dwelling-house with intent to commit the crime of grand larceny," etc. There was a motion in arrest of judgment, for the reason that the facts stated in the indictment do not constitute a public offense under the laws of the territory, which was overruled, and judgment entered upon the verdict, from which the defendant appeals to this court. This appeal properly brings the indictment here for review. The indictment must at all times support the judgment, and the question whether it does or not may be raised in this court for the first time. The statute under which this indictment was drawn makes it burg lary to break and enter a dwelling-house in the day-time with intent to commit a felony. It is felony, by the terms of our statute, to steal personal property of the value of $50 or over. This indictment charges that the defendant broke and entered the dwelling-house named with intent to steal the goods and chattels of one Annie Burnett, but it does not describe the goods and chattels, or give their value. It is not a felony, and it is not burglary under this statute to break and enter a dwelling-house in the day-time with intent to steal goods and chattels of less than $50 in value. There is no allegation contained in the indictment under which any proof of the value of the goods might have been submitted, whereby it could have been determined whether the breaking and entering was done with intent to commit a felony or a misdemeanor. The breaking and entering of a dwellinghouse with intent to steal goods and chattels is not a breaking and entering with intent to commit the crime of grand larceny. Therefore, an indictment under this statute for burglary is insufficient which charges merely that the breaking and entering was done with intent to steal goods and chattels. Such an allegation does not show an intent to commit a felony, or the crime of grand larceny, which is a felony. If the intent falls short of a felony, then the breaking and entering of a dwelling-house in the day-time is not burglary under this statute. In the case of People v. Murray, 8 Cal. 520, the court says: "The fifty-eighth section of our statute concerning crimes and punishments says: With intent to commit murder, robbery, rape, mayhem, larceny, or other felony;' and felony is defined to be a public offense, punishable with death or by imprisonment in a state prison. Grand larceny consists in stealing the personal goods of another of the value of fifty dollars or more, and is punishable by imprisonment in the state prison, and is therefore a felony." "It is clear, from the fact that all the offenses specified in the fifty-eighth section can be nothing but felonies except the crime of larceny, and from the further fact that the expression or other felony' is used immediately after larceny,' that the legislature intended that the intent to commit a felony must exist in the mind of the prisoner to make the offense complete. To charge a party, therefore, with breaking and entering a dwelling-house with intent to steal the personal goods of another within the house, without specifying the value of the goods intended to be stolen, is not sufficient. The Janguage of the legislature is too clear, under the well-known rules of construction applicable to criminal statutes, to admit of doubt. It is true that, under the construction we are compelled to give the statute, the breaking and entering a dwelling-house with intent to commit petit larceny may be no statutory offense. But this is an omission which must be provided for by the legislature." In the case of People v. Stickman, 34 Cal. 245, speaking of the statute under which the foregoing decision was rendered, the court says: "This statute was amended in 1858 so as to include the case of an intent to commit petit larceny, which it did not previously do." But the statute we are considering requires no construction to make it appear that the legislature intended that the intent to commit a felony must exist in the mind of the prisoner to make the offense complete; for it declares that the breaking and entering must be done with intent to commit murder, rape, robbery, or other felony in order to constitute the crime of burglary in the day-time. The indictment also charges that the defendant "did then and there enter the said dwelling-house with the intent to commit the crime of grand larceny." This averment is a mere conclusion, and it is a conclusion not based on any facts alleged. The elements that enter into and constitute the crime of grand larceny are not averred, and, in the absence of such averments, we know of no principle that would authorize proof of facts that enter into the crime, or that would show an intent to commit the same. The allegation and the proof must correspond, but there could be no proof of a mere conclusion of law. There could be no proof of an intent to commit the crime of grand larceny, in the absence of any averments as to the property intended to be stolen or the value thereof. It is for the court to say, from the facts alleged, whether the intent to commit the crime of grand larceny existed or not. It would not do to charge that a defendant committed the crime of murder and then call a witness to prove this conclusion; and for the same reason it is insufficient to so allege when it is attempted to charge him with an intent to commit the offense. In either case the facts that constitute murder, or an intent to commit murder, must be alleged before there could be any proof of the crime. Says Mr. Bishop, (2 Crim. Proc. 3d Ed. § 142:) "Simply to mention the name of the intended felony, as larceny' or 'rape,' with no more, appears to be deemed by most judges not sufficiently minute, though some hold it adequate." Lee v. State, 56 Ga. 477; State v. Williams, 41 Tex. 98; People v. Shaber, 32 Cal. 36; Wicks v. State, 44 Ala. 398. The decision in the California case, which holds that it is sufficient to mention the name of the intended felony, was by a divided court, and in the dissenting opinion of Judge SANDERSON he says: "It is not sufficient in an indictment for burglary to allege the intent to be 'to commit larceny,' or 'to commit rape,' or 'to commit murder,' as the case may be, and there stop. The offense intended must be described, or, in other words, the acts which the defendant intended to commit, after having effected an entrance into the building, must be described for the purpose of showing what the intent was. This is but a familiar principle in every system of pleading, either civil or criminal. The facts are to be stated to the exclusion of conclusions of law to be drawn, therefrom. Where an intent to commit an offense is to be charged, there is as much necessity for describing the offense intended as there is where the commission of the offense is charged directly. It is not for the pleader to say whether the acts intended amount to larceny, rape, or murder, but for the court; and the acts, therefore, which constitute the one or the other must be alleged." We consider this as conclusive of the question, and in accord with the fundamental principles and analogies of the law. In the case of State v. Williams, supra, the court says: "The indictment is, however, defective in this: that while it charged an unlawful entry into the dwelling-house of Rachel Pullin, it failed to charge that such unlawful entry in the night-time was with the felonious intent to commit such a crime as would make the unlawful entry of the accused a burglary. The indictment was intended so to charge, but its averments fall short of the intentions of its framer. While it charges the accused with having entered the premises with the felonious intent to commit the crime of rape upon the person of Rachel Pullin, it fails to describe the offense intended to be committed. The mere word 'rape' is insufficient to describe it." The conclusion seems clear that under our statute, where, in order to constitute the crime of burglary in the day-time, there must be a breaking and entering with intent to commit a felony, the facts which make up the constituent elements of the felony, and which show the intent to commit the same, must be alleged in the indictment. The judgment is reversed, and the cause remanded for a new trial. (5 Mont. 554) LANGSTAFF v. MILES. Filed January 30, 1885. 1. ATTACHMENT-UNDERTAKING-SURETIES. An undertaking in attachment need not be signed by the plaintiff. The statute is complied with if two sufficient sureties sign the undertaking on behalf of the plaintiff. Following the decision of Pierce v. Miles, ante, 347. 2. SAME-WRONGFUL SUING OUT OF ATTACHMENT-Damages. An undertaking in attachment, in which the sureties contract to answer for the wrongful suing out of the attachment, is not so wide in the scope of its liability as an undertaking in which the sureties promise to pay all damages the defendant may sustain if it is finally decided that the plaintiff was not entitled to the attachment. Appeal from Second district, Silver Bow county. Randolph & De Witt, for respondent. WADE, C. J. This is an appeal from an order discharging an attachment and the denial of leave to file a new undertaking, and is in every respect like the case of Pierce v. Miles, ante, 347, decided at this term; and on the authority of that case and those cited herein we hold: 1. That an undertaking in attachment need not be signed by the plaintiff. The statute is complied with if two sufficient sureties sign the undertaking on behalf of the plaintiff. 2. An undertaking in attachment, in which the sureties contract to answer for the wrongful suing out of the attachment, is not so wide. in the scope of its liability as an undertaking in which the sureties promise to pay all damages the defendant may sustain if it is finally decided that the plaintiff was not entitled to the attachment. By the wrongful suing out of an attachment is meant, not the omissions, irregularities, or informalities which the officer issuing the process may have committed in its issuance, but that the party resorted to it without sufficient ground. Sharpe v. Hunter, 16 Ala. 765; Drake, Attachm. § 170. And in an action to recover damages upon such an undertaking, it must appear that the attachment was wrongfully sued out, or, in other words, that no just grounds actually existed for resort to this remedy. Eaton v. Bartscherer, 5 Neb. 469. While, if the condition of the undertaking was that the sureties would pay all damages that might be occasioned by the issuance of the attachment, if it was finally decided that the plaintiff was not entitled to it, no proof as to the wrongful issuance of the attachment would be necessary. In such a case, the mere proof that the attachment issued, and that it was finally decided that the plaintiff was not entitled to the attachment, would be sufficient to fix the liability of the sureties on the undertaking. And this is the kind of an undertaking required by our Code since the amendment of February 23, 1881. 3. The purpose of requiring an undertaking in attachment is security to the defendant, whose property has been seized, and if this purpose is accomplished, the time when the undertaking is filed is not very material. If an attachment is issued on a defective or insufficient undertaking, the defendant has the right to require a new and sufficient one to be given. He certainly ought not to object to the filing of a new undertaking, given for his protection and benefit. The application for a writ of attachment is a proceeding, in the sense that term is used in the 114th section of the Code of Civil Procedure, to secure one of the remedies provided by law; and a defect or mistake in this proceeding, whether it relates to the affidavit or undertaking, may be corrected or cured by amendment, as in other proceedings covered by the provisions of the Code. Attachment is a provisional remedy, and the statute must be substantially complied with in every material respect; but there is nothing in the nature of the proceeding itself, or in the law governing it, to exempt it from the statute in relation to amendments, where, in order to secure justice, and to prevent wrong and injustice, amendments are required. The order discharging the attachment is set aside, and the cause remanded to the district court, with directions that the plaintiff be given a reasonable opportunity to file such an undertaking in attachment as the law requires. (5 Mont. 518) DODSON, Ex'r, etc., v. NEVITT. Filed January 29, 1885. 1. ESTATES OF DECEASED PERSONS-CLAIMS AGAINST ESTATE. No action can be maintained for a claim against the estate of a person de ceased, until such claim has been first presented to the executor or administra. tor for allowance or rejection. 2. SAME-EXPENSES OF ADMINISTRATION-PROBATE JUDGE. If the claim did not accrue in the life-time of the deceased, but is a debt incurred by the executor or administrator, it belongs to the expenses of administration, and goes into the accounts of the executor or administrator to be passed upon by the probate judge. 3. SAME DISTRICT COURT-JURISDICTION-PROBATE Court. The district court has no original jurisdiction to hear and determine whether the items of expenses of administration were properly incurred or not. Such matters belong to the probate court, in which the parties interested may be heard before their rights and interests are adjudicated and determined. Appeal from First district, Gallatin county. E. W. & J. K. Toole, for appellant. Frank K. Armstrong, for respondent. WADE, C. J. This is an action instituted by the respondent, as executor of the estate of Thomas B. Warfield, deceased, to recover rents from the appellant for the use and occupation of the real estate of the deceased. The appellant, in his answer, after denying that he is indebted to the respondent for the use and occupation of the premises described in the complaint, in any sum whatever, sets up a counterclaim, and alleges that the estate of Warfield is indebted to him in the sum of $949.50 for work, labor, and services performed for the respondent, as such executor, at his special instance and request, as clerk and salesman, and in taking charge of a certain stock of hardware, stoves, and tinware for the period of 17 months and 10 days, and for certain repairs on the roof of the premises described in the complaint. Thereupon the new matter alleged by way of counterclaim was stricken out, on motion of respondent, and this action of the court is assigned as error. The motion was, in effect, a demurrer to the counter-claim, for the reason that the same did not state facts sufficient to constitute a cause of action against the appellant, and like a demurrer, when overruled or sustained, will be deemed excepted to without a formal bill of exceptions, and the question presented comes properly before the court on appeal from the judgment. The estate of a deceased person is within the jurisdiction and under the control of the probate court. Executors and administrators are appointed by and render their accounts to that court, and the whole subject-matter of estates, their settlement and distribution, comes within its jurisdiction and under its scrutiny. Claims against an estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated expenses of administration. Claims against an estate must be pre |