"We, the undersigned, agree and promise to take and pay for, at the rate of ten dollars per share, as the assessments may lawfully be made, the number of shares of the capital stock of the Inter-mountain Publishing Company set opposite our respective names.

That defendant, when he signed this agreement, set opposite to his name the sum of $1,000, which amount he thereby agreed to pay to the company. That afterwards the defendant accepted said stock, and paid thereon the sum of $100 upon an assessment and call duly made by the trustees of the company. That on the twenty-first day of May, 1881, the plaintiff, by its trustees, called in and demanded from the stockholders of said incorporation 20 per cent. of all money subscribed by them, respectively, and by such call and demand required the defendant to pay on his subscription the sum of $200, being 20 per cent. of the amount subscribed by him. It is further averred that on the ninth day of December, 1881, the trustees made another call in like manner, for an equal amount, being 20 per cent. of the subscription. That the defendant was duly notified of these calls, and that he has not paid any part of them; and that the plaintiff has performed all the conditions on its part.

It is insisted by the appellant, the defendant below, that this agreement set out in the complaint is not a contract, for the reason that there are no parties to it, the corporation not being in existence at the time. This agreement is in the nature of a promise between the subscribers "to take and pay for" certain shares in the company when it should be formed, and could only be enforced when it had been legally incorporated; and, when it had been organized, then, under proper circumstances, the contract was capable of being enforced. Among these circumstances is one set out in the complaint, and that is the ratification of this agreement by the defendant in accepting the $1,000 in stock, and paying $100 to the company thereon. By this acceptance of stock and payment of money the defendant has placed himself in a position where he cannot deny the existence and validity of the contract of subscription, which is to pay $1,000 upon shares in the Inter-mountain Publishing Company, at the rate of $10 a share, as the assessments shall be lawfully made. In addition, there is a sufficient consideration for this promise. In a similar case (Athol Music Hall Co. v. Carey, 116 Mass. 471, 474,) the court say:

"The corresponding agreements of the other subscribers, the organization of the corporation, and the allotment to the defendant of the shares for which he subscribed, furnish sufficient consideration for his promise to take and pay for those shares. Although his promise was originally voluntary, or in the nature of a mere open proposition, yet, having been accepted and acted on by the party authorized so to do, before he attempted to retract it, he has lost the right to revoke. His proposition has become an accepted mutual contract, and is binding upon him as well as upon the corporation."

In looking at the subscription it will be seen that it is not for any number of shares, but for $1,000. Is this subscription such a one as the agreement contemplated? By its terms each share was to be

paid for with $10. The promise was to pay this sum-no more and no less-for each share. The act to be performed by the subscriber was to pay money. The act to be performed by the company was to issue and deliver to him the shares which he agreed to take. The essence of the subscriber's contract was to pay money for shares. When, therefore, he agreed to pay $1,000 he had done the important and essential part incumbent on him in making the subscription. It was, in effect, under the terms of the agreement, subscribing for 100 shares; these shares being equivalent to the money, and vice versa. His subsequent conduct in accepting the stock confirms this contract of subscription. But if this is a defect, it is a subject of special demurrer only. Moak's Van Santv. Pl. 756; Richards v. Edick, 17 Barb. 260.

A further objection is made to the complaint that it does not allege the number of shares into which the capital stock of the corporation was divided, and that the whole number of shares had been subscribed for. It does not appear in the contract that the subscription was made upon the condition that a certain number, or all, of the shares should be subscribed for before calls could be made. At the time of making the contract, the number of shares had not been determined; but it is to be presumed that this had been done at the time of the organization, inasmuch as the averment is found in the complaint and admitted by the demurrer, that the plaintiff was a corporation legally organized; and the payment of an installment by the defendant without objection, is a sufficient recognition of the legal existence of the corporation to enable it to recover subsequent assessments. The acceptance of the stock and the payment of the assessment thereon is a waiver of the objection that otherwise might have been urged upon the ground that all the shares had not been taken, if such was the fact. See Thomp. Liab. Stockh. § 120.

The appellant further insists that the complaint is defective in not alleging that the assessment made on the twenty-first day of May, 1881, of 20 per cent., was the only assessment or call made during that month, since the statute (Rev. St. § 251, p. 452) provides that not to exceed 20 per cent. in any one month shall be called in upon any subscription from the stockholders. As to this, it is to be presumed that the plaintiff acted in accordance with the law, and within the scope of the authority conferred by the statute. The defendant

would, in such a case, have equal knowledge with the plaintiff of the facts, and if more than one call had been made in the month of May, that was a proper matter of defense. We think the demurrer was properly overruled.

Judgment affirmed.

1 DIVORCE-CRUELTY-WIFE-BEATING A SINGLE ACT.

One whipping of a wife by her husband is sufficient to establish the charge of extreme cruelty.

2. SAME PROVOCATION-CALLING HARD NAMES.

A husband is not authorized to whip his wife because she calls him hard

names.

Appeal from Second district, Silver Bow county.
Knowles & Forbis, for appellant.

Robinson & Stapleton, for respondent.

WADE, C. J. This is an action for divorce. The cause alleged is extreme cruelty. The proof tended to show that the defendant had, on divers occasions, beat and whipped his wife; and that the wife had accused her husband of adultery, and had published the accusation among her neighbors. Among others, the court gave the jury the following instruction, upon which the error complained of is assigned, viz.:

"That if the jury find from the evidence that, though defendant did strike plaintiff more than one time, still, this does not necessarily establish the charge. If the plaintiff, by her own conduct towards the defendant, provoked him to strike her, the jury may consider this fact in connection with such charge; and if by her own acts she provoked defendant to assault and strike her, in such case the act of plaintiff is a legal excuse to defendant in treating her in a harsher manner than if plaintiff had been free from fault, and in such a case it would require stronger evidence to establish such charge of extreme cruelty than if plaintiff had been free from fault."

We think one beating or whipping of a wife by her husband sufficient to establish the charge of extreme cruelty. Such an act could not be accidental or by mistake, and if not, the probabilities would be that it might be repeated again and again, subjecting the wife to constant fear and rendering her life miserable. It is extremely cruel for a husband to beat or whip his wife even once. Mere words can never afford any provocation or excuse for such an act. No words can justify an assault. A husband is not authorized to whip his wife because she calls him hard names, nor can he graduate the force of his chastisement by the vigor of the language used. A husband may not raise his hand against his wife, except in absolute defense of his life, or to prevent his receiving great bodily harm, and then he can only use force sufficient to protect himself from the danger.

The judgment is reversed, and cause remanded for a new trial.

(5 Mont. 579)

CARLAND V. BOARD OF COM'RS OF CUSTER CO.

Filed January 31, 1885.

1. COUNTY COMMISSIONER-COLOR OF TITLE-COLLATERAL PROCEEDING, A party holding by legislative appointment the office of county commissioner holds under color of title, and is a commissioner de facto. His title cannot be attacked in a collateral proceeding.

2. SAME-COUNTY TREASURER-BOND-FILING THE SAME-STATUTE OF MONTANA. By the deposit of the bond of a county treasurer, required by section 554 of the Revised Statutes of 1879, p. 523, is meant the filing of the bond in the office of the county clerk, with the approval of the board of county commissioners indorsed thereon, or the approval of its chairman and clerk, when the board had not been in session in time for its approval, or he had been unable to present it at any regular session of the board.

3. SAME-POWERS AND DUTIES-REMOVAL OF TREASURER.

When a county treasurer has not filed a sufficient bond within the time allowed by law, and his books do not show the actual condition of his office, and the funds of the county in his charge have been paid out without due warrant, directed by the board of commissioners, it is the duty of the latter to relieve him of the custody of all books, moneys, papers, or other property of the county in his hands by virtue of his office of treasurer, and to appoint another person in his place.

4. COUNTY TREASURER-BOND-TIME ALLowed for FILING-MONTANA STATUTE. The legislature, in section 452 of chapter 420, Revised Statutes of 1879, did not mean that the 20 days allowed an officer in which to file his bond should apply to the case of a county treasurer. Section 433 of the same act contains the law having special reference to the county treasurer in this regard. 5. SAME-ACT of Board of COMMISSIONERS IN REMOVING, IS MINISTERIAL.

The act of a board of county commissioners in removing from office a county treasurer for failure to file sufficient bond within the time required, is a ministerial and not a judicial act.

6. MISTAKE OF LAW-TWO COURTS TO BE HELD ON SAME DAY BY ONE JUDGE— RIGHT OF JUDGE TO SELECT.

When, by a mistake in the law, a judge is required to hold court in two counties on the same day, it is in the discretion of such judge to select one of the two counties for holding court.

Appeal from First district, Custer county.
Chumasero & Chadwick, for appellant.

James H. Garlock, for respondent.

GALBRAITH, J. This is an appeal from an order of the court confirming the action of the respondent in removing the appellant from the office of treasurer of said county of Custer, and appointing another person to fill the vacancy. The first question presented relates to the right of the persons constituting the board of commissioners of Custer county to hold and exercise their office as such commissioners. An act of the legislative assembly entitled "An act relative to the offices of county commissioners of Custer county," approved March, 1883, declared the offices of county commissioners of Custer county vacant, and appointed William Van Gaskin, George M. Miles, and Thomas J. Bryan to said offices. It appears from the record in this case that, at the time of the acts complained of, they were holding said offices and acting therein as county commissioners. These persons were, therefore, at the time holding and exercising their respective offices, at least under color of right, and were the commissioners de facto of

Custer county. Their title to the offices cannot be tried in this proceeding. It cannot be attacked collaterally.

66

"An act of assembly, even if it be unconstitutional, is sufficient to give color of title, and an officer acting under it is an officer de facts.' 'When a person is acting under the apparent authority of an act of assembly, his title to the office is not to be assailed collaterally." Com. v. McCombs, 56 Pa. St. 436.

"Persons in the actual and unobstructed exercise of office must be held to be legal officers, except in proceedings where their official character is the issue to be tried as against themselves." "The title to office can never be tried collaterally." Jhons v. People, 25 Mich. 499; Facey v. Fuller, 13 Mich. 527; Douglass v. Wickwire, 19 Conn. 488; Druse v. Wheeler, 22 Mich. 439; Parks, Petitioner, etc., 3 Mont. 426. The board of county commissioners will, therefore, be presumed to have been at this time rightfully in the exercise of its lawful authority. The next question presented is as to whether or not, by the removal of the appellant, the board exceeded its jurisdiction. The proceedings of the board of county commissioners in relation to the removal of the appellant were brought before the court by writ of certiorari. From the transcript of these proceedings it appears that the appellant was the acting treasurer of Custer county, his term of office having commenced on the first Monday of March, 1883. Rev. St. 1879, p. 522, § 548. His bond as treasurer was not presented to the board until the eighth day of March, when a bond in the sum of $25,000 was presented. It does not appear that this bond was ever accepted or approved by the board. On the twenty-fourth day of March he was notified that the time for filing his official bond had expired, and that he had no bond on file. On the thirty-first day of March he presented a bond in the sum of $25,000, which was not accepted, and he was allowed five days to secure bondsmen, and the amount of the bond fixed at the sum of $50,000. On the second of April, the clerk of the board was instructed to serve a written demand upon the appellant for the immediate return of $1,700 to the county treasury, found by the board to have been paid out as attorney's fees, not in accordance with law; and he was granted three days' time in which to return the same.

On the sixth day of April the appellant presented a bond in the sum of $50,000. On the same day, the bond, upon due examination, was found insufficient, and thereupon disapproved. On the same day, the following preamble and resolution was adopted:

"Whereas, the board finds that Willis W. Carland, elected county treasurer of this county for the term of two years, commencing on the first Monday in March, 1883, did not, before entering upon the duties of said office for said term, execute to the board of commissioners of this county, or deposit, either with said board or the chairman and clerk thereof, his official bond, with three or more sufficient sureties, either in such penal sum as had theretofore been directed by the board, or in a sum not less than double the amount of all money directed by the board to be levied in the county and to be paid to such