the defendant, Hunte, and Wilkinson, Richardson, and others, whereby these goods will be so appropriated or concealed, or something different done with them from a mere sale,-a transfer from one party to another. There must be something in the sale itself that is fraudulent. For instance, Mr. Sweet, Richardson, and Wilkinson might agree that they would hold these goods in trust for Mr. Hunte, and that they would hold them so that the creditors could not get at them, and, after the creditors had got tired,-got tired of working for their money,-they would make it all right with Mr. Hunte. This would be a fraudulent sale,-a fraudulent disposition of the property. Or if they agreed to aid him in concealing the property, or anything of that kind. But here it is stated by the state that the sale of the property-and the evidence shows that there was an absolute sale of it was made for fifty cents or sixty cents on the dollar, and this is the proof before the court. Whether it amounted to eight thousand dollars or more, whatever it was, the contract before the court is that they were to receive sixty cents on the dollar of the invoice price, and they were sold by Hunte to Wilkinson, Richardson, and Sweet. If there was not a fraudulent sale, however much it may have been done with the intent to defraud the creditors, it doesn't matter. Every word of the statute must be given meaning to, and to sell is not necessarily fraudulent because it is done with intent to hinder, delay, and defraud creditors. There must be something in the sale itself, in the acts of the parties between themselves, that it is a fraud. There must be something that can be set aside, as between the parties, as a fraud. A fraud vitiates everything. It burns and blisters wherever it goes. Every transaction touched by fraud is vitiated and made illegal. And, where the statute says a fraudulent sale, it means a fraudulent sale, -something in the sale itself; something in the acts of the parties between themselves that carries this out; a secreting of the goods, or secret plan between themselves. Other questions have been presented in this case. One is the question of the corroboration of the accomplice. The court would have to instruct the jury that the testimony of an accomplice is not sufficient, and they could not convict upon his testimony alone, although they might believe beyond a reasonable doubt every word that he said. The common law didn't use to be this way, but it is so now, under our statute. But that matter the court could have submitted to the jury, and would have done so; but the whole feature of this case, the whole underlying principles of this case, as the court believes, for a criminal action, are not correct. There is in the court's mind (and the court is nothing more than a lawyer among you) an idea that there is a misapprehension of the criminal statute,-as to what it takes, under this statute, to make parties guilty of the crime 63 P.-66

charged. All of the facts shown in this case might show Mr. Hunte guilty of the crime defined in section 6519. It might show that he, because he sold his note, and that he said he was going to defraud his creditors, is guilty of that charge. But the sale between him and Mr. Sweet, Richardson, and Wilkinson, as is detailed here before the court and before the jury, the court does not believe that, even as against him, the facts shown in this matter would have convicted him. The sale was not fraudulent as between him and Sweet, Richardson, and Wilkinson. There was an intent to defraud creditors, but the sale itself was not a fraudulent sale, as the court believes.'"

The object of this proceeding is to determine whether or not the lower court correctly interpreted or construed sections 6519, 6540, Rev. St. Idaho, which are as follows:

"Sec. 6519. Every debtor who fraudulently removes his property or effects out of this territory, or fraudulently sells, conveys, assigns, or conceals his property with intent to defraud, hinder or delay his creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both."

"Sec. 6540. If two or more persons conspire: (1) To commit any crime; (2) falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; (3) falsely to move or maintain any suit, action, or proceeding; (4) to cheat and defraud any per son of any property by any means which are in themselves criminal, or to obtain money or property by false pretenses; or, (5) to commit any act injurious to the public health, to public morals, or for the perversion or obstruction of justice or the due administration of the laws; they are punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both."

Inasmuch as a review of the evidence introduced upon the trial in the lower court, and the proceedings therein, is not necessary to a determination of the questions presented, we deem it best to deny the writ, but to express our views as to the correctness of the instruction given by the trial court. The propriety of this course is more apparent when it is remembered that the only purpose to be subserved by granting the writ and the hearing upon the return thereto is to obtain the views of this court as to the correctness of the construction of said statutes. Under these conditions, we have concluded to express our views as to the construction of said statutes as shown by the instructions of the trial court set forth in the petition of the plaintiffs in error. The object and purpose of the two statutes in question is apparent. Their primary object is the protection of creditors against those fraudulent acts of their debtors which tend

to prevent, delay, or hinder the collection of the claims of the creditors. Under the statutes cited supra, it is a crime for the debtor to sell or dispose of his property with intent to defraud, hinder, or delay his creditors, and it is a crime for other parties to conspire with him and aid and assist him in accomplishing such result. The trial court instructed the jury, in effect, that the transaction was made with intent to defraud creditors, but that the sale was not a fraudulent sale; that a sale is not necessarily fraudulent because it is made with intent to hinder, delay, and defraud creditors. To our minds, this was not a proper instruction, nor a proper construction of the statutes in question. This was the purpose and intent of the sale alleged in the information to have been made by the defendant Hunte. If this intention was known to his co-defendants, who, knowing such intent and purpose, encouraged him in making such sale, and actually purchased the property which Hunte, the debtor, was attempting to place beyond the reach of his creditors, such sale was fraudulent, and was prohibited by section 6519, supra,-was criminal,-and his co-defendants, who purchased from him, violated subsection 4 of section 6540, supra. This sufficiently disposes of the second error al leged in the petition.

SULLIVAN and STOCKSLAGER, JJ., con

cur.

(25 Mont. 132)

JONES v. GIESKE et al. (Supreme Court of Montana. March 12, 1901.) SPECIFIC PERFORMANCE-DOWER INTEREST OF WIFE.

Where it is sought to compel specific per formance of a contract to convey, and it appears that defendant's wife did not join in said contract, the decree for specific performance will require a conveyance by said defendant reserving to his wife whatever dower she may have in the land.

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Action by Alfred E. Jones against John E. Gieske and others. Judgment for plaintiff. Defendants appeal. Modified.

Sam Stephenson and J. W. Freeman, for appellants. Wm. G. Downing, for respondent.

MILBURN, J. This is an appeal from an order denying a motion for a new trial and from the judgment. The suit was brought to cancel a deed made by one Millard and wife to one Mary E. Gieske, and to compel one John B. Gieske to convey to plaintiff by deed certain real estate. It is claimed that Millard and wife made and delivered to plaintiff a deed for lot 3 in block 10 of the townsite of Belt, Cascade county, Mont., which deed was never recorded; that defendant John B. Gieske agreed in writing to convey to plaintiff lot 28 in block 11 of said town site upon the payment of a

certain sum, and that plaintiff paid all of said sum excepting $225, and was ready and willing to pay said balance as per the terms of the agreement; that Gieske fraudulently induced plaintiff to deliver said unrecorded deed for said lot 3 to him (Gieske), who delivered it to Millard, and that Millard and wife thereupon made and delivered to defendant Mary E. Gieske a deed for lot 3, and the deed was recorded; that said John B. Gieske fraudulently induced plaintiff to cancel said contract for lot 28, and to accept in consideration of the surrender of said contract a deed for a certain lot 1 in block 1, Riverside addition, St. Paul, Minn., together with a promissory note of defendant John B. Gieske for $250. It is charged that the property surrendered by plaintiff was valuable, and that the St. Paul lot was of little value, and the note worthless. The court below, sitting with a jury, found for plaintiff, and decreed: (1) That the $250 note be canceled; (2) that the plaintiff reconvey to John B. Gieske said lot in St. Paul; (3) that plaintiff pay to John B. Gieske $17.51, the balance of the $225 due on account of lot 28, deducting the amount adjudged to plaintiff for rents and costs; (4) that defendants convey to plaintiff, by deed, said lots 3 and 28; (5) that possession of said lots 3 and 28 be restored to plaintiff upon payment of said sum of $17.51; (6) that defendants be devested of all title to said lots 3 and 28, and that the title thereto be vested in plaintiff; (7) that plaintiff have $150, the rents collected; and (8) for costs.

The appellant relies, in his brief, upon alleged insufficiency of the evidence, and upon certain alleged particulars in which the judgment is against the law. We have carefully examined the evidence, and find that it is not insufficient to support the material findings as made and adopted by the court. We do not find that the court erred in its rulings on the evidence. The court did not err in denying the motion for a new trial. In the light of the pleadings and the evidence the judgment must, however, be modified as follows: Whereas said judgment orders that the said defendants convey to the plaintiff, by deed, said lots 3 and 28, let it be ordered by said district court that said deed from Millard and wife to Mary E. Gieske for said lot 3 be canceled, and declared void, and that Millard at once return and deliver to plaintiff the deed for said lot 3 heretofore by him and his wife executed and delivered to plaintiff; and whereas, the parties hereto have admitted that Mary E. Gieske was the wife of defendant John B. Gieske at the time said contract for the sale of lot 28 was entered into by plaintiff and John B. Gieske, and it appears that Mary E. Gieske did not join in said contract, it is ordered, that the said judgment be further modified to the effect that John B. Gieske, without said Mary E. Gieske, be ordered to convey. by proper deed, to plaintiff, said lot 28, within five days after tender of the said balance of $17.51, due by plaintiff; and that said decree be further modified to reserve to Mary E.

granted.

MILBURN, J., concurs.

BRANTLY, C. J., and PIGOTT, J., concur.

(25 Mont. 149)

CARR, RYDER & ADAMS CO. v. CLOSSER et al.

(Supreme Court of Montana. March 11, 1901.) NEW TRIAL-NOTICE OF INTENTION-APPEAL -TRANSCRIPT-REQUISITES.

Where, on appeal from an order granting a new trial, there was inserted in the transcript a copy of the notice of intention to move for a new trial, the notice not being made part of any bill of exceptions or statement of the case on motion for a new trial, nor a constituent part of the judgment roll, as defined in Code Civ. Proc. § 1196, or in the absence of a bill of exceptions or statement on motion for a new trial, one of the papers required by sections 1176, 1738, to be furnished to the appellate court, it will be stricken from the transcript. Appeal from district court, Deerlodge county; Welling Napton, Judge.

Action by the Carr, Ryder & Adams Company against Floyd Closser and another. Findings in favor of plaintiff were entered, and from an order granting a new trial the plaintiff appeals. On motion to strike out from the transcript notice of intention to move for a new trial. Motion granted.

McHatton & Cotter, for appellant. Walsh & James and H. P. Napton, for respondents.

PIGOTT, J. Findings in favor of plaintiff and against the defendants having been entered in the court below, the defendants moved for a new trial, which was granted. The plaintiff has appealed from the order granting it. It now moves this court to strike from the transcript the notice of intention to move for a new trial containing it, on the ground that the notice is improperly included therein. It appears that the clerk of the court below inserted in the transcript a copy of the notice of intention to move for a new trial, without any request therefor upon the part of the plaintiff. The notice is not made part of any bill of exceptions or statement of the case on motion for a new trial; nor is it a constituent part of the judgment roll provided for and defined in section 1196 of the Code of Civil Procedure; neither is it, in the absence of a bill of exceptions or statement on motion for a new trial, one of the papers required by sections 1176 and 1738 of the Code of Civil Procedure to be furnished by copy to this court. It is, therefore, not a part of the transcript or record on appeal, and must be stricken out. It is, therefore, ordered that the copies of the notice of intention to move for a new trial, which appear twice in the

Motion

BRANTLY, C. J., having tried the cause in the court below, takes no part in the fore going opinion.

In re PEMBERTON et al. (Supreme Court of Montana. March 8, 1901.) DISBARRED ATTORNEY-REINSTATEMENT.

The mere petition of attorneys and others for the reinstatement of a disbarred attorney will not be considered, such attorney not being before the court in person or by petition asking for reinstatement, and giving his reasons therefor.

Petition of W. Y. Pemberton and others for the reinstatement of John B. Wellcome as a member of the bar of the state. Denied.

PER CURIAM. Under no practice known to this court, or to any other court, so far as this court is advised, can the mere petitions of attorneys and others for the reinstatement of a disbarred attorney be considered. Said John B. Wellcome not being be fore this court in person, or by his petition by him subscribed, asking for reinstatement, and giving his reasons therefor, there is nothing which this court can entertain; and therefore it is ordered that said petitions of said attorneys and others be not considered.

Mr. Justice PIGOTT is of the further opinion that the petitions or memorials are frivolous, state no reason why said Wellcome should be admitted to the bar, have no place among the papers or records of this court, and should, therefore, be stricken from the files.

(25 Mont. 135)

WETZSTEIN ▼. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. (Supreme Court of Montana. March 12, 1901.)

SUPERSEDEAS-RESTRAINING ORDER-APPEAL -JURISDICTION OF SUPREME COURT-STARE DECISIS-ORDER TO SHOW CAUSE-TIME FOR HEARING - REASONABLENESS - ABUSE OF DISCRETION.

1. Code Civ. Proc. § 1722, as amended February 28, 1899, provides that an appeal may be taken from an order granting or dissolving an injunction or refusing to grant or dissolve an injunction. Held, that the supreme court has no jurisdiction to grant an order of supersedeas to stay a temporary restraining order pending the hearing of an order to show cause why an injunction should not be issued, as there is no appeal from a temporary restraining order.

2. The supreme court decided that an appeal would lie from a certain order, and, though the order was called a "temporary restraining order," it was in fact an injunction pendente lite, and subsequently a petition was filed in the supreme court for an order of supersedeas to stay a temporary restraining order on the ground that an appeal would lie from such an order. Held, that the rule of stare decisis did not apply, since the prior decision was not in fact a restraining order.

MILBURN, J. This cause comes now before this court upon the petition of the defendant for an order of supersedeas staying a certain restraining order issued by the district court on February 18, 1901, pending a hearing of an order to show cause, on April 2, 1901, why a temporary injunction may not issue enjoining the defendant from continu- | ing certain work in and about the Comanche lode claim. On the 25th day of February, 1901, the defendant appealed from the order so restraining the defendant pending the hearing on the order to show cause why a temporary injunction should not issue. Respondent contends that this court has no jurisdiction to grant the petition, for the reason that there is no appeal to this court from a restraining order. We are of the opinion that respondent is right in the position he takes. Section 873 of the Code of Civil Procedure very clearly makes a distinction between an injunction and a restraining order. A restraining order is distinguishable from an injunction, in that a restraining order is intended only as a restraint upon the defendant until the propriety of the granting of an injunction, temporary or perpetual, can be determined, and it does no more than restrain the proceedings until such determination. Such an order is limited in its operation, and extends only to such reasonable time as may be necessary to have a hearing on an order to show cause why an injunction should not issue. 10 Enc. Pl. & Prac. 878; Railroad Co. v. Moss, 77 Ind. 139; Hicks v. Michael, 15 Cal. 107; San Diego Water Co. v. Pacific Coast S. S. Co., 101 Cal. 216, 35 Pac. 651; Fenwick Hall Co. v. Town of Old Saybrook (C. C.) 66 Fed. 389; Strickland v. Griffin, 70 Ga. 541.

It is the plain duty of a court to set the order to show cause at a very early day, and, upon the application of the defendant, to shorten the time, to the end that, if the facts on the hearing warrant it, the restraining order may be discharged. In such a case, appeal from a restraining order is not pos

sible or contemplated, for the reason that on the hearing, or soon thereafter, the court, in the discharge of its duty, will grant or refuse an injunction, and in either event the restraining order is dead. The law presumes that a judge will be fair and just, and will not put off the hearing of the order to show cause until a day so distant that by the force of his own despotic will a mere temporary expedient, to wit, a restraining order, granted ex parte and without bond, perhaps, will become an injunction. A judge might, over the objection of the plaintiff, set a demurrer to a complaint for hearing at a time one year ahead. This might work great injury to the plaintiff, but the remedy of the injured plaintiff could not be by appeal from the order so setting the hearing on demurrer. We are aware that in Bennett Bros. Co. v. Congdon, 20 Mont: 208, 50 Pac. 556, the court decided that a restraining order was an order from which an appeal might be taken, and that in Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore-Purchasing Co., 24 Mont. 135, 63 Pac. 830, the court considered such an appeal; but the point in the latter case, considered on appeal, was simply whether or not the complaint was properly verified. The rule of stare decisis does not here control, as it is not unusual, but proper, in matters of practice, to establish a correct and legal practice, if an error has been committed ill-advisedly in a former opinion of this court, provided that it is apparent that no substantial injury will be suffered by litigants by reason of reliance upon the precedent. The court does not in Bennett Bros. Co, v. Congdon, supra, give any authority for its holding. It does not appear in that case that it acted upon anything more urgent than a suggestion of counsel, or that there was an argument upon, or serious consideration of, the point; and, further, it appears from an examination of the case that the "temporary restraining order” was in fact an injunction pendente lite, and not a mere restraining order pending a hearing upon an order to show cause why an injunction pendente lite should not issue as in the case at bar.

This court does not deem it improper to say that in reviewing this case it notices an abuse of the power of the court below in setting the order to show cause over so long a period of time. In the exercise of its extraordinary powers in cases, such as the one at bar, involving important interests and mining operations, which may suffer from interruption and delay, the court should grant a hearing at as early a date as prac ticable, and it is difficult to believe that such an order could not be heard within a reasonable time less than six weeks. To set an order to show cause why a temporary injunction should not issue for hearing on so distant a day, and granting a restraining order meanwhile, in a case like the one before us, indicates a want of deliberate con

sideration of the defendant's rights. Days being 24 hours long, certainly a court, which is ordinarily occupied in trial of causes on the regular calendar only 5 hours in actual time per day, can find a few hours in which to grant a hearing on an order to show cause why important business concerns should not be suspended pending a suit which may last for a long time. To add to the danger of so long a postponement of the hearing, we notice that the restraining order was issued without a bond. We are not to be understood as saying that a bond should or should not have been required in case the restraining order had been set in operation for a short time only, but we do say that cases are exceptional where it would not be advisable to require a bond.

Section 1722 of the Code of Civil Procedure, as amended February 28, 1899, provides for appeal from an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, but does not provide for appeal from an order granting or refusing a restraining order; and holding, as we do, that there is a distinction made in section 873 of the Code of Civil Procedure between an injunction and a restraining order, we have concluded that there is no appeal from an order granting or refusing a restraining order pending the hearing of an order to show cause why an injunction should not issue. It is not necessary, in view of the opinion expressed, to consider the point of the alleged want of proper verification to the complaint in the cause, and the further point that no bond was required. The petition for an order of supersedeas is denied. Denied.

1. Under section 4217, Rev. St., every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true.

2. Held, that the evidence is insufficient to sustain the special verdict of the jury and findings of fact made by the court.

3. The rejection of evidence not material to the issues is not error.

4. The admission of evidence, not material to the issues made by the pleadings, against the objection of the adverse party, is error.

5. The ownership of a ditch may be separate from any water right.

6. One may adopt as a part of his ditch a depression, slough, or high-water channel, and have his right to the possession and use thereof protected, the same as if such ditch had been wholly artificially made.

(Syllabus by the Court.)

Appeal from district court, Cassia county; C. O. Stockslager, Judge.

Action by William H. Parke against John B. Boulware and others to recover damages for tearing certain dams out of irrigating ditch and for an injunction. Judgment for defendants, and plaintiff appeals. Reversed.

Hawley & Puckett, for appellant. John C. Rogers, for respondents.

SULLIVAN, J. This suit was brought to recover damages for the destruction of certain dams belonging to the plaintiff, and to perpetually restrain the defendants from entering upon the land of the plaintiff and interfering with his dams and ditches. The answer is a denial of the material allegations of the complaint, and demands a dissolution of the temporary injunction then in force, that the complaint be dismissed, and for costs of suit. No affirmative relief is prayed for by the defendants. Certain questions were submitted to a jury, and the special | verdict of the jury was adopted by the court upon the questions submitted to them, and the court supplemented the same by certain other findings of fact. Judgment and decree were entered dissolving the temporary restraining order therein issued, and directing plaintiff and defendants to put certain boxes and headgates upon all points in Cow creek where they, or either of them, proposed to divert water from said creek, and enjoining the plaintiff from placing solid dams in the channel of said creek, or in any manner interfering with the flow of the waters therein belonging to either of the defendants. And plaintiff is also enjoined from diverting any of the waters to which the defendants are entitled from the channel of said Cow creek for any purpose whatever, and from conducting said water into Cassia creek. The plaintiff is also adjudged to pay the costs of this suit. This appeal is from the judgment.

The first error relied upon is that question numbered 5 submitted to and answered by the jury, and adopted by the court as one of its findings of fact, is not authorized or warranted by the evidence. Said question and finding is as follows: "Was it necessary for plaintiff to have dams in the channel called 'Cow Creek' to properly irrigate his land? Answer. No; he should have head gates." It is contended that that question should not have been submitted to the jury, for the reason that plaintiff alleged in his complaint that it was necessary to put dams in said creek in order to get water on plaintiff's land; that the answer does not deny that