acknowledgment of said mortgage by Mrs. Wooley, for which reason he did not amend his complaint in the said foreclosure action so as to seek a reformation of the certificate of acknowledgment of Mrs. Wooley to the said mortgage; that the only defect in said certificate of acknowledgment was that it failed to state that said officer made Mrs. Wooley acquainted with the contents of said mortgage on examination separate and apart from and without the hearing of her husband, which was actually done, as plaintiff can now prove by said Douglas Hix and one William Pendry, residents of said Bear Lake county. The foregoing are substantially the facts stated in the complaint in this action, which was filed in the district court on the 26th day of January, 1896. The prayer to said complaint is in the following words and figures, to wit: "Wherefore plaintiff prays that the judgment on the demurrer of Minerva M. Wooley in the foreclosure proceedings hereinbefore set forth, dismissing the said cause as to her, be set aside and held for naught; that the certificate of acknowledgment to the mortgage deed of said Hyrum S. Wooley and Minerva M. Wooley be amended and reformed to conform to the facts as set forth herein; that plaintiff have judgment against the defendant Hyrum S. Wooley for the sum of four thousand five hundred and ninety-two dollars ($4,592.00), with interest thereon from the 18th day of April, 1896, at the rate of eight per cent. per annum; that that piece or parcel of land herein described as the separate property of Minerva M. Wooley and the homestead of defendants be sold according to law; and that the proceeds be applied to the payment of the judgment to be found herein; or, if that cannot be done in this case, that the said judgment of dismissal, as in this prayer first above described, be vacated, set aside, and held for naught; and that this plaintiff have leave to amend his complaint in the said foreclosure suit so as to set up the facts touching the execution of the mortgage deed by the said Minerva M. Wooley, and the certification of her acknowledgment thereto sc as to reform the same to conform to the law in such cases made and provided, and for such other and proper relief as in equity he may be entitled to."

The only question in this case that we are called on to decide is the correctness of the lower court in sustaining the demurrer to the complaint. It will be seen that the complaint does not set forth in hæc verba the certificate of acknowledgment to the said mortgage. We are unable to say from the record before us whether the said certificate absolutely failed to state whether the officer informed Mrs. Wooley of the contents of said instrument, or whether the allegation in the complaint that it did not show that the officer informed her of the contents of the instrument while her husband was absent is an actual fact, or is the conclusion of the plaintiff, based on the construction of the said certificate. We have recently had before

up two cases in which parties construed the certificate of acknowledgment to be defective, when in point of fact it was awkwardly drawn, but substantially complied with the requirements of the statute. If the conclusion of the district court that said certificate was void as to Mrs. Wooley was based on an erroneous construction of such certificate, then the judg ment dismissing the action as to Mrs. Wooley was erroneous. But inasmuch as the plaintiff did not bring into court the original complaint and demurrer in the foreclosure case, and the said mortgage and certificate of acknowledgment thereto, which was doubtless a part of said complaint, as the sufficiency of the certificate was decided on demurrer to the complaint, we are not able to say whether said certificate was sufficient, or whether it was erroneously held insufficient, and will not attempt to pass on either of those questions. If, however, the said certificate was sufficient, but, by an erroneous construction, held to be insufficient, the plaintiff's remedy was by appeal. If, however, the said certificate was void as to Mrs. Wooley, then we cannot conceive of any rule of law or practice which would permit the officer taking it to contradict the certificate, or avoid liability for failing to take and certify a valid acknowledgment of said mortgage by Mrs. Wooley. From the statements in the complaint it may be reasonably inferred that either the judgment dismissing the foreclosure action as to Mrs. Wooley, or the judgment in favor of the defendants in the suit brought by the plaintiff against the officer and his sureties, is erroneous. If the acknowledgment of Mrs. Wooley was sufficient, plaintiff should have had judg ment foreclosing the mortgage upon all of the mortgaged property. If the certificate showed a void acknowledgment, and the declarations of the officer taking it made to the plaintiff's attorney showed it to be void, and showed that it was futile to seek a reformation of the said certificate, then we know of no rule of law permitting him to escape liability to the plaintiff. Plaintiff should have succeeded in one or the other of the actions, and his failure to do so must have been owing to his own negligence, or owing to the incompetency and neglect of his attorney in one or the other of the actions, in neither of which events can he obtain relief in this action.

There is no allegation of fraud against the defendants. The suit first brought was in equity. This is not an action brought by bill of review to obtain a reviewal of a judgment obtained at law by fraud, or through mistake, accident, or surprise. The evident purpose of this action is to obtain an additional decree foreclosing said mortgage as to two parcels of land after it had been foreclosed as to several others. Litigation should not be interminable, but judgments must be treated as final, as a general rule. To obtain relief in this case, the plaintiff should have shown that in neither of the former suits mentioned in his complaint is

there error apparent of record justifying a reversal. He had not done so. His statements show that a wrong has been done him. They do not show that he is not guilty of laches in protecting his rights, but a fair inference from the allegations of the complaint is that he failed to obtain full relief by reason of an erroneous judgment in one of two cases from which he failed to appeal. In this case he asks a foreclosure of a mortgage in parcels, and asks the court to reform an instrument, by changing its terms so as to make it conform to the truth, and refuses to bring the instrument into court so that the court can see the

defect, and see how to reform it by changing its terms so as to make it speak the truth. This may be correct practice, but we doubt it. Having sold a portion of the mortgaged property under the decree of foreclosure, we do not see how the cause could be opened, the former decree annulled, and the parties placed in statu quo.

To obtain relief by a bill of review from a judgment rendered in an equitable action foreclosing a mortgage, the plaintiff must, to state a cause of action, affirmatively show in his complaint that such judgment was the result of fraud, accident, or mistake, which he could not, by due diligence, protect himself against in the original action. Such showing is not made here, and we think the demurrer was properly sustained. See Boston v. Haynes, 33 Cal. 31; Mastick v. Thorp, 29 Cal. 445; Riddle v. Baker, 13 Cal. 295.

We think, too, that this action was filed too late. The supreme court of California, in one case, said: "The repose of society demands that, when a controversy has been ended by the final judgment of a court, it shall not be reopened except within a reasonable time; and, in respect to bills of review, courts of equity have adopted, as a reasonable period within which they may be prosecuted, the time allowed by law for the prosecution of an appeal or writ of error." See Allen v. Currey, 41 Cal. 321, and authorities there cited. Under our Code, the cases in which a bill of review will lie are very limited. In order to secure a new trial of a case determined in another action, by bill of review, the plaintiff must show, by his complaint, a good cause or ground for granting him a new trial in the action; that time for applying for the relief under the provisions relating to new trials, or to have the judgment set aside on the ground of mistake, surprise, or excusable neglect, under section 4229, Rev. St., has expired; that he could not obtan the relief by appeal; that he has been guilty of no laches or blunders in protecting his rights; and that, by reason of fraud, mistake, or surprise over which he had no control, he is entitled to a new trial, which, only by the interposition of equity, he can or could have obtained by the exercise of reasonable diligence. The judgment of the lower court is affirmed, with costs to the respondents.

SULLIVAN, C. J., and HUSTON, J., concur.

(6 Idaho, 28)

DUNNIWAY et al. v. LAWSON et al. (Supreme Court of Idaho. Feb. 3, 1898.) WATER COURSES-APPROPRIATION.

In case of conflict between the appropriators of water in a given stream, that appropriation that is first in time is first in right. The decision in Hillman v. Hardwick, 28 Pac. 438, 2 Idaho, 983, cited and approved. (Syllabus by the Court.)

Appeal from district court, Custer county: C. H. Berry, Judge.

Suit by Willis S. Dunniway and others against Paul P. Lawson and others to settle conflicting water rights. Plaintiffs had judgment. Defendants appeal. Remanded, with instructions.

Hawley & Reeves, for appellants. Angel, for respondents.

Texas

HUSTON, J. This case has been pending in this court since 1892, but owing to the fact that two members of this court were disqualified to consider or decide the case. having been of counsel in the court below, it has remained undisposed of. The objection no longer existing, and the parties desiring a disposition of the case, it is submitted for decision. There is no bill of exceptions, no assignment of errors, and no briefs filed in the case, the statement containing upwards of 400 folios, a large portion of which is taken up with pleadings in the case. The court finds, as matter of fact, that the plaintiffs are entitled, as prior locators, to all the waters of Alder creek, the right to the waters of said creek being the sole question in litigation; that plaintiffs are the owners of 1,280 acres of land, for the irrigation of which the waters of said Alder creek are necessary and used for that purpose. The court then proceeds, admittedly without authority of law or precedent, and apportions to the defendants absolutely a certain amount of said water, and makes such apportionment to defendants coequal with the rights of plaintiffs, already found to be prior to those of defendants. The only question involved in this case was decided by this court in the case of Hillman v. Hardwick, 2 Idaho, 983, 28 Pac. 438. The district court having found that plaintiffs were entitled, by virtue of a prior location, to the waters of Alder creek, and that they had been and were using the same in the irrigation of their land, should have stopped there, as that was the only question involved. utmost extent to which the court had authority to go was to declare that such waters of Alder creek as were not necessarily required by plaintiffs in the proper and necessary irrigation of their land might be used by defendants, but that all rights of defendants to such water were and must remain inferior and subservient to the rights of plaintiffs. The case is remanded to the district court, with instructions to modify

The

and reform the judgment and decree herein in conformity to this opinion; each party to pay one-half of the cost of the appeal.

QUARLES, J., concurs. SULLIVAN, C. J., having been of counsel in the lower court, took no part in the hearing or decision.

(20 Mont. 420)

STATE v. JUDD. (Supreme Court of Montana. Jan. 31, 1898.) CRIMINAL LAW-EVIDENCE-BURDEN OF PROOF.

1. In a prosecution for larceny, the admission of testimony of witnesses as to what the complaining witness told them about defendant's taking the money, not made in presence of defendant, is clearly erroneous.

2. In a prosecution for larceny by a bailee, an instruction that the burden of proof was on defendant, to show that he had no guilty intent,

was error.

Appeal from district court, Silver Bow county; William Clancy, Judge.

John Judd was convicted of grand larceny, and appeals. Reversed.

The defendant was convicted of the crime of grand larceny in the district court of Silver Bow county, and appeals from the judgment. The information charges him with stealing $160, the money of one Jennie Wilson; the defendant being, as is charged, the bailee of said Jennie Wilson; she having, as it seems, deposited the money with him, which it is charged he converted to his own use. The jury, by their verdict, fixed the punishment of the defendant at one year in the penitentiary; and on the 26th day of June, 1897, the court entered judgment sentencing the defendant to prison for that term. On the trial of the case the court permitted, over the objection of the defendant, E. S. Booth and Charles Mattison, Esqs., who were assistant county attorneys at the date of the alleged offense, and also M. L. Holland, who was then a justice of the peace in Butte, to testify in rebuttal as to what Jennie Wilson, the complaining witness, said in relation to the defendant's taking and converting the money in question to his own use. These statements of the prosecuting witness were all made to the said witnesses in the absence of the defendant. The court, at the instance of the state, gave to the jury the following instruction: "If you find that the defendant in this case took the money and property in question, intending to return it to the complaining witness in the case, but did not restore it to her after demand was made on him, and before complaint had been lodged with a court or magistrate, charging the commission of the offense, the fact that he did so intend to return it is no defense to this action. If you believe that he took the money under the circumstances related by the witness Mrs. Wilson, and did not return the same when he was requested so to do, nor has returned the money to her, then you are instructed that the law presumes a guilty intent in the

appropriation of said money, and the state does not have to prove such intent, but the burden of proof is on the defendant to show that he had no such intent." At the instance of the defendant the court gave the following instructions: No. 7. "You are instructed that although you may believe from the evidence, beyond a reasonable doubt, that the defendant received the money in question from Jennie Wilson, and converted it to his own use, still, if you further believe from the evidence that the defendant took the money under a claim of title, honestly entertained, then he is not guilty of larceny; and in such case it makes no difference whether he did in fact have any legal right to the possession of the property or not." No. 8. "The intent in this case is of the essence of the offense charged, and the intent is necessary to complete the crime of larceny; for if the defendant, under an honest impression that he had a right to spend the money in question, did so appropriate the same to his own use, and spend it, this would not be larceny." After the jury had retired to consider of their verdict, it seems that they were of the opinion that the instructions on the part of the state and those given at the instance of the defendant were inconsistent and conflicting, whereupon they returned into court, and asked for further instructions. Thereupon the court instructed the jury as follows: "The court, of its own motion, instructs the jury that they are the sole judges of the evidence and the weight of evidence in this case, and must consider all of the evidence or any part of the evidence of any witness, and give it what weight it deserves." After this instruction the jury returned to their room, and afterwards returned a verdict of guilty against defendant, upon which the judgment in the case was rendered.

Stanton & Stanton, for appellant. C. B. Nolan, Atty. Gen., for the State.

PEMBERTON, C. J. (after stating the facts). The appellant assigns as errors the admission of the evidence of witnesses Booth, Mattison, and Holland, as to what the complaining witness told them about defendant's taking the money, and the giving of the instructions by the court as shown and set out in the statement. The action of the court in admitting the objectionable evidence, and in giving the instructions complained of, is so palpably wrong, in the opinion of the attorney general, that he admits in his brief that the case should be reversed and remanded for new trial. We would therefore reverse and remand the case on the attorney general's confession of error, without comment, but for the fact that the case will perhaps be tried again.

That the evidence of the witnesses as to what Jennie Wilson told them about the defendant's taking the money mentioned in the information was hearsay, cannot be dis

puted. Nor is it anywhere pretended that these statements were made in the presence of the defendant. The statements were made by the complaining witness to the other witnesses in the city of Butte when it is conceded that the defendant was out of the city. It is not improbable that the complaining witness told her grievances and version of the case to many other people, and, if such statements are competent evidence to establish the defendant's guilt, the prosecution might have made a stronger case by putting such persons on the witness stand. And this objectionable evidence was all admitted in rebuttal. Its admission was such palpably prejudicial error that we are at a loss to see upon what theory the prosecuting attorney could have offered it, or the court admitted it.

It only requires a casual reading of the instructions complained of to see that they are irreconcilably inconsistent and conflicting. The instruction given at the instance of the state told the jury, substantially, that if the defendant took the money, intending to return it, but did not do so after demand, the fact that he intended to return it when he took it, or when it was delivered to him by Jennie Wilson, is no defense, and that the burden was on the defendant to show that he had no guilty intent. The instructions given at the instance of the defendant make the intent the essence of the crime, and require the state to prove a guilty intent; telling the jury, in effect, that, although the defendant appropriated the money, yet, if he did it under an honest claim of right or title, he was not guilty, as charged, of larceny. These instructions are so conflicting that no jury could reconcile them. And the additional instruction given by the court at the request of the jury did not relieve or remedy the conflict. The instruction given on the part of the state, placing the burden of proving that he had no guilty intent in disposing of the money in question upon the defendant, was absolutely erroneous. It devolved upon the state to prove beyond a reasonable doubt that the defendant was the bailee of the money, and that he unlawfully and feloniously appropriated it to his own use. The defendant was not required to prove his in

nocence.

The errors in this case are so glaring that we commend the action of the attorney general in confessing them on an inspection of the record. The action of the court, especially in admitting the evidence complained of, would be ridiculous, but for the expense imposed upon the taxpayers by such seemingly farcical administration of the laws of the state. The judgment appealed from is reversed, and the case remanded for new trial. Peversed and remanded.

PIGOTT, J., concurs. HUNT, J., not sitting.

* *

2. Act March 9, 1893, amending Act 1891, entitled "An act concerning compensation of county officers," and providing for the payment of sheriffs by salary, and that the commissioners shall fix the number of deputy sheriffs, is not repugnant to Const. art. 5, § 23. providing that a bill shall not embrace more than one subject, which must be clearly expressed by the title.

Appeal from district court, Meagher county; F. K. Armstrong, Judge.

Action by L. B. Jobb against the county of Meagher. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought to recover $225, claimed to be due the plaintiff from defendant for services rendered by him as deputy sheriff and jailer of Meagher county, Mont., for the three months immediately preceding September 1, 1897, the facts being these: Plaintiff was on January 4, 1897, appointed by the sheriff of Meagher county to the office of deputy sheriff. He qualified and performed the duties of such officer, and those of jailer of the county, until the September following. Meagher county was a county of the seventh class, and plaintiff was the only deputy sheriff aside from the undersheriff of that county. At the June, 1897, meeting, the board of county commissioners passed a resolution refusing to thereafter allow the sheriff any deputy other than the undersheriff, of which resolution the sheriff and the plaintiff were immediately notified. The board disallowed plaintiff's claim, as not a proper charge against the county. From January 4, 1897, to the time of the passage of the resolution, plaintiff received from defendant $75 each month for his services. No order was ever made by the board fixing the amount of his compensation. It was agreed that, if entitled to recover, he should receive $225. The district court rendered judgment dismissing the action, from which plaintiff appeals.

Lyter & Gormley and H. S. Hepner, for appellant. C. B. Nolan, Atty. Gen., for respondent.

PIGOTT, J. (after stating the facts). By this appeal the question is presented whether the board of county commissioners possesses the power to determine, within the maximum limits prescribed by law, the num

ber and compensation of deputies allowed the sheriff. If the board has such power, the judgment of the trial court was right. We shall briefly review the legislation upon the subject.

The First legislative assembly of the territory of Montana, by section 4 of article 4 of an act approved February 9, 1865, entitled "An act relating to counties and county officers," provided: "Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts, and those of his undersheriff, he shall be responsible; and may revoke such appointments at his pleasure; and persons may also be deputized by such sheriff or undersheriff, in writing, to do particular acts; and the sheriff and his sureties shall be responsible on his official bond, for the default or misconduct of his undersheriff and deputies." Bannack St. p. 510. This section was continued in force by the succeeding legislatures until the act of March 12, 1885 (Laws 1885, p. 62), went into effect. From the act of February 9, 1865, to that of March 12, 1885, the sheriff was compensated by fees, and not by salary, and his deputies received nothing from the county. The act of March 6, 1891, was entitled "An act concerning compensation of county, district and township officers," and provided, among other things, that all fees, costs, and other perquisites, except mileage and board of prisoners, of the sheriff, should be received by him for the sole use of the county; and, in lieu of the fees to which he had been theretofore entitled, he was allowed a salary, the salary being fixed by the class in which he belonged. There were three classes, consisting, respectively, of sheriffs of counties whose assessed valuation was $8,000,000 or over, of sheriffs of counties whose assessed valuation was $4,000,000 and less than $8,000,000, and of sheriffs of counties whose assessed valuation was less than $4,000,000. Section 4 provided and limited the maximum annual compensation which should be allowed to any deputy sheriff, and declared: "The number of deputies and their compensation allowed to county officers within the maximum limits named in this act shall be determined by the board of county commissioners." All acts inconsistent with the provisions of that act were expressly repealed. On March 2, 1893, sections 3 and 4 of the act of 1891 were amended in particulars not material to this case, but the power conferred upon the board of commissioners was again expressed; and upon March 9, 1893, section 4 of the act of 1891 was again amended, in a matter not pertinent to the subject before us, the authority of the board of commissioners to determine the number of deputies and their compensation being again declared.

The Political Code was acted upon by the legislature as it had been reported by the code commission in 1892. It was passed in

the form reported, and as a whole, and was approved February 25, 1895. Among its sections were the following:

"Sec. 3155. The county officers are entitled to receive as annual compensation, or salary, for services, according to the following classification, to wit: First class. Sheriff, four thousand dollars. * Second class. dollars.

*

Sheriff, three thousand Third class. * * * Sheriff, twenty-seven hundred dollars. * "Sec. 3136. If at any time in the judgment of the board of county commissioners, the salary of any county officer provided in this chapter is inadequate for the services required of him, and he is unable to perform the duties of the office, the board may allow such officer a deputy or such number of deputies as in its judgment may be required to do the business and perform the duties of the office, in connection with the principal, for such time as may be necessary, and at a salary not exceeding the amount stated in the next preceding section, subject to the qualifications prescribed in the following sections.

"Sec. 3137.

* The sheriff in each of the counties must appoint one undersheriff as provided in section 2982 of this Code, and such appointment may be made without the consent of the board of county commissioners. The whole number of deputies allowed the sheriff in addition to the undersheriff, must not exceed in counties of the first class where there are more than one judge of the district court, four, otherwise three; in counties of the second class not to exceed two, and in counties of the third class not to exceed one. The sheriff, undersheriff or one of the deputies must act as jailer."

"Sec. 3139. The number of deputies allowed to county officers and their compensation must be determined by the board of county commissioners, within the maximum limits prescribed in this chapter, and no deputy must be allowed to a county officer unless the actual necessities of the office require it. The sal aries must be allowed and paid quarterly upon the order of the board of county commissioners and paid out of the contingent fund."

In the Political Code, as officially published. are the following sections, which are also original Code provisions, the numbering having been changed in compilation:

"Sec. 991. All assistants, deputies. and other subordinate officers, whose appointments are not otherwise provided for, must be appointed by the officer or body to whom they are respectively subordinate.

"Sec. 992. When the number of such deputies or subordinate officers is not fixed by law. it is limited only by the discretion of the appointing power."

"Sec. 4318. Every county and township officer, except county commissioner and justice of the peace, may appoint as many deputies as may be necessary for the faithful and prompt discharge of the duties of his office, but no