” It rejected USAA’s reliance on Conway, finding the case not directly on point. The court similarly rejected USAA’s comparison of TRICARE to Medicare because it concluded that Medicare and TRICARE statutes and regulations are distinct. Specifically, the court noted that “unlike the automatic first payer liability imposed ... on Medicare, there is no corresponding provision under TRICARE.” Finally, the court rejected USAA’s reliance on 42 U.S.C. § 2651, which governs the United States’ right to recover incurred medical costs from liable third parties and their insurers. ¶13 The court determined that the federal statute would apply only if the United States had commenced litigation or intervened to enforce its liens; in that case, “USAA would have a compelling argument it properly included TRICARE on the settlement check.” The court also determined that although TRICARE sent USAA notice of its claim and requested payment of the liens, “there is no obligation in the TRICARE regulations requiring USAA to protect the government lien.” “Most pertinently,” the court specified, “there is no requirement that USAA name TRICARE on Lee’s settlement check.” As such, the court concluded that “USAA’s unilateral decision [to include TRICARE as a payee on the settlement check] is without support in statute, regulation, or common law.” ¶14 Further, the court noted that Lee expressly agreed to indemnify USAA, but that “USAA made the unilateral decision to condition its legal obligation to settle Lee’s claims on including TRICARE as a settlement check payee.” Such a condition, the District Court concluded, went against Montana’s public policy regarding settlement of insurance claims. The court emphasized, “When an insurer unilaterally adds a payee to a claimant’s settlement check, the insurer substantially delays settlement, imposes onerous obligations not required by law, and creates unreasonable burdens on a claimant to receive funds the insurer is legally obligated to pay.” Such a result, the court concluded, “is hardly what the Montana legislature intended when it obligated insurers to ‘attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.’ ” (Quoting § 33-18-201(6), MCA.) The court therefore held that “USAA’s decision to condition payment on naming TRICARE as a payee of the settlement funds is unreasonable under applicable law.” As a result, the District Court ordered USAA to pay the entire consent judgment. ¶15 First, the District Court correctly recognized that “a TRICARE lien arises under the Medical Care Recovery Act, 42 U.S.C. § 2651(a).” The Air Force’s November 2013 letters to USAA referenced this section in asserting the United States’ “independent right to recover costs.” But the court incorrectly interpreted the statute. The statute broadly provides that, whenever the United States furnishes benefits to a beneficiary who is injured under circumstances creating a tort liability upon some third person ... to pay damages therefor, the United States shall have a right to recover (independent of the rights of the injured or diseased person) from said third person, or that person’s insurer, the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for and shall, as to this right be subrogated to any right or claim that the injured [beneficiary] ... has against such third person. 42 U.S.C. § 2651(a). By bestowing upon the United States a right to recover from Perez or USAA, 42 U.S.C. § 2651(a) obligated Perez or USAA to honor the TRICARE liens. The same statute allows the United States to enforce its right to recover by “intervenfing]” in or “institutfing] and prosecutfing] legal proceedings against the third person who is liable for the injury ... or the insurance carrier ... responsible for the payment or reimbursement of medical expenses.” 42 U.S.C. § 2651(d). Contrary to the District Court’s conclusion, USAA’s obligation to honor the liens under § 2651(a) did not depend upon the United States already having pursued judicial enforcement under § 2651(d). ¶16 Second, we disagree with the District Court that Conway offers no guidance here. We concluded in Conway that “federal regulations mandate that TRICARE functions as a secondary payer.” Conway, ¶ 32 (citing 32 C.F.R. § 199.8(a)). TRICARE’s status as a secondary payer means that “where the medical treatment at issue is necessitated as a result of the negligence of an insured third party, any payment originally made by TRICARE must be reimbursed.” Conway, ¶ 32 (citing 32 C.F.R. § 199.8(a), (b)(3)) (emphasis added). TRICARE benefits therefore are not “available to a TRICARE beneficiary where there is third party insurance available to pay the expenses of medical treatment.” Conway, ¶ 32. Conway supports USAA’s contention that it had an obligation to reimburse TRICARE given TRICARE’s status as a secondary payer. ¶17 Third, our conclusion finds additional support in other TRICARE statutes and regulations in effect at the time. The federal statute governing contractor payment of certain claims under TRICARE provides: (a) Payment of claims. (1) The Secretary of Defense may authorize a contractor under the TRICARE program to pay a claim described in paragraph (2) before seeking to recover from a third-party payer the costs incurred by the contractor to provide health care services that are the basis of the claim to a beneficiary under such program. (2) A claim under this paragraph is a claim— (A) that is submitted to the contractor by a provider under the TRICARE program for payment for services for health care provided to a covered beneficiary; and (B) that is identified by the contractor as a claim for which a third-party payer may be liable. (b) Recovery from third-party payers. The United States shall have the same right to collect charges related to claims described in subsection (a) as charges for claims under [10 U.S.C. § 1095]. (c) Definition of Third-Party Payer. In this section, the term “third-party payer” has the meaning given that term in [10 U.S.C. § 1095(h)], except that such term excludes primary medical insurers. 10 U.S.C. § 1095b. Federal regulations confirm that “10 U.S.C. [§]1095b establishes the statutory obligation of third-party payers to reimburse the United States the costs incurred on behalf of TRICARE beneficiaries who are also covered by the third-party payer’s plan.” 32 C.F.R. § 199.12(a). ¶18 In turn, 10 U.S.C. § 1095 provides that “the United States shall have the right to collect from a third-party payer reasonable charges for health care services incurred by the United States on behalf of [a person who is a covered beneficiary].” 10 U.S.C. § 1095(a)(1); accord 42 U.S.C. § 2651(a). Section 1095 defines a “third-party payer” as “an entity that provides an insurance, medical service, or health plan by contract or agreement, including an automobile liability insurance or no fault insurance carrier.” 10 U.S.C. § 1095(h)(1). USAA is clearly a “third-party payer” pursuant to both 10 U.S.C. § 1095b(c) and 10 U.S.C. § 1095(h)(1). These statutes make clear that the United States had “the right to collect from [USAA] reasonable charges for health care services incurred by the United States on behalf of [Lee].” 10 U.S.C. § 1095(a)(1); accord 10 U.S.C. § 1095b(b); 42 U.S.C. § 2651(a). ¶19 More, the federal TRICARE regulations provide: “The only wayfor a third-party payer to satisfy its obligation under 10 U.S.C. [§]1095b is to pay the United States or authorized representative of the United States. Payment by a third-party payer to the beneficiary does not satisfy 10 U.S.C. [§] 1095b.” 32 C.F.R. § 199.12(d)(3). The United States’ right to recover costs incurred on behalf of a TRICARE beneficiary “includes the authority under 10 U.S.C. [§]1095(e)(1) for the United States to institute and prosecute legal proceedings against a third-party payer to enforce a right of the United States under 10 U.S.C. [§]1095b and this section.” 32 C.F.R. § 199.12(g)(1). The United States may also “compromise, settle or waive a claim” of its right to reimbursement. 32 C.F.R. § 199.12(g)(2); 10 U.S.C. § 1095(e)(2). ¶20 These statutes and regulations, “in effect at the time” of USAA’s negotiations with Lee’s counsel, Freyer, ¶ 48, obligated USAA to reimburse TRICARE for the costs TRICARE incurred on behalf of Lee. So USAA issuing a settlement check to Lee would “not satisfy” its statutory obligation. 32 C.F.R. § 199.12(d)(3). Rather, the only way USAA could meet its obligation to reimburse TRICARE was “to pay the United States or authorized representative of the United States.” 32 C.F.R. § 199.12(d)(3). If USAA did not satisfy its statutory obligation, the United States could “institute and prosecute legal proceedings against” USAA to enforce its right to reimbursement. 32 C.F.R. § 199.12(g)(1); 10 U.S.C. § 1095(e)(1);42 U.S.C. § 2651(d). Based on the plain language of the governing statutes and regulations, we conclude that the District Court incorrectly determined that “there is no obligation in the TRICARE regulations requiring USAA to protect the government lien.” ¶21 Justice Cotter takes issue with our reliance on these statutes and regulations because they were not presented to the District Court, nor to West at the time USAA responded to her demand for policy limits. Dissent, ¶¶ 31, 34. USAA’s failure to cite specific statutes and regulations does not mean that those requirements were not part of the “legal landscape as it existed” when USAA conditioned payment of the settlement check upon resolution of the TRICARE liens. Freyer, ¶ 48. Our role is to assess objectively whether it was reasonable for USAA to condition payment—i.e., its “proffered defense”—“in light of that legal landscape.” Freyer, ¶ 48 (emphasis added). West’s argument, in any event, is that because Lee made an offer to indemnify USAA and Perez, the law did not obligate USAA to address the TRICARE liens before settling Lee’s third-party claim, a position that Justice Cotter does not appear to embrace. ¶22 Contrary to West’s argument, neither Lee’s offer to indemnify nor his obligation pursuant to 32 C.F.R. 199.12(h)(3) to “cooperate” with the United States in any reimbursement action by the United States against USAA affects USAA’s statutory obligation to reimburse TRICARE, nor do they impact the United States’ right to recover medical payments from USAA. Any agreement between Lee’s counsel and USAA would not bind the government or exempt USAA from federal law. ¶23 The District Court was correct that “there is no requirement that USAA name TRICARE on Lee’s settlement check.” As the District Court pointed out, if USAA had tendered the settlement check with TRICARE as a payee, the check would not have been negotiable until an authorized government agent endorsed it, and Lee could have been denied the insurance proceeds he was entitled to receive. As the District Court also observed, Lee’s attorney could not have deposited “the check in his ... IOLTA account until fully endorsed, making it impossible to comply with the Montana Rules of Professional Conduct.” ¶24 As the District Court’s order recognized, USAA did not, however, just condition payment of Lee’s settlement on including TRICARE as a payee on the check—it also gave Lee’s counsel the option of “obtaining] waivers of any lien or negotiatl ing I the liens.” USAA also followed up with the government to determine the status of the liens. F ederal law expressly provides that the United States may “compromise, settle or waive a claim” of its right to reimbursement. 32 C.F.R. § 199.12(g)(2); 10 U.S.C. § 1095(e)(2). The District Court erred in not considering USAA’s request for lien waiver before concluding that USAA did not have a reasonable basis in law to condition payment of the settlement. ¶25 Justice Wheat also misses the import of USAA’s alternative offers for resolving the TRICARE liens. In remarking that USAA “had no lawful basis to refuse to settle Lee’s claim based upon the status of TRICARE’s lien,” Dissent, ¶ 40, Justice Wheat quotes only from the District Court’s observation regarding USAA’s offer to include TRICARE as a settlement check payee. See supra ¶¶ 13-14. His conclusion that “USAA had no legal obligation to protect TRICARE’s lien,” Dissent, ¶ 40, fails to acknowledge the governing law. ¶26 The District Court properly invoked Freyer as the correct framework for analysis. Applying that framework to determine whether USAA had a reasonable basis in law for contesting Lee’s claim, we have “survey[ed] the legal landscape as it existed during the relevant time.” Freyer, ¶ 48 (emphasis added). That landscape compels a conclusion that USAA did have a reasonable basis in law to condition its settlement payment on waiver of the TRICARE lien from the United States. The “only way” for USAA to satisfy its statutory obligation to TRICARE—the secondary payer—was to pay the United States, not to pay Lee. 32 C.F.R. § 199.12(d)(3); see Conway, ¶ 32. If USAA had not honored the lien, the United States presumably still could have gone after USAA to enforce its right to reimbursement. 32 C.F.R. § 199.12(g)(1); 10 U.S.C. § 1095(e)(1); 42 U.S.C. § 2651(d). The law “provided sufficient guidance to signal to a reasonable insurer that its grounds ... were ... meritorious.” Freyer, ¶ 48. This is especially so given “the absence of caselaw on point.” See Freyer, ¶ 48. Accordingly, we hold that USAA’s “grounds [for conditioning payment] were reasonable under existing law.” Freyer, ¶ 48. ¶27 Although USAA did not move for summary judgment before the District Court, “[w]e require no cross-motion ... when the moving party had a full and fair opportunity to consider the proposition and all other criteriafor summary judgment are met.” Watson v. Dundas, 2006 MT 104, ¶ 30, 322 Mont. 164, 136 P.3d 973 (citing Canal Ins. Co. v. Bunday, 249 Mont. 100, 108, 813 P.2d 974, 979 (1991)). West had a full and fair opportunity to argue the law applicable to her bad faith claim, there are no genuine issues of material fact, and USAA is entitled to judgment as a matter of law. We therefore reverse the District Court’s grant of summary judgment in favor of West and order it to enter summary judgment in favor of USAA. See Bunday, 249 Mont. at 108, 813 P.2d at 979. CONCLUSION ¶28 The District Court’s order granting summary judgment to West is reversed and the case is remanded to the District Court for entry of judgment in favor of USAA. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, SHEA and RICE concur. Throughout the case, West has contended that no fact issues exist and that the case presents only questions of law. During oral argument before this Court, counsel for USAA agreed. We are unpersuaded by West’s argument that we cannot consider statutes and regulations that were not cited by USAA in its briefing on summary judgment. Although we generally do not address an issue raised for the first time on appeal or a party’s change in legal theory, “we have permitted parties to bolster their preserved issues with additional legal authority or to make further arguments within the scope of the legal theory articulated to the trial court.” State v. Montgomery, 2010 MT 193, ¶ 12, 357 Mont. 348, 239 P.3d 929. TRICARE’s lien rights and USAA’s corresponding obligations were the focus of the legal theory that USAA presented to the trial court. And the District Court is not confined in its summary judgment review—nor is this Court on appeal—to authorities presented in the parties’ briefs. See Junkermier, Clark, Campanella, Stevens, P.C. v. Alborn, Uithoven, Riekenberg, P.C., 2016 MT 218, ¶ 22, 384 Mont. 464, 380 P.3d 747. Besides, as explained above, the District Court erred in its analysis of the legal authority that USAA did present. We note that the State Bar of Montana Ethics Committee recently issued an ethics opinion concluding that an attorney should not agree in a settlement release to personally indemnify an insurer from any lien claims against the settlement proceeds for a plaintiffs medical expenses. M. Bar Ass’n, Ethics Op. 131224 (2013). The opinion notes that “[t]his practice presents a number of professional responsibility challenges” and potentially violates multiple rules under the Montana Rules of Professional Conduct. M. Bar Ass’n, Ethics Op. 131224, at 3-7. Because our resolution of the appeal does not turn on the issue of indemnification, we do not discuss the ethics opinion here.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Brian Temple filled a prescription for Oxycodone in April 2011. A month later, police officers discovered Oxycodone residue on a spoon in Temple’s possession. The State charged him with criminal possession of dangerous drugs. The trial court instructed the jury that Temple could assert as a defense that he had obtained the Oxycodone pursuant to a valid prescription. The jury asked the court during deliberations whether crushing prescription Oxycodone violated the law. The court declined to answer and referred the jury to the original instructions. The jury found Temple guilty. He appeals the trial court’s refusal to further instruct the jury. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On April 2,2011, Temple arrived at the emergency department of St. Peter’s Hospital complaining of back pain. A doctor prescribed Temple Oxycodone. Temple filled the prescription that day at a CVS pharmacy. Although the record does not include a copy of the prescription, it does include a prescription receipt, which states that the prescription included an eight-day supply of pills. The receipt includes the instruction, “Take 1 tablet by mouth every 4 hours as needed for pain.” ¶4 A month later, law enforcement officers conducted a probation search of Temple’s vehicle. The search uncovered a spoon, a tourniquet, a pill crusher, and a syringe. The officers sent a sample of residue from the spoon to the State Crime Laboratory for chemical analysis. In the meantime, the State charged Temple with criminal possession of drug paraphernalia. ¶5 In September 2011, the State Crime Laboratory identified the residue found on the spoon in Temple’s vehicle as Oxycodone. The State subsequently amended its charges against Temple to include felony criminal possession of dangerous drugs (Oxycodone). ¶6 At trial, Temple admitted to possessing drug paraphernalia and Oxycodone. He asserted as a defense, however, that he possessed the Oxycodone lawfully because he obtained it by prescription. At the close of trial, the District Court instructed the jury on the elements of criminal possession of dangerous drugs and on Temple’s asserted defense that he obtained the Oxycodone “pursuant to” a valid prescription. ¶7 Neither party had proposed an instruction on the legality of crushing prescription Oxycodone, and the court gave no such instruction in its initial charge to the jury. But during deliberations, the jury sent a note with the following questions: (1) “According to the law, when you alter the form of a prescription drug ... by either applying heat or crushing, does that change the chemical compound of the drug?”; and (2) “If so, does that chemical change make it illegal?” The court responded with the statement, “You are instructed to rely on your collective memory of the testimony and evidence presented.” ¶8 The jury sent another note, asking, “Is it illegal to crush Schedule II Oxycodone?” Temple’s counsel urged the court to answer “no,” arguing that the relevant statutes did not criminalize such conduct. The court acknowledged that the legality of crushing Oxycodone was “obviously ... tying [the jury] up.” Nonetheless, the court responded to the jury, “You are instructed to rely on your collective memory of the testimony and evidence presented and on the instructions previously given.” The jury found Temple guilty of criminal possession of dangerous drugs. ¶9 Temple argues that the District Court abused its discretion in refusing to further instruct the jury on the legality of crushing prescription Oxycodone. STANDARDS OF REVIEW ¶10 A district court’s decision to provide or deny requested information to a jury during deliberations is one of discretion. Section 46-16-503(2), MCA; State v. Greene, 2015 MT 1, ¶ 12, 378 Mont. 1, 340 P.3d 551. We review such a decision for abuse of discretion. Greene, ¶ 12. When the jury instructions in a criminal case, as a whole, fully and fairly instruct the jury on the law applicable to the case, a district court does not abuse its discretion by refusing to further instruct the jury. State v. Bieber, 2007 MT 262, ¶ 67, 339 Mont. 309, 170 P.3d 444. DISCUSSION ¶11 Whether the District Court abused its discretion when it declined to further instruct the jury in response to the jury’s questions. ¶12 Temple argues that the District Court abused its discretion when it failed to answer the jury’s questions about the legality of crushing Oxycodone. In his view, the law does not criminalize crushing validly prescribed medication or otherwise failing to follow a prescription’s instructions. Temple contends that the original instructions did not adequately inform the jury on this critical point of law. As such, Temple maintains that the court was obligated to clarify for the jury, in response to its questions, that crushing Oxycodone did not violate the law. ¶13 The State counters that crushing and injecting prescription medication contrary to the prescription’s instructions for use violates the law. It asserts that a person lawfully possesses a dangerous drug only if he obtains the drug pursuant to a prescription and continually possesses it “in accordance with the prescription’s instructions and for the purpose for which the drug was prescribed.” The State contends also that the District Court acted within the bounds of its broad discretion when it declined to answer the jury’s questions. ¶14 Montana law criminalizes possession of “dangerous drugs,” including Oxycodone. Sections 45-9-102(1), 50-32-101(6), - 224(1)(a)(xvi), MCA. “Ultimate users and practitioners,” however, are “exempt” from the criminal possession statute. Section 45-9-102(8), MCA. The law defines an “ultimate user” as “a person who lawfully possesses a dangerous drug for personal use.” Section 50-32-101(28), MCA. “[A]n ultimate user or a person in possession of any dangerous drug pursuant to a lawful order of a practitioner” may “lawfully possess” such dangerous drug. Section 50-32-302(3), MCA. The relevant statutes do not specifically address whether crushing validly prescribed medication or otherwise failing to follow a prescription’s instructions violates the law or bars a defendant from asserting the “ultimate user” defense. See generally §§ 45-9-101 to -132, 50-32-101(28), -302(3), MCA. ¶15 The District Court gave the following instruction to the jury regarding Temple’s asserted defense to the possession of dangerous drugs charge: An ultimate user of a dangerous drug may possess it lawfully. An ultimate user means a person who lawfully possesses a dangerous drug under a valid prescription. A prescription means any order given individually for the person for whom prescribed by means of an order signed by the prescriber. To rebut the assertion that Defendant was in criminal possession of dangerous drugs, Defendant may raise the defense that he obtained the drug alleged in the charge pursuant to a valid prescription. If, after considering all the evidence, you have a reasonable doubt whether Defendant was in unlawful possession of Oxycodone, you must find Defendant not guilty of the charge. (Emphasis added.) Temple did not object to this instruction. The instruction fairly captures the language of the statutes defining the terms applicable to Temple’s claimed defense. See §§ 45-9-102(8), 50-32-101(25), -302(3), MCA. ¶16 The State argues that crushing and injecting a prescription medication or otherwise failing to abide by the prescription’s instructions for use violates the law because possession is lawful only if the “ultimate user” uses the drug “pursuant to” a valid prescription—by following the prescription’s instructions and using the drug for the purpose for which it was prescribed. The instruction the State proposed to define “ultimate user” and “prescription” did not directly explain this theory, although it did include additional language from the statutes. The District Court declined the State’s instruction as proposed, and its refusal is not an issue on appeal. ¶17 The trial court charged the jury on the elements of the crime charged and on Temple’s “ultimate user” defense using the language of the controlling statutes. The relevant statutes do not speak directly to the issue the jury raised during deliberations. See generally §§ 45-9-101 to -132, 50-32-101(28), -302(3), MCA. The District Court was obligated to instruct the jury only as to “the law applicable to the case,” Bieber, ¶ 67, not as to a legal question on which the parties had not been heard prior to the jury’s retiring to deliberate and on which the law presented no clear answer. There is no abuse of discretion if, as a whole, the instructions fairly and fully covered the applicable law. Bieber, ¶ 67. ¶18 The outcome of this case hinged on the jury’s determination of whether the Oxycodone found in Temple’s possession in May 2011 was obtained “pursuant to” his April 2, 2011 prescription. Section 50-32-302(3), MCA. We conclude that the court’s initial instructions on the “ultimate user” defense, using the phrases “under a valid prescription” and “pursuant to a valid prescription,” fulfilled its obligation to “fully and fairly instruct the jury on the law applicable to the case.” Bieber, ¶ 67. Its decision to refer the jury back to the instructions in response to the jury’s questions did not constitute an abuse of discretion. See Bieber, ¶ 67. CONCLUSION ¶19 The judgment is affirmed. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, COTTER and RICE concur.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Article II, Section 26 of the Montana Constitution guarantees to individuals that the right to a jury trial is “secured to all and shall remain inviolate.” However, this inviolate right encompasses only non-equitable causes of action to which the right had already attached at common law when the Montana Constitution was adopted. At issue here is whether the right to a jury trial attaches to an in rem forfeiture proceeding arising from the alleged use of real property to manufacture dangerous drugs, but nonetheless unconnected to a state drug prosecution. The District Court ruled the right did not attach because a civil in rem forfeiture proceeding was an action in equity. Upon this basis, the court denied Chilinski’s request for a jury trial in a civil proceeding to forfeit his home and four parcels of land. We reverse. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In 2011, state authorities successfully prosecuted and incarcerated Chilinski for cruelty to animals. Crucial to that prosecution was the Jefferson County Sheriff s search of Chilinski’s four parcels of property, including his residence, for evidence relating to his inhumane treatment of dogs. That search, conducted pursuant to a warrant, revealed not only an unlawful and cruel dog-breeding operation, but plain-view evidence of marijuana cultivation. ¶3 After discovering the marijuana grow operation, county authorities continued looking for evidence of animal cruelty, but also alerted the Southwest Montana Drug Task Force to the marijuana cultivation. The Task Force then procured its own warrant and conducted its own search, separate from the county authorities investigating violations of animal cruelty. The Task Force’s search for evidence of dangerous drugs, which later expanded under a second warrant, allegedly uncovered more than three hundred marijuana plants and over three pounds of processed marijuana on Chilinski’s property. ¶4 As a result of these discoveries, the State initiated a forfeiture proceeding in October of 2011 against Chilinski’s property, but the scale of his alleged grow operation drew the attention of federal authorities. The State suspended its proceeding against Chilinski on July 31, 2012, in deference to the United States bringing an earlier action on May 2, 2012. The federal indictment charged Chilinski with production of dangerous drugs and included a forfeiture provision. The record indicates Chilinski was convicted of manufacturing marijuana in the United States District Court for the District of Montana, but that federal authorities abandoned the accompanying forfeiture action for unknown reasons. ¶5 After the federal prosecution for forfeiture of Chilinski’s property had been abandoned, the State resumed its civil forfeiture proceedings in June of 2013 pursuant to § 44-12-201, MCA (2013), et seq.—Montana’s civil forfeiture statute. This statutory scheme allowed for property used in the manufacture of dangerous drugs to be seized upon a showing of probable cause, and then forfeited to the state following a summary hearing. Importantly, the statute mandated that the proceeding be heard only before a judge, precluding the use of a jury. In its 2015 session, the Legislature repealed this provision and replaced it with § 44-12-207, MCA, et seq., which does not mandate that the trial be before a judge. ¶6 At Chilinski’s forfeiture hearing held in the Fifth Judicial District Court on January 22, 2014, Chilinski appeared pro se and presented a multitude of theories why he should not lose his property. Although his presentation was disjointed and incoherent, his most cogent and meritorious argument was that the forfeiture statute violated his right to a jury trial guaranteed to him by Article II, Section 26 of the Montana Constitution and the Seventh Amendment to the United States Constitution. Chilinski clearly requested in his complaint a jury trial “on all issues so triable,” and argued that these constitutional provisions entitled him to a trial by jury before his property could be forfeited to the state. At the hearing, the court explained to Chilinski that the State’s complaint for civil forfeiture was based in equity and that, therefore, Chilinski had no right to be heard by a jury. The court reasoned that the proceeding was to determine title, which was an equitable action and thus outside the scope of the right to a jury trial. The District Court conducted the hearing without a jury and concluded that Chilinski used his property to assist in the production and manufacture of illegal drugs. The District Court forfeited Chilinski’s property to the State. Chilinski appeals the court’s denial of his right to a jury trial. For purposes of appeal, this Court appointed counsel on Chilinski’s behalf, who has appeared pro bono. Having found adequate grounds pursuant to Article II, Section 26 of Montana’s Constitution to grant Chilinski the right to a jury trial, we decline to examine the same right as it might exist under the Seventh Amendment to the United States Constitution. We restate the issue as follows: Whether §44-12-203(3),MCA (2013), violates Article II, Section26 of Montana’s Constitution by depriving individuals of the right to a trial by jury. STANDARD OF REVIEW ¶7 This Court’s authority to review constitutional questions is plenary. Williams v. Bd. of Cnty. Comm’rs., 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. Legislative enactments are presumed to be constitutional, and the party challenging the provision has the burden of proving beyond a reasonable doubt that it is unconstitutional. Williams, ¶ 23. We review a district court’s conclusions regarding the constitutionality of a statute for correctness. Williams, ¶ 23. DISCUSSION ¶8 This Court has not previously considered the constitutionality of that part of § 44-12-203(3), MCA (2013), which denies a jury trial in forfeiture proceedings. It is well-established that although Article II, Section 26 of Montana’s Constitution provides that “[t]he right of trial by jury is secured to all and shall remain inviolate,” the right to jury trial encompassed by § 26 embraces only those causes of action “in which the right was enjoyed when the constitution was adopted.” Supola v. Mont. DOJ, Drivers License Bureau, 278 Mont. 421, 424-25, 925 P.2d 480, 482 (1996) (quoting In re C.L.A., 211 Mont. 393, 396, 685 P.2d 931, 933 (1984)). Montana’s 1889 Constitution codified and preserved all existing common law rights to a jury trial. Those rights were then re-codified and protected in Section 26 of Montana’s 1972 Constitution. In re C.L.A., 211 Mont. at 396, 685 P.2d at 933. In Supola, we rejected the petitioner’s claim that § 26 provides a right to jury trial in every controversy and recognized that a party has never had a jury trial right in a purely equitable action. Supola, 278 Mont. at 425, 925 P.2d at 482. In Supola, we examined the 1972 constitutional convention history of Section 26 and observed that delegates at the 1972 convention proposed an amendment which would have extended the Section 26 guarantee to actions in equity, but that the amendment failed on the floor. Supola, 278 Mont. at 424-25, 925 P.2d at 482. ¶9 While we confirmed in Supola that Section 26 does not apply to purely equitable actions, we recognized that issues of both equity and law could become intertwined in the same action, making it difficult to preserve the right to jury in non-equitable claims. Supola, 278 Mont. at 425, 925 P.2d at 482. The distinctions between law and equity originate from the bifurcated judiciary of England, where, prior to the modern era, chancery courts sat in equity, while the King’s Bench and other courts sat in law. Equity courts were usually ecclesiastically-based and keepers of “the king’s conscience,” providing ethical or morality-based remedies in the absence of an adequate remedy at law. These once disparate tribunals, equity courts and courts of law, are said to have since “merged” in the United States, and there is now only a single judiciary that sits in both law and equity. See Fleming James, Jr., Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 655-75 (1963); and United States v. One 1976 Mercedes Benz, 618 F.2d 453, 457 (7th Cir. 1980). Nonetheless, where legal and equitable claims are bound together in the same case, the right to a jury trial attaches to the legal claims, and “must not be infringed either by trying the legal issues as incidental to equitable ones or by a court trial of a common issue between the claims.” Supola, 278 Mont. at 425, 925 P.2d at 482 (quoting Gray v. City of Billings, 213 Mont. 6, 13, 689 P.2d 268, 272 (1984); Ross v. Bernhard, 396 U.S. 531, 537-38, 90 S. Ct. 733, 738 (1970)). Supola thus provides that while Section 26 does not apply to an action purely in equity, the right to a jury trial on legal issues remains inviolate and may not be compromised because it is combined with equitable issues in one action. Accordingly, Section 26 may be constrained in only two ways: (1) it does not apply to purely equitable actions; and (2) it does not apply to those actions at law that did not have the right to a jury trial associated with them prior to the adoption of the 1889 constitution. I. Whether the statutory forfeiture proceeding here is purely in equity. ¶10 The District Court held Chilinski was not entitled to a jury trial because the proceeding was limited to a determination of title which, the District Court concluded, was a cause of action based purely in equity. We first observe that generally, where title and possession to real property are at issue, the action is legal and entitles a party to a jury trial. “It has always been the rule in this jurisdiction, both under the territorial and state governments, that where the right of possession to real estate is at issue, whether the action be based upon a claim of legal title, or upon a mere possessory right, either party is entitled to a trial by jury. Such an action is strictly one at law.” Mont. Ore Purchasing Co. v. Boston & Mont. Consol. Copper & Silver Mining Co., 27 Mont. 536, 538, 71 P. 1005, 1006 (1903). Even though the equitable power of the court may be invoked to aid an action at law by removing, for example, some obstruction to the legal title or by preserving the property pending ascertainment of the title, the action remains one at law. Mont. Ore Purchasing, 27 Mont. at 536, 71 P. at 1005. We therefore disagree that this proceeding is purely equitable or that it is appropriately characterized as involving only a determination of title. The nature of the instant proceeding requires more than such a cursory examination. In conducting our own detailed examination of the action, we note that forfeiture statutes operate to transfer property rights to the state, as a penalty against the owners for misuse of the property. The District Court here placed too narrow an interpretation on the issue by characterizing the proceeding as only one of determining title. II. Did the right to a jury trial exist at common law for civil in rem proceedings prior to the 1889 ratification of Montana’s Constitution? ¶11 While this proceeding has attributes of a criminal action and is intertwined with the underlying criminal prosecution, the complaint does not charge a criminal offense and is more appropriately described as a proceeding in rem against Chilinski’s property. See State ex rel. Prato v. District Court, 55 Mont. 560, 565, 179 P. 497, 499 (1919). As such, Mont. Ore Purchasing, which addresses title and right of possession, is not controlling. Neither Chilinski nor the State offer any dispositive authority in Montana on the question of whether there is a right to a jury trial for civil in rem forfeiture actions, nor has our independent research unearthed any controlling Montana precedent. We explained, however, in Mont. Ore Purchasing that, It must not be overlooked that the right of trial by jury guarantied [by the Seventh Amendment to the United States Constitution] is the right as it existed at the common law; that is, in that class of cases in which there was no impediment in the way of complete and adequate redress by proceeding according to the course of the common law. Mont. Ore Purchasing, 27 Mont. at 540-41, 71 P. at 1007. Clearly, in rem forfeiture proceedings existed in the common law, under English and American practice, at the time Montana’s 1889 Constitution was ratified. Furthermore, it is the historical right of trial by jury enjoyed at the time Montana’s Constitution was ratified in 1889 which is preserved. Supola, 278 Mont. at 424-25, 925 P.2d at 482. We recognize that the right to a jury trial under the Seventh Amendment to the United States Constitution is not applicable to the states. However, the underlying analysis and rationale employed in federal courts and other states when deciding whether a right to jury trial exists in civil forfeiture proceedings is helpful to our inquiry. It is necessary, therefore, to ascertain what the rule of the English common law upon this subject was in 1889, and we look to federal jurisprudence and our sister states for guidance. ¶12 In 1776, forfeiture existed in England both at common law and by statute. At common law, an inanimate object described as “deodand” could be forfeited for causing a person’s death. Also at common law, property could be forfeited on the owner’s conviction of treason or a felony. English law provided for statutory forfeitures of objects used in the violation of customs and revenue laws. Austin v. United States, 509 U.S. 602, 611-13, 113 S. Ct. 2801, 2806-07 (1993). Prior to the American Revolution, jurisdiction over the forfeiture of objects used in violation of law was exercised by the English Court of Exchequer and the Admiralty Court. C.J. Hendry Co. v. Moore, 318 U.S. 133, 137, 63 S. Ct. 499, 501 (1943). Cases in Admiralty Court proceeded without a jury; in contrast, cases in the Court of Exchequer proceeded before a jury. See One 1976 Mercedes Benz, 618 F.2d at 464 (The distinction between practicing in courts of Admiralty, where forfeiture actions were heard without a jury, and practicing in the common law courts of Exchequer, where forfeiture actions were routinely before a jury, is well-known.); People v. One 1941 Chevrolet Coupe, 231 P.2d 832, 839 (Cal. 1951) (“There are reports of many cases in the Court of Exchequer in which articles used in violation of law were forfeited to the Crown pursuant to statute, in all of which the cause was tried by jury.”); Commonwealth v. One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36, 41 (Pa. 1992) (“[I]n England, forfeiture actions in the Courts of Exchequer were tried before a jury, and in the United States, forfeiture actions were heard before juries in cases where courts of Exchequer would have had jurisdiction.”); C.J. Hendry, 318 U.S. at 137, 63 S. Ct. at 501 (“Forfeiture to the Crown of the offending object, because it had been used in violation of the law, by a procedure in rem was a practice familiar not only to the English admiralty courts but to the court of Exchequer.”). In time, following the historic struggle between admiralty and common law courts, courts of Exchequer began to exercise concurrent jurisdiction with the admiralty courts even for in rem proceedings for the forfeiture of vessels on navigable waters. ¶13 The American colonies did not establish a Court of Exchequer. Instead, the common law courts absorbed that court’s jurisdiction. C.J. Hendry, 318 U.S. at 139, 63 S. Ct. at 502-03. Consequently, American colonial courts, sitting as common law courts, generally heard actions involving forfeitures on land. See Austin, 509 U.S. at 613, 113 S. Ct. at 2807 (“ ‘[l]ong before the adoption of the Constitution the common law courts in the Colonies ... were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes’ ”) (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683, 94 S. Ct. 2080, 2091 (1974)); C.J. Hendry, 318 U.S. at 143, 63 S. Ct. at 505 (“[T]here is ample support for the conclusion that in the seaboard states forfeiture proceedings in rem ... were an established procedure of the common law courts before the Revolution.”); One 1976 Mercedes Benz, 618 F.2d at 466 (“The conclusion appears inescapable that both English and American practice prior to 1791 definitely recognized jury trial of in rem actions at common law as the established mode of determining the propriety of statutory forfeitures on land for breach of statutory prohibitions.”); One 1941 Chevrolet, 231 P.2d at 842 (“The common-law courts in the Colonies and in the states during the period of Confederation exercised jurisdiction in rem in the enforcement of forfeiture statutes. In general the actions ... were tried by jury. ...”); One 1984 Z-28 Camaro Coupe, 610 A.2d at 41 (“[I]n the United States, forfeiture actions were heard before juries in cases where Courts of Exchequer would have had jurisdiction.”). If the forfeiture took place on navigable waters, either the admiralty or common-law courts had jurisdiction. C.J. Hendry, 318 U.S. at 139, 63 S. Ct. at 503; Franklyn C. Setaro, The Formative Era of American Admiralty Law, 5 N.Y.L.F. 9, 26 (1959). Like English common-law courts, and unlike admiralty courts, colonial common-law courts provided for trial by jury. C.J. Hendry, 318 U.S. at 139-40, 63 S. Ct. at 503. ¶14 In addition to federal courts, state courts considering in rem forfeiture statutes similar to Montana’s statute have reached similar conclusions. The Idaho Supreme Court explained that statutory forfeiture actions existed in both English and American practice and thus provided for a trial by jury when the Idaho constitution was adopted in 1889. Idaho Dep’t of Law Enforcement by & ex rel. Cade v. Real Prop. Located in Minidoka Cnty., 885 P.2d 381, 386 (Idaho 1994). The South Dakota Supreme Court invalidated a forfeiture statute substantially similar to § 44-12-203(3), MCA (2013), rejecting the state’s argument that because the drug forfeiture statute did not exist at the time the constitution was adopted, the defendant was not entitled to a jury trial. State v. One 1969 Blue Pontiac Firebird, 737 N.W.2d 271, 277 (S.D. 2007). In Florida, the Supreme Court adopted the historical analysis of One 1976 Mercedes Benz and concluded that common law courts in 1845 recognized the right to a jury trial in civil forfeiture proceedings. In re 1978 Chevrolet Van, 493 So.2d 433, 436 (Fla. 1986). In State v. One 1990 Honda Accord, the New Jersey Supreme Court found drug forfeiture cases allowed for a jury trial even though “forfeiture never existed at common law [in New Jersey] and remains a disfavored remedy.” State v. One 1990 Honda Accord, 712 A.2d 1148, 1150 (N.J. 1998). The New Jersey court explained, Although forfeiture depends on a statute for its existence, it remains subject to common-law principles. When analyzing the right to trial by jury, the term “common law” refers to those principles of English law that evolved in the common-law courts such as the Court of the Exchequer, as opposed to those applied in the Admiralty, Chancery, or Ecclesiastical Courts. People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832, 836 (1951);In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433, 435 (Fla. 1986); Commonwealth v. One 1984 Z-28 Camaro Coupe, 530 Pa. 523, 610 A.2d 36, 39 (1992); see also William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm & Mary L. Rev. 393 (1968) (“ ‘Common law’ refers to that body of governing principles, mainly substantive, expounded by the common-law courts of England in deciding cases before them.”). Hence, the fact that common-law forfeiture did not become part of New Jersey common law does not predetermine whether statutory forfeiture was subject to trial by jury in the colonial common-law courts. The subject forfeiture, which involves the seizure on land of innocent property, is the type of case in which the owner would have been entitled to a jury trial in the common-law courts of colonial New Jersey. One 1990 Honda Accord, 712 A.2d at 1150-51 (emphasis added). ¶15 Lastly, Blackstone discussed property forfeiture and the right to trial by jury in some detail. The forfeiture of property, even chattels, was a penalty reserved for only the most serious of crimes. Forfeiture of land was particularly reserved for treason, felony, and other infamous crimes. 2 Blackstone ch. 18, 268. And for such crimes at common law, the right to a jury trial attached. “Our law has therefore wisely placed ... a trial by jury, between the liberties of the people, and the prerogative of the crown.” 4 Blackstone Ch. 27, 350. Blackstone cautioned too, that the right of trial by jury might one day be compromised “by introducing new and arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience” in order to avoid proceedings that were cumbersome, expensive, inconvenient, or time-consuming; however, he warned that “delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.” 4 Blackstone Ch. 27, 350-51. ¶16 After consideration of both American and English common law, federal jurisprudence, and decisions from our sister states that have considered the issue in cases involving similar statutes, we join the majority of states and federal courts and conclude that there is a right to trial by jury guaranteed by Section 26 of Montana’s Constitution in an in rem forfeiture proceeding under § 44-12-201, MCA (2013), et seq . ¶17 We are compelled, nonetheless, to address the State’s various arguments. The State maintains ratification of Montana’s Constitution in 1972 predated enactment in 1979 of § 44-12-201, MCA (2013), and, therefore, a right to a jury trial could not have been “re-codified” in Section 26 of the 1972 Constitution. Additionally, the State argues, relying on Kelly, that a civil forfeiture proceeding is distinct from a criminal prosecution because it is a summary proceeding for which there was no trial by jury under the common law as “a matter of right.” ¶18 The contention that a statutory provision, because it was enacted after ratification of the Montana Constitution in 1972, precludes the right of a jury trial from attaching to the statute’s provisions, places too narrow an interpretation upon the issue. The issue is not when the statute was enacted, but rather, whether forfeiture proceedings existed generally at common law and whether civil forfeiture proceedings were in “the class of cases in which the right was enjoyed when the constitution was adopted.” Supola, 278 Mont. at 424-25, 925 P.2d at 482, citing In re C.L.A., 211 Mont. at 396, 685 P.2d at 933. Our inquiry is not informed by whether an action at common law was subsequently embodied by statute, be it a drug forfeiture statute or some other forfeiture statute. Although forfeiture proceedings may depend on a statute for existence, the inquiry is whether forfeiture existed at common law to which the right to a jury trial attached and not the date upon which the cause of action was embodied by statute. ¶19 The State’s reliance on Kelly in support of its argument that there is no right to a jury trial in a forfeiture proceeding because it is summary in nature, is misplaced. In Kelly, the Court addressed whether forfeiture of seized liquors should be determined by a jury. Kelly, 57 Mont. at 127-30, 187 P. at 637-38. Kelly, however, dealt with the rights of a party claiming property that was contraband itself—alcohol—and possessed in violation of the Prohibitory Enforcement Act. The Court explained that from the time of seizure, the liquors are in the custody of the state, and if a violation of the liquor laws has occurred, then the liquor is “contraband,” subject to forfeiture, “and the question of ownership is altogether immaterial.” Kelly, 57 Mont. at 129, 187 P. at 638. Although the proceeding was “against the liquors themselves for their condemnation as forfeited property” and characterized by the Court as an in rem summary proceeding, the Court explained, “[i]t would not be questioned by anyone that if forfeiture of the liquors were a part of the penalty imposed upon a defendant for a violation of the law, the right of trial by jury would obtain ....’’ Kelly, 57 Mont. at 130, 187 P. at 638. ¶20 We find Kelly distinguishable from the facts and circumstances here. First, Kelly dealt with a different class of property, prima facie contraband, and not “innocent” property which has been or is intended to be utilized in furtherance of an unlawful activity. Courts have recognized such a distinction and found that the seizure of innocent property, as compared to the seizure of contraband, “is the type of case in which the owner would have been entitled to a jury trial in the common-law courts ....” One 1990 Honda Accord, 712 A.2d at 1151. Under the English common law, “cases involving the forfeiture of innocent property generally resulted in a trial by jury.” One 1990 Honda Accord, 712 A.2d at 1157. ¶21 Second, § 44-12-102(i), MCA (2013), provides that real property which “is directly used or intended to be used in any manner or part to commit or facilitate ... a violation of Title 45, Chapter 9, that is punishable by more than 5 years in prison ” is subject to forfeiture.” (Emphasis added.) Unlike in Kelly, where the liquor itself was contraband (similar to Chilinski’s marijuana plants being contraband), property subject to forfeiture pursuant to § 44-12-102(i), MCA (2013), is directly tied to an enhanced penalty provision of the underlying criminal statutes. The criminal nature of the forfeiture proceeding is thus inescapable. It is further exemplified by § 44-12-103, MCA (2013), providing for the manner in which property may be seized: (1) A peace officer who has probable cause to make an arrest for a violation of Title 45, chapter 9, probable cause to believe that a conveyance has been used or is intended to be used to unlawfully transport a controlled substance, or probable cause to believe that a conveyance has been used to keep, deposit, or conceal a controlled substance shall seize the conveyance used or intended to be used or any conveyance in which a controlled substance is unlawfully possessed by an occupant. [(Emphasis added.)] In examining these forfeiture provisions, it is hard to ignore their penological basis. But for the forfeiture statute’s placement outside the provisions of the criminal code in Title 45, forfeiture would be inseparable from the penalty imposed in the underlying criminal prosecution. ¶22 Upon review of the record, it is clear that the remedy the State sought, forfeiture of Chilinski’s property, had as its purpose the imposition of a penalty. In its “Notice to Defendant Re: Criminal Charges,” the State represented that it “does not intend to proceed criminally against Defendant for his underlying conduct... [of] criminal manufacture of dangerous drugs, if the civil forfeiture process is successful. [And the State] specifically represents it will pursue no further criminal charges against Defendant for his conduct giving rise to his animal cruelty convictions.” The State’s position suggests it was pursuing a statutory forfeiture proceeding in lieu of a criminal prosecution against Chilinski; that is, that the forfeiture proceeding would protect the State’s penological interest in Chilinski. The State’s actions were consistent with the purpose underlying the statute. A review of the legislative history of § 44-12-201, MCA (2013) et seq., reveals that the purpose behind the act was to provide “an added tool” for law enforcement. Minutes on Consideration of Senate Bill 482 Before the S. Judiciary Committee, 46th Leg. Sess. (Mont. 1979). Where the underlying purpose of an action serves as a penalty, the action is not in equity. See Supola, 278 Mont. at 426, 925 P.2d at 482 (where a driver’s license suspension statute and hearing had no penological purpose, it denoted a proceeding in equity); Kelly, 57 Mont. at 130, 187 P. at 638 (when a forfeiture is part of the penalty imposed upon a defendant for violation of the law, the matter is not in equity and the right of trial by jury attaches). ¶23 Our determination that Section 26 of the Montana Constitution guarantees a right to jury trial for civil in rem forfeiture proceedings does not require that the forfeiture proceeding against Chilinski be dismissed. When only a portion of a statute is unconstitutional and the remainder would still fulfill the statute’s underlying legislative intent, the unconstitutional portion may be stricken in accordance with principles of statutory interpretation, leaving the remaining constitutional portions of the statute enforceable and intact. Williams, ¶ 24; Mont. Auto. Ass’n v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981). Section 44-12-203(3), MCA (2013), which denies a jury trial, is not an indispensable part of the statute and may be stricken therefrom. The remainder of the statute is fully operative in the absence of that portion and we express no opinion as to the constitutionality of sections not before us on appeal. CONCLUSION ¶24 Section 44-12-203(3), MCA (2013), denied Chilinski the right to be tried by a jury, in violation of the guarantee to trial by jury provided by Article II, Section 26 of the Montana Constitution. The District Court erred when it denied Chilinski the right to a trial by jury in these civil in rem forfeiture proceedings. We reverse and remand for a new trial consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER, COTTER, WHEAT and RICE concur. Section 44-12-203(3), MCA (2013), provides “[i]f a verified answer is filed within 20 days, the forfeiture proceedings must be set for hearing without a jury no sooner than 60 days after the answer is filed.” Chilinski, in a civil forfeiture proceeding, is not entitled to a Public Defender, in either the trial proceeding or on appeal. Section 47-1-104, MCA. We recognize and have considered the rationale of those states finding there was no right to trial by jury in civil in rem forfeiture proceedings, namely: North Dakota, Minnesota, North Carolina, Tennessee, Georgia, Michigan, and Alabama have found a jury trial is not required in civil forfeitures. See State v. $ 17,515.00 in Cash Money, 670 N.W.2d 826, 828 (N.D. 2003); State v. One 1921 Cadillac Touring Car, 195 N.W. 778, 780 (Minn. 1923); State v. Morris, 405 S.E.2d 351, 352-53 (N.C. App. 1991); Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547-49 (Tenn. 1999); Swails v. Georgia, 431 S.E.2d 101, 103 (Ga. 1993), cert denied, 510 U.S. 1011, 114 S. Ct. 602 (1993); In re Forfeiture of $1,159,420, 486 N.W.2d 326, 337 (Mich. App. 1992), cert denied sub nom., Hawkins v. Michigan, 510 U.S. 867, 114 S. Ct. 189 (1993); In re One Chevrolet Auto., 87 So. 592, 592-93 (Ala. 1921).

JUSTICE COTTER delivered the Opinion of the Court. ¶1 Holly and Robert Labair (the Labairs) appeal from final judgment on their legal malpractice claim entered for defendants Steve Carey and Carey Law Firm (collectively “Carey”) in the Montana Fourth Judicial District Court, Missoula County. We vacate and remand for a new trial. ISSUE ¶2 The issue on appeal is whether the District Court erred in instructing the jury to decide whether the plaintiffs would have settled the claim underlying their legal malpractice suit. BACKGROUND ¶3 The factual background of this case was detailed in Labair v. Carey, 2012 MT 312, 367 Mont. 453, 291 P.3d 1160 (Labair I), and will not be repeated here at great length. In short, this case stems from the October 2003 death of Dawson Labair, the Labairs’ newborn child, following an early delivery by C-section. The Labairs signed a retainer agreement with Carey in January 2004 to pursue a potential medical malpractice claim against Dr. Thomas Baumgartner, their obstetrician. In September 2006, Carey filed a complaint in District Court against Dr. Baumgartner and Community Medical Center alleging negligence and negligent infliction of emotional distress. Carey did not file an application with the Montana Medical Legal Panel (MMLP) before filing the complaint, as required by §§ 27-6-301 and -701, MCA (2005). Carey also failed to file an application with the MMLP before the expiration of the three-year statute of limitations for medical malpractice claims. See § 27-2-205, MCA (2005). Carey later admitted to an error in calculating the statute of limitations. ¶4 In March 2010, the Labairs filed a legal malpractice complaint against Carey alleging negligence and several other causes of action stemming from the lapsed statute of limitations. In November 2011, the District Court granted summary judgment to Carey on the grounds that the Labairs had failed to establish a prima facie legal malpractice case because they failed to provide expert evidence on causation and damages in the underlying medical malpractice claim. The Labairs appealed, and we reversed and remanded in Labair I. ¶5 We concluded in Labair I that the Labairs were entitled to summary judgment on the duty, breach, and causation elements of their legal malpractice claim against Carey. We remanded the case to the District Court for a trial to establish two required components of the damages element of the Labairs’ claim: first, “that it is more probable than not that they would have recovered a settlement or a judgment against Dr. Baumgartner but for Carey’s negligence,” and second, “the value of the lost settlement and/or judgment.” Labair I, ¶ 41. ¶6 On remand, the District Court conducted a six-day jury trial in which both sides presented expert testimony on the likelihood of a settlement or a judgment in the underlying case and the estimated value of that settlement or judgment. Charles Burdell, the Labairs’ expert witness on settlements, testified that the case could have settled for $500,000 to $750,000. He also testified that over 90% of medical negligence cases settle. Carey’s settlement expert testified that 95% of medical negligence cases settle, and that the Labairs’ claim likely would have settled for $100,000 to $300,000. ¶7 Both Holly and Robert Labair testified at trial, but neither explicitly said whether or not they would have settled with Dr. Baumgartner. Holly Labair said she believed Steve Carey could help her “[ojbtain justice” and “hold [Dr. Baumgartner] accountable.” Steve Carey testified that Robert Labair was angry at Dr. Baumgartner, but neither the Labairs’ attorney nor Carey actually established the Labairs’ desires regarding settlement. The defense played a videotaped deposition of Dr. Baumgartner, in which Dr. Baumgartner said he would have settled with the Labairs for a nominal amount. No other evidence on the Labairs’ or Dr. Baumgartner’s willingness to settle the underlying medical malpractice claim was presented at trial. ¶8 The jury issued its verdict on a special verdict form, which posed yes or no questions to the jury regarding key elements of the Labairs’ claim. Relevant portions of the verdict form, including the jury’s responses, read as follows: QUESTION NO. 1: Have the Labairs proven by a preponderance of the evidence that Dr. Baumgartner’s treatment of Holly and Dawson Labair failed to meet the accepted standards of skill and care at the time the services were provided? ANSWER: [ X ] Yes [ ] No If your answer to QUESTION NO. 1 is “No,” then skip QUESTION NO. 2 and QUESTION NO. 3 and proceed to QUESTION NO. 4. If your answer to QUESTION NO. 1 is “Yes,” then proceed to QUESTION NO. 2. QUESTION NO. 2: Have the Labairs proven by a preponderance of the evidence that Dr. Baumgartner’s failure to meet the accepted standards of skill and care at the time the services were provided to Holly and Dawson Labair caused injuries and damages to the Labairs? ANSWER: [ ] Yes [ X ] No If your answer to QUESTION NO. 2 is “No,” then skip QUESTION NO. 3 and proceed to QUESTION NO. 4. If your answer to QUESTION NO. 2 is “Yes,” then proceed to QUESTION NO. 3. [The jury then skipped Question No. 3, which inquired what damages the Labairs would have recovered from a jury verdict against Dr. Baumgartner.] QUESTION NO. 4: Have the Labairs proven by a preponderance of the evidence that Holly and Robert Labair lost the opportunity to recover a settlement from Dr. Baumgartner as a result of Steve Carey’s and the Carey Law Firm’s admitted negligence and failing [sic] to file a timely medical malpractice claim against Dr. Baumgartner? ANSWER: [ ] Yes [ X ] No If your answer to QUESTION NO. 4 is “No,” then skip QUESTION NO. 5 and proceed to QUESTION NO. 6. If your answer to QUESTION NO. 4 if [síc] “Yes,” then proceed to QUESTION NO. 5. The jury then skipped to Question No. 6, which is not at issue on appeal. ¶9 During deliberations, the jury asked the District Court for clarification of Question No. 4: “In regards to question 4 on the questionare [síc] are we to consider whether the Labairs would have settled or did they just lose the opportunity?” ¶10 The District Court discussed the jury’s question with counsel for both parties and suggested that the jury be given a new instruction, which read as follows: In response to your question, attached hereto, You are instructed that the Labairs did lose the opportunity to settle with the dismissal of the underlying case. The question of 4 is would they have settled. If your answer is yes, go to question no. 5. If your answer is no go to question no. 6. ¶11 In accord with M. R. Civ. P. 51(c), the Labairs made a timely and specific objection to the District Court’s proposal, arguing that “all we have to prove is that we could have secured a settlement, and the moment Dr. Baumgartner said he would have settled, we proved that.” The District Court disagreed, explaining: [T]he settlement value has been established, but the question remains ... would the Labairs have taken the settlement? And I don’t know how we get around that question for them. ... I don’t know that, from listening to Mr. Carey’s testimony, that they would have settled .... ¶12 The District Court then gave the jury the new instruction, which was identified as Instruction No. 36. With this additional instruction, the jury answered “No” to Question No. 4, apparently indicating that the Labairs would not have settled the underlying medical malpractice claim. After the jury was discharged, the Labairs orally renewed their objection to Instruction No. 36: The Montana Supreme Court did not lay the burden on the plaintiffs of whether they would have settled. There was no way for the plaintiffs to give that testimony if they would have settled without knowing the amount. ... We believe that this instruction to the jury is a reversible error, your Honor. Carey countered that the Labairs’ willingness to settle was an element of proof implied by our holding in Labair I: [T]he Labairs bore the burden from the beginning, at least since the Supreme Court’s decision to prove both that there could have been a settlement and the value of that settlement. It’s a failure of proof on the part of the plaintiffs’ case, and they had all the opportunity in the world to provide that proof to this court and to this jury, and they failed to do it. ¶13 The District Court decided to let the jury’s verdict stand, but noted “Dr. Baumgartner’s testimony is that he would have only agreed for a minimal settlement on his part,” implying the Labairs also failed to show a potential settlement value that would have been agreeable to both sides. The District Court formally entered judgment on September 22, 2015, from which the Labairs appeal. STANDARD OF REVIEW ¶14 We review a district court’s selection of jury instructions for abuse of discretion. Cechovic v. Hardin & Assocs., 273 Mont. 104, 116, 902 P.2d 520, 527 (1995). Taken in their entirety, “jury instructions must fully and fairly instruct the jury regarding the applicable law.” Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089. When a jury instruction is based on a district court’s conclusion of law, we apply a plenary review standard. W. Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 18, 359 Mont. 34, 249 P.3d 35. DISCUSSION ¶15 Did the District Court err in instructing the jury to decide whether the plaintiffs would have settled the medical malpractice claim underlying their legal malpractice suit? ¶16 Legal malpractice is a type of professional negligence consisting of four essential elements: (1) a duty owed by the attorney to the client, (2) a breach of that duty, (3) causation, and (4) damages to the client. Labair I, ¶ 17. Because Labair I established the first three elements of the Labairs’ claim against Carey, the sole issue on remand was damages. ¶17 It is well established that a plaintiff in a legal malpractice case “ ‘must show by a preponderance of the evidence what injuries he suffered’ ” as a result of the malpractice. Labair I, ¶ 43 (quoting Lieberman v. Emp’rs Ins. of Wausau, 84 N.J. 325, 342, 419 A.2d 417, 426 (N.J. 1980)). Ultimately, the plaintiff must prove that damages are not speculative, but have a sufficient basis in fact. Labair I, ¶ 45 (citing Merzlak v. Purcell, 252 Mont. 527, 530, 830 P.2d 1278, 1280 (1992)). The method by which the plaintiff proves those injuries is generally left to the discretion of the trial court. Labair I, ¶ 43 (citing Lieberman, 419 A.2d at 427). In cases like the present, proving damages requires a plaintiff to effectively prosecute a “suit within a suit,” wherein the claim underlying the legal malpractice must be proven by a preponderance of the evidence in order to show the legal malpractice caused actual harm. Stott v. Fox, 246 Mont. 301, 305, 805 P.2d 1305, 1307 (1990); Richards v. Knuchel, 2005 MT 133, ¶ 18, 327 Mont. 249, 115 P.3d 189, overruled on other grounds by Labair I, ¶ 23. The jury in such a case must determine whether a reasonable jury considering the underlying claim could find for the plaintiff. Labair I, ¶ 26 (citing Richards, ¶ 18). ¶18 We acknowledged in Labair I the difficulty of prescribing the particular types of evidence and presentation that a legal malpractice “suit within the suit” would require. “Different types of legal malpractice cases will require different types of evidence and presentation.” Labair I, ¶ 44. We also noted the Labairs’ claim against Carey presents a unique case in that the Labairs lost not only the right to sue Dr. Baumgartner and recover a verdict for medical malpractice, but they also lost the opportunity to pursue a pretrial settlement. Labair I, ¶ 31. Because the lost possibilities of securing either a verdict or a settlement were each potential injuries, we remanded the case to determine whether the Labairs could prove it was more probable than not that they would have recovered a verdict or a settlement. Labair I, ¶ 45. ¶19 On remand, the District Court rightly instructed the jury that the Labairs could not recover for the loss of both a verdict and a settlement. To recover the value of a verdict in the underlying claim, the Labairs would need to prove each element of their underlying claim against Dr. Baumgartner by a preponderance of the evidence. Even if the Labairs failed to prove that they would have recovered a verdict against Dr. Baumgartner, however, the lost possibility of a pretrial settlement with Dr. Baumgartner remained a distinct injury for which the Labairs could recover damages. ¶20 In answering Questions 1 and 2 of the special verdict form, the jury concluded the Labairs proved Dr. Baumgartner breached the standard of care, but that they failed to prove that this breach caused damages. As a result, the Labairs are not entitled to damages that would be recoverable from a verdict in the underlying claim against Dr. Baumgartner. The Labairs do not allege any error in the District Court’s instruction on the question of verdict damages. The sole question on appeal is whether the Labairs satisfied their burden of proving the lost opportunity for a pretrial settlement in the underlying claim. Consequently, the crux of this case is the scope of the Labairs’ burden of proof for the lost opportunity to settle. ¶21 The Labairs argue Labair I never required them to prove that they would have actually settled with Dr. Baumgartner. Instead, the Labairs interpret Labair I as imposing the more limited burden of proving the likelihood of a settlement and the value of a potential settlement, both of which they established through expert testimony. Carey counters it would be improper to relieve the Labairs of the burden of proving they would have settled with Dr. Baumgartner. While Carey’s negligence undoubtedly deprived the Labairs of the opportunity to settle, Carey argues it is still possible that the Labairs would have refused to settle if the opportunity presented itself. Carey maintains that if the Labairs would have refused to settle, the lost opportunity to settle would not be an actual injury. ¶22 As stated in Labair I, the Labairs’ burden on remand was as follows: “At trial, the Labairs must establish that it is more probable than not that they would have recovered a settlement or a judgment against Dr. Baumgartner but for Carey’s negligence, as well as the value of the lost settlement and/or judgment.” Labair I, ¶ 41 (emphasis added). We did not hold the Labairs had to prove they would have settled. Instead, the Labairs were required to prove a settlement was more probable than not. The Labairs clearly satisfied this burden through expert testimony establishing that settlements occur in 90% of cases similar to theirs. That testimony was bolstered by Carey’s expert, who estimated that 95% of medical malpractice cases settle. ¶23 The Labairs also satisfied their burden of proving the likely value of the lost opportunity to settle. The Labairs’ settlement expert estimated the likely settlement value would fall between $500,000 and $750,000. Although Carey’s expert testified to a much lower range of settlement values, between $100,000 and $300,000, the jury could weigh this conflicting testimony and determine a value for the lost opportunity. Thus, the Labairs’ evidence was sufficient to satisfy the two-part burden we outlined in Labair I. When the jury asked for clarification of this burden, however, the District Court effectively added a new element: whether the Labairs would have actually accepted a settlement. Moreover, the District Court added this element to the burden of proof after both parties had rested and the case was in the jury’s hands. Because the District Court’s instruction did not fairly instruct the jury on the law of the case we established in Labair I, we conclude that the instruction was an abuse of discretion that demands a new trial. ¶24 Carey maintains this additional element is a logical extension of Labair I, because the Labairs’ willingness to accept a settlement is a prerequisite to actually recovering a settlement. We stated in Labair I, however, that the Labairs simply needed to prove it was more probable than not that they would have recovered a settlement. We did not hold that the Labairs must show they were willing to settle and therefore would have actually recovered a settlement. If we adopted such a rule, it stands to reason that the Labairs must also prove Dr. Baumgartner would have been willing to settle, because a settlement requires the assent of both parties. But it would be impossible to replicate the give-and-take of settlement negotiations with Dr. Baumgartner now that he is shielded from liability by Carey’s negligence. Indeed, Dr. Baumgartner has no incentive to settle now that the Labairs’ claim against him is time-barred. Carey should not be shielded from liability simply because his own negligence makes it impossible to prove today what the parties would have done in settlement negotiations years ago. ¶25 The appropriate burden of proof is the one we established in Labair I. The Labairs must prove two elements to recover for the lost opportunity to settle with Dr. Baumgartner: (1) that they more probably than not would have recovered a settlement with Dr. Baumgartner, and (2) the likely range of value of the lost settlement. We note that neither Question No. 4 of the special verdict form nor Instruction No. 36 clearly posed this first element as a question for the jury. Question No. 4 asked whether the Labairs had “proven by a preponderance of the evidence that Holly and Robert Labair lost the opportunity to recover a settlement from Dr. Baumgartner as a result of Steve Carey’s and the Carey Law Firm’s admitted negligence.” This determination, however, was established as law of the case by virtue of our conclusion in Labair I that the Labairs did in fact lose the opportunity to settle. Instruction No. 36 corrected this error, but then proceeded to direct the jury to answer the subjective question of whether the Labairs would have actually settled, when Labair I required only that they answer the objective question of whether it was more probable than not that they would have recovered a settlement. At this stage, the threshold question for the jury should have been whether the Labairs had proven that they more probably than not would have recovered a settlement. ¶26 Because both parties’ experts testified that a settlement was more probable than not, the Labairs argue judgment as a matter of law is appropriate on this threshold question. We agree. “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.” Martin v. BNSF Ry. Co., 2015 MT 167, ¶ 8, 379 Mont. 423, 352 P.3d 598 (citing Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 16, 362 Mont. 53, 261 P.3d 984). When considering whether judgment as a matter of law is proper, we view evidence in the light most favorable to the party opposing such judgment. Martin, ¶ 8 (citing Weber, ¶ 16). By the lowest estimate presented at trial, the probability of settlement was 90%. The only evidence that comes close to contradicting this estimate is testimony from Carey’s expert, who stated that the Labairs’ specific claim “had a better-than-even chance of settlement if they would have been willing to accept” a settlement. Setting aside the fact that this testimony is couched in the Labairs’ willingness to settle, which we have held is not dispositive of their recovery, the testimony nonetheless shows that a settlement was more probable than not. Even considering this evidence in the light most favorable to Carey, the only reasonable conclusion is that the Labairs more probably than not would have recovered a settlement. Thus, we conclude that the Labairs are entitled to judgment as a matter of law on this first element of settlement damages. ¶27 In the new trial, the District Court need not revisit the question of whether Dr. Baumgartner’s treatment of Holly and Dawson Labair failed to meet accepted standards of care, as the jury here answered that question in the affirmative. In addition, the District Court need not revisit the question of damages for a lost opportunity to recover a verdict. As explained above, the jury already resolved that question in Carey’s favor, and the Labairs do not allege the District Court erred in instructing the jury on that question. See supra ¶ 20. Instead, the new trial will address damages for the lost opportunity to settle with Dr. Baumgartner. Because the Labairs are entitled to judgment as a matter of law on the first element of settlement damages, the only remaining evidentiary burden borne by the Labairs is showing the likely range of value of a settlement. CONCLUSION ¶28 For the foregoing reasons, we vacate the judgment of the District Court and remand for a new trial on the question of the value of the lost opportunity to settle. CHIEF JUSTICE McGRATH, JUSTICES WHEAT and SHEA concur.

JUSTICE SHEA delivered the Opinion of the Court. ¶1 The State of Montana appeals an order of the Twenty-First Judicial District Court, Ravalli County, denying the State’s motion to conform the District Court’s written judgment to its oral pronouncement of James John Harrison’s sentence for convictions related to poaching nine black bears. We address: 1. Whether the District Court correctly determined that Harrison may petition for early termination of his lifetime prohibition on hunting, fishing, and trapping. 2. Whether the District Court correctly determined that Harrison may petition for early termination of his lifetime prohibition on accompanying any hunter, angler, or trapper. ¶2 We affirm in part and reverse in part. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On June 25, 2015, Harrison pled guilty to—and was convicted of—five felony charges: unlawful possession, shipping, or transportation of a game fish, bird, game animal, or fur-bearing animal pursuant to a common scheme in violation of § 87-6-202(1), (5), and (6)(f), MCA; tampering with witnesses and informants in violation of § 45-7-206(1)(a), MCA; tampering with or fabricating physical evidence in violation of § 45-7-207, MCA; and two counts of tampering with public records or information in violation of § 45-7-208, MCA. The charges all stemmed from Harrison’s illegal baiting, killing, and transportation or assistance in illegal baiting, killing, and transportation of nine black bears between May 2009 and June 2014. On August 28, 2015, the District Court orally sentenced Harrison to ten years in prison, all suspended, with several conditions, including a “lifetime loss of hunting, trapping and accompaniment privileges.” On September 9,2015, the District Court issued its written judgment, imposing a ten-year suspended prison sentence and twenty-six conditions. The two conditions at issue in this appeal, Conditions 23 and 24, provide: 23. The Defendant shall be prohibited from hunting, fishing, or trapping in the State of Montana during his lifetime. Pursuant to §46-18-208, the Defendant may file a petition for early termination of this sentence and/or this condition after 2/3 of the suspended sentence time has elapsed. 24. The Defendant shall be prohibited from accompanying in the field any hunter, angler, or trapper in the State of Montana during his lifetime. Pursuant to §46-18-208, the Defendant may file a petition for early termination of this sentence and/or this condition after 2/3 of the suspended sentence time has elapsed. ¶4 On October 5, 2015, the State filed a motion to conform the District Court’s written judgment to its oral pronouncement of Harrison’s sentence. The State argued that the District Court’s written judgment did not conform to its oral pronouncement of Harrison’s sentence because the District Court never mentioned at sentencing that Harrison could seek an early termination of his lifetime hunting, fishing, trapping, and accompaniment prohibitions. The State further argued that Harrison’s loss of these privileges is an independent criminal penalty, not a condition of his suspended sentence. According to the State, allowing Harrison to petition for an early termination of his lifetime prohibitions would render the sanctions meaningless because, “when a [djistrict [cjourt terminates the time remaining on a sentence pursuant to § 46-18-208, MCA, all of the conditions that were imposed as a condition of that sentence are also terminated.” On October 26, 2015, the District Court issued an order denying the State’s motion. The District Court concluded that the lifetime prohibitions were conditions of Harrison’s sentence, not independent penalties, and therefore modifiable pursuant to § 46-18-208, MCA. The State appealed. STANDARDS OF REVIEW ¶5 We generally review a criminal sentence for legality; “that is, whether the sentence falls within the statutory parameters.” State v. Duong, 2015 MT 70, ¶ 11, 378 Mont. 345, 343 P.3d 1218. A district court’s interpretation of a statute is a question of law, which we review for correctness. Duong, ¶ 11. DISCUSSION ¶6 1. Whether the District Court correctly determined that Harrison may petition for early termination of his lifetime prohibition on hunting, fishing, and trapping. ¶7 Pursuant to § 87-6-202(6)(f), MCA, a person convicted of possessing, shipping, or transporting an unlawfully killed game fish, bird, game animal, or fur-bearing animal worth more than $1,000 “shall forfeit... the privilege to hunt, fish, or trap in this state for not less than 3 years up to a revocation for life from the date of conviction.” ¶8 Section 46-18-208(1), MCA, provides: When imposition of a sentence has been deferred or execution of a sentence has been suspended, the ... defendant may file a petition to terminate the time remaining on the sentence if: (b) in the case of a suspended sentence: (i) the defendant has served two-thirds of the time suspended; and (ii) the defendant has been granted a conditional discharge from supervision under 46-23-1011 and has demonstrated compliance with the conditional discharge for a minimum of 12 months. ¶9 The oral pronouncement of a criminal sentence in the presence of the defendant is the “legally effective sentence and valid, final judgment.” State v. Claassen, 2012 MT 313, ¶ 16, 367 Mont. 478, 291 P.3d 1176 (quoting State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9). In the event of a conflict between the oral pronouncement and the written judgment, the oral pronouncement of a sentence controls. Claassen, ¶ 16. ¶10 The State contends that Harrison’s lifetime hunting, fishing, and trapping prohibition is not subject to early termination under § 46-18-208, MCA, because it is a separate penalty, not a condition of his suspended sentence. We agree. Statutory interpretation “must be reasonable,” § 1-3-233, MCA, and “should not lead to absurd results if a reasonable interpretation would avoid it.” State v. Sommers, 2014 MT 315, ¶ 22, 377 Mont. 203, 339 P.3d 65. Section 46-18-208, MCA, applies to early termination of “the time remaining” on a suspended sentence. Section 87-6-202(6)(f), MCA, provides a separate, independent penalty, that allows for a lifetime prohibition on hunting, fishing, or trapping. It is not subject to early termination under § 46-18-208, MCA. Holding otherwise would lead to the absurd result of rendering Harrison’s “lifetime” prohibition meaningless, because it would end not with Harrison’s lifetime, but with the termination or expiration of his sentence. ¶11 The District Court incorrectly applied the law when it denied the State’s petition to conform its written judgment to its oral pronouncement by striking the provision in Condition 23 that allows Harrison to petition for early termination of his lifetime hunting, fishing, and trapping prohibition. ¶12 2. Whether the District Court correctly determined that Harrison may petition for early termination of his lifetime prohibition on accompanying any hunter, angler, or trapper. ¶13 Unlike his lifetime hunting, fishing, and trapping prohibition, Harrison’s lifetime prohibition on accompanying any hunter, angler, or trapper is not provided for by statute. Because there is no independent statutory basis for it, the accompaniment prohibition would necessarily be a condition of Harrison’s sentence, not an independent penalty. Although the District Court did not expressly advise Harrison that he had the right to petition for early termination of this condition during its oral pronouncement, in denying the State’s motion to alter or amend the judgment, the District Court correctly noted that petitioning for early termination of a suspended sentence pursuant to § 46-18-208, MCA, “is a statutory right, enacted by the Legislature, and therefore has no need to be orally expressed.” Whether or not the District Court orally advised Harrison of his statutory right to seek early termination of his suspended sentence—including the lifetime prohibition on accompanying any hunter, angler, or trapper—does not change the fact that Harrison has that right. The District Court merely advised him of that right in the written judgment. It did not substantively alter the oral pronouncement or create a conflict between the oral pronouncement and the written judgment. CONCLUSION ¶14 We affirm in part and reverse in part the District Court’s order. We remand for the District Court to strike the following sentence from Condition 23 of its written judgment: “Pursuant to §46-18-208, the Defendant may file a petition for early termination of this sentence and/or this condition after 2/3 of the suspended sentence time has elapsed.” JUSTICES McKINNON, WHEAT and RICE concur.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Jeanette Diaz, Leah Hoffmann-Bernhardt, and others similarly situated, collectively (Diaz), appeal from an order entered in the First Judicial District Court determining the manner in which prejudgment interest on payments due to class members was to be calculated. The underlying payments arose from the Defendant’s application of its policy’s Coordination of Benefits Provision to avoid payment of medical expenses already paid by a third-party liability carrier without Defendant first undertaking a made whole analysis. The District Court found that, except for claims “arising after December 24, 2009,” interest for all such payments is to commence 30 days following our decision in Blue Cross & Blue Shield of Mont. v. Mont. State Auditor, 2009 MT 318, 352 Mont. 423, 218 P.3d 475 (BCBS). For claims arising after December 24,2009, the District Court required that the State pay interest commencing on the day the underlying medical expenses were incurred. We affirm the District Court order, but remand for correction of the date to be applied for determining the calculation of prejudgment interest. ¶2 Diaz presents the following issue for review: Whether the District Court correctly determined the date upon which interest should first accrue on claims for members of the State of Montana Health Benefit Plan. FACTUAL AND PROCEDURAL BACKGROUND ¶3 This case has been appealed on three previous occasions on various questions. The underlying claim in these proceedings concerns an exclusion in the State’s health benefit insurance plan which allowed the State to coordinate benefits in violation of Montana’s made whole laws. The State offers a State Employee Health Benefits Plan (Plan) paid to its employees, retired employees, and dependents of both. The Plan enrolls approximately 32,000 members and provides for coverage of health care costs to health care providers. Significantly, it does not provide for any payments to be made directly to a Plan member. ¶4 The Plan had a coordination of benefits provision, in conjunction with payments from third parties, which excludes: 5. Expenses that a member is entitled to have covered, or that are paid under an automobile insurance policy, a premise liability policy, or other liability insurance policy. This includes but is not limited to, a homeowner’s policy or business liability policy, or expenses that a member would be entitled to have covered under such policies if not covered by the State Plan. Both Diaz and Hoffmann-Bernhardt’s original medical bills were paid timely and in full by third-party insurers and the State. Diaz filed suit alleging that defendants, third-party administrators and the State, had violated the employees’ made whole rights under Montana law. ¶5 Our first consideration of coordination of benefits language, such as here, was in 2009 when we decided BCBS. In BCBS, coordination of benefits language in a Blue Cross & Blue Shield policy excluded coverage for any health care costs incurred by its insured if they received or were entitled to receive payment for those costs from a third-party’s automobile or premises liability policy. The issue in BCBS was whether the coordination of benefits provision violated the made whole requirement in § 33-30-1102, MCA. We held that the legal effect of the coordination provision was to allow Blue Cross & Blue Shield to exercise subrogation before paying anything to its insured. BCBS was the first time this Court examined a coordination of benefits provision in the context of our made whole laws and determined that its utilization violated the made whole requirement of § 33-30-1102, MCA. BCBS, ¶ 19. ¶6 The Diaz trilogy is premised upon our decision in BCBS. The first appeal dealt with Rule 23 class certification. We concluded that the District Court had properly certified a class which addressed issues of the Plan’s coordination of benefits language. Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 50, 267 P.3d 756 (Diaz I). The second appeal addressed the definition of the class by the court which included those claims with an “eight-year statute of limitations suggested by the Plaintiffs, but also adopting the one-year filing limitation proposed by the State ....” Diaz, ¶ 14. We affirmed the court’s class definition, observing that class action orders “are not frozen once made” and that a “District Court maintains discretion to alter the class definition as the case proceeds.” Diaz v. State, 2013 MT 219, ¶ 28, 308 P.3d 38 (Diaz II). The third appeal affirmed the district court’s award of summary judgment finding the policy’s coordination of benefits provision to be de facto subrogation and that the State, which operates as an insurer, is subject to the Insurance Code and Montana’s made whole laws. Diaz v. State, 2013 MT 331, ¶¶ 14-16, 313 P.3d 124 (Diaz III). ¶7 In the current appeal, which is the fourth, Diaz asks us to determine when interest should begin to accrue on the class members’ claims. Some of the claims, given the court’s broad class definition which we affirmed in Diaz II, predate our decision in BCBS, while other claims arose following our decision in BCBS. The District Court addressed both categories of claims and ordered that for pre-BCBS claims, interest commences 30 days following the date of our BCBS decision. For all claims arising subsequent to BCBS, the District Court required the State to pay interest commencing on the day the underlying medical expense was incurred. STANDARD OF REVIEW ¶8 “We review a district court’s grant or denial of prejudgment interest to determine if the district court’s interpretation of the law is correct.” Fitterer Sales Mont., Inc. v. Mullin, 2015 MT 272, ¶ 16, 381 Mont. 107, 358 P.3d 885. DISCUSSION ¶9 Whether the District Court correctly determined the date upon which interest should first accrue on claims for members of the State of Montana Health Benefit Plan. ¶10 Diaz argues that §§ 18-1-404(1) and 17-8-242(2), MCA, provide interest should commence 30 days after the date on which payment was due and that the District Court erred in commencing interest on the date BCBS was decided, rather than the date the bills were incurred. The statutory sections to which Diaz refers do, in fact, provide that interest is to commence from “the date on which the payment on the contract became due” and that “[t]his liability is retroactive ... and applies to any contract in effect or an action pending on a contract on or after May 1, 1997.” Section 18-1-404(1)(b), MCA. Further, Diaz argues that, pursuant to § 18-1-404(1)(a), MCA, the State is liable with respect to any contract in the same manner as an individual and that the provision for interest is retroactive whether “due before or after a decision by the government agency or court.” Section 18-1-404(1)(b), MCA. Section 17-8-242(2), MCA, provides that payment is timely if made within 30 days of when the bill is due. ¶11 The State does not dispute that it is held to the same standard as an individual when it enters into a contract. Section 18-1-4041)(a), MCA. The State contends that interest only accrues when an individual has a right to a monetary recovery and the right has fully vested. As the Plan provides no right of monetary recovery or for direct payment to Plan members, the State argues there is no interest liability until after a monetary right exists and has fully vested. Here, the State maintains the right of recovery was not created and could not vest until this Court determined in BCBS that the Plan’s coordination of benefits provision violated Montana’s made whole laws. Additionally, the State maintains that § 18-1-404, MCA, provides a good faith exception to the rule that interest commences when payment on the contract is due which allows for interest to be assessed following a court’s resolution of the good faith dispute. ¶12 We have previously stated that “prejudgment interest is to be awarded unless either the law or the creditor prevents the payment of principal.” Byrne v. Terry, 228 Mont. 387, 391, 741 P.2d 1341, 1343 (1987) (citing Price Building Services, Inc. v. Holms, 214 Mont. 456, 468-69, 693 P.2d 553, 559-60 (1985)). Section 27-1-211, MCA, sets forth the criteria for an award of prejudgment interest as follows: Each person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover that is vested in the person upon a particular day is entitled also to recover interest on the damages from that day except during the time that the debtor is prevented by law or by the act of the creditor from paying the debt. ¶13 We have interpreted this statute as having three requirements a party must satisfy to be eligible for an award of prejudgment interest under § 27-1-211, MCA: (1) an underlying monetary obligation; (2) the amount of recovery must be certain or capable of being made certain by calculation; and (3) the right to recover must vest on a particular day. Kraft v. High Country Motors, Inc., 2012 MT 83, ¶ 70, 364 Mont. 465, 480-81, 276 P.3d 908; see also New Hope Lutheran Ministry v. Faith Lutheran Church of Great Falls, Inc., 2014 MT 69, ¶70, 374 Mont. 229, 328 P.3d 586; Byrne, 228 Mont. at 390, 741 P.2d at 1343; Stafford v. Fockaert, 2016 MT 28, ¶ 24, 382 Mont. 178, 366 P.3d 673. The main purpose of prejudgment interest is to compensate a party for the loss of her money during the period in which her valid claim was not paid. Byrne, 228 Mont. at 391, 741 P.2d at 1343. Finally, § 27-1-211, MCA, mandates interest “as long as the legal situation fits within the broad guidelines of the statute.” Byrne, 228 Mont. at 391, 741 P.2d at 1343. The instant proceedings involve the question of how to apply the provisions of § 18-1-404, MCA, within the context of § 27-1-211, MCA, and the newly recognized right to recovery created by our decision in BCBS. For purposes of § 18-1-404(b), MCA, Diaz stipulates that the State had a good faith basis for disputing coverage. Accordingly, Diaz is entitled to prejudgment interest if the requirements of § 27-1-211, MCA, have been satisfied. ¶14 The first criterion entitling a party to prejudgment interest is the existence of a monetary obligation. Here, the State had no monetary obligation under the Plan to its members. The policy provisions of the Plan did not allow for any payment or right to monetary recovery by a Plan member. As noted previously, the Plan provides for payment to health care providers and does not provide for any direct payments to a Plan member. With respect to third-party health care providers, the Plan recognized that payment of medical expenses may not be due because the coordination of benefits provision recognized the State’s obligation as secondary to the payment from a third-party liability carrier. There is no dispute that Diaz’s medical expenses were paid in a timely manner by a third-party carrier. It was not until our decision in BCBS, that any right to monetary recovery for damages arising out of the State’s violation of the made whole laws was recognized. We conclude that the existence of an underlying monetary obligation did not exist under the Plan’s provisions until our decision in BCBS and the first criterion of § 27-1-211, MCA, has, therefore, not been established. ¶15 Our conclusion that the underlying monetary obligation did not arise until our decision in BCBS also disposes of the third criterion in § 27-1-211, MCA, that the right to recover vests on a particular day. Diaz’s right to recover did not vest until our decision in BCBS recognized, for the first time, that the Plan’s coordination of benefits provision violated Montana’s made whole laws. The coordination of benefits provision at issue was enforceable under Montana law until our decision to the contrary in BCBS. Thus, the particular day on which Diaz’s right to recover vested was 30 days after our remittitur in BCBS. See § 17-8-242(2), MCA. The second criterion, that the amount of recovery is capable of being made certain by calculation, is undisputed. Nonetheless, on the basis of Diaz’s failure to establish the (1) existence of an underlying monetary obligation prior to BCBS, and (2) the right to recover prior to BCBS, we conclude that the District Court did not err in holding that for claims arising prior to December 24, 2009, interest was to commence following our decision in BCBS. ¶16 We do note, however, that BCBS was decided on September 24, 2009, and our remittitur was issued October 15, 2009. Therefore, 30 days following the remittitur was November 14, 2009. We therefore remand only for the purpose of: (1) changing the date of December 24, 2009, to November 14, 2009, as the correct date upon which interest is to commence, and (2) that the date of November 14, 2009, is also to be applied for purposes of assessing when a claim arose. For claims arising after November 14, 2009, the State shall pay interest commencing on the day the underlying medical expense was incurred. CONCLUSION ¶17 We affirm the District Court’s order declaring interest to begin 30 days following our decision in BCBS. We remand for the District Court to correct the commencement date for interest from December 24,2009 to November 14, 2009. Additionally, the order should reflect this applies to all claims arising prior to November 14, 2009. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, COTTER, BAKER, SHEA and RICE. The District Court’s ORDER ON INTEREST TO BE PAID incorrectly calculates 30 days following BCBS to be December 24, 2009. While both parties agree that December 24, 2009, was an incorrect date to commence interest calculations, they disagree on what date is actually 30 days after BCBS. The State maintains 30 days after BCBS is November 24, 2009, while Diaz maintains 30 days after our BCBS decision is October 24, 2009. For reasons that follow, we conclude interest is to commence on November 14, 2009, for all claims filed prior to November 14, 2009. Prior to the instant appeal, the State maintained that interest should not begin until 30 days following our decision in Diaz III. However, the State on appeal concedes that the District Court correctly determined interest should commence following our decision in BCBS.

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 William Muller (Muller) appeals from the order of the Eleventh Judicial District Court, Flathead County, granting Flathead Bank of Bigfork’s (Flathead Bank) motion for summary judgment. We affirm. ¶2 We restate the issues on appeal as follows: Issue one: Did the District Court err in finding that the issuance of an IRS Form 1099-C does not constitute a discharge of debt? Issue two: Did the District Court err in finding that Muller could not personally appear on behalf of Masonry? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Between March 2010 and May 2013, Masonry by Muller, Inc. (Masonry) and Flathead Bank entered into four promissory notes totaling $170,622.88. Muller signed the promissory notes, individually and as president of Masonry, and he personally guaranteed three of the loans through separate commercial guaranties. Masonry and Muller failed to pay the installments due on the promissory notes and Flathead Bank subsequently issued an IRS Form 1099-C to Muller, naming September 18, 2013, as the date of the identifiable event. In November 2013, Flathead Bank filed a complaint alleging that Muller and Masonry had defaulted on all four loans and that it was entitled to the outstanding balance of the loans. Muller answered the complaint personally, but did not file an answer on behalf of Masonry. ¶4 On October 28, 2015, Flathead Bank filed a motion for summary judgment, arguing it had shown that Muller and Masonry owed a valued and existing debt, nonpayment of the debt, and present ownership of the debt. Muller denied owing the amount requested by Flathead Bank and stated that Masonry was insolvent and nonexistent. He also argued that Flathead Bank’s filing of the IRS Form 1099-C cancelled his debt to the Bank. Flathead Bank contended that the filing of the F orm 1099-C is an IRS requirement, even where a debt has not been discharged, and that the form alone did not cancel the debt. The District Court granted Flathead Bank’s motion for summary judgment and Muller filed a timely notice of appeal with this Court. STANDARD OF REVIEW ¶5 We review a district court’s grant of summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court’s conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. Pilgeram, ¶ 9. Under Rule 56(c), summary judgment will be granted if the moving party can show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200. DISCUSSION ¶6 Issue one: Did the District Court err in finding that the issuance of an IRS Form 1099-C does not constitute a discharge of debt? ¶7 Muller first appeals from the District Court’s finding that Flathead Bank’s filing of the IRS Form 1099-C did not extinguish his debt. The court determined that the filing of the form did not constitute the release of Muller’s debt; rather, the court found that it was an informational return Flathead Bank was required by law to file in this circumstance and, on its own, did not affect the legal obligations of the parties. On appeal, Muller urges this court to hold that filing an IRS Form 1099-C constitutes prima facie evidence of an intent to discharge a loan. We decline to do so. ¶8 A small minority of courts in other jurisdictions have held that the filing of an IRS Form 1099-C alone is prima facie evidence of a discharge, which then requires the creditor to prove that the form was filed by mistake or pursuant to other IRS requirements. See, e.g., Amtrust Bank v. Fossett, 224 P.3d 935 (Ariz. Ct. App. 2009); Franklin Credit Mgmt. Corp. v. Nicholas, 812 A.2d 51 (Conn. App. Ct. 2002). In FDIC v. Cashion, 720 F.3d 169 (4th Cir. 2013), the Fourth Circuit Court of Appeals explained the minority approach: These courts have generally noted that because filing a Form 1099-C has legal significance to the debtor’s income tax liability, and because the debtor faces penalties or fines for failing to comply with the obligations imposed, it would be inequitable to permit a creditor to collect the debt after having received the benefit of the “charge-off’ of the debt from filing the F orm 1099-C. Lastly, some-but not all-of the courts holding that a filed Form 1099-C alone is prima facie evidence of discharge have also recognized that the form can satisfy the applicable UCC provisions for when a writing constitutes an “intentional voluntary act” of discharge, and thus itself effectuates the discharge of the relevant debt. Cashion, 720 F.3d at 178 (citing Franklin Credit Mgmt., 812 A.2d at 60-61)). ¶9 On the other hand, the majority view reflects the position of recent IRS Information Letters, which treats the form as a means of satisfying the agency’s reporting requirements and does not prohibit a creditor from collecting payment on a debt. Cashion, 720 F.3d at 178 (citing Capital One, N.A. v. Massey, No. 4:10-CV-01707, 2011 U.S. Dist. LEXIS 83817, at *10 (S.D. Tex. Aug. 1, 2011); In re Zilka, 407 B.R. 684, 689 (Bankr. W.D. Pa. 2009); Lifestyles of Jasper, Inc. v. Gremore, 299 S.W.3d 275, 277 (Ky. Ct. App. 2009)). ¶10 Federal regulations interpreting the IRC set forth a creditor’s reporting requirements to the agency: any applicable entity ... that discharges an indebtedness of any person ... must file an information return on Form 1099-C with the Internal Revenue Service. Solely for purposes of the reporting requirements of [the applicable statute] and this section, a discharge of indebtedness is deemed to have occurred ... if and only if there has occurred an identifiable event described in paragraph (b)(2) of this section, whether or not an actual discharge of indebtedness has occurred on or before the date on which the identifiable event has occurred. 26 C.F.R. § 1.6050P-1(a) (2013) (emphasis added) (interpreting 25 U.S.C. § 6050P (2012)). There are eight identifiable events in the regulations that trigger the reporting obligation via a Form 1099-C; however, such an event may or may not involve an actual or intended discharge of indebtedness by a creditor. Cashion, 720 F.3d at 178-79 (citing 26 C.F.R. § 1.6050P-1(b)(2)). In other words, under the plain language of the regulation, the IRS Form 1099-C reporting obligation can be triggered even where “an actual discharge of indebtedness had not yet occurred or is not contemplated.” Cashion, 720 F.3d at 178. ¶11 This interpretation of the IRC and its corresponding regulations is also reflected in the conclusions of two 2005 IRS Information Letters, aptly described in the Cashion Opinion: In the first, the IRS addressed a creditor’s concern that filing the Form 1099-C would constitute a written admission that it had discharged the debt and would therefore make debtors unwilling to pay on their obligations. Citing subsection (a) of [26 C.F.R. § 1.650P-1 (2013)], the IRS responded that it “does not view a Form 1099-C as an admission by the creditor that it has discharged the debt and can no longer pursue collection.” In the second letter, the IRS assured a concerned creditor that filing a Form 1099-C satisfies the reporting requirements of statute and implementing, neither of which “prohibit collection activity after a creditor reports by filing a Form 1099-C.” 720 F.3d at 179 (citations omitted) (citing I.R.S. Info. Ltr. 2005-0207 (Dec. 30, 2005); I.R.S. Info. Ltr. 2005-0208 (Dec. 30, 2005)). While not entitled to Chevron deference, the Cashion court found these letters nonetheless persuasive and entitled to respect “because it fully encompasses the purpose of a Form 1099-C as an IRSreporting document and follows the plain language of the relevant regulation.” Cashion, 720 F.3d at 179. ¶12 Based on the foregoing, we adopt the majority position regarding the purpose of the Form 1099-C and hold that the issuance of an IRS Form 1099-C is not prima facie evidence of a creditor’s intent to discharge a debt; rather, it is a means of satisfying the agency’s reporting requirements and does not, in and of itself, prevent a creditor from seeking collection of a debt. ¶13 In this case, Muller claims that Flathead Bank cancelled his debt, basing his argument solely on the fact that the bank sent him an IRS Form 1099-C. He did not offer any additional evidence supporting his claim and did not deny that he failed to pay the installments due on the promissory notes. Thus, we cannot find that the District Court erred in granting summary judgment to Flathead Bank. ¶14 Issue two: Did the District Court err in finding that Muller could not personally appear on behalf of Masonry? ¶15 Muller also appeals the District Court’s finding that Masonry failed to appear in this action. We have previously held that “[a] corporation ‘cannot appear on its own behalf through an agent other than an attorney.’ ” H&H Dev., LLC v. Ramlow, 2012 MT 51, ¶ 18, 364 Mont. 283, 272 P.3d 657 (quoting Cont’l Realty, Inc. v. Gerry, 251 Mont. 150, 152, 822 P.2d 1083, 1084 (1991)). We have also held that a non-lawyer who attempts to represent a corporation in court is guilty of a contempt of court. H&H Dev., ¶ 18 (citing Zempel v. Liberty, 2006 MT 220, ¶ 18, 333 Mont. 417, 143 P.3d 123); See § 37-61-210, MCA. ¶16 Here, Muller purported to act on behalf of Masonry, a Montana Corporation, in the District Court proceedings. However, he does not have a license to practice law in Montana, nor was Masonry separately represented by an attorney licensed to practice law in Montana. Accordingly, the District Court correctly found that Muller could only represent himself personally and could not appear on behalf of Masonry. Given that the decision to hold a person in contempt rests in the court’s discretion, we also cannot say that the District Court erred in failing to hold Muller in contempt of court for attempting to represent Masonry. See State ex rel. O’Connor v. Dist. Court, 245 Mont. 88, 97, 799 P.2d 1056, 1062 (1990). CONCLUSION ¶17 For the foregoing reasons, we affirm. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, SHEA and RICE concur. Under federal regulations implementing the IRS reporting requirements of 26 U.S.C. § 6050P (2012), certain entities that discharge an indebtedness “must file an information return on Form 1099-C with the Internal Revenue Service. Solely for purposes of the reporting requirements of section 6050P and this section, a discharge of indebtedness is deemed to have occurred ... if and only if there has occurred an identifiable event described in paragraph (b)(2) of this section, whether or not an actual discharge of indebtedness has occurred on or before the date on which the identifiable event has occurred.” 26 C.F.R. § 1.6050P-l(a) (2013). The “identifiable events” that trigger the IRS reporting requirement “include discharge through the debtor's filing for bankruptcy, the expiration of the statute of limitations for collection, discharge by agreement of the parties, a creditor’s decision ‘to discontinue collection activity and discharge debt,’ and ‘expiration of the non-payment testing period.’ ” FDIC v. Cashion, 720 F.3d 169, 178 (4th Cir. 2013); See 26 C.F.R. § 1.6050P-1(b)(2)(i). The deference given to agency regulations and rulings under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), does not extend to information letters interpreting the IRC and its regulations. Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000) (explaining that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”).

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Plaintiff Kelly G. Watson (“Watson”) appeals the January 25,2017 Order by the Eighth Judicial District Court, Cascade County, granting Defendant Burlington Northern and Sante Fe Railway Company’s (“BNSF”) motion for summary judgment on Watson’s asbestos-related disease claim, brought under the Federal Employers’ Liability Act (“FELA”). The dispositive issue in this matter is as follows: Whether the Bankruptcy Court’s Order enjoining claims against W.R. Grace and other “Affiliated Entities,” including BNSF, tolled the statute of limitations on Watson’s claim. ¶2 We reverse and remand for further proceedings consistent with this Opinion. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Watson was a long-term employee of BNSF in Lincoln County. During his BNSF employment, he was exposed to vermiculite dust. The vermiculite mined in Libby and the dust produced by it contains amphibole asbestos. BNSF transported vermiculite for W.R. Grace & Company and its predecessors from Libby to various locations. ¶4 In July 2000, following widespread news reports on the hazards posed by vermiculite dust from the W.R. Grace mine in Libby, Watson sought a health screening offered by the Libby Community Environmental Health Program. Watson’s initial test results for lung disease were negative. ¶5 On April 2, 2001, W.R. Grace filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in U.S. Bankruptcy Court for the District of Delaware. The Bankruptcy Court immediately entered a temporary restraining order (“TRO”) against actions being pursued against Non debtor Affiliates and certain third parties arising from W.R. Grace’s mining operations and exposure to vermiculite dust. The TRO defined “Actions” as “pending actions and actions that have not been filed or are not pending as of the date of entry of this Order ....” It also ordered “that the prosecution and/or commencement of all Actions are temporarily restrained pending a resolution of [W.R. Grace I’s pending motions for a preliminary injunction ....” On April 12, 2001, the Bankruptcy Court extended the TRO, again defining “Actions” as “pending actions and actions that have not been filed or are not pending as of the date of entry of this Order[,]” and ordered that the “Order GrantingTemporary Restraining Order entered on April 2,2001 temporarily restraining the prosecution and/or commencement of all Actions pending a resolution of plaintiffs pending motions for a preliminary injunction is hereby extended through and including April 24, 2001 ....” On April 18, 2001, the Bankruptcy Court entered a preliminary injunction pending a May 3, 2001 hearing. ¶6 On May 3, 2001, the Bankruptcy Court entered a Preliminary Injunction, which ordered “that the prosecution of all Actions are stayed and enjoined pending a final judgment in this adversary proceeding or further order of this Court ....” The Injunction again defined “Actions” as “any case filed or pending,” but omitted the previously used language, “and actions that have not been filed or are not pending.” ¶7 On January 22, 2002, the Bankruptcy Court modified the May 3, 2001 Order. The January 22, 2002 Order “reinstate^] the bar against the commencement of new Actions against Affiliated Entities.” The January 22, 2002 Order also restored the language that had been omitted from the May 3, 2001 Order, so that the definition of “Actions” again included “actions that have not been filed or are not pending....” The Order stayed and enjoined the prosecution of “all Actions as defined above.” ¶8 On March 26, 2007, W.R. Grace moved to expand the Bankruptcy Court’s Injunction to include actions against BNSF related to W.R. Grace’s Libby mining operations. On June 6, 2007, the Bankruptcy Court entered a temporary order staying cases against BNSF while it considered expanding the Injunction. ¶9 Meanwhile, Watson underwent a second health screening in October 2007. On October 22,2007, a physician advised Watson he had asbestos-related disease associated with his exposure while working for BNSF. ¶10 On April 11, 2008, the Bankruptcy Court entered an order expanding the Injunction to include BNSF as a Nondebtor Affiliate. The Order reads, in pertinent part: The matter before the Court is the Debtors’ Motion to Expand the Preliminary Injunction to Include Actions Against [BNSF] (the “Expansion Motion”), which seeks to expand the relief granted by the preliminary injunction (the “Injunction”) to specifically include actions against [BNSF] for exposure of some kind to the Debtors’ former vermiculite mining operations in Libby, Montana (the “Montana Actions”). The preliminary injunction at issue in this proceeding was issued on May 3, 2001, barring the prosecution of currently pending actions against various affiliated entities and third parties whose purported liability was solely derivative of W.R. Grace. After May 3,2001, the preliminary injunction was extended. On January 22, 2002, the court entered an order modifying the preliminary injunction to include certain additional affiliates and to reinstate the bar against the commencement of new actions against affiliates arising from alleged exposure to asbestos whether indirectly or directly causefd] by W.R. Grace. AND NOW, this 11th day of April, 2008, for the reasons expressed in the foregoing Memorandum Opinion, it is ORDERED, ADJUDGED, and DECREED that the objections are overruled and the Debtors’ Motion to Expand the Preliminary Injunction to Include Actions Against [BNSF], which seeks to expand the relief granted by the preliminary injunction to specifically include actions against BNSF for exposure of some kind to the Debtors’ former vermiculite mining operations in Libby, Montana (the “Montana Actions”), is GRANTED. It is further ORDERED, ADJUDGED, and DECREED that the Injunction, as defined in the foregoing Memorandum Opinion, is hereby expanded to include BNSF as a Nondebtor Affiliate and that the Montana Actions and all other similar actions that have been or may be brought against BNSF that arise from alleged exposure to vermiculite ore from the Debtors’ Libby mining operations are and shall be stayed until further order of the Court. (Emphasis added.) ¶11 On August 5, 2010, Watson and two other plaintiffs filed suit against the State of Montana, three wood products companies, Montana Light and Power Co., and Robinson Insulation Co., as well as fictitious defendants, Does A-Z. Watson’s complaint contains no allegations against BNSF; neither Watson’s employment nor BNSF is referenced in the pleading. ¶12 On February 3, 2014, under the Bankruptcy Court’s Order, W.R. Grace’s reorganization plan became effective and the automatic stays and injunctions, including actions against BNSF, terminated. ¶13 On November 28, 2014, Watson moved to amend his complaint to remove settled claims against the State, dismiss claims against the wood products defendants and Montana Light and Power Co., and add claims against BNSF. On December 2, 2014, Watson filed his First Amended Complaint and Demand for Jury Trial. He alleged that he was exposed to vermiculite dust during his employment with BNSF, which transported vermiculite for the W.R. Grace & Company and its predecessors from Libby to various locations. ¶14 On January 25, 2017, the District Court granted BNSF’s motion for summary judgment. The District Court held the statute of limitations barred Watson’s claim because Watson’s claim accrued on October 22,2007, and he should have filed his FELA claims by October 22, 2010. The District Court concluded that “[wjhile the bankruptcy court’s injunction stayed pending cases against BNSF, nothing in the injunction prohibited a plaintiff from suing,” and “[tjhere is nothing in the original bankruptcy court injunction, BNSF expanded injunction, or associated briefing referenced by the parties that precludes filing new cases to preserve the statute of limitations.” The District Court also concluded that “there is nothing in the plain language of the bankruptcy court’s original injunction or expanded BNSF injunction that enjoins the ‘commencement of an action’ to trigger § 27-2-406, MCA.” STANDARDS OF REVIEW ¶15 We review de novo a district court’s grant or denial of summary judgment, applying the same criteria of M. R. Civ. P. 56 as a district court. Anderson v. BNSF Railway, 2015 MT 240, ¶ 15, 380 Mont. 319, 354 P.3d 1248. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Anderson, ¶ 15. Once the moving party has met its burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Anderson, ¶ 15. We review a question of law to determine if the district court’s legal conclusions are correct. Anderson, ¶ 15 (citing Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294 P.3d 382). DISCUSSION ¶16 Whether the Bankruptcy Court’s Order enjoining claims against W.R. Grace and other ‘Affiliated Entities,” including BNSF, tolled the statute of limitations on Watson’s claim. ¶17 No action may be maintained under the FELA unless commenced within three years from the day the cause of action accrued. 45 U.S.C. § 56. Section 27-2-406, MCA, provides: “When the commencement of an action is stayed by injunction or other order of the court or judge or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.” ¶18 Watson argues the period of limitations for his action against BNSF should be deemed tolled because the commencement of an action against BNSF was enjoined by the Bankruptcy Court’s Injunction and § 27-2-406, MCA, applies. Watson asserts the District Court erroneously concluded that the Bankruptcy Court Injunction did not bar the “commencement” of a new action, such as Watson’s, because: (a) the Injunction was modified on January 22, 2002, to “reinstate the bar against the commencement of actions”; (b) the Injunction was expanded to bar not only certain “Montana Actions” but “all other similar actions that have been or may be filed” against BNSF; (c) the purpose of expanding the Injunction to include BNSF was to prevent the tender of defense to Debtor W.R. Grace that would be triggered by the filing of a complaint against BNSF; and (d) the Bankruptcy Court and the parties, including BNSF, repeatedly acknowledged the Injunction as a bar against the “commencement” of actions. ¶19 BNSF argues the latest date on which Watson’s claim accrued was October 22, 2007, but because Watson did not file until December 2014, the District Court’s grant of summary judgment was proper. BNSF maintains the Bankruptcy Court’s Injunction merely stayed the prosecution and litigation involving claims against BNSF arising out of W.R. Grace’s mining operations in Libby, and did not bar the commencement or filing of new claims against BNSF or toll the limitations period. BNSF contends the District Court appropriately determined that nothing in the plain language of the Injunction barred the commencement of new cases against BNSF while the Injunction was in place. We disagree. ¶20 The District Court’s Order failed to acknowledge the Bankruptcy Court’s January 22, 2002 Order that modified the May 3, 2001 Injunction for the express purpose of “reinstatfing] the bar against the commencement of new actions against Affiliated Entities.” Furthermore, the Bankruptcy Court’s April 11, 2008 Order that expanded the Injunction to include actions against BNSF specifically noted that the original Injunction was modified by the January 22, 2002 Order “to reinstate the bar against the commencement of new actions against affiliates arising from alleged exposure to asbestos whether indirectly or directly cause by W.R. Grace.” The April 11, 2008 Order concluded: It is further ORDERED, ADJUDGED, and DECREED that the Injunction, as defined in the foregoing Memorandum Opinion, is hereby expanded to include BNSF as a Nondebtor Affiliate and that the Montana Actions and all other similar actions that have been or may be brought against BNSF that arise from alleged exposure to vermiculite ore from the Debtors’ Libby mining operations are and shall be stayed until further order of the Court. (Emphasis added.) ¶21 Watson’s claim accrued in October 2007. While his claim was still well within the FELA’s three-year statute of limitations, the Bankruptcy Court issued its April 22, 2008 Order expanding the Injunction to include BNSF as a Nondebtor Affiliate. This Injunction, as modified by the Bankruptcy Court’s January 22, 2002 Order, “bar[red] ... the commencement of new actions against affiliates.” Effective upon the issuance of the Bankruptcy Court’s April 22, 2008 Order, therefore, Watson was barred from commencing his asbestos-related disease action against BNSF. The Bankruptcy Court’s Injunction was lifted on February 3, 2014, at which time Watson’s statute of limitations resumed running. Watson amended his Complaint to include BNSF on November 28, 2014. Approximately six months passed between October 22,2007, when Watson’s claim against BNSF accrued, to April 11, 2008, when the Bankruptcy Court’s Injunction was expanded to include BNSF. Approximately ten months passed between February 3, 2014, when the Bankruptcy Court’s Injunction was lifted, until November 28, 2014, when Watson amended his Complaint to include BNSF. After excluding the time that Watson was enjoined from commencing an action against BNSF, he amended his Complaint to include a claim against BNSF approximately sixteen months after his claim accrued. This was well within the FELA’s three-year statute of limitations. CONCLUSION ¶22 The District Court erred in its conclusion that the Bankruptcy Court’s Injunction did not bar the commencement of new actions against BNSF. We reverse the District Court’s order granting summary judgment to BNSF and remand to the District Court for further proceedings consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES SANDEFUR, BAKER and RICE concur. Section 27-2-406, MCA, tolls a limitations period “[w]hen the commencement of an action is stayed by injunction or other order of the court or judge or statutory prohibition.”

Affirmed Dist. 22 (Carbon)

Denied Original Proceeding Supervisory Control

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Gabriel Pearson appeals an order of the Ninth Judicial District Court, Toole County, granting summary judgment to Bernice McPhillips and relieving her of liability for a fire James Raulston started while cutting scrap metal on McPhillips’ property. We address: 1. Whether the District Court erred in finding that McPhillips and Raulston were not engaged in a joint venture. 2. Whether the District Court erred in finding that using a cutting torch is not an inherently dangerous activity. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In early 2012, Raulston started a scrap metal business, whereby he collected scrap metal from landowners in Toole County, Montana, and sold it. Raulston approached several landowners to discuss removing scrap metal from their property; some permitted him to do so and others did not. In February 2012, Raulston approached Scott O’Brien, McPhillips’ son-indaw, who helps McPhillips manage her property. Raulston asked O’Brien if he could remove scrap metal from McPhillips’ property and sell it. On behalf of McPhillips, O’Brien gave Raulston permission to remove the scrap metal, in addition to several “old junk vehicles” from McPhillips’ property that Raulston claimed were previously owned by one of his relatives. O’Brien agreed on the condition that Raulston give him thirty-five percent of the proceeds from the sale of the scrap metal. O’Brien provided Raulston with a map of the property and wrote the basic terms of the parties’ agreement on the map, including: “Jim Ra[u]lston in a white flatbed truck has permission to pick up scrap in the yellow areas only:” and “[t]he split for the scrap is 65% Jim 35% Scott on Gross Sales + Receipts provided.” (Emphasis in original.) Two areas on the map are highlighted in yellow. ¶4 According to his affidavit, Raulston chose the days and hours he worked; who, if anyone, worked with him; and the method and manner of removing the scrap metal. He did not seek McPhillips’ approval or permission for these actions. Raulston did not contract with O’Brien or McPhillips for any compensation other than sixty-five percent of the proceeds from the sale of the scrap metal. He used his own equipment and tools. Both Raulston and O’Brien testified via affidavit that they never considered Raulston to be an employee of McPhillips or O’Brien. Raulston operated in a similar manner with other landowners in the area who, according to their affidavits, understood Raulston “to be an independent business person agreeing ... to perform work of removal of scrap” from their property. ¶5 In March 2012, Raulston was using a cutting torch to cut scrap metal on McPhillips’ property when an errant spark from the torch started a grass fire that he was unable to immediately contain. The fire spread, burning several structures and a variety of equipment on Pearson’s property. Pearson filed a complaint against both Raulston and McPhillips, alleging that Raulston was “acting as an agent, servant, or employee” of McPhillips when he started the fire. McPhillips filed a motion for summary judgment, contending that she should be dismissed from the case because Pearson was unable to show that McPhillips was vicariously liable for Raulston’s actions. The District Court agreed and granted summary judgment to McPhillips, holding that McPhillips was not vicariously liable for Raulston’s actions because: (1) McPhillips and Raulston did not enter into a joint venture; (2) Raulston was an independent contractor; and (3) Raulston’s use of a cutting torch on the scrap metal was not an inherently dangerous activity. Pearson appeals the District Court’s decision, contending that the agreement between Raulston and O’Brien created a joint venture and that Raulston’s use of a torch was an inherently dangerous activity. STANDARDS OF REVIEW ¶6 We review summary judgment orders de novo, applying the same criteria as the district court, set forth in M. R. Civ. P. 56. Rich v. Ellingson, 2007 MT 346, ¶ 12, 340 Mont. 285, 174 P.3d 491. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). The moving party has the initial burden of establishing these requirements. Rich, ¶ 12. Once the moving party has met this burden, “the opposing party must present substantial evidence essential to one or more elements of its case in order to raise a genuine issue of material fact .’’ Rich, ¶ 12. A district court’s interpretation of a contract is a matter of law, which we review for correctness. Eschenbacher v. Anderson, 2001 MT 206, ¶ 21, 306 Mont. 321, 34 P.3d 87. DISCUSSION ¶7 1. Whether the District Court erred in finding that McPhillips and Raulston were not engaged in a joint venture. ¶8 “A joint venture is an ‘association of two or more persons to carry on a single business enterprise for profit.’ ” Brookins v. Mote, 2012 MT 283, ¶ 43, 367 Mont. 193, 292 P.3d 347 (quoting Sunbird Aviation, Inc. v. Anderson, 200 Mont. 438, 444, 651 P.2d 622, 625 (1982)). To qualify as joint venturers, the parties must have: (1) an express or implied agreement or contract creating a joint venture; (2) a common purpose; (3) community of interest; and (4) an equal right to control the venture. Brookins, ¶ 43. Under the first element, the parties’ intent is crucial to determining whether a joint venture exists. See Rae v. Cameron, 112 Mont. 159, 168, 114 P.2d 1060, 1064 (1941) (“As between the parties themselves, the relationship of joint adventurers is a matter of intent, and arises only where they intend to associate themselves as such.”) (citation omitted). ¶9 We determine whether parties to an agreement intended to create a joint venture “in accordance with the ordinary rules governing the interpretation and construction of contracts.” Rae, 112 Mont. at 168, 114 P.2d at 1064 (citation omitted). “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting....” Section 28-3-301, MCA. When a contract is in writing, “the intention of the parties is to be ascertained from the writing alone if possible.” Section 28-3-303, MCA. However, “where intent cannot be directly ascertained, it must be established from all the facts, circumstances, actions, and conduct of the parties.” MacArthur Co. v. Stein, 282 Mont. 85, 90, 934 P.2d 214, 217 (1997) (citation omitted); accord Bender v. Bender, 144 Mont. 470, 480, 397 P.2d 957, 962 (1965) (holding that, to establish a joint venture or partnership, “[t]he intention of the parties has to be clearly manifested, and must be ascertained from all the facts and circumstances and the actions and conduct of the parties”) (citations omitted). ¶10 The District Court noted, and Pearson concedes on appeal, that Raulston and McPhillips did not expressly create a joint venture. The District Court thus considered the “facts, circumstances, actions, and conduct of the parties.” MacArthur Co., 282 Mont. at 90, 934 P.2d at 217. The Court found that, while McPhillips dictated where on her property Raulston could go, Raulston used his own equipment and chose the days and hours he worked; who, if anyone, worked with him; and the methods he used. The District Court also considered affidavits submitted by Raulston, O’Brien, and several other landowners who entered into similar agreements with Raulston, all of whom believed Raulston was an “independent business person” removing scrap metal from the landowners’ property in exchange for a portion of the proceeds. Based on these facts, and the lack of evidence to rebut them, the District Court found: “There is no evidence ... suggesting intention on either the part of McPhillips or Raulston to create a joint venture.” ¶11 In his opening brief, Pearson states that “an agreement can be implied,” suggesting that the District Court erred in not finding an implied agreement to create a joint venture. Pearson cites no evidence and provides no argument that the parties in this case implicitly agreed to enter into a joint venture. In his opposition to McPhillips’ motion for summary judgment, Pearson argued that McPhillips and Raulston entered into a joint venture because: McPhillips obviously contributed the real property and the scrap metal to the joint venture and in exchange therefore, was to receive 35% of the proceeds from salvaging the metal. Specifically, McPhillips stated in her brief, “[t]o the contrary, Raulston came to Bernice McPhillips, via Scott O’Brien, and sought permission to remove scrap metal from her property in exchange for his payment to her of a fee.” (Emphasis in original.) By this logic, a customer who removes an item from a store after providing payment to the store is entering into a joint venture with the store-owner. The only difference between the store scenario and the parties’ agreement in this case is that Raulston’s payment for the items in question was derived via a percentage of the proceeds from the scrap metal. Notably, Pearson does not expressly contend that the parties’ shared profit in itself was sufficient to establish intent; nonetheless, we note that while profit sharing may be persuasive evidence of a joint venture, it does not conclusively establish one. See Antonick v. Jones, 236 Mont. 279, 287, 769 P.2d 1240, 1244 (1989) (“[E]ven if the parties were sharing profits, this is not conclusive evidence of a partnership relationship.”); Decker Coal Co. v. Commonwealth Edison Co., 220 Mont. 251, 253-54, 714 P.2d 155, 156 (1986) (“[UJnder Montana law a joint venture ... is treated like a partnership.”) (citation omitted). ¶12 The parties do not dispute the material facts regarding their relationship. Although the Dissent cites our statement in Murphy v. Redland, 178 Mont. 296, 303, 583 P.2d 1049, 1053 (1978), that a joint venture is “a quasi-partnership in a single adventure undertaken for mutual gain,” Dissent, ¶ 21, we further stated in Murphy that each joint venturer must have “the right of control over the others and an equal right to a voice in performing the joint venture as well as in controlling the agencies used in its performance,” Murphy, 178 Mont. at 304, 583 P.2d at 1053. McPhillips dictated the areas of her property from which Raulston could collect scrap metal but had no control over the equipment he used, the days and hours he worked, or the methods he used. Thus, McPhillips did not have an equal right to a voice in controlling the agencies Raulston used in his performance. ¶13 We agree with the District Court that Pearson failed to present evidence to establish a genuine issue of material fact as to whether McPhillips and Raulston intended to enter into a joint venture. Given that intent is crucial to the determination of whether a joint venture exists, Rae, 112 Mont. at 168, 114 P.2d at 1064, McPhillips demonstrated entitlement to judgment as a matter of law on this issue. ¶14 2. Whether the District Court erred in finding that using a cutting torch is not an inherently dangerous activity. ¶15 As a general rule, a person who hires an independent contractor is not liable for the contractor’s torts. Beckman v. Butte-Silver Bow Cnty., 2000 MT 112, ¶ 12, 299 Mont. 389, 1 P.3d 348. However, an exception to this rule occurs when the independent contractor is engaged in an inherently dangerous activity. Beckman, ¶ 12. In such cases, the employer is vicariously liable for injuries to others caused by the contractor’s failure to take precautions to reduce the unreasonable risks associated with engaging in the inherently dangerous activity. See Beckman, ¶ 24. ¶16 Pearson contends that McPhillips is vicariously liable because Raulston engaged in an inherently dangerous activity when he used a torch to cut the scrap metal on a dry and windy day. In rejecting this argument, the District Court cited Woodward v. Metille, 81 Ill. App. 3d 168 (1980). In Woodward, as in this case, an independent contractor was using a cutting torch to remove scrap metal from another person’s property when he started a fire that spread to the plaintiffs’ property. The plaintiffs sought to impute the contractor’s negligence to the property owner, alleging that using a cutting torch on scrap metal is inherently dangerous. The Illinois Court of Appeals rejected this argument, holding: “The use of a cutting torch is an activity which, if carried on properly and by competent and careful operators, is not in itself inherently dangerous.” Woodward, 81 Ill. App. 3d at 176. In reaching this decision, the court noted that, when the danger and likelihood of injury do not inhere in the nature of the activity, “but rather in the manner of its particular use at the time and at the place of occurrence,” the activity is not inherently dangerous. Woodward, 81 Ill. App. 3d at 176. We used similar reasoning in Beckman. We compared the inherently dangerous activity of people working in trenches, “where a cave-in can cause death or serious bodily injury,” with “[m]uch of the activity that occurs on a construction site [which], although potentially dangerous, is quite safe when simple, easy to follow safety precautions are taken,” and thus not inherently dangerous. Beckman, ¶¶ 24-25. ¶17 Pearson contends that it is not simply Raulston’s use of a cutting torch itself, but his use of a cutting torch on a dry and windy day that made it inherently dangerous. Under Pearson’s argument, the manner of Raulston’s use of the torch at the time and place of occurrence is what made the activity inherently dangerous. This argument contradicts our reasoning in Beckman that an activity is not inherently dangerous if simple, easy-to-follow safety precautions may be taken. Pearson cites no evidence that the use of a cutting torch in and of itself, separate from the manner of use and place of occurrence, is inherently dangerous. Therefore, Pearson has not alleged facts to contradict McPhillips’ assertion and the District Court’s finding that Raulston’s use of a cutting torch was not inherently dangerous. CONCLUSION ¶18 We affirm the District Court’s decision and order. JUSTICES WHEAT, McKINNON and BAKER concur. The parties dispute Raulston’s status as an independent contractor; however, his status is irrelevant to our resolution of this issue because the undisputed facts do not support a conclusion that Raulston was engaged in an inherently dangerous activity.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Citizens for a Better Flathead (Citizens) appeals the District Court’s rejection of its challenge to Flathead County’s 2012 Revised Growth Policy. Citizens asserts that both the Flathead County Planning Board (Planning Board or Board) and the County Commission (Commission) violated public rights protected by Montana’s constitution and statutes when they developed the revised policy without adequate public participation. Citizens also claims that the County failed to follow its own procedures for amending the growth policy. We agree with the District Court that the alleged irregularities do not invalidate the revised growth policy. Because the growth policy lacks the force of law, we likewise affirm the District Court’s refusal to strike from it what Citizens calls the “property rights trump card.” ¶2 We address Citizens’ claims in the following issues: 1. Whether the District Court abused its discretion in striking Citizens’ expert report. 2. Whether the District Court erred in determining that the Commission complied with the growth policy’s mandatory procedures for adopting revisions. 3. Whether the District Court erred in determining that the Commission allowed meaningful public participation in the revision process. 4. Whether the District Court erred in determining that the Commission adequately incorporated public comments into its decision-making process. 5. Whether the final clause in Part 6 of the revised growth policy survives constitutional scrutiny. PROCEDURAL AND FACTUAL BACKGROUND ¶3 The Commission adopted the original Flathead County Growth Policy in March 2007. The growth policy’s terms required the Planning Board to review the policy at least every five years and to make recommendations to the Commission as to what changes to the original policy, if any, it should adopt. In anticipation of the five-year deadline, the Planning Board prepared a proposed “work plan” for the growth policy update process and forwarded it to the Commission for consideration. On January 3, 2011, the Commission adopted a resolution requesting that the Planning Board update the growth policy as proposed by the work plan. ¶4 Shortly after the Commission’s resolution, the Planning Board announced through a press release that it was commencing a revision process. Over the next year, the Planning Board held approximately twenty public workshops to solicit public comment and to discuss revisions to the growth policy. ¶5 The Planning Board presented a “first final draft” of the revised growth policy at a public hearing on February 15, 2012. Members of the public offered comments on the draft. Over the next few months, the Planning Board held four additional public workshops and continued to refine the draft policy. ¶6 The Planning Board released a “second final draft” in April 2012, and solicited comments on this draft at another public hearing in June. The Planning Board discussed these public comments at its next meeting. The Board voted to forward the policy to the Commission for approval. ¶7 The Commission passed a resolution of intent to adopt the Planning Board’s proposed revised growth policy and initiated a thirty- day public comment period. After the comment period ended, the Commission held a meeting on October 12, 2012. At that meeting, it approved the revised growth policy. The October meeting, along with all of the Planning Board’s public workshops and hearings, was recorded onto DVD. The Commission did not issue written findings of fact explaining its rationale for approving the policy. ¶8 Citizens brought suit, claiming that the Commission’s adoption of the revised growth policy violated Montana statutes, the Montana Constitution, and Flathead County’s own procedures. In support of its claims, Citizens submitted an expert report of Kathleen McMahon. The District Court granted the Commission’s motion to strike McMahon’s report. Citizens and the Commission filed cross-motions for summary judgment on the question whether the revised growth policy’s adoption complied with the law. The District Court granted the Commission’s motion, reasoning that the growth policy revision process did not violate any statutory, constitutional, or regulatory provisions. Citizens appeals. STANDARDS OF REVIEW ¶9 It is within a district court’s discretion to determine whether evidence is relevant and admissible. State v. Hocevar, 2000 MT 157, ¶ 54, 300 Mont. 167, 7 P.3d 329. District courts are vested with great latitude in ruling on the admissibility of expert testimony. Hocevar, ¶ 54. Absent a showing of an abuse of discretion, we will not overturn a district court’s determinations on evidentiary matters. Hocevar, ¶ 54. ¶10 We review de novo a district court’s ruling on summary judgment, applying the criteria of M. R. Civ. P. 56(c)(3). Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court’s conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. Pilgeram, ¶ 9. ¶11 We review a governing body’s decision to amend or revise its growth policy—a legislative act—for an abuse of discretion. North 93 Neighbors, Inc. v. Board of Cnty. Comm’rs of Flathead Cnty., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557. ¶12 This Court’s review of constitutional questions is plenary. Williams v. Bd. of Cnty. Comm’rs, 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. DISCUSSION ¶13 1. Whether the District Court abused its discretion in striking Citizens’ expert report. ¶14 Kathleen McMahon is a professional land-use planner. At Citizens’ request, she reviewed the audio and video recordings of the Planning Board’s and the Commission’s public meetings. She then prepared a report discussing the growth policy’s revisions and the process employed in preparing and adopting those revisions. Citizens proffered her report as evidence. ¶15 The District Court struck the report on a number of grounds, among which was that it contained legal conclusions. Citizens argues that the report is admissible because it served the primary purpose of assisting the trier of fact to understand the content of the numerous recorded public workshops and hearings. Citizens alternatively argues that, even if the District Court rightly identified certain portions of the report as inadmissible, the remaining portions should have been admitted. ¶16 The McMahon report’s stated purposes include: (1) determining if the growth policy revision process “followed requirements mandated by the Montana Code Annotated (MCA) and the process for updates that is specified in the Flathead County Growth Policy”; (2) reviewing key revisions to the growth policy to determine if they are “consistent with the requirements of the MCA”; and (3) assessing whether the revision process “provided meaningful public participation in accordance with the MCA and the county’s own obligations.” The report analyzes whether the Commission’s and the Planning Board’s activities conformed to the growth policy’s guidelines for revision and complied with Montana statutory, constitutional, and case law. ¶17 Montana law permits testimony by experts “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” M. R. Evid. 702. We have held, however, that “expert opinion that states a legal conclusion or applies the law to the facts is inadmissible.” Wicklund v. Sundheim, 2016 MT 62, ¶ 15, 383 Mont. 1, 367 P.3d 403 (citing Cartwright v. Scheels All Sports, Inc., 2013 MT 158, ¶ 43, 370 Mont. 369, 310 P.3d 1080). “Legal conclusions offered by an expert witness invade the province of the fact-finder, whose duty it is to apply the law as given to the facts in the case.” Wicklund, ¶ 15 (citing Perdue v. Gagnon Farms, Inc., 2003 MT 47, ¶ 28, 314 Mont. 303, 65 P.3d 570). ¶18 Rather than serving to “assist the trier of fact to understand the evidence orto determine a fact in issue,” M. R. Evid. 702, the McMahon report primarily offers legal conclusions. The report’s stated purposes include determining whether the revision process met the legal requirements of Montana statutes and the procedural requirements of the County’s growth policy. The report repeatedly applies the law to the Commission’s and the Planning Board’s actions. By applying the law to the facts of this case, the report impermissibly offers legal conclusions. See Wicklund, ¶ 15. We therefore hold that the District Court did not abuse its discretion in striking this report. See Hocevar, ¶ 54. ¶19 Similarly, we are unpersuaded by Citizens’ argument that the District Court erred in excluding certain segments of the report that it argues are admissible, such as the summary tables and descriptions of the DVD recordings. These tables and descriptions mainly provided background information to support the report’s legal conclusions. The District Court reasonably determined, within its broad discretion, that these portions of the report had little relevance independent of their relation to the report’s legal conclusions. The court did not abuse its discretion in striking these segments of the report. ¶20 2. Whether the District Court erred in determining that the Commission complied with the growth policy’s mandatory procedures for adopting revisions. ¶21 The District Court held that the Planning Board and the Commission properly observed the growth policy’s revision procedures. It concluded that the Planning Board did not exceed its broad scope of review in revising the policy, that the revisions to the policy constituted “updates” rather than “amendments,” and that the requirement to prepare findings of fact did not apply to the Commission or to the Planning Board. ¶22 Citizens argues that the Planning Board exceeded the scope of review defined in the original work plan and that the revisions constituted “amendments” to the growth policy rather than “updates.” The Planning Board and the Commission, Citizens maintains, failed to comply with the original growth policy’s requirements for amending the policy when they neglected to prepare written findings of fact. In the alternative, Citizens argues that even if the revisions to the policy constituted “updates,” the Planning Board and the Commission failed to meet the requirements for updating the policy by not holding meetings “throughout” Flathead County. ¶23 The original growth policy described the requirements for updating or amending the policy. Chapter 9, Part 6, under the heading, “Growth Policy Update,” provided in relevant part: At a minimum of every five years, the Planning Board shall prepare a draft revised Growth Policy... Goals and policies should be revised as needed to accurately reflect the present day needs of Flathead County ... Public meetings shall be held throughout Flathead County to present revisions to the public and gather public opinion. ¶24 Chapter 9, Part 7, titled, “Growth Policy Amendments,” stated as follows: Various events could potentially create a situation where certain goals, policies and/or implementation techniques are no longer adequate or appropriate. If this occurs prior to the regularly scheduled updates, the Flathead County Growth Policy may be amended ... Amendments shall be subject to ... preparation of findings of fact. ¶25 Montana law requires that “a governing body ‘must be guided by and give consideration to’ its growth policy.” North 93 Neighbors, Inc., ¶ 22 (quoting § 76-1-605, MCA). We have held that a governing body “must substantially comply with an adopted growth policy.” Heffernan v. Missoula City Council, 2011 MT 91, ¶ 77, 360 Mont. 207, 255 P.3d 80; North 93 Neighbors, Inc., ¶ 23. Chapter 9, Part 7 of the growth policy defines amendments as changes to the policy that occur “prior to the regularly scheduled updates.” By contrast, Part 6 implies that updates are revisions to the growth policy that occur routinely—every five years at minimum. ¶26 The record shows that the revision process began with discussions of a Planning Board subcommittee in the fall of 2010, in anticipation of the April 2012 five-year deadline. The Commission’s January 3,2011 resolution—about four years after it adopted the initial policy—called for an “update” of the growth policy. The Commission approved the Planning Board’s proposed work plan at the same time. The work plan stated a goal of “updating the Growth Policy by April 2012.” “Rather than a wholesale update” of the growth policy, the work plan stated that “it would be most effective to focus on specific areas of the growth policy in most need of updating or clarification based on public input received as well as insight gleaned from working with the [growth policy] document over the past 4 years.” The plan named three areas of “main focus” for the revision process, with two sub-topics under each. ¶27 The revised growth policy came about as part of a longstanding plan to update the growth policy every five years. Both the resolution and the work plan called for an update, and the resolution directed the Planning Board to consider “insight gleaned from working with the document over the past 4 years.” The District Court correctly determined that the revisions to the growth policy constituted an update within the meaning of Chapter 9, Part 6. ¶28 Next, we agree with the District Court that the Planning Board did not exceed its scope of review as determined by the work plan. The flexible language of the work plan’s phrases, quoted above, gave the Planning Board discretion and a wide-ranging directive to revise the growth policy, rather than a rigid set of instructions. Furthermore, Chapter 9, Part 6 of the growth policy states, “Goals and policies should be revised as needed.” (Emphasis added.) Taken together, this provision and the work plan’s flexible language gave the Planning Board a broad directive to revise the policy. In expanding the revision process to include topics not specifically identified by the work plan, the revision process did not violate this directive. ¶29 Finally, the Planning Board and the Commission complied with the requirements for updating the growth policy. The policy calls for “preparation of findings of fact” only when the governing body initiates amendments pursuant to Chapter 9, Part 7 of the policy; thus, the absence of such findings here is immaterial. Rather, when a governing body revises a growth policy, it “must equip reviewing courts with a record of the facts it relied upon in making its decision to avoid judicial intrusion into matters committed to the Board’s discretion.” North 93 Neighbors, Inc., ¶ 35. Citizens challenges the Board’s processes, but it does not argue that any particular revisions are without support in the administrative record. The only requirement for updating the policy that Citizens claims the Commission and the Planning Board did not meet is the provision in Chapter 9, Part 6 that “Iplublic meetings shall be held throughout Flathead County to present revisions to the public and gather public opinion.” (Emphasis added.) ¶30 Citizens points out that the Commission and the Planning Board held meetings only in Kalispell and not in additional locations throughout the county. While true, we conclude that this failure alone does not require invalidating the revised growth policy. The record does not suggest that limiting the meetings to Kalispell negatively affected the Planning Board’s presentation of revisions to the public, or that the public was limited in its ability to comment on the proposed changes. Citizens does not demonstrate how the numerous public meetings and hearings the Board and the Commission convened should be deemed substantial non-compliance with the growth policy on the single ground that all of those meetings occurred in one part of the county. See Heffernan, ¶ 77. ¶31 In conclusion, the Planning Board and the Commission substantially complied with the County’s procedural requirements for updating the growth policy. The District Court’s holding on this issue was correct. ¶32 3. Whether the District Court erred in determining that the Commission allowed meaningful public participation in the revision process. ¶33 In response to Citizens’ public participation challenge, the District Court concluded that no statutory basis existed to invalidate the revised growth policy. In its view, the public participation statutes afforded Citizens no avenue for relief because the Planning Board was not an “agency” whose “decision” the law allowed the court to invalidate. The court therefore declined to consider further whether the Planning Board violated its public participation obligations. ¶34 Citizens asserts that the Planning Board failed to keep minutes of its meetings, failed to produce a comprehensive document highlighting in one place all the changes made to the original growth policy, and failed to give adequate notice after its February 15, 2012 public hearing of what changes it was considering. These failures, in Citizens’ view, amounted to statutory violations of Montana’s open meeting laws and constitutional violations of the rights to know and participate. ¶35 The record shows that the Planning Board held over twenty public workshops at which it solicited public comment on proposed revisions to the growth policy. The Board held its first public hearing on February 15,2012, to discuss the revised policy’s “first final draft.” The Board then held four additional public workshops between February and April to further revise the policy. On June 13, 2012, the Planning Board held a public hearing to discuss the policy’s “second final draft.” It posted the “second final draft” to the County’s website well in advance of this hearing. The Planning Board continued discussion of this second draft at a public meeting the following month. Throughout the revision process, the Planning Board gave notice of the times, dates, locations, and agendas of its public workshops and hearings. ¶36 All of the Planning Board’s public workshops and hearings were recorded onto DVD. The DVDs did not include written logs to help viewers access the contents. The Planning Board did not keep written minutes of its many public workshops, but it did keep minutes of its public hearings on February 15 and June 13, 2012, and of its public meeting in July 2012. ¶37 The Planning Board routinely posted “tracked-changes” versions of the growth policy’s individual chapters to the County’s website during the revision process. Neither the Planning Board nor the Commission, however, provided the public with a single, comprehensive document identifying all of the proposed changes to the original policy. ¶38 The Commission entertained a thirty-day public comment period on the proposed revised growth policy, and then held a public meeting on October 12, 2012, to discuss the public comments received. At the beginning of the meeting, the Commissioners briefly solicited oral public comments. The Commission kept minutes of this meeting and recorded the entire meeting. At the conclusion of the public meeting, the Commission voted to approve the revised growth policy. ¶39 Article II, Section 8, of the Montana Constitution provides, “The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.” We have held that “[t]he essential elements of public participation” required by Article II, Section 8, are “notice and an opportunity to be heard.” Bitterroot River Protective Ass’n v. Bitterroot Conservation Dist., 2008 MT 377, ¶ 21, 346 Mont. 507, 198 P.3d 219. The public’s right to participate requires more than simply an “uninformed opportunity to speak.” Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 44, 312 Mont. 257, 60 P.3d 381. The right to know is protected by Article II, Section 9, of the Constitution, which provides, “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions.” We analyze Article II, Sections 8 and 9, as coextensive provisions. Bryan, ¶ 31. ¶40 The Legislature implemented these constitutional rights by enacting §§ 2-3-101 to -221, MCA. Bryan, ¶ 24. The law requires that agencies “develop procedures for permitting and encouraging” public participation and provide adequate notice of their planned actions. Section 2-3-103(1)(a), MCA. It also requires that agencies give the public a “reasonable opportunity to submit data, views, or arguments.” Section 2-3-111, MCA. Meetings of “public or governmental bodies [or] boards” must be open to the public. Section 2-3-203(1), MCA. The governmental bodies must either keep minutes of their meetings or create audio recordings accompanied by logs or time stamps. Section 2-3-212(1), (3), MCA. ¶41 Courts may void agency decisions reached in violation of these statutory provisions. Sections 2-3-114, -213, MCA. Montana law defines an agency as “any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts.” Section 2-3-102, MCA (emphasis added). Courts may not use §§2-3-114 or -213, MCA, to invalidate decisions made by public bodies that are not agencies, even if those decisions violate the open meeting laws. Allen v. Lakeside Neighborhood Planning Comm., 2013 MT 237, ¶ 31, 371 Mont. 310, 308 P.3d 956. ¶42 The Planning Board does not have the authority of an agency. Its duty is to recommend that the Commission adopt, reject, or take some other action with regard to the proposed revisions to the growth policy. Section § 76-1-603, MCA. The Planning Board’s recommendations are not binding on the Commission. Allen, ¶ 28. Because the Planning Board is not an agency as defined by law, the statutes do not authorize a court to invalidate its actions. Allen, ¶ 31; §§ 2-3-114 and -213, MCA. ¶43 While the Commission is an “agency” under § 2-3-102, MCA, it did not violate the open meeting laws. The Commission solicited public comment prior to and during its October 12, 2012 meeting, and it kept minutes at the meeting. The Commission provided the public with a “reasonable opportunity to submit data, views, or arguments.” Section 2-3-111, MCA. ¶44 Citizens nonetheless contends that the Planning Board and the Commission deprived Citizens of the meaningful participation guaranteed by Article II, Sections 8 and 9, of the Montana Constitution. First, the record shows that the Planning Board gave advance notice of its public workshops and hearings. The Planning Board provided agendas for its public workshops between February and April 2012. The Commission solicited public comment on its proposed adoption of the revised growth policy for a thirty-day period prior to its October 12,2012 meeting. These actions provided adequate notice under the law to the public regarding the Planning Board’s and the Commission’s deliberations. See Bitterroot, ¶ 21; § 2-3-103(1)(a), MCA. ¶45 Second, the Planning Board and the Commission allowed for public observation of their deliberations. All of the workshops, hearings, and meetings were open to the public and recorded onto publicly available DVDs. This fulfilled the constitutional obligation of permitting public observation. See Mont. Const, art. II, § 9; § 2-3-203(1), MCA. ¶46 Third, and finally, the Planning Board and the Commission gave the public reasonable opportunities to be heard during the deliberations, and these opportunities amounted to more than uninformed opportunities to speak. See Bryan, ¶ 44. The Planning Board held over twenty workshops and multiple hearings at which it solicited public comments. The Board preceded each subsequent meeting with a release of changes made since the last meeting, and it posted those changes to its website for viewing. True, the County did not maintain a comprehensive document to illustrate all changes proposed. But the Planning Board did post a full proposed revised growth policy draft to the County’s website well before the June 13, 2012 public hearing. Finally, the Board posted agendas of its workshops between its presentations of the first and second “final drafts” of the revised policy. ¶47 The Commission entertained a thirty-day public comment period prior to adopting the revised growth policy. Members of the public submitted 299 written comments in the form of emails, letters, and postcards, and a petition containing 451 signatures. We conclude that the public had ample reasonable opportunities through the workshops, the hearings, the website materials, and the comment period to be informed and to be heard by the Planning Board and the Commission. See Bitterroot, ¶ 21; Bryan, ¶ 44; § 2-3-111, MCA. ¶48 The Planning Board and the Commission met the constitutional requirements of Article II, Sections 8 and 9. They gave adequate notice of their deliberations, allowed the public to observe the meetings, and gave the public sufficient opportunities to be informed and heard. As such, neither the Commission nor the Planning Board infringed on the public’s right to participate or right to know. For these reasons, we hold that the District Court did not err in determining that the Commission allowed for meaningful public participation in the revision process. ¶49 Citizens takes issue with the complexity of the process and with the difficulty for the public in keeping abreast of the specific revisions under consideration and in following the details of the Planning Board’s deliberative process. The statute commands a “reasonable opportunity” for public participation. Section 2-3-111, MCA. The court cannot dictate process to government agencies administering programs and functions within their authority. Instead, this Court’s role is limited to assessing whether the Planning Board and the Commission fulfilled the obligations imposed by the Constitution and related statutes. We conclude that they did. ¶50 4. Whether the District Court erred in determining that the Commission adequately incorporated public comments into its decision-making process. ¶51 Citizens claims that the Commission, through its own actions and those of the Planning Board, failed to consider public comments, to incorporate those comments into the decision-making process, to summarize the comments, or to explain how the comments factored into its decision, in violation of the law. The District Court disagreed, reasoning that the Planning Board and the Commission received many public comments and that the record showed that these comments had at least some influence on their decision-making processes. ¶52 At the February 15, 2012 public hearing, Flathead County residents commented on the “first final draft” of the proposed revised version of the growth policy. The Planning Board then discussed those comments. The Planning Board’s four public workshops in the ensuing months included discussion of public input. The minutes of the Board’s June 2012 public hearing reflect that the Board made revisions to the growth policy in the months followingthe February 2012 hearingbased on its consideration of the public input received and on the Board’s own discussions. ¶53 Members of the public offered additional comments on the revised growth policy’s “second final draft” at the Planning Board’s June 2012 public hearing. When the Planning Board met the next month, each member discussed his or her thoughts on the public comments received at the June hearing. ¶54 Under Montana law, the Planning Board was required to consider “the recommendations and suggestions elicited at the public hearing[s],” § 76-1-603, MCA, and to “incorporate those comments into its decision-making process,” North 93 Neighbors, Inc., ¶ 36. Here, the Planning Board’s consideration and incorporation of public comment met the law’s requirements. Board members discussed the public comments offered at the two public hearings. In the months following the February 15, 2012 hearing, the Board based its many revisions to the policy on public comments received at the workshops and on the Board’s own discussions at those workshops. This record establishes that the Planning Board considered “the recommendations and suggestions elicited at the public hearingl.sl” and “incorporate[d] those comments into its decision-making process.” Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. The law does not require that specific public comment be incorporated into the final decision, only into the process. ¶55 The Commission also was required to consider and incorporate public comments into its process. Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. In addition, by County resolution, the Commission was required to “summarize” the comments received and to “explain” how the comments influenced its decision to approve the revised policy. Flathead County Resolution No. 2129, March 18, 2008 (stating that the “scope and format of such summarization and explanation may vary as appropriate for the type of decision and extent of public comment”). This resolution provides no specific requirement as to the form of the Commission’s summary and explanation. ¶56 The Commission met on October 12, 2012, to discuss the public comments received as to the Commission’s intent to adopt the revised growth policy. At that meeting, the Commissioners briefly summarized the comments and explained how the comments factored into their decisions. Commissioner Holmquist summarized the comments for and against the revised growth policy, and explained how the comments opposing the policy factored into her decision. Commissioner Scott and Chairman Lauman addressed specific issues with the growth policy that the public comments raised, including traffic, water quality, planning and zoning, and development along highways. We conclude that these discussions fulfilled the Commission’s obligations to consider and incorporate public comments into its process, to summarize the comments, and to explain how the comments influenced its decision to adopt the revised growth policy. ¶57 Citizens argues that the Planning Board and the Commission could not possibly have considered all of the public comments from the revision process, given the volume of comments received. The Planning Board members and Commissioners stated, however, that each had reviewed the public comments. It is not within this Court’s purview to determine how sincere these county officials were in their assertions that they had reviewed all public comment or to assess how the comments factored into their decisions. The scope of our review is to determine, based on the record, whether the Planning Board and the Commission “considered] the public comments and incorporated] those comments” into their decision-making processes. North 93 Neighbors, Inc., ¶ 36. The record shows that they did. We therefore uphold the District Court’s determination on this issue. ¶58 5. Whether the final clause in Part 6 of the revised growth policy survives constitutional scrutiny. ¶59 Citizens claims that a clause in Part 6 of the revised growth policy, which it refers to as the “property rights trump card,” is unconstitutionally vague and that it violates Citizens’ Article II, Section 3, constitutional right to a clean and healthful environment. Part 6 emphasizes the predominance of individual property rights and lists requirements that a growth policy must meet if it attempts to regulate the use of private property. It concludes with the following sentence: “In the event of a conflict between the provisions in this part and any other provision in this Growth Policy and [its] amendments, this part shall control.” The District Court held that this clause did not violate the Constitution. It reasoned that the growth policy was not regulatory in nature, that the clause was not inherently vague, and that it did not encourage a violation of the constitutional right to a clean and healthful environment. ¶60 Montana law provides that “a growth policy is not a regulatory document and does not confer any authority to regulate that is not otherwise specifically authorized by law or regulations adopted pursuant to the law.” Section 76-1-605(2)(a), MCA. Courts may strike down regulations as unconstitutional if they permit government action that conflicts with the Constitution. Because a growth policy “is not a regulatory document and does not confer any authority to regulate that is not otherwise specifically authorized by law,” it is incapable of authorizing a governing body to take action that would conflict with the Constitution. Section 76-1-605(2)(a), MCA. ¶61 The revised growth policy, including the final clause of Part 6, provides guidance to the local governing body. The growth policy constitutes “the preeminent planning tool” for land use planning. Heffernan, ¶ 76. But it “cannot be applied in a ‘regulatory’ fashion,” Heffernan, ¶ 78 (quoting § 76-1-605(2)(a), MCA), and thus bestows the Commission with no authority that it does not have under a statute or regulation. The clause cannot require Flathead County to take any action, much less any action that conflicts with the Constitution. We hold that, because this clause lacks the force of law, it cannot “trump” Citizens’ constitutional rights. We agree with the District Court’s conclusion that this clause is not unconstitutional. CONCLUSION ¶62 The alleged procedural shortcomings in Flathead County’s process for updating its growth policy do not rise to the level of either a statutory or a constitutional violation. The County’s process was adequate to meet its obligations under the law. We affirm the District Court’s order and its decision to award summary judgment to the Commission on the validity of the County’s 2012 revised growth policy. CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON and RICE concur.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Tina McColl (McColl) appeals from a July 15,2015 jury verdict in her favor against Michael Lang, N.D. (Lang). The jury found Lang departed from the standard of care applicable to a naturopathic physician in his care of McColl, awarded damages, but declined to award punitive damages. We affirm. ¶2 We restate the issues on appeal as follows: Issue One: Did the District Court abuse its discretion when it granted Lang’s motion to exclude evidence of the Food, Drug, and Cosmetic Act (FDCA) prohibition against selling, marketing, or manufacturing drugs not FDA approved and the Food and Drug Administration (FDA) warning letters regarding the use of black salve as a cure for cancer? Issue Two: Did the District Court abuse its discretion when it denied McColl’s motion to exclude Dr. Hangee-Bauer’s expert opinion testimony? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Lang is a licensed naturopathic physician. In January 2012, McColl saw Lang for a thyroid issue and discussed an eruption or blemish on her nose and her desire to remove it. In February 2012, McColl returned to Lang’s office where he applied black salve, an escharotic agent, to McColl’s nose. Lang sent her home with instructions to return. A few days later, McColl returned to Lang and he reapplied black salve to her nose. On February 16, 2012, McColl went to Belgrade Urgent Care complaining of facial swelling and burning. The treating physician diagnosed her with an infected third degree burn on her nose, which was 4mm deep and dime sized. Belgrade Urgent Care continued McColl’s care until she healed. Unhappy with the appearance of her nose, McColl underwent plastic surgery on April 4, 2012. A plastic surgeon repaired the indent with a rotational flap repair. To maintain a scar free appearance McColl requires surgical injections twice a year. ¶4 In the initial complaint, McColl stated black salve was an unapproved new drug, the marketing of which violated the FDCA, and that as early as 2008 the FDA identified black salve as a fake cancer cure warning consumers not to use it. Prior to trial Lang filed a motion in limine to exclude evidence and argument relating to the FDCA prohibition against the sale, marketing, and manufacturing of drugs not FDA approved, and the FDA warning letters concerning black salve as a cancer cure. Lang’s defense argued the FDCA prohibition and FDA warning letters were irrelevant and overly prejudicial as McColl’s complaint addressed the practice of medicine, not the manufacturing, marketing, or selling of black salve. Further, Lang never claimed to be curing cancer with black salve. The District Court granted Lang’s motion to exclude finding the evidence irrelevant and overly prejudicial. ¶5 Prior to trial McColl filed a motion in limine to exclude testimony from Dr. Hangee-Bauer, Lang’s expert, on the standard of care for a naturopathic physician. McColl claimed that Dr. Hangee-Bauer was not an expert regarding the use or discharge of black salve. Lang contended that Dr. Hangee-Bauer was qualified to be an expert on the practice of naturopathic medicine, not the use of a specific product such as black salve. The District Court denied McColl’s motion to exclude, finding Dr. Hangee-Bauer satisfied the expert witness requirements under § 26-2-601, MCA. ¶6 At trial, the jury found Lang departed from the standard of care applicable to a naturopathic physician in his treatment of McColl, which resulted in damages. The jury unanimously denied punitive damages, determining McColl failed to prove by clear and convincing evidence that Lang acted with actual malice. The jury awarded McColl $139,500 plus costs of $5,847.08, for a total of $145,347.08. McColl accepted a check for the amount of the judgment. McColl then filed the instant appeal claiming the District Court abused its discretion regarding the orders to exclude, arguing the rulings led to the jury’s unanimous rejection of a punitive damages award. She seeks a new trial on the issue of punitive damages. STANDARD OF REVIEW ¶7 This Court reviews an order barring evidence or testimony, including admissibility of expert testimony, for abuse of discretion. Cartwright v. Scheels All Sports, Inc., 2013 MT 158, ¶¶ 37, 47, 370 Mont. 369, 310 P.3d 1080. A court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 15, 331 Mont. 421, 133 P.3d 190. We will not reverse the district court’s ruling unless the abuse of discretion constitutes reversible error. Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 75, 341 Mont. 33, 174 P.3d 948. Reversible error occurs when a substantial right of the appellant is affected, or when the challenged evidence affected the outcome of the trial. Mont. Petroleum Tank Release Comp. Bd., ¶ 75. INTRODUCTION ¶8 McColl argues the District Court prejudiced her punitive damages claim by granting Lang’s motion to exclude the FDCA prohibition against the manufacturing, marketing, and sale of black salve and its denial of her motion to exclude the expert testimony of Dr. Hangee-Bauer. McColl seeks a new trial under § 25-11-102, MCA, claiming the District Court abused its discretion when it ruled on the evidence and testimony forming the basis of this appeal, which affected her substantial rights. McColl cites Stevenson v. Felco Indus., 2009 MT 299, ¶ 16, 352 Mont. 303, 216 P.3d 763. ¶9 A jury verdict not to award punitive damages is reviewed under the substantial evidence rule. Sandman v. Farmers Ins. Exchange, 1998 MT 286, ¶¶ 39-41, 291 Mont. 456, 969 P.2d 277. Under the substantial evidence rule, a jury verdict will not be disturbed unless it is “inherently impossible to believe” or “there is an absence of probative facts to support the verdict.” Sandman, ¶ 41. The reviewing court’s only task is to “simply determine whether the verdict is supported by substantial credible evidence, which is defined as evidence that a reasonable mind might accept as adequate to support a conclusion.” Seltzer v. Morton, 2007 MT 62, ¶ 94, 336 Mont. 225, 154 P.3d 561. When making this determination, this court “views the evidence in the light most favorable to the prevailing party,” who is entitled to any “reasonable inference that can be drawn from the facts.” Seltzer, ¶ 94; Sandman, ¶ 41. ¶10 An award of punitive damages requires that the defendant act with actual malice or actual fraud. Section 27-1-221(1), MCA. “A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.” Section 27-1-221(2), MCA; Czajkowski v. Meyers, 2007 MT 292, ¶ 42, 339 Mont. 503, 172 P.3d 94. To win punitive damages the plaintiff must prove all of the elements by clear and convincing evidence. Section 27-1-221(5), MCA; Barnes v. United Indus., 275 Mont. 25, 31, 909 P.2d 700 (1996). “Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of evidence but less than beyond a reasonable doubt.” Section 27-1-221(5), MCA; Czajkowski, ¶ 43. With this in mind we now discuss McColl’s abuse of discretion claims. DISCUSSION ¶11 Issue One: Did the District Court abuse its discretion when it granted Lang’s motion to exclude evidence of the Food, Drug, and Cosmetic Act (FDCA) prohibition against selling, marketing, or manufacturing drugs not FDA approved and the Food and Drug Administration (FDA) warning letters regarding the use of black salve as a cure for cancer ? ¶12 Generally, all relevant evidence is admissible and evidence, which is not relevant, is not admissible. M. R. Evid. 402; Kissock v. Butte Convalescent Ctr., 1999 MT 322, ¶ 11, 297 Mont. 307, 992 P.2d 1271. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. M. R. Evid. 403; Kissock, ¶ 11. ¶13 The FDA regulates the manufacturing, marketing, and sale of prescription drugs under the Food, Drug, and Cosmetics Act (FDCA), 21 U.S.C. § 355(a) FDCA. See 21 U.S.C. § 355(a); In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 239 (3d Cir. 2012). The FDA publishes warning letters to consumers when sellers are manufacturing, marketing, or selling unapproved drugs in violation of the FDCA. The FDA does not regulate the practice of medicine. See 21 U.S.C. § 355(a) FDCA. However, the State of Montana specifically regulates the practice of naturopathic medicine. Title 37, chapter 26, MCA. Under Montana law naturopathic physicians may administer escharotic agents, such as black salve. See § 37-26-301(2)-(3), MCA; Admin. R. M. 24.111.511(9), .511(16)(a). ¶14 Lang did not sell, market, or manufacture black salve to McColl in violation of the FDCA prohibition outlined in 21 U.S.C. § 355(a) FDCA. McColl does not allege that Lang treated her for cancer. The use of black salve was an act undertaken in Lang’s role as a naturopathic physician. The FDCA prohibition and the FDA warning letters regarding black salve were properly excluded as they were irrelevant to the issues in this case and overly prejudicial. The District Court did not abuse its discretion when it granted Lang’s motions to exclude. ¶15 Issue Two: Did the District Court abuse its discretion when it denied McColl’s motion to exclude Dr. Hangee-Bauer’s expert opinion testimony? ¶16 Section 26-2-601(1), MCA, outlines the requirements an expert witness must possess to testify in medical malpractice claims regarding negligence and the standard of care. An expert witness must be (a) licensed as a health care provider in at least one state, treated the diagnosis or routinely treated the condition in the past 5 years, or provide the type of treatment which is at issue, and (b) through education, training and experience the expert is familiar with the standards of care and practice as they relate to the act or omission at issue. Section 26-2-601(1)(a)-(b), MCA. Expertise in the specific treatment is not required. Section 26-2-601, MCA; Beehler v. Eastern Radiological Associates, P.C., 2012 MT 260, 367 Mont. 21, 289 P.3d 131 (experience performing the specific procedure at issue is not necessary in order to provide expert testimony). ¶17 Section 26-2-601, MCA, is considered in conjunction with M. R. Evid. 702, requiring an expert witness to be qualified by way of “knowledge, skill, experience, training, or education.” McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 16, 380 Mont. 204, 354 P.3d 604. District courts are encouraged to “construe liberally the rules of evidence as to admit all relevant expert testimony.” McClue, ¶ 23 (citing Beehler ¶ 23 (quoting State v. Damon, 2005 MT 218, ¶ 17-19, 328 Mont. 276, 119 P.3d 1194)). ¶18 Under Montana law, Dr. Hangee-Bauer is required to be licensed by at least one state, routinely treat the type of condition at issue, facial lesions, and have the education and experience to be familiar with the standards of care and practice as they relate to Lang’s treatment of McColl. Section 26-2-601, MCA; M. R. Evid. 702. Dr. Hangee-Bauer is licensed in California as a naturopathic physician, has been practicing for thirty-one years, and routinely treats facial lesions in his patients. As a naturopathic physician, his education includes a four-year undergraduate degree in biology and chemistry, a four-year naturopathic school, and a two-year postgraduate residency. While Dr. Hangee-Bauer does not consider himself an expert on the use of black salve as an escharotic, he was qualified to testify regarding the standard of care required in this case. The District Court did not abuse its discretion when it denied McColl’s motion to exclude and allowed Dr. Hangee-Bauer’s expert testimony. ¶19 Implicit within McColl’s argument is the concession that without the excluded evidence, there was not sufficient evidence to support a punitive damages award. The jury instructions clearly indicated what was required for the jury to find Lang acted maliciously. Based on the evidence presented, the jury did not find by clear and convincing evidence that the Defendant acted with malice. Persuaded by the facts in the case and informed by the clear jury instructions the jury refused to award punitive damages. We agree the jury verdict was supported by substantial evidence. CONCLUSION ¶20 The District Court properly determined the admissibility of the evidence and expert testimony in this case. There is no basis to McColl’s claim for a new trial. The jury’s unanimous verdict not awarding punitive damages was supported by substantial evidence. Affirmed. JUSTICES WHEAT, BAKER, McKINNON and RICE concur.

Denied Original Proceeding Habeas Corpus

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 13 (Yellowstone)