to the use of sound judicial discretion. Doubtless, rules of court may be rescinded or modified at the just convenience of the court which makes them, but there should be some better reason for wholly ignoring them than the respondent relies upon in this case. The order setting aside the default is reversed. Reversed. PEMBERTON, C. J., and DE WITT, J., concur. (15 Mont. 340) MILES v. DU BEY et al. (Supreme Court of Montana. Feb. 18, 1895.) JOINDER OF PARTIES-DIVERSION OF WATER. Comp. St. p. 997, § 1260, which authorizes, in a suit for the protection of water rights, the joinder of all persons as defendants who have diverted the water, and a settlement of the rights of the parties by one decree, and for an apportionment of damages, applies only to equitable actions; and in a legal action for damages for wrongful diversion, where no equitable relief is asked, and no facts are alleged which would authorize the granting of such relief, plaintiff cannot join as defendants persons who did not act jointly in diverting the water. Appeal from district court, Deer Lodge county; Theodore Brantley, Judge. Action by Frank R. Miles against Charles Du Bey and others for the diversion of water. A nonsuit was ordered, and plaintiff appeals. Affirmed. Plaintiff alleges in his complaint that he is the owner of a large tract of agricultural land situated in Deer Lodge county; that, for the purpose of irrigating said land, he and his predecessors in interest had appropriated all the waters of Willow creek, and, by means of ditches, had conveyed the waters of said stream onto said land; that for many years he has been in the possession of said land, and in the use of said waters for irrigating the same; that, during the spring of the years 1887, 1888, 1889, and 1899, the defendants, by means of ditches, wrongfully diverted the waters of said stream, and took and used the same for their own use, thereby depriving the plaintiff of the use thereof during said years; that, by reason of said wrongful diversion of said waters by defendants, the crops of grain, vegetables, and hay of plaintiff were damaged and destroyed; that plaintiff was damaged thereby in the sum of $10,000. The defendants filed separate answers, which were, in effect, general denials of the allegations in the complaint. The trial was with a jury. At the close of plaintiff's testimony, the defendants moved the court to grant a nonsuit, for the reasons that defendants are sued joint- | ly, and the evidence does not show that the defendants acted jointly in diverting the water, if any was diverted. The court granted the nonsuit. Plaintiff filed a motion for a new trial, which was denied. From the judgment and the order denying a new trial, plaintiff appeals. Shropshire & Burleigh, for appellant. Geo. B. Winston and W. H. Trippet, for respondents. PEMBERTON, C. j. (after stating the facts). The appellant contends that this action was properly brought under section 1260, p. 997, Comp. St. This section is as follows: "Sec. 1260. In any suit hereafter commenced for the protection of rights acquired to water under the laws of this territory, the plaintiff may make any or all persons who have diverted water from the same stream or source parties to such action, and the court may in one decree settle the relative priorities and rights of all the parties to such suit. When damages are claimed for the wrongful diversion of water in any such suit, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves." But we think this contention cannot be maintained. This is not a suit "for the protection of rights acquired to water." It is not a suit to "settle the relative priorities and rights of all the parties" to the water, or the use thereof of the stream mentioned. It is a suit at law for damages to crops resulting from the alleged joint torts of the defendants. There is no allegation in the complaint that would authorize the court to grant equitable relief; nor does the evidence show that plaintiff is entitled to such relief. To entitle the plaintiff to equitable relief, the allegations of the complaint should show him to be entitled thereto, and the proof should support such allegations. Pom. Rem. & Rem. Rights (2d Ed.) § 84. In Blaisdell v. Stephens, 14 Nev. 17, the court say: "The general principle is well settled that when two or more parties act, each for himself, in producing a result injurious to plaintiff, they cannot be held jointly liable for the acts of each other." In the case just cited the court say: "It does not appear from the evidence that the defendants acted in concert, or that the act of either in any manner produced the act of the other." This case is almost exactly similar in pleadings and proof to the one at bar, and the court held that a nonsuit should have been granted. Section 1260, above quoted, we think, contemplates an equitable action, in which the court may settle in one decree the priorities and rights of all the parties to the water or the use thereof; and, when damages are claimed in such action for the wrongful diversion of water, the same may be assessed and apportioned by the jury, and judgment therefor may be entered for or against one or more several plaintiffs or defendants, and the ultimate rights of the parties may be determined in such action. But in order to enable the jury to assess and apportion the damages against one or more several defendants, and authorize a separate judgment therefor, there must be evidence showing what particular damage any particular party has committed. Such verdicts and judgments could not be rendered without evidence showing what damage had resulted from the separate acts of the parties. There is no such evidence in this case, even if it were brought under said statute, as to authorize such separate verdicts and judgments against the separate defendants. We are of the opinion that this is purely an action at law against joint tort feasors for damages alleged to have resulted from their joint acts; that there is nothing in the complaint or evidence to authorize the granting of equitable relief or any relief, under section 1260, as contended by the appellant. The judgment appealed from is affirmed. Affirmed. DE WITT and HUNT, JJ., concur. (15 Mont. 317) MERCER v. DYER, County Treasurer. (Supreme Court of Montana. Feb. 18, 1895.) NATIONAL BANKS-INSOLVENCY-PREFERENCE SET-OFFS. Rev. St. U. S. § 5242, which requires a pro rata distribution of the assets of an insolvent national bank, and forbids preferences, does not prevent a debtor of the bank from setting off against his indebtedness the amount of a claim he holds against the bank; and it is immaterial whether or not the debt due to the bank had matured at the time of its insolvency. Scott v. Armstrong, 13 Sup. Ct. 148, 146 U. S. 499, followed. Appeal from district court, Park county; Frank Henry, Judge. Petition by John F. Mercer, receiver of the Livingston National Bank, for a writ of mandamus, to compel Henry W. Dyer, treasurer of Park county, to pay a county warrant owned by the bank. From a judgment for defendant, petitioner appeals. Affirmed. The appellant, who is the receiver of the Livingston National Bank, an insolvent corporation, applied to the district court for a writ of mandamus to require the defendant, who is treasurer of Park county, to pay a certain county warrant owned and held by said bank at the time it became insolvent and was placed in the hands of the receiver. The bank suspended and became insolvent on the 7th day of July, 1893. Upon the fiing of appellant's petition, the court issued an alternative writ to the defendant to show cause why a peremptory writ should not issue. On return of the order to show cause, the defendant filed his answer, setting forth, in substance, that prior to said 7th day of July, 1893, on which day the said bank became insolvent, he had, as such treasurer, deposited in said bank the funds of said county, amounting in the aggregate to the sum of $7,500.38; that, prior to said day, said bank had, at the request of defendant, paid $1,575, for interest coupons taken from the bonds of said county; that, at the time appellant was appointed receiver of said bank, said sum had not been charged to the account of defendant; that, after appellant had been appointed receiver of said bank, he charged the amount paid for said coupons to the defendant, and deducted the same, with commission, from his account, leaving, as a balance due the defendant, the sum of $5,921.46; that said sum paid for said coupons was claimed and allowed as an offset against the amount due the county; that he did not know that the bank was the owner of the county warrant in suit until it was presented for payment by appellant; that on the 29th day of November, 1893, in accordance with the statutes of the state in such cases, he called for certain warrants for payment, among which was the warrant in controversy; that the same was presented by the appellant for payment as the proper ty of said bank; that thereupon defendant refused to pay the same, claiming an offset by reason of the funds of said county deposited in said bank, but agreed to allow the applicant to offset said warrant against said deposit, which offer the appellant refused. Upon the showing by defendant, the court denied appellant's prayer for a peremptory writ of mandamus, and entered judgmenc for the defendant for costs. From this judgment, this appeal is prosecuted. Savage & Day, for appellant. Campbell & Stark, for respondent. PEMBERTON, C. J. (after stating the facts). The court below evidently held that the defendant, under the pleadings and evidence, was entitled in equity to offset the appellant's demand against the bank's indebtedness to the county. The appellant contends that such holding is error. He insists that, by allowing the offset, an unauthorized preference was given to the defend ant, which he claims is prohibited by section 5242 of the national bank law (Rev. St. U. S.). This sectior is as follows: "Sec. 5242. All transfers of the notes. bonds, bills of exchange or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution, shall be issued against such association or its | bank, can, in a suit by the bank to recover property before final judgment in any suit, action or proceeding, in any state, county or municipal court." In this the amount of the note, set off his deposit In Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, Mr. Chief Justice Fuller, construing this statute in a case similar to the one under consideration, says: "The argument is that these sections, by implication, forbid this set-off, because they require that, after the redemption of the circulating notes has been fully provided for, the assets shall be ratably distributed among the creditors, and that no preferences given or suffered, in contemplation of or after committing the act of insolvency, shall stand; and it is insisted that the assets of the bank existing at the time of the act of insolvency include all its property, without regard to any existing liens thereon or set-offs thereto. We do not regard this position as tenable. Undoubtedly, any disposition by a national bank, being insolvent or in contemplation of insolvency, of its choses in action, securities, or other assets, made to prevent their application to the payment of its circulating notes, or to prefer one creditor to another, is forbidden; but liens, equities, or rights arising by express agreement, or implied from the nature of the dealings between the parties, or by operation of law, prior to insolvency, and not in contemplation thereof, are not invalidated. The provisions of the acts are not directed against all liens, securities, pledges, or equities whereby one creditor may obtain a greater payment than another, but against those given or arising after or in contemplation of insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference; and it is clear that it is only the balance, if any, after the set-off is deducted, which can justly be held to form part of the assets of the insolvent. The requirement as to ratable dividends is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor does not belong to the bank." While the case just cited was pending in the circuit court of appeals for the Sixth circuit, the court certified to the supreme court, for instructions as to the proper decision thereof, among others, this question: "(1) Where a national bank becomes insolvent, and its assets pass into the hards of a receiver appointed by the comptroller of the currency, can a debtor of the bank set off against his indebtedness the amount of a claim he holds against the bank, supposing the debt due from the bank to have been payable at the time of its suspension, but that due to it to have been pay-poration, in a worse position, and the creditable at a time subsequent thereto?" The supreme court answered this question in the affirmative. In Yardley v. Clothier, 49 Fed. 337, the court holds that "a depositor in an insolvent bank, who had indorsed a note that was subsequently discounted by said ors in a better position, by the bank's failure and the appointment of a receiver." Yardley v. Clothier, supra, is cited as authority in Scott v. Armstrong, supra, and is evidently in harmony therewith. In view of these authorities, we are unable to see how the defendant could be placed in a worse position, and the creditors in a better one, by the bank's insolvency and the ap pointment of a receiver. If the bank had not failed, and was now prosecuting this suit, it would be hardly claimed that the defendant could not offset this claim. The appellant claims that the warrant in suit was not due at the time the bank became insolvent, because it had not been called for payment. Under the authorities cited, we think this contention of little importance. But we are not satisfied that it is true that the warrant was not then due. The warrant is dat ed May 31, 1893, and there is no time specified when it is payable. It is indorsed: "Presented and registered June 10th, 1893. Not paid for want of funds." But did the fact that the treasurer had no funds to pay it with at the date of its issue or presentation prevent its maturing until called for payment after funds had accrued to pay it with? The evidence in the case shows that the officers of the bank knew this deposit was county money, placed in the bank for the sole purpose of paying the indebtedness of the county by the defendant as treasurer. And the circumstances of the case are such that the bank understood that, when the treasurer should seek to settle this account with it, either would have the right to claim credit for any cross indebtedness that might exist. We think the facts and circumstances of this case are sufficient to establish the right to the equitable set-off claimed by de fendant. In this holding, we do not intend to be understood as in any manner intimating that by the action of the county commissioners, as shown by the evidence, in treating this deposit by the treasurer as cash on hand, the defendant would be in any way relieved from liability as treasurer of said county if loss should result by the insolvency of the bank. The judgment of the court is affirmed. Affirmed. DE WITT and HUNT, JJ., concur. (15 Mont. 324) STATE ex rel. INDEPENDENT DIST. TEL. CO. et al. v. SECOND JUDICIAL DISTRICT COURT OF SILVER BOW COUNTY et al. (Supreme Court of Montana. Feb. 18, 1895.) RECEIVERS OF CORPORATION-WHEN APPOINTED. 1. On certiorari to review the appointment of a receiver of a corporation, the only question to be considered is the jurisdiction of the court to make the appointment, and not whether it properly exercised its discretion in so doing. 2. Where four shareholders get control of the majority of the stock of the corporation, elect their officers, pocket the dividends, keep false books to deceive the other shareholders, and buy a worthless franchise, for which they mortgage all the corporate property, for the purpose of having the mortgage foreclosed, and the property of the corporation wiped out, a court of equity has power to appoint a receiver for the corporation pending an action by the minority stockholders against the corporation, its managing officers, and the mortgagee to cancel the mortgage. Certiorari by the state of Montana ex rel. the Independent District Telegraph Company, the Citizens' District Messenger & Burglar-Alarm Telegraph Company, and G. A. Lauzier against the Second judicial district court of the state of Montana in and for the county of Silver Bow, and the judges presiding, to review the action of such court in appointing a receiver for the two corporations. Dismissed. This is a writ of certiorari directed to the district court to review its action in appointing a receiver of the properties of two of the relators, viz. the Independent District Telegraph Company and the Citizens' District Messenger & Burglar-Alarm Telegraph Company, it being claimed by the relators that the district court acted in that matter without jurisdiction. The receiver was appointed in an action entitled as follows: "H. L. Haupt and E. A. Nichols, trustee, Plaintiffs, v. Independent District Telegraph Company, Citizens' District Messenger & Burglar-Alarm Telegraph Company, Fred B. Puddington, H. Sommers, John O'Rourke, Thomas D. Butterfield, G. A. Lauzier, Alex. Johnston, and John Doe (whose true name is unknown), Defendants." The appointment was made upon the complaint in that case and upon affidavits filed. The following facts appear from the complaint: Each of the companies defendant in the case in the district court (and who are relators here) is a corporation organized under the laws of this state. The plaintiff Haupt is owner of 76 shares of the stock of the Independent Company. The plaintiff Nichols, as trustee, is also owner of 76 shares of said company. The Independent Company is the owner of a franchise from the city of Butte permitting it to carry on the district messenger business, and granting to the company the use of the streets and alleys of the city for the purpose of said business. The Citizens' Company owns a similar franchise. On May 1, 1892, the said two companies entered into an agree ment by which they should put their respective stocks, franchises, and property into a common business, to be carried on by officers and agents to be appointed by the two corporations jointly. This agreement was to run for 20 years. All moneys earned should go into a general fund, and be in the hands of a general treasurer. After paying expenses, a reserve fund of $500 was to accumulate in the hands of the treasurer. After paying expenses and the accumulation of this reserve, the profits were to be paid by the general treasurer to the respective corporation treasurers in the proportion of five-ninths to the Independent Company, and four-ninths to the Citizens' Company, to be distributed by the said respective companies as dividends on their stock. Thereupon the general manager and general treasurer were elected to carry on this joint business. The reserve fund of $500 was accumulated. The business was carried on until June 1, 1893. At that date the stockholders Sommers, Lauzier, Butterfield, and O'Rourke united together and obtained a majority of the stock of each company. After obtaining this stock, those stockholders united and conspired together to manage and conduct the combined corporations for their individual benefit, and to exclude from the management, profits, and benefits the plaintiffs Haupt and Nichols. Since that time said plaintiffs Haupt and Nichols have been entirely excluded from the profits, management, and benefits of said corporations and the combination of the corporations. From the time said association of the two corporations was formed until said Sommers, Lauzier, Butterfield, and O'Rourke obtained control of the said combined business, there was paid to the treasurers of the said corporations $500 a month, to be distributed by them as dividends on the stock of the corporations. That, when said Sommers and others obtained control of the said associated corporations, there was in the hands of the general treasurer said reserve fund of $500, and also cash in the sum of $1,000, and also interest on the reserve fund of $25. That this total sum of $1,525 was turned over to Lauzier, the general treasurer elected by his friends Sommers, Butterfield, and O'Rourke. That the current expenses which then remained unpaid did not exceed $300, and that there was therefore $1,225 available as a dividend to be paid to the stockholders. That, ever since said Sommers and others obtained control as aforesaid, they have refused to give the plaintiffs any account of the profits of the association, and have refused to pay any dividends on the stock. Plaintiffs allege, on information and belief, that, since the Sommers control obtained,― that is, since June 1, 1893,-the net profits of the associated corporations have been $500 per month, and that said Sommers, O'Rourke, Butterfield, and Lauzier, instead of paying those profits as dividends, have converted the same to their own use. On February 9, 1894, the officers elected under the Sommers management executed to Fred B. Puddington three promissory notes, payable each in nine months, for the sums, respectively, of $5,000, $2,000, and $2,000, bearing interest at the rate of 14 per cent. per month. That said Sommers management, also as security for said notes, executed to said Puddington a chattel mortgage upon the franchises and all the property of said corporations. That said notes purported to be given for the purchase price of a certain franchise granted by the city of Butte to sald Puddington,-a franchise to erect and maintain a district messenger and burglaralarm telegraph system in the city of Butte. That said franchise was granted by the city subject to certain conditions precedent. The complaint then sets out those conditions, and then alleges that none of those conditions were fulfilled. The complaint alleges that said Puddington's franchise is forfeited and void, and was forfeited and void at the time of the pretended sale of the same to the two said companies and the execution of said notes and mortgage. The complaint further states that said Sommers and others, at the time of said pretended sale, well knew that the Puddington franchise was forfeited and void and was of no value whatever. It is further alleged that said Sommers, Lauzier, Butterfield, and O'Rourke conspired together to defraud the plaintiffs, and to obtain possession of the plaintiffs' stock, and all interest in the Independent Company, and of the said combination of the two companies; and that in fact they executed said mortgage and notes without any consideration, and for the purpose of bringing about the sale of said property and franchises of the said companies, and of foreclosing all interest of the plaintiffs therein. The complaint further alleges that unless the negotiation of the said notes is restrained, and the notes and mortgage declared fraudulent and void, all the property of the Independent Company will be sold under the mortgage, and plaintiffs will be deprived of their interests in the said corporation. The complaint prays for several items of relief, among them that said Fred B. Puddington, and all persons claiming under him, may be enjoined from negotiating said notes or mortgage, or from collecting or foreclosing the same, or from interfering in any manner with the properties or franchises of the said companies, and that said mortgage and notes be adjudged null and void. In addition to the allegations made in the complaint, a number of affidavits were filed and used on the hearing. One Le Clare deposes that he heard John O'Rourke and G. A. Lauzier, two of the defendants in the district court, conversing about the business of the said district messenger companies, and that O'Rourke said "that if they [meaning himself, Butterfield, Lauzier, and Sommers] would stand together, they would do that Dutch outfit up [referring to the Shultzes and the other stockholders]." H. A. Neidenhofer deposes that from December, 1890, to February, 1892, he was manager of the Independent Company, and that all that time monthly dividends were paid to its stockholders amounting to $750 per month. excepting during the time when there was an opposition company, and that those dividends were net profits. This affiant also states that after the combination was made between the two companies they paid dividends of $500 a month. Seth B. Smith, another affiant, stated that, prior to the time when Sommers and his party obtained control of the combined corporations, he (affi |