this warrant in payment of taxes; and the law which took away this right of paying it over in liquidation of taxes, did not impair the obligation of the contract, because there was no legal obligation to this contract, whatever the moral obligation may have been. Had the warrant been presented in payment of taxes before the repeal of the law giving this right, the right would then have become a vested one, and a different question would have been presented to us. In support of these views, see Hunsaker v. Borden, 5 Cal. 288; Myers v. English, 9 Cal. 341.

In accordance with these views, we hold that the statute which provides that all taxes, licenses and dues payable to the Territory should be paid in money, unless the person owing the tax or license should hold a warrant, issued to himself, for services rendered the Territory by him, was not void as to this warrant. The appellant, as tax collector, was, therefore, bound to obey it, and to refuse to receive this warrant in payment of the Territory's proportion of a license. Hence the district court erred in awarding the respondent the peremptory writ of mandate.

The judgment of the court below is, therefore, reversed, with costs, and the peremptory writ of mandate denied.

WARREN, C. J., concurred.

HUTCHINSON, respondent, v. HAMPTON et al., appellants.

RECEIVER-pay taxed as costs. A receiver of property in controversy in an action cannot recover judgment for his services against all the parties, by a motion in the original suit. He is an officer of the court, and his compensation should be allowed out of the property in his hands, or taxed as costs.

Appeal from the First District, Madison County. THE parties stipulated in writing that this cause should be heard on appeal on the original papers. The appellants

appealed from the judgment of the district court, HOSMER, J., affirming the report of the referee in favor of Hutchinson. The facts are contained in the opinion.

DAVIS & THOROUGHMAN, for appellants.

H. N. BLAKE, for respondent.

WARREN, C. J. This appears upon the calendar as an action in which Hutchinson is plaintiff and appellee, and Columbus Hampton and others are defendants and appellants. It appears from the record that Norval Harrison et al. were plaintiffs, and J. M. Chase et al. defendants in an action pending in the first judicial district court, in Madison county, and that Hutchinson was appointed, by consent of parties, receiver of the property in controversy in that cause, and that he acted as such; and applied, at the termination of his duties, to the court for the allowance to him of $330, as compensation for his official services. This application was referred to a referee, who heard testimony and filed his report, finding the facts, reporting $346.72 to be due the receiver, and reporting, as a conclusion of law, that all the parties, plaintiff and defendant in the action, were liable to him for that amount. To this report the appellants, or some of them, excepted; their exceptions were overruled, and judgment was entered by the court upon the report of the referee, for the sum of $346.72, in favor of Hutchinson as plaintiff, and against all the parties to the action as defendants, together with costs of the reference, and that execution issue therefor. From this judgment appellants have not properly prosecuted their appeal, but a stipulation is filed in this court by the attorney of Hutchinson, waiving all errors, and submitting the questions involved to this court.

The court below erred in entering the judgment against all the parties. There was no action pending in which such judgment could be rendered. If Hutchinson performed services at the request of these parties, his remedy was by

suit against them, in the ordinary manner, not by motion in a separate action.

If he performed services as a receiver, whether appointed by consent of parties or otherwise, he became for that purpose an officer of the court, and his compensation should have been allowed by the court out of the property in his hands, or taxed as costs in the case. Rejecting the conclusion of law of the referee, from the facts found it appears that Hutchinson acted in the capacity of receiver in the cause referred to; and that, deducting the interest, there was due him, as compensation to which he was reasonably entitled, the sum of $301.50. This amount should have been allowed him, and taxed as costs in the cause in which he acted as receiver.

The judgment of the court below is modified, so as to accord with this opinion, and the clerk of that court is directed to tax the amount hereby found due to Hutchinson as receiver, as costs in the cause in which he acted, in which Norval Harrison et al. were plaintiffs, and J. M. Chase et al. were defendants.

KNOWLES, J., concurred.

Judgment modified.

TERRITORY OF MONTANA, respondent, v. DRENNAN, appellant.

ASSAULT WITH DEADLY WEAPON -defense. On the trial of a party indicted for an assault with a deadly weapon, with intent to inflict upon D. a bodily injury, it is not a defense, nor a part of the res gesta, that D., before the assault was committed, had wrongfully deprived defendant of the use of water, and thereby prevented him from working his mining ground.

Appeal from the Second District, Deer Lodge County.

DRENNAN was tried in May, 1868, in the second district, upon an indictment for an assault with intent to inflict upon Patrick Dalton a bodily injury. He was convicted in the VOL. I-6.

district court, WILLISTON, J., to whose rulings, upon the admission of evidence, the defendant filed exceptions, which are contained in the opinion of the court.

J. A. JOHNSTON, for appellant.

Defendant had a right to show that he was possessing and using the water and mining claim, at the time of the assault committed upon Dalton, in mitigation of the offense. People v. Payne, 8 Cal. 341; People v. Costello, 15 id. 350.

W. J. STEPHENS, district attorney, second district, for respondent.

No brief on file.

KNOWLES, J. Michael Drennan, the above-named defendant, was indicted for the crime of assaulting, with intent to do great bodily injury, on Patrick Dalton, and was tried and convicted of the same. The only error complained of by the defendant is the refusal of the court to admit, on the trial, the evidence set forth in the following exceptions, to wit:

"Be it remembered that on the trial of this cause, the defendant, Michael Drennan, introduced as.a witness in his behalf one John Stoner, by whom he proposed to prove that the defendant was owner of a mining claim in Washington gulch, in Deer Lodge county; and that he was at work mining on the same at the time of the commission of the alleged assault; and that he was using the natural water of said gulch for the purpose of working his said claim; and that Peter Dalton, upon whom said assault was alleged to have been committed, without any right so to do, shut off the water of said gulch, out of and away from the same, so that this defendant was deprived of the use of the same, and thereby prevented from working on his said claim; which said testimony of John Stoner was proposed to the court by the defendant, to be corroborated by a number of competent witnesses. The attorneys for the prosecution objected; which said objection was, by thecourt, sustained; to which said ruling of the court the

counsel for the defendant then and there objected, and ask that this, their bill of exceptions, be signed and made a part of the record."

The only grounds upon which such testimony would be admissible are: 1. That it was a defense to the charge in the indictment; or, 2. That it was a part of the res gesta.

Should it have been admitted as a defense? It is true that when a party is in the act of committing a forcible trespass upon the person of another, or property of which he is in possession, force may be used by the assailed sufficient to repel the trespass. But it does not appear, from the testimony offered, that Patrick Dalton was in the act of committing a trespass upon the property of the defendant, of which at the time he was in possession, and that, to repel this trespass, he was compelled to use the force he did. The evidence goes to show that Dalton had already shut off the water from the defendant's claim, and deprived him of the use of it, when he sought to redress his grievance by shooting Dalton. It certainly does not appear that the defendant did this shooting in repelling a forcible trespass upon his property, of which he was in the actual possession, which Dalton was at the time in the act of committing. If the defendant had offered to prove such facts, they would certainly have been admissible. The fact that the defendant, while he was in possession of, and working his mining claim, shot Dalton because he had shut off the supply of water in the gulch, which the defendant may have been entitled to, is surely no justification of the offense charged in the indict

ment.

Were the facts set forth in the exception a part of the res gesta? What defense of the defendant do they explain or elucidate? There is none presented to us in the record. We have already seen that they are no defense. How do they present the principal act, namely, the shooting, in a favorable light? It is not apparent to us. These facts might have been, perhaps, introduced by the prosecution, to show malice, and the motives which impelled the defendant to commit the offense. But to entitle the defendant to insist