their districts. The exercise of such power pertains to the government of the schools under the supervision of the trustees. We are therefore of the opinion that the lower court erred in overruling the defendants' demurrer. The judgment appealed from is reversed, and the cause remanded, with instructions to sustain the demurrer of the defendants. Reversed.

DE WITT and HUNT, JJ., concur.

(18 Mont. 19)

MARSH ▾. MORGAN. (Supreme Court of Montana. March 9, 1896.)

APPEAL-REVIEW-EVIDENCE.

The

In an action to enforce a mechanic's lien for papering the walls of a building, the issue was as to the number of rolls of paper. evidence consisted of a mass of figures and estimates by defendant's witnesses. Held, that a verdict, though it did not conform to the estimate of any one witness, would not be disturbed.

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

Action by Charles S. Marsh against F. M. Morgan. There was a judgment for plaintiff, and he appeals. Affirmed.

Frank L. Gray, for appellant. Sanford & Grubb, for respondent

PER CURIAM. The plaintiff brought this action to recover from defendant $234.40 for the performance of certain labor upon a building owned by defendant, and for the foreclosure of a mechanic's lien which plaintiff had filed against the said building. The services, as plaintiff sets up in his complaint, were hanging wall paper upon the interior of said building, for which he alleges defendant agreed to pay plaintiff at the rate of 40 cents per roll for all of such paper hung. He alleges that, in pursuance to this contract, he hung 586 rolls of paper, which, at 40 cents a roll, would amount to $234.40. He alleges the nonpayment of this bill, and the filing of the lien upon the building. The defendant admits the contract, and admits the filing of the lien. He denies, simply, the number of rolls of paper hung, and alleges that the paper hung amounted to only 458 rolls. He alleges the tender of $188 to the defendant, which tender he made good by depositing that sum in court. Upon the trial the tender was admitted. The only controversy in the whole case was as to the number of rolls of paper hung. The controversy arose in this way: The plaintiff claimed that the parties were bound by the general customs and usages of the paper-hanging trade, and that the defendant should pay for all the rolls of paper, actually delivered from the store, that were cut into and used in papering the building; that is, that he should pay for all rolls, and for all parts of rolls used as whole rolls. Defendant contended, on the other hand, that he should ascertain the number of rolls

which were hung by simply measuring the area of the walls which were covered by pa. per. The jury did not find a general verdict, but returned a verdict in two items, called "Special Findings," as follows: (1) "Did a roll of paper, under the contract between the plaintiff and the defendant, mean deducting anything for waste or not? Answer. Yes." (2) "How many rolls of paper and border were hung by the plaintiff under this contract? Answer. Four hundred and seventy." Four hundred and seventy rolls at 40 cents would amount to $188. This being the amount of the tender deposited in court, the court gave judgment for plaintiff for this amount, and ordered the same to be paid to him by the clerk, and gave judgment for the defendant for his costs. A motion for a new trial was made and denied, and this appeal taken.

The plaintiff moved to set aside the findings in this case, which motion was denied. This was proper. The case was not an equity case, and the findings were not simply advisory to the court. It was not an equity case, for the reason that there was no equity issue. There was no issue whatever as to the forclosure of the lien. It was admitted that, if the plaintiff were entitled to a judgment, he was entitled to his lien, and foreclosure of the same. The contest in the case was purely over the account, and that contest was made upon the question of whether a roll of paper, under the contract, meant deducting anything for waste or not. A very large volume of testimony was introduced upon this question. It was somewhat in conflict. There was also a conflict as to what deductions should be made for waste. The jury did not find, in exact terms, what the deduction should be per roll; but this is not important, for the reason that there was practically no dispute as to how many rolls went to the building from the store, which was 586, and the jury found that 470 rolls were hung. The testimony is a great mass of figures and estimates. It is true that one cannot find, in the evidence, a witness testifying to an estimate and measurement of the waste which would give precisely 470 rolls; but there are measurements and estimates for waste which would give a lesser number and a larger number. We have no means of knowing how the jury arrived at the figures, 470 rolls. They may have taken one witness' measurement of the square yards and another witness' estimate of the waste. There is considerable difference in the testimony as to the fractional part of the openings which would be figured in the waste. With the differences in figures upon the different elements of measurement, we cannot say that the jury did not have figures which they could put together and reach the result of 470 rolls. This case seems to us, to be one of those irreconcilable conflicts in testimony, which the jury, who see and hear the witnesses, are most com

petent to resolve. We shall not disturb their finding. The instructions of the court were very simple, and there was but very little, if any, law in the case. They fairly presented the issues to the jury. The judgment and order are affirmed.

(17 Mont. 586)

PAGEL v. BOARD OF COM'RS OF FERGUS COUNTY et al. (Supreme Court of Montana. March 9, 1896.) HIGHWAY-JURISDICTION OF COUNTY COMMISSIONERS-INSUFFICIENT DESCRIPTION-ORDER OF BOARD-CONSENT.

1. Where the point of beginning of a proposed road is shown by the plat filed to be at a different place from that named in the petition and the report of the viewers appointed thereon, and its further location is not fixed in any of the proceedings except that it is to run in a northerly direction, to a point on a county road, not designated, the description is too indefinite to give the county commissioners jurisdiction to act on its location.

2. The following recital in the minutes of a voard of county commissioners: "County Road. The matter of the road running through section 18, township 13 north, of range 12 east, was taken up, viewers' report read and accepted, and declared a county road,"-is insufficient to constitute an order that a road shall be opened for travel, as required by Comp. St. 1887, div. 5, § 1818, and does not operate as a condemnation of right of way for any particular road.

3. The consent of a landowner to a private road over his land does not give the board of county commissioners jurisdiction to establish a public road thereon, nor waive irregularities in proceedings therefor under the statutes.

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

Action by Edward Pagel against the board of county commissioners of Fergus county and another to enjoin the opening of a road. From an order dissolving a temporary injunction, plaintiff appeals. Reversed.

Plaintiff, it is alleged, owns the E. 1⁄2 of the S W. 4 and the W. 1⁄2 of the S. E. 4 of section 18, and is in the lawful possession of the E. 1⁄2 of the N. W. 4 of said section, all in township 13 N., range 12 E., in Fergus county. In June, 1894, plaintiff commenced this suit to enjoin the defendants from opening and maintaining a road through and across his said land. A temporary injunction was issued, which was afterwards vacated and dissolved by the court, on motion of the defendants. From the order dissolving the injunction, this appeal is prosecuted.

W. M. Blackford and F. E. Stranahan, for appellant. H. J. Haskell and Ella Knowles Haskell for respondents.

PEMBERTON, C. J. (after stating the facts). The principal contention on this appeal is that the road sought to be established over plaintiff's land is not sufficiently described in the petition therefor, in the report of the viewers, the order of the board declaring it a road and ordering it opened, or in any other proceeding or respect to give the board jurisdiction to condemn part of plaintiff's land for

the purpose of establishing said road. The description of the proposed road in the petition is as follows: "Beginning at a blazed tree on the Judith river, on the east line of S. W. 14 of Sec. 18; thence running through the N. W. 4 of S. W. 4 of Sec. 18, Tp. 13 N., R. 12 E." The description in the viewers' report is as follows: "Beginning at a blazed tree on the Judith river, on the east line of S. W. 4 of S. E. 14, Sec. 18, Tp. 13 N., R. 12 E.; thence in a northerly direction, to county road." The plat filed with the report shows the road to begin on the east line of N. W. 4 of S. E. 4 of said section; that is, it begins by the plat at a point on the east line of a different subdivision of plaintiff's land from that mentioned in the petition, and running thence to a point not designated on the county road. On December 4, 1893, the board of commissioners made the following final order in relation to opening this road: "County Road. The matter of the road running through section 18, township 13 north, of range 12 east, was taken up, viewers' report read and accepted, and declared a county road." The notice that the supervisor would open the road contains the same description of the road as that in the petition. The description of the road in the petition, it will be observed, states that the road is to begin at a blazed tree on the east line of the S. W. 4 of the S. E. 14, section 18, but at what point on said east line the tree is located is not stated. The road is to run thence through the N. W. 4 of the S. W. 4 of said section, a different subdivision of the section from the one on the east line of which the road is to begin. Through what part of this subdivision of section 18 the road is to run, or in what direction, is not shown by the petition. The viewers' report states that the road is to start from the same point named in the petition, but the plat filed with the report shows a different starting point; that is, from a blazed tree on the east line of a different subdivison of section 18 from that named in the petition or viewers' report.

The description of the proposed road in all these papers, it seems to us, is uncertain and indefinite in every essential particular. The description in the petition and viewers' report conflicts with the description in the plat of the road as to the beginning point. There is absolute uncertainty and indefiniteness as to the terminus of the proposed road. It is to run northerly to the county road, the point of intersection not being designated. But, if the description of the proposed road were sufficient, what order of the board was ever made establishing it as a county road, and ordering it opened as such? The only pretense of such order is found in the minutes of the board in these words: "County Road. The matter of the road running through section 18, township 13 north, of range 12 east, was taken up, viewers' report read and accepted, and declared a county road." This order, if "order" it may be called, is absolutely indefinite. It refers simply to a road in section 18. The par

ticular road is not in any way identified. Plaintiff did not own all of section 18. There I may have been a number of other roads, or petitions for roads, or viewers' reports concerning roads, in section 18. And, besides, there is no order to anybody or authority contained in this minute of the board to open this or any other road in section 18.

Section 1818, div. 5, Comp. St. 1887, requires the commissioners, after considering the report of the viewers, to order the road to be opened for travel, if they think it should be done. But in this case there is no such order. We think all the proceedings in this case, as shown by the record, are too indefinite and uncertain to support the conclusion that the commissioners ever had jurisdiction to make an order, or ever did make an order, condemn- | ing any part of plaintiff's land for use as a public road. While it may be true that, in such proceedings, technical strictness in complying with the statutes is not always required, yet we think a substantial compliance with the law is and should be required before private property is condemned for public use. In this case this has not been done. We think the proceedings in the case were void for the reason that they were so indefinite as not to confer jurisdiction on the commissioners to act in the premises.

It is contended that the plaintiff waived all these defects or irregularities by consenting to having a private road established over his land. The plaintiff could not give the board jurisdiction of the subject-matter of this proceeding by consent. Consenting to have a private road over his land cannot be construed to be a waiver of anything in an effort to establish a public road over plaintiff's land against his consent. This case is widely distinguished from Crowley v. Board, 14 Mont. 292, 36 Pac. 313. In that case there was a sufficient description of the proposed road, as well as order to open the same.

For the reasons given above, we are of the opinion that plaintiff was entitled to an injunction to restrain the opening of said proposed road over his land. It therefore necessarily follows that the court erred in dissolving the injunction issued in the case. The order dissolving the injunction is therefore reversed, and the cause remanded, with instructions to overrule the motion to dissolve the same. Reversed.

DE WITT and HUNT, JJ., concur.

(17 Mont. 558) MONTANA LUMBER & MANUF'G CO. v. GERHOLD et al.

(Supreme Court of Montana. March 2, 1896.) FRAUDULENT CONVEYANCE-EVIDENCE TO

ESTABLISH.

A debtor, before action brought against him by his creditor, conveyed certain real estate to a third party, without consideration, and with intent to defraud his creditors, which intent was known to his grantee. The jury found

that such debtor was at or since the time he made such conveyance the owner of sufficient property subject to execution for the satisfac tion of such indebtedness, but it was not found that he was possessed of any property, other than that so conveyed, when the original action was brought, or when the judgment therein was entered, or when the action to subject such property thereunder was commenced. Held, that such conveyance should be set aside as fraudulent, and the property thereby conveyed sold to satisfy such original judgment.

Appeal from district court, Lewis and Clarke county; Henry N. Blake, Judge.

Action by the Montana Lumber & Manufacturing Company against Jacob Gerhold, Albert Schmid, and Sarah A. Schmid. From a judgment rendered on special findings in favor of plaintiff, defendants Schmid appeal Affirmed.

On the 29th day of August, 1892, the plaintiff herein recovered a judgment against the defendant Jacob Gerhold for $511.70 and costs. An execution was issued, and returned by the sheriff wholly unsatisfied. On the 15th of July, 1891, defendant Gerhold was the owner of certain real estate, particularly described in the pleadings. On that day Gerhold, with the intent to cheat and defraud his creditors, and especially this plaintiff, executed and delivered to the defendant A. Schmid deeds to the said premises. Schmid received and recorded the deeds well knowing the fraud intended. The debt of Gerhold to plaintiff was an existing indebtedness at the time of this alleged fraudulent transfer to Schmid. All of these alleged facts are set forth in the complaint in this action. The complaint further states that Gerhold has no property known to plaintiff, except the real estate mentioned, out of which the judgment can be satisfied. Upon these facts the plaintiff prays that the deeds to Schmid may be declared frauduleut and void, and that they be canceled. The case was tried with the aid of a jury.

Among other instructions, the court gave the following: "If you believe from the evi dence that at the time the plaintiff commenced its action against J. Gerhold, to wit, on June 8, 1892, when it attached certain property of Gerhold, and when the plaintiff reduced this action to judgment on August 29, 1892, that Gerhold had property subject to execution sufficient to satisfy the claim against Gerhold, then you need not proceed any farther, but you should find for the defendants Schmid, because, before the plaintiff can recover in this action, it must show Gerhold had not property subject to execution sufficient to satisfy said claim." The jury found a general verdict in favor of defendants Schmid. They also made the following special findings: "(1) Were the deeds in the complaint described executed by Jacob Gerhold to A. Schmid with the intent to cheat and defraud his creditors? Answer. Yes. (2) If you answer the first special finding in the affirmative, did said Schmid have any knowledge of any fraudulent intent upon the part of said Gerhold in executing said deeds?

A. Yes. (3) Was any consideration paid by said Schmid to said Gerhold for the property in said deeds described, and, if so, what was the amount thereof? A. No. (4) What sum, if any, was due from said Gerhold to the plaintiff upon any account of plaintiff at the time said deeds were executed by said Gerhold to said Schmid? A. Four hundred fifty-five 02/100 dollars ($455.02). (5) Was Jacob Gerhold, at the time or since the making of said deeds to said Schmid, the owner of sufficient property subject to execution, and out of which the plaintiff could, with the exercise of reasonable diligence, have collected said part of said account of plaintiff against said Gerhold? A. Yes. (6) What was the amount of the mortgage or incumbrance, if any, upon the property described in the complaint at the time said deeds were executed which the said Schmid paid or assumed the payment of? A. Eight hundred and sixty-five dollars ($865.00)." These findings were all adopted by the court. The court thereupon set aside the general verdict as being inconsistent with the special findings, and rendered judgment in favor of the plaintiff to the effect that said deeds were fraudulent as against the plaintiff, and that they be set aside, and the property sold to satisfy plaintiff's judgment described in the complaint. Defendants A. Schmid and Sarah A., his wife, appeal from the judgment. No evidence is brought up. It is not claimed that the findings are unsustained.

C. W. Fleischer and F. N. & S. H. McIntire, for appellants. Walsh & Newman, for respondent.

DE WITT, J. (after stating the facts). The argument of the appellants is that, if defendant Gerhold was solvent, and had property, other than the real estate in question, out of which the judgment could have been satisfied, he had the right to convey to Schmid, even without any consideration; in other words, to give the real estate to Schmid. He calls our attention to the instruction set forth in the statement and to finding No. 5. Appellants' contention is that, pursuant to the instruction mentioned, the jury found that Gerhold had other property out of which the judgment could have been satisfied by execution. But upon an analysis of finding No. 5 it is observed that the jury did not reach the conclusion that appellants contend for. The jury did not find that when the plaintiff reduced its claim to judgment on August 29, 1892, Gerhold had any property subject to execution. They found that he had property "at the time or since the making of said deeds to Schmid." This finding, of course, is wholly indefinite. It does not state that Gerhold had sufficient property subject to execution at any particular time. It may have been at the time of making the deeds, or at the date of the judgment, or it may have been any day since that time. There is nothing

in the finding from which the court could de termine that Gerhold was possessed of any property other than the real estate which is the subject of this action, either when the original action was commenced, or when the judgment was entered, or when this present action was commenced. This is the only question raised by the appeal. The judgment must therefore be affirmed.

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

cur.

(17 Mont. 563)*

CLARKSON v. KENNETT.

(Supreme Court of Montana. March 2, 1896.) ASSUMPSIT-MONEY LOANED-PAYMENT TO THIRD

PERSONS.

1. In an action to recover for money alleged to have been loaned and advanced by plaintiff to defendant, but which defendant claimed was. loaned and advanced to a copartnership of which. he was manager, it was error to order a nonsuit when there was ample evidence tending to showthat such money was loaned and advanced to defendant.

2. The fact that money alleged to have been. loaned and advanced to defendant was paid to. creditors of defendant, by his express direction,. supports an allegation that such money was so. loaned and advanced to defendant.

Appeal from district court, Dawson county;: George R. Milburn, Judge.

Action by W. S. Clarkson against C. H. Kennett. From a judgment in favor of de fendant, entered on a nonsuit granted against plaintiff, plaintiff appeals. Reversed.

The plaintiff brought this action for $310.68. for money alleged to be loaned and advanced by plaintiff to defendant at the special instance and request of the defendant. The defense interposed by the defendant was that the plaintiff was a member of a copartnership carrying on the sheep business, and. that the loans and advances mentioned in. the complaint were not made to the defendant, but to the sheep company, of which. sheep company defendant alleges that hewas manager. The new matter in the answer was denied by replication, the plaintiff setting up in that pleading that the defendant had the sheep on shares, under an agree ment, among other things, that defendant was to pay all expenses of every kind in keeping the sheep. The case was tried to a jury. At the close of plaintiff's testimony, the court granted a nonsuit against plaintiff, and entered judgment for defendant. Plaintiff appeals from the judgment.

Strevell & Porter, for appellant.

DE WITT, J. (after stating the facts). An examination of this record satisfies us that there is ample evidence tending to show that plaintiff loaned and advanced this money to the defendant. It seems, however, that the court granted the nonsuit on the ground that the evidence showed that the money was not paid to the defendant directly, but was paid to other persons. The fact is that the mon

ey was paid to other persons, but upon the -express orders and requests of the defendant to pay to such other persons, who, according to plaintiff's testimony, were creditors of the defendant. This was evidence supporting the allegation of the complaint of money advanced to defendant. Abb. Tr. Ev. p. 240, § 4, and cases cited. Another ground upon which the district court seems to have acted is that defendant promised to repay the money out of the receipts from the sale of wool, and that it did not appear that there had been any settlement between plaintiff and defendant about the wool. But whatever appeared as to paying the debt out of the wool receipts was simply a method or means by which defendant expected to raise the money. The receipt of the wool money was not a condition for payment of the advances. The court clearly erred in granting this motion for nonsuit. The judgment will therefore be reversed, and a new trial ordered. Reversed.

ARID LAND GRANT COMMISSION-AUDITING CLAIMS FOR COMMISSIONER'S SERVICES-RECLAMATION FUND-CONSTITUTIONAL LAW.

1. Pol. Code, § 3530 et seq., creating the arid-land commission, for the purpose of enabling the state to accept the offer of the United States relative to the reclamation of desert lands (Act Cong. Aug. 18, 1894), gives the commissioners power to take all steps necessary to comply with such offer. fixes their term of office, and provides that each shall receive for his services six dollars per diem while actually performing his official duties, such compensation to be paid in warrants drawn on the fund thereinafter created. Held, that such commissioners are officers of the state, with compensation fixed by law, and their per diem is therefore not subject to be passed upon by the state board of examiners. State v. Cook (Mont.) 43 Pac. 928, followed.

2. Such act also provides that money realized from sales of land to actual settlers shall go into the "federal grant reclamation fund," which is specially dedicated to the redemption of warrants issued against it under the provisions of the act. Held, that there can be no state debt created to pay such warrants, but that the holders thereof must look to the reclamation fund exclusively.

3. Const. art. 5, § 34, prohibiting the state treasurer from paying out any money, except appropriations made by law, and on warrants drawn by the proper officer, does not prevent him from registering a warrant issued by the aridland commission, without regard to any action by the auditor or state board of examiners, since the fund from which such warrant must be paid is impressed with a trust, under Act Cong. Aug. 18, 1894, for the reclamation of desert lands, and is not subject to state control beyond what is consistent with the execution of that trust.

4. Pol. Code, § 3530 et seq., creating the arid-land commission, for the purpose of enabling the state to accept the offer of aid from the United States in the reclamation of desert lands

(Act Cong. Aug. 18, 1894), and which expressly provides that no debts or liabilities, other than for limited incidental expenses of the commission, shall ever accrue to the state under its provisions, is valid.

5. Const. art. 17, providing that all lands in the state that may be granted to the state by congress shall be public lands, and shall be held in trust for the people, to be disposed of as hereafter provided, etc., relates only to such lands as the state may acquire title to after they are selected under laws provided for that purpose, and is not applicable to the desert lands which the United States proposes to part with under Act Cong. Aug. 18, 1894; title to such lands not vesting in the state or its assigns until after they have been reclaimed as provided by law.

Mandamus, on the relation of J. T. Armington, to compel Fred W. Wright, treasurer of the state of Montana, to register a warrant issued to relator by the arid-land commission. Writ granted.

This is a proceeding against Wright, as state treasurer, to compel him to register a warrant drawn by the arid-land commission. Relator's petition alleges the appointment of the arid-land commission pursuant to the act of the legislature approved March 18, 1895, concerning state arid lands. Pol. Code, § 3530 et seq. He also alleges the qualification of the members and the organization of the board, and that he was present at a certain meeting, and was entitled to compensation, fixed by the statute, for two days' services; that the commission audited the claim, and issued and delivered to relator a warrant: that he presented the warrant to the state treasurer, who refused to register it. The state treasurer does not deny any of the aforesaid allegations, but pleads, by way of avoidance: That the claim of relator was a claim and account incurred by the arid-land commission, and should have been present ed to the state board of examiners, and, upon approval by it, should have been transmitted to the state auditor, who should have drawn a warrant, and transmitted it to the state treasurer, in the mode and manner provided by section 3532 of the Political Code, and that the arid-land commission had no authority to draw relator's warrant, and the state treasurer no authority to register it. That the only reasons why the treasurer refused to register said warrant were: (a) That said account had not been passed upon, audited, and approved by the state board of examiners of the state of Montana; (b) that the auditor of the state of Montana had not drawn his warrant therefor, and that the said respondent had no authority to register the same, as such an act, and all thereof, would be in violation of section 34, art. 5, of the constitution; (c) that the legislature of the state of Montana had made no appropriation for the payment of said claims, and that no taxes had been levied for such purpose. To this answer relator demurred on the ground that it did not state facts sufficient to constitute a defense.

John B. Clayberg, for appellant. H. J. Haskell, for respondent