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cumstances, such funds shall be paid out, unless it be in those cases where fixed rights are conferred by statute. In and of itself this fact should be decisive of the present inquiry. Wherever a broad, universal, and sweeping power is thus given to a governing body, it cannot be conceded that by implication any other body, whether it be a court or one resembling the board of county commissioners, should likewise have power to dispose of the public revenues." We cannot perceive that the treasurer is clothed with the power to pass on the legality of the action of the governing body of the county. Power to determine the validity of all claims against the governmental division is intrusted to the board. When they have audited and allowed a claim, and a warrant is issued in accordance with their determination, we cannot see that the statute has clothed the treasurer with the supervisory power to determine the validity of their acts. We therefore conclude the appellee proceeded in a proper manner to enforce his rights, and that the treasurer set up nothing which was a defense to the proceeding. The judgment of the district court will therefore be affirmed. Affirmed.

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WARRANT OF ARREST-VALIDITY-LIABILITY OF CONSTABLE'S SURETIES.

1. A warrant for the arrest of some unnamed person is void unless it contains such a descriptio personae as will supply the lack of the name by which the accused is known.

2. Where a constable has arrested one under a void process, the sureties who have undertaken for his faithful performance of official duties are not liable.

Appeal from district court, Arapahoe county.

Action, upon the relation of William J. Prisk, for his use and benefit, against Joseph Allison, constable, and the sureties on his bond, for malicious arrest. From a judgment for plaintiff, defendants appeal. Reversed.

This litigation proceeds from the acts of Joseph Allison, a constable, in the arrest of the appellee, Prisk, in March, 1892. There was some trouble at a schoolhouse on Cheltenhan Heights, and in the mêlée one Scott appears to have been considerably bruised and beaten. After the affray, a complaint was filed with the justice, charging divers persons (names unknown) with committing the misdemeanor. The complaint is not in the abstract, but we assume it was sufficiently definite and specific to authorize the justice to act under it. Whether this be or be not true, the justice did issue a warrant in the following terms: "Whereas, John A. Scott hath this day made complaint on oath before A. K. Minton, Esquire, one of the justices of the peace of said county, that

on or about the thirteenth day of March, 1892, R. Doe, John Doe, and Sam Doe did unlawfully assault, beat, strike, and bruise the body of the affiant (other name unknown): We, therefore, command you forthwith to take the said R. Doe, John Doe, and Sam Doe (their real names unknown), and bring them forthwith before the said A. K. Minton, Esquire, or, in case of his absence, before any other justice of the peace of såid county, to be dealt with according to law. Hereof fail not at your peril." This warrant was delivered to the constable by the justice. It contained no information respecting the personality of the alleged guilty parties. Acting under the instructions of the magistrate, the constable took two persons with him, and went to Prisk's house, and there attempted to arrest several persons, who were identified by one of his posse as the individuals wanted. The circumstances of the arrest were detailed at some length by the witnesses, and they might furnish proper matter for consideration on the question of exemplary damages if that was essential to the disposition of the suit. The complexion of the case overrules all necessity to make more than a passing reference to these facts. Prisk, with the others, was taken before the justice, detained for an hour or two, found not to be the person wanted, and accordingly discharged. As constable, Allison executed, under the statute, with the two sureties who were joined as defendants with him in this action, a bond conditioned for the faithful performance of the duties of his office, and their execution, without fraud, deceit, or oppression. The plaintiff alleged these various matters, stated the bond, assigned the acts as a breach, and prayed judgment accordingly. On the conclusion of the testimony, the court charged the jury, among other things, that if the jury believed, from the evidence, the constable acted maliciously and oppressively, they might award the plaintiff, not only the actual damages which he had sustained, but such other sum as punitive damages as, in their judgment, would serve to deter other officers from like acts, and be an adequate solace for the officer's disregard of the plaintiff's rights. The court told the jury the warrant was void, being without a description of the persons accused of the crime, and that consequently the plaintiff had a right of action against both the sureties and the constable for his acts. Acting under these instructions, the jury found for the plaintiff, and judgment was entered on the verdict. From it the defendants appealed.

W. D. Wright, for appellants. Talbot & Denison and Frank I. Willsea, for appellee.

BISSELL, P. J. (after stating the facts). The sureties insist that the judgment imposes upon them a liability without the terms of the obligation into which they entered. Their proposition is based on one

fact, although there are several collateral matters which, as they view the law, tend to support their contention. The terms of their suretyship, doubtless, laid on them a responsibility for the negligent or wrongful performance by the constable of the duties of his office. This they concede, but assert that, in order to render them liable, it must appear that the acts of the officer were within the scope of his duties, and done while engaged in the performance of an official act, authorized by the law, or by some process issued by competent authority. As the next step in the chain, the sureties maintain that the warrant which the officer had was void, and gave him no actual or apparent legal authority to arrest the appellee. This is true. We are aware of no provision of the statute, and counsel has called none to our attention, which permits process to issue against an unnamed person, or against one who, if unnamed, is not sufficiently identified and described in the warrant to permit it to be said that it runs against a particular person. It has always been the law that process might go against a person whose name was unknown, provided it contained such a descriptio personae as might supply the place of the name by which the accused person was known. Com. v. Crotty, 92 Mass. 403; Alford v. State, 8 Tex. App. 545; Scheer v. Keown, 29 Wis. 586; Melvin v. Fisher, 8 N. H. 406; Colter v. Lower, 35 Ind. 285. Tested by these principles, the warrant under which the constable assumed to act was absolutely void. It gave him no authority whatever to arrest Prisk or anybody else. All his acts under it were trespasses, for which he was and is most undoubtedly responsible. It is this conclusion which relieves the sureties of any responsibility in the premises. The constable's acts were not performed by him while engaged in the discharge of the duties of his office, nor was the arrest of the plaintiff in any sense a breach of the obligation into which the sureties had entered. Being without a legal process, he had no official functions to perform, and no duty to execute. It is somewhat singular that, in the multitude of suits which have been brought on the bonds of constables, sheriffs, and similar peace officers, there have been so few cases where there has been an attempt under similar circumstances to hold the sureties liable for the trespasses of the officer. The industry of counsel and some little research on the part of the court have brought to light but few wherein the question has been considered. There is no dissent among the authorities, and they all concur in the conclusion that for trespasses of this description, where the officer acts without either actual or apparent legal authority, a surety who undertakes for the faithful performance of the official duties of the officer cannot be made responsible. McLendon v. State (Tenn.) 22 S. W. 201; State v. Long, 8 Ired.

415; State v. McDonough, 9 Mo. App. 63. To overcome the force of these decisions. the appellee cites a great many cases in which the sureties have been held liable for the acts of the officer in the levy of his writ on the property of B. when the process only ran against A. Of these, People v. Lucas, 93 N. Y. 585, and Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. 286, are sufficient examples. There was long a diversity of opinion among the courts in regard to the proposition, but the weight of authority seems now to be that, since the officer, in a case of this kind, acts under a valid and legal process, the sureties shall be held for the tor tious execution of his writ. We do not undertake to state our opinion respecting this proposition, and we have only referred to it as the basis of the appellee's contention. Their point is that since, in such cases, the sureties are made responsible, they ought likewise to be held in the present case, because the constable assumed to act under a warrant issued by competent legal authority. We do not regard the cases as at all analogous, nor the principle, if correct, applicable to this case. The fundamental difficulty with the appellee's position is that, when Allison undertook to arrest Prisk with the warrant, he occupied no other or better position than would any person who was not an officer with a blank piece of paper. That it was in the form of a writ, and signed by a magistrate, did not clothe the constable with the right to arrest anybody. It was a trespass, not committed in the execution of the duties of his office, and the sureties cannot therefore be held.

The appellants put considerable stress upon what they insist was the error of the court in charging the jury that they, as sureties, were liable to respond for the exemplary damages which the court charged the plaintiff might recover for the wrongful acts of the officer. Whether sureties can ever be held liable under such circumstances is a difficult question, which we need not determine, because on the main proposition the sureties are released. It need only be suggested that what is essential to the recovery of such damages against the defendant has been pretty well settled by two cases in the state: French v. Deane, 19 Colo. 504, 36 Pac. 609; Eisenhart v. Ordean, 3 Colo. App. 162, 32 Pac. 495. There is no difficulty in applying the law, and the trial court is not likely to fall into error on this proposition. may, however, be permitted to suggest that the pleading seems to us a little inartistic with reference to this subject. If the plaintiff is bound to prove the facts which constitute the malice or show the reckless disregard of the others' rights essential to the recovery of punitive damages, it must be true that his complaint should contain an apt and sufficient allegation to permit the introduction of evidence on this subject. While we do not directly decide the com

We

plaint to be so far subject to criticism that a verdict under it would not be sustained, we thing a slight amendment in this particular might be expedient. The judgment

must be reversed, and the case remanded for a new trial. The district court will permit the plaintiff to amend his complaint as he may be advised in the particular suggested, should he desire to continue the litigation. Reversed.

(16 Mont. 21)

NELSON v. CITY OF HELENA. (Supreme Court of Montana. April 8, 1895.) CONTRIBUTORY NEGLIGENCE - BURDEN OF PROOF. In an action for injuries, contributory negligence is a matter of defense, and the plaintiff is not required to prove its absence, as a part of his case.

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

Action by Harold H. Nelson against the city of Helena. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action brought by the plaintiff to recover damages for personal injuries sustained by reason of his falling upon one of the sidewalks of defendant, it being alleged that the injury occurred by reason of the defendant's negligence in allowing ice to accumulate upon said sidewalk. Upon a trial to a jury a verdict was rendered, and judgment entered in favor of defendant. The plaintiff appeals from the judgment, and from an order denying a new trial. Among other instructions, the court gave the following: "The injury sustained by plaintiff is admitted, but before he can recover he must prove that it resulted from negligence on the part of defendant, and without negligence on his own part directly and immediately contributing to the accident." The giving of this instruction is assigned as error.

T. E. Crutcher, for appellant. Stephen Carpenter, City Atty., for respondent.

DE WITT, J. (after stating the facts). It is the law of this jurisdiction that, in actions for damages for personal injuries, contributory negligence is a matter of defense, and that the absence of contributory negligence is not required to be proved by plaintiff, as part of his case. There is some diversity among courts of last resort as to whether contributory negligence is a matter of defense, or whether plaintiff should allege and prove himself to be free from such contributory negligence. But that question has been long at rest in this court. It is the doctrine of this jurisdiction that contributory negligence is a matter of defense, and that plaintiff need not allege or prove its absence. Higley v. Gilmer, 3 Mont. 97. Our examination of the decisions and the text writers

leads us to the opinion, with deference to the distinguished courts that have held the contrary doctrine, that this court, in this respect, is with the majority of opinion and adjudication. Mr. Beach, in his work on Contributory Negligence, says (section 157) that it is a rule that contributory negligence is a matter of defense in the states of Alabama, California, Georgia, Kentucky, Kansas, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, Nebraska, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colorado, and in England and the United States supreme court. To this list, Shearman and Redfield add Arizona, Oregon, and Dakota. As above noticed, Montana belongs in the same category. See, also, the collection of cases holding the two different rules, as found in 2 Thomp. Trials, § 1679. That author names the following courts as opposed to the rule which has been adopted in Montana: Massachusetts, Maine, Iowa, Mississippi, Michigan, and Indiana. There is a corollary, rather than an exception, to this rule (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21), as the writer of this opinion noted in some remarks made in the case of Wall v. Railway Co., 12 Mont. 44, 29 Pac. 721, the corollary being to the effect that whenever the plaintiff's own case raises a presumption of contributory negligence the burden of proof is immediately upon him. In such a case it devolves upon the plaintiff, as of course, to clear himself of the suspicion of negligence that he has himself created. He must make out his case in full, and where the circumstances attending the injury were such as to raise a presumption against him, in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory fault. Beach, Contrib. Neg. § 157. But the corollary is not of application in the case at bar. In this case the jury found for the defendant, but we do not know whether their verdict proceeded upon the ground that they believed from the evidence that the defendant was not guilty of negligence, or that they believed from the evidence that the plaintiff had not proved himself free from contributory negligence. The court, by its instruction, told the jury that, in order to find for the plaintiff, he must prove that he himself was free from contributory negligence. For all we know now, the jury may have found that the plaintiff had not proven himself free from contributory negligence. The action of the court in this instruction cast upon the plaintiff a burden of proof which he is not required, in this jurisdiction, to assume.

There are some other assignments of error made by the appellant, none of which, however, we think, are well taken, otherwise than as to the instruction which we have held to be bad. We are of opinion that the case was otherwise properly tried and submitted to the jury. For this error the judg

ment is reversed, and the case is remanded for a new trial. Reversed.

PEMBERTON, C. J., and HUNT, J., con

cur.

(15 Mont. 552)

HERBERT v. WINTERS et al. (Supreme Court of Montana. March 25, 1895.) SALE-DELIVERY.

Where plaintiff consigned potatoes to defendants by bill of lading, and defendants presented the bill to the carrier, received the potatoes, and afterwards admitted an indebtedness for them, the sale and delivery are complete.

Appeal from district court, Silver Bow county; John J. McHatton, Judge.

fendants to throw a doubt upon the genuine ness of the handwriting of the letters of the firm to plaintiff, but the jury and the district court believed the plaintiff. We are satisfied ourselves that the evidence was amply sufficient to warrant the verdict of the jury. The law applicable to the case is that, the plaintiff having consigned the potatoes by the bill of lading to the defendants, as consignees, and having transmitted the bill of lading to the defendants, as consignees, and the defendants having received and accepted the potatoes without objection until some time later on, and having admitted an indebtedness for the consignment, there was a complete sale and delivery, and the defendants are responsible to the plaintiff for the price of the potatoes. Bank v. McAndrews, 5 Mont. 325, 5 Pac. 879; Id., 7 Mont, 150, 14 Pac. 763; Walsh v. Blakely, 6 Mont. 194, 9 Pac. 809; Mercantile Co. v. Fussy, 15 Mont. 39 Pac. 738; Hutch. Carr. 135; Craig v. Marx, 65 Tex. 649. We find no error in the record. The order overruling the motion for a new trial and the Affirmed.

Action by Arthur Herbert against W. H. Winters and Louis Bade. The action was for $188.20, amount due for one car of potatoes sold and delivered to defendants. Defendants denied the sale and delivery, and the value of the potatoes. There was a verDefendants' dict and judgment for plaintiff. motion for new trial was overruled, and they Judgment are affirmed. appeal.

Affirmed.

C. P. Connelly, for appellants.

HUNT, J. The contention of the defendants is that the evidence failed to show that there was an order given by the defendants, or their agents, to the plaintiff, for the potatoes in question, or that there was an absolute sale, but that the evidence proves that the potatoes were delivered to defendants by plaintiff in the usual course of trade, and that there was a general understanding between plaintiff and defendants that the potatoes were to be disposed of by the defendants on commission only, and to the best advantage. It appears that about August, 1891, plaintiff sold a car load of potatoes to defendants, at $1.15 per hundredweight, less the freight, on the order of D. Hanley & Co., Helena, by one Altmeyer. Plaintiff shipped the potatoes, and advised defendants of the shipment, transmitted the bill of lading, and received letters from defendants acknowledging the receipt of the potatoes. One letter objected to the size of the potatoes, and asked plaintiff for a reduction on the car load, but stated that they would give Mr. Altmeyer an order for another car load, if sales would justify it, and that defendants would want about two car loads a week. Plaintiff subsequently saw one of the defendants in Butte and demanded his money. One or both of the defendants admitted an indebtedness, but denied that the amount claimed was correct. L. C. Bade, one of the firm, acting for Winters & Bade, had receipted for the potatoes to the railway company. The original bill of lading was presented by Mr. Bade in order to secure the goods. The bill of lading was from Herbert & Troupe, as consignors, consigned to Winters & Bade, Butte, Mont.

There was an attempt on the part of the de

DE WITT, J., concurs.

(15 Mont. 582)

JENSEN v. BARBOUR.

(Supreme Court of Montana. April 8, 1895.) NEGLIGENCE OF SERVANT-INDEPENDENT CON

TRACTOR.

1. In an action for injuries, evidence that defendant's servant, driver of a horse car, permitted a boy five years old to ride on the front platform of the car, from which he was thrown and injured, was sufficient proof of the defendant's negligence to go to the jury.

2. A person employed by the agent of the owner of a street railway, at a stipulated sum per month, to run a car and furnish a driver, the car and the road being controlled and the work directed by the agent, is not an independent contractor; and the owner is liable for the negli gence of such employé's servants.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Walter H. Jensen, by S. R. Jensen, as his guardian ad litem, against A. K. Barbour personally and as trustee. Judgment for defendant, and plaintiff appeals. Reversed.

F. C. Parks, for appellant. Ed. L. Bishop and Ashburn K. Barbour, for respondent.

DE WITT, J. Plaintiff's complaint is for damages for personal injuries sustained while riding on defendant's horse street car. The district court upon the trial directed the jury to find for the defendant. Plaintiff appeals from the judgment, assigning error in that order. Such order must be treated as in the nature of a nonsuit in this respect: that, if the evidence tended to prove plaintiff's cause of action, it will be taken on appeal as proved. McKay v. Railway Co., 13 Mont. 15, 31 Pac. 999; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; Mayer v. Carrothers, 14

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Mont. 274, 36 Pac. 182. There was evidence that the plaintiff, a boy five years of age, was riding on the front platform of the horse car, with the knowledge of the driver, and that the car struck a stone, and jolted the plaintiff off, and ran over him, inflicting the injuries complained of. One ground of the motion to direct the jury to find for the defendant was that it was not shown that the defendant was guilty of any negligence. We are of opinion, however, that to allow a boy of such tender years to ride on the front platform of a horse car was evidence of negligence sufficient to go to the jury. Upon this point we quote as follows from Railway Co. v. Caldwell, 74 Pa. St. 421: "It is clear from all the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff's leg would not have happened if she had not been permitted to ride on the front platform of the defendant's car. If the rules of the company had not forbidden it, there can be no doubt that it was gross negligence for the driver to allow children as young as the plaintiff and her companion to get on the front platform, and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go on the inside the car, or to stop and put them off; and if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff's negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger and to use the proper means to guard against it. In this case it is conceded that negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed." See, also, the following cases cited by appellant, which are in point: Muehlhausen v. Railroad Co., 91 Mo. 344, 2 S. W. 315; Railway Co. v. Gallagher, 108 Pa. St. 524; Railway Co. v. Hassard, 75 Pa. St. 367; Railroad Co. v. Moore, 83 Ga. 452, 10 S. E. 730. See, also, O'Mara v. Railroad Co., 38 N. Y. 445; Robinson v. Cone, 22 Vt. 213; Lynch v. Nurdin, 1 Q. B. 29; 2 Thomp. Neg. p. 1180 et seq.; Ray, Neg. Imp. Dut. c. 36, and cases cited; Shear. & R. Neg. § 49. We are satisfied that under the authorities the evidence of negligence in this respect was suf ficient to go to the jury.

Our view upon this point of the motion to direct a verdict in favor of respondent disposes of the whole of that motion, except the sixth ground thereof, which is as follows: "That the evidence shows that the negligence complained of, if any, was the negligence of the independent contractor, Vaughn, or his servant, and not that of the defendant or his servant or agent." The question presented is whether the person immediately causing the

injury to plaintiff stood in the relation of a servant of defendant, or whether he were the servant of an independent contractor, for whose acts of negligence the defendant was not liable. The defenuant was the owner of a street-car franchise in the city of Great Falls. He had built a car track extending over six or seven blocks, and had one or two cars on the track. Defendant lived in Helena. J. O. Gregg, of Great Falls, was his agent, acting for him in relation to this street-car franchise, track, and cars. Gregg was also one of the owners of the railway. Defendant, Barbour, was trustee of the railway. He was sued apparently as trustee, and also personally. It seems that the railway people were not operating their line very extensively, for Mr. Gregg testified that he, as agent for the trustee, hired one Vaughn to run the car one trip a day. Gregg says that the contract with Vaughn was that he was to be paid so much money per month to haul the car over the line once a day each way, and to furnish a driver. In pursuance to this arrangement Vaughn furnished the driver, and was moving the car along the track at the time the plaintiff was injured. Defendant contended that by virtue of this employment Vaughn was an independent contractor, and that defendant was not liable for the negligence of Vaughn's driver. Mr. Gregg, however, testified that there was nothing as to collecting fares in this contract with Vaughn. In fact fares were not collected. Without expressing any opinion as to whether these railway people could lease their road and rolling stock to another for the purpose of operating it, it is sufficient to note here that no such lease was made. The track and rolling stock were not delivered into the possession of Vaughn at all. He did nothing more than to haul the car the one trip a day. Mr. Gregg further testified that he spoke to the plaintiff's father in regard to keeping his boys away from the cars; that he also told other parties to keep their boys away; that they did not want the boys there. He said that he notified those living along the car line to keep their small boys away; that they interfered with the running of the cars by stealing almost the cars, carrying off pieces, breaking out windows, pushing the cars and jumping on them, and interfering with the business of the railway people in every way, and also breaking the padlocks they had put on the cars. Gregg also said: "I have always objected to the boys riding on the cars when they were being driven. I had no dlrect control over the drivers, but I ordered Mr. Vaughn to see that the drivers kept the boys away. I was trying to protect the property. I had driven the plaintiff off the cars several times. The contract with Vaughn was that I was to pay him so much money a month to haul the car over the line each way once a day, and furnish a driver. I had nothing to do with the drawing of the car backward and forward, or directing the manner in

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