the appellant testified that no demand for a list was made by the assessor, nor by any one for him. This is not necessarily a contradiction of the evidence given by the assessor, for he also testified that the assessor went with him to see the cattle, and that he saw him in Glendive. This would appear to be a corroboration of the evidence by the assessor; but even were it a contradiction, although there is no special finding of this fact by the court, that the exigency on account of which the assessor might list the property had occurred, nevertheless from the fact that the court rendered judgment for the respondent, it will be presumed, especially under such a state of the testimony, that such exigency had occurred, and that the listing of the property by the assessor was done in pursuance of law. Facts within the issues, not expressly found, and necessary to support the judgment, are presumed to have been in accordance with the judgment: Thompson v. O'Neil et al., 41 Cal. 683. When such a state of facts appear, the failure to write the words in the assessment roll by the assessor, when the list is made by himself, together with the words "absent or sick," or the words "refused to list," or "refused to swear," or such other words as will express the cause why the person required to make the list did not make it, as required by section 1015, division 5, of the revised statutes, will not invalidate the assessment. This section also provides that neglect to list his property by the tax-payer shall be taken as a refusal. Such state of facts as that which appears above constitutes negleet. The finding that the treasurer adopted the assessment is simply equivalent to a finding which the evidence would warrant, that the assessment made by the assessor was delivered to him and entered on the tax list. The law does not require that the treasurer must make the assessment in person; and when the assessment was made by the assessor on the third of November, and afterwards delivered to the treasurer and entered by him on the tax list, this might properly be termed an adoption by the treasurer of the assessor's assessment. It is in evidence that the tax-book, as it is called in the record, meaning, doubtless, the tax list which is required to be made out by the county clerk, was not delivered to the treasurer till the fifteenth of November, and that at this time this assessment was not contained therein; but that the list was handed direct to the treasurer by the deputy assessor in two or three days afterwards, and was then entered by the treasurer in the tax-book. This, doubtless, is what is meant by the finding by the court that the treasurer adopted the assessment by the assessor. This finding was probably made so as to bring the assessment within the provision of section 443, supra. But we are of the opinion that the failure to deliver the list and assessment to the clerk, when the tax list had passed from him into the hands of the treasurer, did not render the assessment invalid. It is claimed that the appellant had no opportunity to appear before the board of equalization; but the evidence shows that an attempt at an assessment was made on the first of September, which was prevented, as shown above by the represen tations of the appellant. He should either have shown his exemption from taxation by reason of his having been taxed, as he claimed, in another jurisdiction, if such claim of exemption was made in good faith, within a reasonable time, or have listed his property as required by law. It appears that the assessor waited till the third of November before he made the list, and such list did not come into the treasurer's hands till about the eighteenth of November. Between this period and the first of December, when the tax became due and payable, the twenty, days within which the law directs that the treasurer shall notify the tax-payer of the amount of his tax had not expired. The commissioners are required to meet as a board of equalization on the third Monday of September, or at any time thereafter, when it may become necessary: Sec. 1020, 5th div., R. S. The last meeting of said board was upon the sixteenth of October. The presumption, in the absence of anything to the contrary, is that public officers have performed their duties, and in this case that the commissioners met as often as they had reason to believe that it was necessary for this purpose. If, therefore, the appellant was deprived of his opportunity to appear before the board of equalization, he contributed thereto in great part by his own acts. When the tax list did not contain the assessment when it was delivered to the treasurer by the clerk, and did not so contain the same till it was placed therein by the treasurer as the receipt of the list from the deputy assessor only about thirteen days before the tax became due and payable under the law; and when this state of things was in great measure brought about by the neglect and refusal of the appellant to list his property-how could the treasurer be expected to notify him of his assessment within the twenty days of the delivery to him of the tax list as required by law? The finding of the court, supported by the evidence, shows an effort by the treasurer to notify the appellant of his assessment in so far as he was able so to do. All the circumstances of the case would indicate an effort at evasion by the pellant of the payment of his tax. The amount of the personal roadtax and poor-tax is evidently included in the finding of the court of the whole amount due. This finding is supported by the evidence. This is in substance a finding that the appellant is subject to the payment of these taxes. There having been evidence upon this subject, and judgment for the respondent, this fact will be presumed to have been established. The finding of the court that the assessment is a reasonable valuation of the property is supported by the evidence. The finding, supported by the evidence, also shows that the appellant failed to pay tax on December 1st. The penalty was properly added as provided by law: Sec. 1026, 5th div., R. S. ap The judgment is not inconsistent with the findings: Chumasero v. Vial, 3 Mont. 376. The evidence and findings fully sustain the judgment. BUDD v. PERKINS ET AL. January Term, 1886. VERDICT-EVIDENCE-EXCESSIVE DAMAGES.-In an action to recover for work and labor, and for money advanced, the evidence reviewed and held to support the findings, and not to show that the verdict was excessive, or to have been given under the fluence of passion or prejudice. APPEAL from the first district court of Gallatin county. The opinion states the facts. E. W. & J. K. Toole, and William Wallace, jun., for the appellants. Vivion & Shelton, and Luce & Armstrong, for the respondent. GALBRAITH, J. This appeal is taken from a judgment and from the order overruling the appellants' motion for a new trial. The appellants rely only upon the reasons assigned in support of their motion for a new trial, which were: 1. Excessive damages appearing to have been given under the influence of passion or prejudice; 2. Insufficiency of the evidence to justify the verdict of the jury. This action was upon an account for money paid out by the respondent, at the request of appellants, for board furnished by the respondent at the request of appellants, alleged to be of a certain reasonable value, and also for work and labor done on an express contract, as bookkeeper, by respondent for the appellants; for all of which the appellants, it is alleged, became liable between the thirteenth day of March, 1882, and the twentieth day of April, 1883. The whole amount alleged to be due was one thousand two hundred and thirty-three dollars and twelve cents, upon which there was a credit for seven hundred and two dollars and fifty cents, leaving a balance of five hundred and thirty dollars and sixty-two cents. The appellants expressly denied the claims for money paid out and the account for board. They admitted the express contract in relation to work and labor done, with some modification; but alleged damages by reason of the negligence and unskillfulness of the respondent during the course of and in the exercise of his employment, in the sum of one thousand dollars. These damages were set up by way of counter-claim. The respondent, by way of reply, denied the modification of the contract, and the alleged negligence and unskillfulness, or that the appellants were damaged thereby. This is not, in its nature, a case of such a public character, or of such notoriety, as to make it probable that the verdict might have been rendered under the influence of passion or prejudice; and we cannot find anything in the record which would indicate that the verdict was rendered under the influence of such feelings. It was a simple action of account for labor and services, and a small sum of money, between employer and employee. The evidence, also, is principally in relation to matters resting in express contract; and as to the board, the alleged value thereof appears upon its face to be reasonable. There is, therefore, not that wide range in the very nature of such a case, for the exercise of passion and preju dice, as to afford the jury an opportunity to have been materially influenced thereby. If the jury found the facts without reference to the damages, the damages found would follow almost as a matter of course. If the facts were properly found, then the damages were not excessive. It only, then, remains to consider this question, which will also dispose of the question of the insufficiency of the evidence to justify the verdict of the jury. The respondent himself testified upon the trial, as to all the allegations of the complaint; viz., to the contract of hiring as book-keeper; the consideration of such contract, viz., seventy-five dollars per month; the time he served the appellants as such; as to the boarding, the number of weeks of such boarding, and the price per week; and also, as to the fact of money being paid out for the appellants' use at their request, and the time and the amount thereof. There was conflicting testimony as to all the matters of negligence and unskillfulness alleged in the counter-claim. In relation to the time-checks, in regard to which evidence was introduced under the allegation of negligence tending to show that they were given by the respondent to certain employees of the appellant without authority, there was also evidence that the time of these men used to be handed to the respondent by the foreman of the appellants. There was also testimony that the respondent did sometimes sign the firm name to checks in the presence of the appellants; that the time of these employees was handed to the respondent by one of the foremen of the appellants, and that therefore the mistake, if any, was that of the appellants, through their agent. The fact that the respondent remained so long after the occurrence, attempted to be shown by the appellants, which was according to their own testimony, in August or September, 1882, is a circumstance tending to show the fact that the respondent was authorized to issue these time-checks. All these were circumstances tending to establish the fact of respondent's authority, and from which the jury might find such authority. There was, therefore, substantial evidence to support the verdict, except in the particular hereafter mentioned: Toombs v. Hornbuckle, 1 Mont. 286; Ming v. Truett, Id. 328; Territory v. Reuss, 5 Id. 607; 5 West Coast Rep. 718. In Ming v. Truett, supra, this court, by Wade, C. J., said: "But there being some evidence to support the judgment, the action of this court is restrained and controlled by a long course of decisions, which declare that the judgment of the lower court will be affirmed if there is evidence to support it." There is no conflict in the testimony that sixteen dollars of the amount of this judgment which was for the full, amount claimed by the respondent was due from the appellant Perkins alone, and not from Perkins & Calfee. The judgment must be reduced in the sum of sixteen dollars, and when so modified, the same is affirmed with costs. DUPONT v. MCADOW. January Term, 1886. JURY TRIAL—FORMATION OF JURY--When SPECIAL VENIRE MAY ISSUE.-A party has a right under 12 Sess. Laws, 57, 58, to have a full panel from which to select a jury for the trial of his cause; and not until it is ascertained that a jury cannot be obtained from the panel thus provided can a special venire rightfully issue. If the full panel of twentyfour becomes depleted by reason of sickness or other cause during the term, it is the auty of the court to cause the same to be filled from the one hundred names selected by the commissioners. If a special venire is issued before the regular panel of twenty-four has become exhausted in the formation of a jury for a particular cause, or if a party is required to select a jury for such cause from a panel of less than twenty-four regular jurors, or if the regular panel not being full, resort is had to an open special venire to complete the jury for the pending trial, the jury so formed is not such as a party is entitled to, and it is error to compel him to proceed to trial before such jury. PROMISE TO MARRY-PRESUMPTION ARISING FROM UNLAWFUL COHABITATION.-Where a man and woman have unlawfully cohabited together for a long period, a statement by him to her that he would sell his property and thereafter he and she would seek some other country and spend their lives together, raises no presumption of a promise of marriage. The presumption, if any, would be, that if they lived together, it would be in the same manner and upon the same terms as formerly. Whether any presumption would arise from such a state of facts is for the jury to determine, and not for the court. BREACH OF PROMISE TO MARRY-MEASURE OF DAMAGES.-In an action by a woman for breach of promise to marry, in determining the damages where no special damages are alleged, the jury may take into view the money value or worldly advantages, separate from considerations of sentiment and affection, of the marriage, which would have given her a permanent home and an advantageous establishment; and if her affections were in fact implicated, and she had become attached to the defendant, the injury to her affections may be considered as an additional element of damages; otherwise, however, if the evidence fails to show that her affections have been wounded. THE SAME PUNITIVE DAMAGES WHEN ALLOWED.-Punitive or vindictive damages are not recoverable in such action, unless it is shown that the breach of the contract was wanton or malicious, or that the defendant unnecessarily wounded the feelings or injured the reputation of the plaintiff. Such damages are not recoverable unless the same are pleaded. THE SAME EVIDENCE OF SUBSEQUENT UNLAWFUL COHABITATION-CONTINUANCE.— In such action, evidence that the plaintiff, at the time of the commencement of the action, was living as the mistress of another man, is admissible in mitigation of damages. And where a continuance is asked, within a reasonable time after issued is joined, to enable the defendant to procure witnesses to prove such fact, a refusal to grant the continuance is error. APPEAL from the first district court of Yellowstone county. The opinion states the facts. E. W. & J. K. Toole, William Wallace, jun., and John McGinness, for the appellant. A. F. Burleigh and O. F. Goddard, for the respondent. WADE, C. J. This is an appeal from a judgment and from an order overruling a motion for a new trial. It appears that after the jury had been called and examined as to their competency, but before they had been sworn to try the cause, the defendant interposed a challenge to the jury for the reasons: 1. That the jury had not been drawn and summoned according to law; 2. That at the time of selecting the jury for the trial, there was not a full and regular panel of twenty-four jurors, who had been duly drawn, selected, and summoned as a regular panel for the term of court as trial jurors; 3. That the regular panel of jurors consisted at the time of only twenty-three persons, and the |