before pronouncing judgment. Moreover, this court must be very certain that the verdict and judgment are justified by the weight of the evidence before we can sanction the infliction of the penalty here imposed. As said by Mr. Bishop in his work on Criminal Procedure, paragraph 80 (2d Ed.): 'If a man is charged with acts to which the law attached the penalty of imprisonment, and then he is hung for those acts, he is not punished, he is murdered. It is no more just to take his life on a charge of acts to which the law affixes the punishment of imprisonment only, than it is to do the same thing without any charge.''

We are fully persuaded that the record does not disclose a state of facts upon which a verdict of first degree murder can properly be predicated, and that it was the duty of the court below to so instruct the jury. The evidence utterly fails to establish such a wilful, deliberate and premeditated killing as is contemplated by the statute to constitute that degree of murder for which the verdict was returned, and therefore, upon the authority of the foregoing decisions, the judgment of the court below is reversed and the cause remanded for a new trial in conformity with these views.

Judgment reversed, and cause remanded.

substance of the complaint is set forth in Beck v. School District, 54 Colo. 546, 131 Pac. 398, 46 L. R. A. (N. S.) 279, wherein it was held to state a cause of action, and the ruling of the trial court to the contrary was reversed. In the former opinion this court said: "If the plaintiff made his offer of compromise under the mistaken idea that he had received $3,500 from the district when he had received but $2,500, and the directors, falling into the same error, or knowing that the plaintiff was in error, took advantage of it, accepted the compromise offer, whereupon the contract of full settlement was made, it certainly seems that in equity and good conscience the plaintiff ought to be relieved from such a contract, induced by such an error, and an examination of the authorities show that they are practically unanimous in saying that such a mistake will vitiate such a contract." We are of opinion that there is sufficient testimony to support the judgment under either of the declarations above quoted. The former opinion declared the law of the case. There is competent testimony to sustain the finding of facts, for which reasons the judgment is affirmed. Affirmed.

GABBERT, C. J., and TELLER, J., concur.

STATE v. BERG.

(Supreme Court of Idaho. March 17, 1916.)

TELLER, J., not participating.

WHITE, J. (dissenting). The record, I think, contains ample evidence to support the verdict, and this should readily appear to whomsoever will turn thereto, and read it. I shall not undertake to review it herein, but will content myself with saying that the jury was warranted therefrom in concluding that the homicide was a deliberate and premeditated murder perpetrated by the defendant. This was within the province of the jury and the verdict, having been approved by the trial court, in whose presence the witnesses testified, we should not interfere, but affirm the judgment.

I am authorized to state that Chief Justice GABBERT concurs in what I have said.

SCHOOL DIST. NO. 2 IN BENT COUNTY v. BECK. (No. 8541.)

(Supreme Court of Colorado. March 6, 1916.) Error to District Court, Bent County; A. Watson Mellendrie, Judge.

Action by Frank J. Beck against School District No. 2 in the County of Bent, in the State of Colorado. To review a judgment for plaintiff, defendant brings error. Judgment affirmed. Allen M. Lambright, of Las Animas, for plaintiff in error. H. L. Lubers, of Denver, for defendant in error.

ACQUISITION-DEDICATION AND USE.

Where a landowner fences his land and leaves a tract 50 feet wide outside of his fence for a public road, and the public travel such road for five years or more, the public has acquired a prescriptive right thereto.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 8; Dec. Dig. 6(1).]

2. HIGHWAYS 7(2), 17-OBSTRUCTION-AC

QUISITION OF PRESCRIPTIVE RIGHT.

Held, under the facts of this case, that the public has acquired a prescriptive right to said road, and that the court did not err in submitting said case to the jury.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 12, 24; Dec. Dig. 7(2), 17.] 3. HIGHWAYS 164(4) PROSECUTION FOR OBSTRUCTION-DEDICATION OF LAND-QUESTION FOR JURY.

Held, that the evidence was sufficient to be submitted to the jury upon the question of whether it was the intention of the defendant to dedicate said road for public use.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 453; Dec. Dig. 164(4).] Appeal from District Court, Bingham County; James M. Stevens, Judge.

Swan Berg was convicted of obstructing a public road, and appeals. Affirmed.

W. A. Beakley, of Blackfoot, for appellant. J. H. Peterson, Atty. Gen., T. C. Coffin and Herbert Wing, Asst. Attys. Gen., and J. E. Good, of Blackfoot, for the State.

SULLIVAN, C. J. The defendant was prosecuted on the criminal charge of willfully obstructing a public road, and was convicted and sentenced to pay a fine of $100. A motion for a new trial was denied, and this appeal is from the judgment and order denying a new trial.

ant that the implied bias which attaches to an officer by reason of his being a witness in the case also attaches to the jurors who may be summoned by him upon an open venire directed to him by the court, and that the court should therefore have allowed his challenges

to the individual jurors when that fact appeared upon their examination.

We think that an examination of the statute will disclose that this is not one of the grounds of challenge to an individual juror for implied bias. Section 7834, Rev. Codes, provides that a challenge for implied bias may be taken for all or any of the following causes and for no other, and then follows an enumeration, in nine different subdivisions, of all of the grounds for challenge for implied bias which are permitted by the statute. A careful examination of this section shows that the ground which the appellant urges here is not one of the included grounds for a challenge for implied bias, and the court committed no error in denying defendant's challenges upon this ground.

This court does not now pass upon the

question whether or not the conditions as

shown to exist by this record might have been ground for a renewal of the challenge to the panel as summoned by the coroner, because that question is not before the court. If the defendant in a criminal case desires to take advantage of his right to interpose a challenge to the panel, he must do so in the manner provided by the statute. Section 7820, Rev. Codes, provides that a challenge to the panel must be taken before a juror is sworn, and must be in writing. No challenge to the panel was made, but the challenges interposed were to the individual jurors for implied bias, and, as has been heretofore shown, the statute does not impute implied

bias on the ground which the appellant alleges as his basis for the challenge.

For the foregoing reasons, the judgment of

the district court must be affirmed, and it is

so ordered.

AGES.

--

In an action for the wrongful dishonor of a trading customer's check which accrued before the liability of a bank was limited to damages actually proven, an award of $500 in favor of the customer who showed no malice and presented no evidence of tangible loss, while excessive cannot be held the result of passion and prejudice warranting new trial.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 159; Dec. Dig. 77(2).] 2. BANKS AND BANKING -DISHONORING.

discovered the mistake, notified the payee, caused the check to be sent back and paid it with the customer who showed no actual damage or costs of protest, an award of $500 in favor of that the bank was actuated by malice is excessive by $300.

[Ed. Note.-For other cases, see Banks and

Banking, Cent. Dig. § 414; Dec. Dig. 143(7).]

Appeal from District Court, Hill County; John A. Matthews, Presiding Judge.

Action by W. D. Crites and J. R. Crites, copartners doing business as Crites & Crites against the Security State Bank of Havre. From a judgment for plaintiffs, and an order denying new trial, defendant appeals. Modified and affirmed.

Cooper & Stephenson, of Great Falls, and Charles A. Rose, of Havre, for appellant. Victor R. Griggs, of Havre, for respondents.

SANNER, J. The plaintiffs, trading copartners engaged in the retail meat business at Gildford, this state, drew a check upon the

defendant bank for $13.65 payable to the

order of the Booth Fisheries Company of St. Paul. The payee, in due course of business, caused the check to be presented to the defendant bank for payment. The bank refused payment for that it did not have sufficient funds belonging to the plaintiffs to pay the check and caused the check to be protested and returned.

funds with the bank to meet the check, and The plaintiffs had ample the dishonor and protest were due to a mistake of the bank in crediting a previous deposit by the plaintiffs to the wrong person. Being advised of its mistake, the bank notiback, and paid it with the costs of protest. fied the payee, caused the check to be sent Upon these facts, the plaintiffs claiming damages in the sum of $1,000, the cause was pre

sented to a jury, who awarded the plaintiffs $500. The sufficiency of the evidence to

justify this verdict, and some procedural rulings, are presented for review.

[1] The cause of action accrued in March. 1913, and at that time the liability of a bank for the wrongful dishonor of a customer's check was not limited, as it is now, to the damages actually proved; but, in the case of a trading customer, substantial damages, temperately measured, were to be presumed (5 R. C. L. 548 et seq., and cases cited). The respondent stood upon this presumption, showing no malice and presenting no evidence of tangible loss. In these circumstances it cannot be said that the jurors did not exercise their best judgment in fixing the award, bereft, as they were, of the ordinary measures of evaluation; and if their best judgment was exercised, then their verdict was not the result of passion and prejudice so as to warrant

a new trial.

་

prove:

com

"(a) That a judicial proceeding was menced 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 fered damage, with the amount thereof."

Plaintiff in this instance did not meet those requirements. His evidence fails altogether to disclose want of probable cause on the part of the defendants in prosecuting the disbarment proceedings. No useful purpose could be served in making even a brief summary of the testimony. We have consider ed it carefully, and are certain the learned trial judge was correct in his ruling.

The judgment and order are affirmed.
Affirmed.

BRANTLY, C. J., and SANNER, J., concur.

DONOVAN et al. v. JENKINS. (No. 3607.) (Supreme Court of Montana. March 4, 1916.) 1. ATTORNEY AND CLIENT 149-COMPENSA

TION.

Where defendant engaged plaintiffs to foreclose a mortgage, agreeing that they should receive one-half of the recovery as attorneys' fees,

plaintiffs became entitled to compensation only on the date that defendant's lien was adjudged superior to the claim of another who asserted an interest in the land and was made a defendant.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 351-357; Dec. Dig. 149.]

2. ATTORNEY AND CLIENT 148(1)-COMPENSATION "SUM."

Where defendant agreed to pay attorneys engaged to foreclose a mortgage a sum equal to one-half of the net profit or one-half of such a sum as defendant might recover, the attorneys are entitled to their compensation in money and cannot be compelled to take an interest in the land, the subject of the foreclosure suit; the word "sum" referring to money and not to an interest in real property (Words & Phrases, Sum).

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 312, 313; Dec. Dig. ← 151.]

Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by Louis P. Donovan and another against Mary Jenkins. From a judgment for plaintiffs and order refusing new trial, defendant appeals. Modified and affirmed.

S. T. Hogevoll, of San Francisco, Cal., and W. D. Kyle, of Butte, for appellant. T. F. Nolan, Peter Breen, L. P. Donovan, and A. B. Melzner, all of Butte, for respondents.

HOLLOWAY, J. In February, 1908, an instrument in writing was executed as follows:

"This agreement, made and entered into by and between Mary Jenkins, as party of the first part, and Donovan & Melzner, as parties of the second part, as follows: The said Mary Jenkins is to employ Donovan & Melzner as her attorneys to foreclose a mortgage against Mrs. Celia Davidson and others, on these terms: The for their services, except a sum equal to onesaid attorneys are to receive no compensation half of the net profit, or one-half of such a sum as Mary Jenkins may recover, and one-half of the attorney fees allowed by the court, but any costs or charges that Mary Jenkins has advenced shall be subtracted from the same and paid back to her, and thereafter she will allow the said attorneys the said one-half. Mary Jenkins agrees to pay the filing fees and service of summons and other necessary court expenses. "It is understood and agreed, that any expenses incurred by the lawyers in going to Hel

SATION-AGREEMENT.

Where attorneys agreed to foreclose a mortgage, receiving as compensation a percentage of the mortgagee's recovery, but agreeing that any costs or charges the mortgagee had advanced should be subtracted from the recovery before division, and that expenses incurred by the attorneys in making trips should not be borne by the mortgagee, the only expenses to be paid by her being such actual cash money as might be necessary to pay out by order of court, the costs which the mortgagee might deduct before division are only the actual court costs.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 352; Dec. Dig. 148(3).] 4. ATTORNEY AND CLIENT 148(3)-COMPENSATION-RIGHT TO.

Where attorneys, who agreed to foreclose a mortgage for a percentage of the recovery, collected rents from the property after foreclosure,

Mary Jenkins. The only expenses to be paid by her are such actual cash money as may be necessary to pay out by order of the court.

"Mary Jenkins reserves to herself the right to engage the firm of Maury, Templeman & Hogevoll, or Maury, or Templeman, or Hogevoll, and when she so does the said firm of Donovan & Melzner is to allow them one-half of the sums otherwise payable to the firm of Donovan & Mary Jenkins.

Melzner.