meaning of the statute. This ground of demurrer is not well taken.

Second. The demand is sufficiently alleged in the complaint, which says "that, at various times before the. commencement of this suit, plaintiff demanded of said defendant the said sum of five hundred dollars." The time and place of the demand, as in case of commercial paper, is not necessary to be alleged.

3. The verdict of the jury is sustained by the evidence. The verbal contract fairly meant that defendant agreed that plaintiff might bid in the property at the sale at any price he pleased, and then sell it to Osborne at any price which Osborne was willing to pay, and secure himself as might be agreed upon, and that thereupon the defendant would pay him (plaintiff) $500. To make this verbal contract mean anything else, words would have to be inserted. which the evidence does not warrant. As to any conflict in the evidence, we regard that as settled by the verdict of the jury, and must adopt that view of the evidence which accords with the verdict.

4. The instructions given by the court to the jury fairly and plainly set out the law governing this case as presented in the evidence, and there was no error in giving them. The view taken by the defendant's counsel of the evidence, and on which he bases his objection to these instructions, was not adopted by the jury in exercising their privilege of weighing the testimony; but in any event, when there is a conflict, the verdict and judgment would not be disturbed. And, in like manner, the charges, being applicable to the testimony in the view of it which we regard as correct, will not be held erroneous. There being no error in the judgment, and the motion for a new trial having been correctly overruled, this judgment is affirmed, with costs.

Judgment affirmed. MCCONNELL, C. J., and BACH, J., concur.

BROWNELL, appellant, v. MCCORMICK, respondent.

CIVIL PRACTICE- Transcript must comply with the rules of the supreme court. A refusal to consider an appeal will be warranted where the transcript does not comply with the rules of the supreme court.

on

When declarations of ownership are inadmissible in evidence. · -A constable levied upon certain horses as the property of D. & R. under certain writs of attachment in actions against them. Plaintiff brought an action of claim and delivery against the constable for said horses, or the value thereof, or the ground that said horses were his property. The defendant pleaded in justification said writs of attachment and executions subsequently issued. He also pleaded specially that there was no delivery to plaintiff of the property claimed by him; that plaintiff's claim was founded on a transfer made to hinder and delay the creditors of D. & R.; that plaintiff was estopped, from having knowingly permitted D. & R. to possess and use the property as their own; and that the creditors of D. & R. extended credit to them upon the belief that D. & R. owned said property, and upon their assertions to that effect, with the consent and knowledge of plaintiff. It appeared from the evidence that D. & R. had leased certain of the horses attached from M., who had sold them to plaintiff. After the sale, plaintiff left said horses with D. & R., under the terms of their lease, and also placed in their charge certain other horses, which were also attached. There was no testimony that D. & R. owned the attached property, and the plaintiff's testimony'presented a strong prima facie case of his ownership. There was no evidence that the creditors extended credit upon the belief or representations that D. & R. owned the property, or that plaintiff ever had any knowledge that D. & R. claimed to be the owners of it, or had ever authorized them to make any such claim. Held, that it was error on the part of the court to admit evidence to the jury that D. & R. had exhibited a certificate of sale and pedigree of one of the horses, or that they had made declarations of ownership of the horses.

There was

Instructions must be applicable, or must be based upon evidence. no evidence in the case showing, or tending to show, that any of the property in question was "covered up," or concealed, with intent to hinder, delay, or defraud the creditors of D. & R.: Held, it was error to allow the following instruction: "If this property has been covered up, or any part of it has been covered up, to hinder, delay, or defraud the creditors of Dalton & Radbourn, you will find for the defendant as to the property so covered up." There was no evidence that D. & R. had any interest in the property attached: Held, also, it was error to allow the following instruction: "If Dalton & Radbourn had an undivided interest in the property in question at the time of the levy, you will find for the defendant."

What can be attached under a writ of attachment, or sold under a writ of execution. An officer can seize on the attachment, or sell on the execution, only such interest in property as the debtor has therein.

How property belonging to debtor, but in the lawful possession of another, should be attached When officer a trespasser in seizure of undivided interest in

property. Where property belonging to the debtor, but in the lawful possession of another, is sought to be attached, proceedings must be had by serving upon such other person a copy of the writ and the notice required by section 186, division 1, Revised Statutes of Montana (sec. 188, div. 1, Comp. Stats. Mont.); in other words, by garnishment. Where an officer, under attachment, seizes an undivided interest in property, of a stranger, he is pro tanto a trespasser.

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Brief of a lawyer should contain argument, not ridicule. Language in a brief attempting to cast reproach or contempt upon a court below should not be tolerated.

Appeal from District Court, Meagher County.

THE facts appear in the opinion.

J. H. SHOBER, J. W. KINSLEY, and SANDERS, CULLEN, & SANDERS, for the appellant.

The answer of the defendant sets up inconsistent defenses. While a defendant is not to be confined to a single defense, and may set up as many defenses as he has got to a cause of action, they must be consistent, the one with the other. Derby v. Gallup, 5 Minn. 119; Conway v. Wharton, 13 Minn. 158; Cook v. Finch, 19 Minn. 407; Adams v. Trigg, 37 Mo. 141.

The defendant fails to plead facts sufficient to constitute an estoppel. Biddle Boggs v. Merced Mining Co., 14 Cal. 367; Davis v. Davis, 26 Cal. 39.

The defendant was seeking to justify the taking of the property from the possession of the plaintiff, Brownell, under certain executions issued from the justice's court. It was, therefore, necessary for him to show, in addition to the writ, a judgment regular on its face. Damon v. Bryant, 2 Pick. 411; High v. Wilson, 2 Johns. 46; Sheldon v. Van Buskirk, 2 N. Y. 473; Bogert v. Phelps, 14 Wis. 95; Cooley on Torts, 463; Abbott's Trial Evidence, 630.

That no other or greater interest in property than the judgment debtor actually has can be seized on attachment or sold on execution is so elementary as not to need the citation of authorities in its support.

If Dalton & Radbourn had been the sole owners of the property taken, and the same was lawfully in the possession of plaintiff, the property should have been attached by garnishment, as provided by section 186 of the Code of Civil Procedure, and not by seizure. Waples on Attachment, 159. If in the case supposed by the instruction, Dalton & Radbourn owned an undivided interest in the property with plaintiff, and the defendant, as constable, seized or sold, or attempted to seize or sell, any other or greater interest in the property than Dalton & Radbourn had, it would be a trespass, for which he would be liable to the plaintiff. Bradley v. Arnold, 16 Vt. 382; Melville v. Brown, 15 Mass. 82; Eldridge v. Lancy, 17 Pick. 352; Walker v. Fitts, 24 Pick. 191; Tuohy v. Wingfield, 52 Cal. 319; Robinson v. Haass, 40 Cal. 474.

Defendant's instruction No. 5 has nothing in the testimony to warrant it. Waples on Attachment, 157.

Certain of defendant's instructions relate to the socalled estoppel. No estoppel was pleaded or proven; and to allow these instructions to go to the jury was rank error.

TOOLE & WALLACE, for the respondent.

No brief on file.

GALBRAITH, J. The transcript in this case is not prepared in accordance with the requirements of the rule. See Rules Sup. Ct., No. 4. We would, therefore, be warranted in refusing to consider it. The errors of law are, however, so apparent that the consideration of doing substantial justice prevails upon us to overlook this defect in this case. But as we have had occasion to call attention to the disregard of this rule upon a former occasion, we may never again be so indulgent. Alder Gulch Con. Min. Co. v. Hayes, 6 Mont. 31.

This is an appeal from an order overruling a motion to set aside the verdict and judgment. The action was

one of claim and delivery, brought to recover the possession of certain horses, or their value. It appears from the record that the defendant, as the acting constable of Diamond township, Meagher County, seized the above property, by virtue of certain writs of attachment, issued out of the justice's court of said township,. in several separate actions against the firm of Dalton & Radbourn, as the property of Dalton & Radbourn.

The firm of Dalton & Radbourn had leased of one Cheney Moulton certain ranches and horses in the county of Meagher, and among the animals so owned by Moulton, and leased to them, were the two mares mentioned in plaintiff's complaint. On February 5, 1885, Mr. Moulton sold his Montana ranches and stock to the plaintiff in this case, and executed a bill of sale therefor, and thereafter that firm continued to hold the same under their lease, but as tenants of plaintiff. The three stallions mentioned in the complaint were purchased by the plaintiff, April 25, 1886, at Bloomington, Illinois, of one George W. Stubblefield, and were shipped out to Montana immediately, and placed in possession of Messrs. Dalton & Radbourn, on plaintiff's ranch, with, authority to sell them for plaintiff if they had an opportunity to do so. All of the property remained in the possession of Dalton & Radbourn, as lessees of plaintiff, up to about the first day of August, 1886; at which time the plaintiff, having previously given the notice mentioned in the lease, terminated the same, and took possession himself of all his property. On the seventh day of August following, the defendant, as constable, seized the horses mentioned in the complaint, under his writs of attachment against Dalton & Radbourn, and took them out of the possession of the plaintiff. The defendant, in justification, pleads his writs of attachment and executions subsequently issued in the cases, and levied upon the property in question. He also