beas corpus is proper practice, because, whenever relator satisfies the judgment of fine, she would be entitled to discharge instantly; and ought not to be held imprisoned, even while appealing, to avoid the consequence of the excessive and void condition of the judgment, added to that which the law sanctions. And, if not discharged on satisfaction of the fine, the prisoner would be entitled to discharge on writ of habeas corpus, where it was shown, as appears from this review, that "the jurisdiction of the court had been exceeded" in sentencing the prisoner, or where the "process" requiring imprisonment "had been in a case not allowed by law," or "where the imprisonment is not authorized by any provision of law." These provisions are quoted from the first, fourth, and sixth subdivisions of section 1183, div. 5, Comp. St., relating to the writ of habeas corpus. In such cases the slower

process of appeal is not adequate, nor, indeed, any remedy against such unlawful imprisonment as would intervene while appeal was being prosecuted. The writ of certiorari, as auxiliary to the writ of habeas corpus, is a convenient method of bringing under review, properly authenticated, the proceedings on which the judgment is founded, and in such connection we think it is properly used.

(14 Mont. 498)

SWEETSER v. DIEHL et al. (Supreme Court of Montana. July 2, 1894.) FORECLOSURE OF MORTGAGE-FRAUD-SUFFICIENCY OF ANSWER.

In an action to foreclose a mortgage, and for a deficiency judgment, an answer alleging that defendant purchased the property subject to the mortgage, and that a covenant to assume such mortgage was fraudulently inserted in the deed by his grantor, is sufficient, without tender of a deed back to his grantor.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Albert G. Sweetser against George B. Diehl and others to foreclose a mortgage. From a judgment for plaintiff, defendant Lee Mantle appeals. Reversed.

The sole question involved in this appeal is whether the allegations of the separate answer on the part of the defendant Mantle are sufficient to constitute a defense. The object of the action is to enforce payment of a promissory note for $1.300, and foreclose a mortgage executed by defendant George B. Diehl, and Hannah, his wife, on certain real property in the city of Helena, to secure payment of the same, and for a deficiency judgment against Mantle, the grantee of the mortgaged premises, subsequent to the execution of said mortgage, as well as the other defendants, for any portion of said debt remaining unpaid after application of the proceeds of the sale of said mortgaged property. It appears that, after making said mortgage, Diehl and wife conveyed said

premises to defendant Mantle, and it is alleged by plaintiff that in said conveyance, as one of the conditions of the purchase by Mantle, he assumed and agreed to pay said note; and, by virtue of that assumption, plaintiff demands a deficiency judgment against Mantle for any deficiency remaining after the application of the proceeds arising from the sale of the mortgaged premises. In this action, Diehl and wife are in default. Mantle filed his separate answer, wherein he denies, on several grounds, personal liability for payment of said note, or any part thereof remaining unpaid after application of the proceeds from the sale of the mortgaged premises. Demurrer to his separate answer was sustained by the court, and defendant Mantle appealed. The answer of Mantle, which was rejected on demurrer as insufficient, reads (omitting formal allegations) as follows: "Admits that on or about the 16th day of April, 1890, for a valuable consideration, and by regular deed of conveyance, the said George B. Diehl and wife sold, granted, and conveyed the premises described in plaintiff's complaint to this defendant, subject to plaintiff's mortgage; but defendant denies that he covenanted with and promised the said George B. Diehl, except as hereinafter set forth, as part or for any consideration therefor, that he, the said Mantle, would assume and pay the plaintiff's said mortgage. Admits that the deed executed by the said George B. Diehl and wife to him contained the following clause, to wit: Subject to a mortgage of thirteen hundred (1,300) dollars made by the parties of the first part to M. Bolles & Co., of Boston, bearing interest at eight per cent., payable half-yearly, which mortgage, together with the interest thereon, the party of the second part hereby assumes and agrees to pay, according to the tenor thereof,'-but alleges that at the time of the execution of said deed, and the acceptance thereof by him, it was without the knowledge on his part that the said deed contained the said clause, and that he had no knowledge of the fact that the said deed did contain said clause until this action was brought; that, at the time of the execution of the said deed, one Charles Jeffreys was the agent of the said defendant Mantle, and acted for the said Mantle in the purchase of the said property; that the only authority given by the said Mantle to the said Jeffreys for the purchase of the said property was to purchase the said property from the said George B. Diehl, subject to plaintiff's mortgage; that the said agent, Charles Jeffreys, had no authority to bind the said defendant, in assuming and agreeing to pay the said mortgage; and that the said Charles Jeffreys, in accepting a deed containing a clause hereinbefore set forth, acted without authority, and without defendant's knowledge. Defendant denies that, in part of any consider. ation for the conveyance of said property,

he promised the said George B. Diehl, that he, the said Mantle, would assume and pay the plaintiff's said mortgage. Denies that he accepted the deed of conveyance, and denies that at his instance and request the same was recorded on the 19th day of April, 1890, in Book 23 of Deeds, page 342; but, on the contrary thereof, defendant alleges that he has never seen the said deed, or accepted the same, and that the same was received by his said agent, Charles Jeffreys, as hereinbefore set forth, and who recorded the same without the knowledge, consent, or authority of the said defendant. Defendant denies that he is now the owner of the said property. For further answer, defendant alleges that, at the time of the execution of the said deed, it was fully understood and agreed upon by and between the said George B. Diehl and Hannah Diehl and the said Charles Jeffreys, as agent of the defendant, that the same deed should be made subject to the mortgage of thirteen hundred (1,300) dollars existing on said premises, and that the said property should be taken subject to the said mortgage; and defendant alleges that through fraud, imposition, and deceit of said George B. Diehl, a clause was inserted in said deed, as set forth in plaintiff's complaint, the said George B. Diehl thereby fraudulently seeking to bind said defendant to assume and agree to pay the said mortgage, but that the said mortgage was not assented to by the said Charles Jeffreys, as agent of the said defendant, and the said deed was accepted by the said Jeffreys without knowledge of the fact that the said clause existed therein." The statute of frauds was also set up in the answer of Mantle as further defense, but no point is made on this appeal respecting that plea. The demurrer to the answer of Mantle states two grounds of objection to that portion of the answer here under consideration: (1) That the facts therein set forth are not sufficient to constitute a defense; (2) that the answer is uncertain and ambiguous.

Corbett & Wellcome, for appellant. Leslie & Craven, for respondent.

PER CURIAM. The ground upon which it is urged that this answer is insufficient in substance to constitute a defense is that if defendant Mantle sought to avoid the condition obliging him to personally assume and pay said debt inserted in said conveyance, on the ground that such condition was inserted by Diehl "through fraud, imposition, and deceit," and the deed containing the same was received by his agent without authority, then defendant should, on discovery of the alleged fraud, have tendered a deed of the land back to Diehl; that Mantle cannot rescind or cancel part of the transaction whereby he took conveyance of said land-namely, the provision in the conveyance obliging him to personally pay said

mortgage debt-without restoration of the property to Diehl and wife; and that this should have been offered and set up in the answer of Mantle. This court is of opinion that this objection cannot be maintained. Mantle acknowledges that he purchased said land from Diehl and wife subject to said mortgage thereon, but without any agreement to personally assume or pay the mort'gage debt. Even if Mantle can avoid the alleged assumption or promise to pay sald debt on the ground that he never assumed or authorized any one on his behalf to assume said debt, and that the provision for his assumption thereof was fraudulently inserted in said conveyance, this would not enable him to revoke the entire contract whereby he purchased said land. He would be bound in the transaction for the purchase, and could not throw back the land on the hands of Diehl, and recover the consideration which he paid therefor, from Diehl, because there is no ground for that; but he resists the alleged agreement to personally assume and pay the mortgage debt, for the reasons above stated, and set out in his answer. That part of the transaction whereby Mantle purchased said property, he does not seek to avoid, nor does he allege any cause therefor. But it does not follow that he cannot defend against the imposition of a condition upon him, to which, according to the allegations of his answer, he never agreed, and never authorized any agent to contract on his behalf, but which was fraudulently inserted in the transaction, by repudiating such alleged obligation as soon as discovered. If Mantle ought to tender back the premises to Diehl, then he ought to be allowed to recover the amount paid in the purchase of said property, but he could not recover the same because he authorized the purchase. He admits and appears to be willing to abide by the transaction, so far as he entered into it, or authorized it to be entered into on his behalf; but he seeks to defend against the imposition of the obligation upon him which he never entered into or authorized, according to his pleading. Manifestly, the objection of plaintiff in this respect is based upon a ground in no manner affecting his rights. What does it either advantage or injure plaintiff that Mantle shall or shall not tender conveyance of the mortgaged premises back to Diehl? This point, if tenable at all, would properly be raised or waived by Diehl himself, but he does not appear at all in this action. No doubt, it would be inequitable to put upon Diehl a deficiency judgment for said mortgage debt, or any part thereof, without giving him the right to become purchaser of the mortgaged premises on payment of the mortgage debt, because Mantle took the premises in question "subject to the mortgage;" but the law provides such right in favor of Diehl, without canceling the sale of the premises from Diehl to Mantle, as to which sale there is

no question of fraud or deceit, or want of authority on the part of Mantle's agent, alleged. That there is no force in the proposition that his answer fails to state a substantial defense, because defendant Mantle has neglected to tender back the premises in question to his grantor Diehl, is shown by the situation of these parties to the litigation. The premises in question are beholden for the mortgage debt, and must go to satisfy the same. This is conceded by all. Therefore, if Mantle retains the property which he purchased, and had conveyed to him subject to the mortgage, he would be obliged to pay the mortgage debt in full; and that, of course, would relieve Diehl from the obligation thereof. But, if Mantle does not see fit to relieve the property from the incumbrance by payment of the mortgage debt, the premises will be sold for such price as it will bring; and the deficiency judgment would, if Mantle has not assumed the same, fall upon Diehl alone, and the property would go to whomsoever purchased it. Now, Diehl, in order to make the property pay the incumbrance, and avoid a deficiency judgment against himself, is at liberty to see that the property is sold for sufficient to pay off said debt, and thereby compel Mantle, if he keeps the same, to pay the debt, and relieve Diehl therefrom, or Diehl may become the purchaser, and take the property, if he is compelled to pay the debt, or any part thereof. It is therefore manifest, considering the provisions of the law and the position of the respective parties, that there is no necessity to cancel the sale of said property from Diehl to Mantle, which undoubtedly rests upon other considerations, in order to give the party paying the mortgage debt the right to take the property. The objection that the answer is uncertain and ambiguous, we think, is not well taken. Exceptions sustained. Judgment reversed. Case remanded for further proceedings. Reversed.

INGS.

In a suit to determine the rights to the waters of a stream, findings that plaintiff took adverse possession of 150 inches of the water in 1866, and that one of the defendants has had adverse possession of 100 of these inches since 1867, and also that defendant appropriated the 100 inches from the water of the stream in 1867, are inconsistent, and will not sustain a decree awarding to such defendant the 100 inches.

Appeal from district court, Missoula county; D. M. Durfee, Judge.

Suit by Peter Johnson against N. J. Bielenberg and others. Defendant Herman JohnRemanded. son appeals from the decree.

PER CURIAM. Peter Johnson commenced this action against 21 defendants, to determine the rights and priorities of himself and said defendants in the waters of Dempsey creek, for the purpose of irrigating agricultural lands. Upon the trial, the court found all of their rights, and classified the same, and entered judgment accordingly. Herman Johnson, a defendant, appeals, being dissatisfied with the disposition of a certain 100 inches of water, as between himself, on the one side, and Peter Johnson and Patrick Quinlan, on the other. The court found that Herman Johnson duly appropriated 150 inches in 1866. There is no complaint of this finding. The court then found that Peter Johnson and Patrick Quinlan had, since 1867, held and used adversely to all the world 100 of these inches; but the court also found that Peter Johnson and Patrick Quinlan had obtained this 100 inches, and owned it by reason of appropriation of the same from the waters of said creek in 1867. With these two findings made, the court, in its judgment, gave this 100 inches to Peter Johnson and Patrick Quinlan. Herman Johnson now complains that the judgment as to this 100 inches is not supported by the findings. The difficulty as to this 100 inches of water is that the findings of the court in respect thereto are apparently wholly inconsistent. The court finds that Johnson and Quinlan appropriated this 100 inches of water from the waters of the creek, and then it finds that they got it from Herman Johnson's water by adverse possession. If they obtained their title by the means described in one finding, they did not obtain it in the manner set out in the other finding. If Johnson and Quinlan had held this water by adverse possession against Herman Johnson for the period of the statute of limitations the judgment is supported by the finding which was made to that effect. If the title of Johnson and Quinlan was by the appropriation in 1867 of this 100 inches, then the judgment is not supported by the finding which was made to that effect, because the court also found that the appropriation by Herman Johnson was a year earlier. It is not for us to determine which finding is true, -whether they got their water by adverse possession against Herman Johnson, or whether they attempted to appropriate it from the waters of the creek. The case is therefore remanded, and the district court is directed to take testimony, make findings, and render judgment, upon this point only; that is to say, as between Herman Johnson, on the one side, and Peter Johnson and Patrick Quinlan, on the other, let it be determined who is entitled to the 100 inches of water out of the 150 inches appropriated by Herman Johnson in 1866, over and above the 50 inches already found by the court to belong to Herman Johnson, in the sixth class of priorities.

Appellant also calls attention to the fact that Peter Johnson and Patrick Quinlan are awarded 103 inches each, in the fifth class of priorities, when in fact they claimed in their pleadings only 100 inches. Respondent says that this is a clerical error, and concedes that it should be corrected, as demanded. Let such modification therefore be made, on remittitur being filed below. Remanded.

(14 Mont. 553)

STATE v. OSNES.

(Supreme Court of Montana. July 9, 1894.) JURY-SELECTION-ABSENCE OF JURY COMMISSION

ER

HOMICIDE FINING DEFENDANT FOR REFUSAL TO ANSWER QUESTION AS A WITNESS EFFECT-REBUTTING EVIDENCE.

1. Where the absence of one or two jury commissioners will not prevent a majority from selecting the juries (Laws 16th Sess. p. 168, § 12), the fact that the district clerk, who is one of the five commissioners, did not act with, and as one of, the commissioners who selected a jury in a certain case, does not render such jury illegal.

2. On a murder trial, defendant refused to answer a proper question on cross-examination, and the court fined him, and threatened to continue to do so until he answered. The court also admonished him that he might prejudice himself before the jury, and advised him to consult his counsel. After consulting them, he answered the question. The court then admonished the jury not to be prejudiced by what had occurred, and to determine defendant's guilt or innocence solely from the evidence. Held, that defendant was not prejudiced or injured by such occurrence.

3. Such admonition to the jury was not an instruction, and erroneous because oral.

4. Defendant, as a witness, denied that on Thursday or Friday before the killing, on Saturday night, March 31st he went to one B.'s house with deceased and another; that he then stated to B. that he had two Norwegian boys outside, and that they had money, and he wanted B. to help fix them by putting them to sleep, to get the money. Held, that B. could testify in rebuttal that, four or five days before the killing, defendant came to her house with two men; that defendant came in and told her that he had a good chance to make some money; that he had two fellows lately from Norway, who had money; that he asked her for a spare room; that he wanted her to fix them,put them to sleep,-and asked her if she didn't know how; and that she refused to have anything to do with it, and defendant left.

Appeal from district court, Choteau county; Dudley Du Bose, Judge.

John H. Osnes was convicted of murder in the first degree, and appeals. Affirmed.

T. W. Murphy and Geo. W. Sweet, for appellant. John W. Tatten, B. L. Powers, and Henri J. Haskell, for the State.

PEMBERTON, C. J. On the 21st day of May last, the appellant was convicted of the crime of murder in the first degree, in the district court of the tenth judicial district, in and for Choteau county, and was thereafter sentenced to be hanged. From the judgment, and order of the court overruling appellant's motion for a new trial, this appeal is prosecuted.

The appellant complains that the jury that tried him was not a proper or legal jury, for the reason, as shown by affidavit, that the district clerk did not act with and as one of the jury commissioners that selected the jury in this case, as required by law. While it is true that the clerk of the district court is by law one of the five commissioners whose duty it is to select juries, yet section 12, p. 168, Laws 16th Sess., provides that "the absence of one or two commissioners appointed under the provisions of this act shall not prevent a majority of said commissioners from selecting the juries and doing and performing all other acts directed and required to be done under the provisions of this law." There is no showing or contention that appellant has been in any manner injured on this account. There is no error or irregularity in this assignment of which the appellant can properly complain. The appellant complains that pending the trial, and while he was being examined as a witness, the judge abused his discretion by fining the appellant, and using language calculated to prejudice him with the jury. The circumstances are substantially as follows: Counsel for the state, while the appellant was being cross-examined as a witness in his own behalf, asked the appellant a question,-seemingly a proper question; appellant declined to answer, because, he said, the counsel had abused him; thereupon the court fined the appellant, and threatened to continue to do so until he answered. The court also admonished appellant that his failure to answer might prejudice him with the jury; told appellant that he was fair and impartial in the matter, and advised him to leave the witness stand and consult his counsel, saying that he thought his own counsel would agree with the court that it would be best for appellant to answer the question. After consulting with his counsel, appellant agreed to answer, and did answer, the question propounded to him. Thereupon the court remitted the fine it had imposed upon appellant. Of course, these things all occurred in the presence of the jury. Before the jury retired, the court called their attention to these occurrences, and admonished them that they should not permit themselves to be prejudiced thereby,-that they should determine the question of the guilt or innocence of the appellant solely from the evidence in the case. The appellant contends that this admonition of the court was in effect an oral instruction, and therefore error. We do not think it was in any respect an instruction. It was simply an admonition to the jury not to permit themselves to be prejudiced by a matter that had taken place in their presence. While the court displayed some impatience and irascibility, doubtless provoked by the obstinacy of the appellant, still we are unable to discover anything in the language or conduct of the court to authorize us in holding that the appellant was prejudiced or injured thereby. The appellant

contends that the court erred in permitting one Blanche Brandt to testify in rebuttal. It is contended that the testimony of this witness was not rebuttal. While the appellant was on the witness stand, he was asked by counsel for the state, in substance, if he had not gone to the house of witness Blanche Brandt on Thursday or Friday before the Saturday night on which the deceased was killed, in company with the deceased and another, and if he did not, at that time and place, state to said witness Blanche Brandt that he had two Norwegian boys outside, who had just come from Illinois; that they had money, and that he wanted her to help him fix them by putting them to sleep, to get the money; and if she, Blanche Brandt, did not refuse to have anything to do with the matter. The appellant denied all these things. The appellant testifies that he was at the house of Blanche Brandt about the first part of the month of March, in company with one Enger and one Johnson, but was never there in company with the deceased. After the close of defendant's evidence, Blanche Brandt testified that she knew the appellant well; that, four or five days before she heard of the killing of the deceased, the appellant came to her house with two other men; that the appellant came in and told her he had a good chance to make some money; that he had two fellows, lately from Norway, who had money, one $700 and the $1,100; that he asked her for a spare room; that he wanted her to fix them,-put them to sleep; that he asked her if she didn't know how; that she told him she knew nothing about it, and would have nothing to do with it; that thereupon appellant left. We think this evidence of Blanche Brandt was clearly rebuttal, and admissible as such. While she does not identify either of the persons with appellant as the deceased, yet her testimony does tend to contradict and rebut the evidence of the appellant that he was at her house only once in March, and that early in the month, in company with Enger and Johnson. The deceased was killed on the 31st of March, as the record shows, and the witness Blanche Brandt testifies that it was four or five days before she heard that the deceased had been killed, and she thinks on Friday that the appellant came to her house with the two men from Norway, and sought her aid in fixing and putting them to sleep, in order to get their money. The court permitted appellant to offer evidence to explain and contradict the evidence of Blanche Brandt. The appellant testified, as above stated, that it was in the early part of March that he was at her house with Enger and Johnson. Enger testified that he was at her house, but did not go in, some time in March (he did not know the time in March), with appellant and Johnson. It may

be true that appellant, Enger, and Johnson were at the house of Blanche Brandt in the early part of March, but this does not prove that appellant, with deceased and another,

were not there also four or five days before she heard that deceased had been killed on the 31st day of March. But whatever of conflict or contradiction there was in the testimony of these witnesses was a matter to be determined by the jury. We think, from any view, the evidence of the witness Blanche Brandt was properly admitted.

The

Nor

The record in this case is imperfect. instructions of the court are not here. is there any contention that the instructions were not fair to the appellant. There is only a small portion of the evidence in the record. But there is no complaint that the evidence as a whole does not warrant the verdict of the jury in this case. The errors assigned are purely technical, and without substantial merit. We are of the opinion that no error has been assigned, called to our attention, or discoverable in the record, that would justify us in disturbing the result of the trial below, solemn and serious as the result may be to this unfortunate appellant. Judgment and order appealed from are affirmed. And it appearing that the appellant has been granted a respite by the executive of this state until the 13th day of July, 1894, pending the presentation and determination of this appeal, it is therefore ordered that the judgment of the court below be executed on that day, in accordance with the provisions of section 377 of the criminal practice act. Remittitur forthwith. Affirmed.

HARWOOD and DE WITT, JJ., concur.

(53 Kan. 491) CITY OF ARGENTINE v. SIMMONS et al. SAME v. DAGGETT et al. (Supreme Court of Kansas. June 9, 1894.) CITIES GRADING STREET-VALIDITY OF ASSESS

MENT.

The grade of Second street in the city of Argentine was duly established by ordinance. Three-fourths of the owners of property fronting on the street thereafter petitioned for the grading of the street. An ordinance providing for plans, specifications, estimates, and the letting of the contract for such grading was thereupon passed, and a contract therefor afterwards duly let. After such letting, another ordinance was passed materially changing the grade of the street. There was no new plan, estimate. contract, or ordinance relating to such work: but the grading was done in accordance with the grade last established, and the city council, after its completion, passed an ordinance assessing the cost against the abutting lots. Held, that such assessment is invalid.

(Syllabus by the Court.)

Error from district court, Wyandotte county; Henry L. Alden, Judge.

Actions by Harriet Daggett and others and G. H. Simmons and others against the city of Argentine. Judgments for plaintiffs, and defendant brings error. Affirmed.

Both of the above-entitled cases grow out of the grading of Second street, in Argentine, a city of the second class, and they are argued, briefed, and submitted together.