order of the trial court refusing a new trial, this ppeal is prosecuted. It appears from the evidence that respondents are merchants at Livingston; that appellant had purchased goods of them for some years, and that his wife had also done so, having the goods she purchased charged to appellant; that appellant, becoming dissatisfied with the purchasing of goods by his wife, and having them charged to him, gave to respondents the following notice in writing concerning the matter: "Krieger & Co., Livingston, Montana. Sirs: Please don't let my wife run any bills unless accompanied by my order. Don't tell her you are forbidden. Tell her you must have my order, or would prefer it, and oblige, Yours, W. A. Smith." This notice was given in January, 1890. About May 1, 1890, the appellant, with his wife, visited the place of business of respondents; at least appellant and his wife were together in the store of respondents at that time, for two or three days, during which time the wife purchased of respondents a considerable bill of goods, (the goods sued for in this action.) The evidence tends to show that they were both looking at and examining the goods being purchased by the wife; that the wife called appellant's attention to some of the goods she was selecting and purchasing; that appellant gave his wife during the time a $50 check; that nothing was said between respondents and appellant at the time about the wife's right to purchase goods and have them charged to appellant; that the wife partially paid on the goods, the whole thereof being charged to the appellant. The goods were afterwards delivered at the residence of appellant at Castle, where it seems the wife generally lived, the appellant spending most of his time at Black Hawk, where he was engaged in business, and had another home. The appellant and his wife were not living separate and apart. He spent a part of his time with her at their home in Castle. It does not appear that the wife had any separate estate or business of her own. The appellant saw some of the goods at his home in Castle when he was there, he testifying that he "stayed there off and on during the summer." The appellant never returned, or offered to return, the goods, or any of them, either before or after he knew they had been charged to him. The appellant made no inquiry of his wife at the time he saw her purchasing the goods, or at any other time, as to how they were to be paid for, or as to whom they were to be charged. He testifies that he notified his wife of the notice given respondents, quoted above. It is not contended that these goods were necessaries furnished the wife. The appellant is a man of considerable wealth. The case was tried with a jury, and verdict rendered for the amount sued for in favor of respondents. The appellant contends that the presumptive agency of the wife to procure such articles as are usual and proper for her,

according to the financial condition of her husband, was terminated and revoked by the notice offered in evidence, and quoted above. That her authority "is purely and simply a question of agency, which rests upon the same considerations which control the creation and existence of the relation of principal and agent between other persons. The ordinary rules as to actual and ostensible agency must be applied. To hold the husband liable, there must have been some affirmative proof of authority from him, either express or implied, from his acts and conduct,”—and cites in support of his position the following authorities: Bergh v. Warner, (Minn.) 50 N. W. Rep. 77; 9 Amer. & Eng. Enc. Law, p. 839, § 3; 1 Bish. Mar. & Div. §§ 556, 558; Mackinley v. McGregor, 3 Whart. 369; Keller v. Phillips, 39 N. Y. 351; Benjamin v. Benjamin, 15 Conn. 347.

But in this case was there no authority in the wife to purchase these goods on the credit of the husband, reasonably "implied from his acts and conduct?" Here, as shown by the evidence, is a husband and wife living pleasantly together. She has no separate estate or business. He is present, seeing her purchase, and, as the evidence tends to show, being by her consulted as to the purchase of a large bill of goods. He offers no protest or objection. He gives her his check to assist in making payment, and all this in the presence of the persons to whom he has given notice not to permit her to buy goods on his account without his order, she knowing of such notice having been given. Can no authority be implied from these acts, and this conduct on the part of the husband? Was the wife not justified, and were respondents not authorized, to presume authority in the wife from such acts and conduct of the husband? Were the presence and these acts and conduct of the appellant not equivalent to an order from him? think so. We think, under the circumstances of this case, the appellant is estopped from questioning the authority of his wife to purchase these goods. We think this holding is decisive of this case. There are other assignments of error; but, from an inspection of the whole record, we are unable to discover any errors that prejudice the appellant. We think the case was tried and determined on its merits, and that the result should not be disturbed. The judgment and order appealed from are affirmed.

We

SCHUTTLER et al. v. KING. (Supreme Court of Montana. July 17, 1893) NEGOTIABLE INSTRUMENTS-PLEADING.

Under Code Civil Proc. § 85, requiring a complaint to contain "a statement of the facts constituting the cause of action in ordinary and concise language," a complaint averring that, on a certain date, defendant, for a valuable consideration, executed and delivered to plaintiffs his note of that date for the sum of $679.74, due

at a certain date now past, with interest, etc.; that there is due and unpaid from defendant the sum of $977.47 to this date; and that plaintiffs are now the owners of the note,-is not bad for failure to aver that defendant ever made any promise to pay any money to plaintiffs, nor any facts implying such a promise, nor when, according to such promise, payment should be made.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Peter Schuttler and Christopher Hotz, trading as Schuttler & Hotz, against John R. King, on a promissory note. Judgment for plaintiffs. Defendant appeals. Thomas C. Bach, for appellant. Wade & Blackford, for respondents.

PEMBERTON, C. J. This is a suit on a promissory note alleged to be lost. The allegations of the complaint, omitting the formal parts, are as follows: "That on the 22d day of January, 1885, the said defendant, J. R. King, and Wheatly Bros., of Bozeman, Mont., for a valuable consideration, executed and delivered to the said Schuttler & Hotz, as such partners, their certain promissory note of that date, for the sum of six hundred and seventy-nine and seventy-four hundredths dollars, ($679.74,) due on the 13th day of September, 1885, together with interest after maturity at the rate of 10% per annum; that on the 3d day of January, 1887, the said J. R. King paid on said note the sum of $91.69; that no other sum or amount has been paid on said note, and that there is now due and unpaid on the same, from said defendant King, the sum of nine hundred and seventy-seven and forty-seven hundredths dollars, ($977.47,) principal and interest to this 6th day of July, 1891; that the said plaintiffs are now the owners of said note, and entitled to receive the money due and unpaid thereon; that said plaintiffs, or either of them, have not indorsed or transferred said note, but that the same since its maturity has been lost." The appellant (defendant below) was personally served with summons in this case, but made no appearance of any kind. Judgment was entered against him, in accordance with the prayer of the complaint, on the 6th day of July, 1891. On the 4th day of June, 1892, this appeal was taken from the judgment.

The contention of the appellant is that the complaint does not state facts sufficient to Constitute a cause of action or to sustain a judgment. The appellant especially contends that the complaint does not contain any of the following facts, each of which he claims the complaint should aver: "That the defendant ever made any promise to pay any sum of money, or any facts from which such a promise is by law implied. The complaint does not show by any statement of fact any promise in fact or promise by implication to pay to plaintiffs or either of them any money. The complaint does not contain any statement of fact showing when,

In

according to defendant's promise, payment should be made; that is to say, there is no statement of a breach of the contract." Hook v. White, 36 Cal. 299, in a case similar to the one under consideration, the court says: "The allegation in the complaint 'that said defendant executed to this plaintiff a promissory note' is equivalent to an allegation 'that defendant made his note payable to plaintiff; and an allegation that defendant executed to plaintiff his note in writing, or made his note in writing payable to plaintiff, includes and imports a delivery of the same to plaintiff. Churchill v. Gardner, 7 Term R. 597; Russell v. Whipple, 2 Cow. 536. The making and delivery of a promissory note by defendant to plaintiff imports a liability to pay in accordance with its terms, without any averment of a continuous holding or ownership; and, after the allegation of the execution of the promissory note to plaintiff by defendant, a further allegation that plaintiff is still the owner and holder thereof would be surplusage. Poorman v. Mills, 35 Cal. 118; Wedderspoon v. Rogers, 32 Cal. 571. Defendant not having denied the execution of the note to plaintiff, his liability to pay is a legal conclusion; and not having affirmatively alleged any fact showing that he had paid, or relieving him from the legal liability to pay, he was not entitled, under his answer, to offer any defense in evidence. Edson v. Dillaye, 8 How. Pr. 274." In Ward v. Clay, 82 Cal. 502, 23 Paé. Rep. 50, 227, the court held: "Defects of form of averment or uncertainty cannot be urged upon general demurrer. # * * A complaint on a promissory note which states the material substance and legal effect of the note, showing its date, consideration, parties, principal sum, and rate of interest, and the amount due and unpaid, and avers that defendant refuses to pay the same or any part thereof, and that plaintiff is still the owner and holder of the note, is not subject to a general demurrer on the ground that a copy of the note is not embodied in the complaint." See Graves v. Drane, 66 Tex. 658, 1 S. W. Rep. 905. Our Code of Civil Procedure (section 85) requires the complaint to contain “a statement of the facts constituting the cause of action in ordinary and concise language." From a consideration of these authorities, we are of opinion that the complaint states facts sufficient to constitute a cause of action, and therefore sufficient to sustain the judgment appealed from. The appellant contends that, this being a suit upon a lost negotiable instrument, an indemnity bond should have been given or tendered by respondents before suit to entitle them to recover judgment. We do not think that the tender of indemnity can be considered as any part of the plaintiffs' cause of action, or as a fact or event upon which their right of action accrues. Randolph v. Harris, 28 Cal. 562, and cases cited. The appellant can fully protect himself by de

manding indemnity at the proper time and in the proper manner. We are of the opinion that the judgment in this case should be affirmed.

HARWOOD and DE WITT, JJ., concur.

(4 Wyo. 307)

BARKWELL v. CHATTERTON. (Supreme Court of Wyoming. Aug. 29, 1893.) VENUE IN CIVIL CASES-CHANGE-ABANDONMENT.

1. Rev. St. § 3401, requires the applicant for a change of venue to pay the costs thereof within 10 days after the order directing the change, provided that the change shall be deemed abandoned, unless within that time the applicant shall give a bond to his adversary to pay all costs he may be cast for; and, if the abandonment is by plaintiff, the cause is deemed discontinued, and costs taxed against plaintiff. The court granted plaintiff's motion for a change "wher plaintiff gives bond in the amount of $300." Held, that the order was not void, on breach of the condition, that being the same as required by statute, and the amount at the discretion of the court.

2. Rev. St. § 3401, a general law of long standing, is not an assumption of judicial power by the legislature, as ordering a dismissal, with costs, against a plaintiff applying for change of venue in case he fail, within 10 days from the order, to give bond for costs of the change.

3. Rev. St. § 3401, providing that if, within 10 days after the order for change of venue, a plaintiff who has applied for the change fail to give bond for the costs thereof, the cause shall be deemed discontinued, and the costs taxed against said plaintiff, does not deny him the administration of justice or his constitutional right to a jury trial.

4. The dismissal of an action, at plaintiff's costs, for his failure to prosecute his motion for change of venue, under Rev. St. § 3401, is no bar to another action for the same cause; that a dismissal on motion of defendant, instead of on plaintiff's motion for a dismissal "without prejudice," works no injury to plaintiff.

Error to district court, Carbon county; Jesse Knight, Judge.

Civil action by Elizabeth A. Barkweli against Fennimore Chatterton. On defendant's motion, dismissed at plaintiff's costs. Plaintiff brings error. Affirmed.

Potter & Burke, for plaintiff in error. Craig & Chatterton, for defendant in error.

CONAWAY, J. Plaintiff in error, who was also plaintiff in the district court, made application in that court for a change of venue. The change was granted on January 19, 1891; but the case never was transferred to any other court. On May 25, 1891, defendant filed a written motion to "dismiss the aboveentitled cause," on account of the failure of plaintiff to file her bond on change of venue. On May 25, 1892, plaintiff made "her verbal motion in open court to dismiss this action at her own costs without prejudice." This motion was overruled by the court, "and thereupon, at the said last-mentioned date, the motion of the defendant filed on the 25th day of May, 1891, to dismiss this action, came ou for hearing, and was argued by counsel,

and the same was by the court sustained, and this action was thereupon dismissed," etc. The quotations are from the bill of exceptions. The action of the court upon each of these motions and in discontinuing the ac tion of plaintiff at her cost is assigned as error. In various parts of the record the words "dismiss" and "discontinue" are used interchangeably.

The statute authorizing a change of venue in civil actions makes it incumbent on the party applying for the change to pay the costs thereof within 10 days "after the order directing the change." It also contains the following proviso: "Provided, however, that the change of venue shall be deemed abandoned unless the applicant shall also within the ten days aforesaid give an undertaking to the opposite party, with sureties to be ap proved by the judge of the court, to the effect that he will pay all costs that may be adjudged against him in such case; and, if the abandonment is by the plaintiff, the cause shall be considered discontinued, and the costs taxed against said plaintiff, and judgment therefor rendered; and, if the abandonment is by the defendant, he shall be adjudged in default, and whatever pleadings he may have on file disregarded, and the plaintiff may prove his case as in other defaults." The applicant for a change of venue in this case was the plaintiff, and the required bond was never given; and under this statute the court, on motion of the defendant, dismissed the action. Objection is made to the form of the order granting the change. It reads: "And it is now ordered by the court that, when the plaintiff gives bond in the amount of $300, that the place of trial be changed to the county of Sweetwater." It is objected that this is a conditional order, and that the condition on which the order was to take effect was never performed, and the order is therefore of no effect, and the action not subject to dismissal under this statute. But it is to be observed that the condition expressed in the order is one of the conditions established by the statute. Putting it in the order gave it no additional effect. It was the duty of the court to fix the amount of the bond. That this was done by the same order by which the change of venue was allowed does not seem to be important. This statute is assailed on behalf of plaintiff in error as unconstitutional. It is claimed that it is an assumption of judicial power by the legislature. Counsel say in their brief: "If the legislature can direct a certain judgment to be rendered in this instance, it may exercise that prerogative in all cases; and the courts, then, will perform merely perfunctory duties, as an agency of the legislative department." As to this it is only necessary to say that the law in question is a general law, and that it was passed a long time before this controversy arose. Again, counsel say. "This statute denies in terms the administration of justice to the party whose application

for change of venue is to be deemed abandoned;" also that the statute denies the right of trial by jury to such party. These propositions are true in this case only in the sense in which they are true in any case where a plaintiff's action is dismissed for his failure to prosecute it in the manner required by law. Such instances are of constant occurrence, and the validity of laws authorizing such proceeding cannot be doubted. Neither the administration of justice nor the trial by jury has been denied the plaintiff in this action. Both were available to her on the same terms as to all parties, merely by pursuing the legal course to secure a hearing on the merits of her cause, or a trial by jury, if she desired it. The rigor of this statute, and the hardship it may result in, is urged, and on this branch of the argument it is assumed that the dismissal of the action at plaintiff's costs is a bar to another action for the same cause. According to the record, which is certified to be complete, no judgment even for costs was ever rendered or entered in this case. No authorities are cited by counsel for or against the proposition that the dismissal of the action or judgment for costs, if rendered, would be a bar to a future action for the same cause. The cases decided, so far as they have fallen under our observation, are to the contrary effect. See Gibson v. Gibson, 20 Pa. St. 9; Webster v. Laws, 86 N. C. 178; Barrett v. Railroad, 45 N. Y. 628; Harris v. Tiffany, 8 B. Mon. 225. If these cases state the correct rule,-and there seems to be no difference of opinion on this point,-it removes the only matter of substantial interest in question in this case. The plaintiff desired and moved the court to dismiss her action at her own cost, without prejudice. The court dismissed her action, at her cost, on the motion of defendant. If this dismissal is not a bar to another action for the same cause, she is practically in the same position as if her own motion had been sustained. It was stated in argument, and is generally known to the profession, that a former justice of the supreme court of Wyoming territory refused, when sitting as judge of a district court, to disregard the pleadings of a defendant who was in default by abandoning an application for change of venue under this statute. This was, in effect, setting aside the default which the party had incurred, but which had not been formally declared by the court. There is no doubt that it is within the discretion of a trial court to set aside a default, either on sufficient showing by the party in default, or upon matter within the knowledge of the court as occurring in the progress of the cause. If a trial court abuse such discretion, there is, no doubt, a remedy for such abuse. There seems to be no special hardship in the operation of this statute, construed reasonably and according to numerous precedents. Were it otherwise, it would be going a great way to declare it invalid merely because of its rigor. Any reasonable

construction will be resorted to in order to sustain an act of the legislature. The statute in question was evidently aimed to correct the notorious abuses sometimes observed of applications for change of venue made on false grounds, merely for the purpose of delay. There seems to be no difficulty in giving the statute a reasonable construction, well sustained by authority, which will result in no oppression or injustice, but will reasonably accomplish the beneficial results intended by the legislature. In the case at bar the record shows that the bond required on change of venue was not given. This is an affirmative showing that the order of discontinuance or dismissal was correctly made. Smith v. Yager, (Iowa,) 50 N. W. Rep. 224. The action of the district court is affirmed.

GROESBECK, C. J., and CLARK, J., con

cur.

(9 Utah, 215'

HAMER v. FIRST NAT. BANK OF OGDEN.

(Supreme Court of Utah. Aug. 31, 1893.) WRONGFUL ATTACHMENT-ACTION FOR DAMAGESEVIDENCE-INSTRUCTIONS-HARMLESS ERROR.

1. In an action for malicious prosecution of an attachment, it is not error to refuse to permit plaintiff to testify whether defendant had any motive in procuring the issuance of the attachment other than an honest desire to collect a debt, and to limit him to a statement of the facts.

2. Nor is it error to exclude the testimony of a witness other than plaintiff as to plaintiff's purpose in leaving the territory, where plaintiff's departure from the territory was the alleged ground of attachment.

3. The court properly excluded evidence by a witness other than plaintiff that there was a feeling between defendant and witness' banking institution, to which plaintiff had transferred his business.

4. It is harmless error to charge that if plaintiff departed from the territory, and left no suitable person, of at least the age of 14 years, at his usual place of abode therein, so that service of summons could not be made on him, defendant would have a right to have an attachment issued against him, where the court qualified the charge by adding: "Provided he departed from the territory to the injury of his creditors, or [defendant] had probable cause to believe he so left."

5. The fact that the court, in defining probable cause, in such case, omits to state that it was necessary for defendant to make cautious and diligent inquiry, and believe the facts acted on to be true, is not reversible error, where such requirements are clearly set forth in other parts of the charge.

6. Where, in such case, the evidence as to malice and want of probable cause on the part of defendant in making the attachment is conflicting, a judgment for defendant will not be disturbed.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Daniel Hamer against the First National Bank of Ogden to recover damages for malicious prosecution by defendant of an attachment suit against plaintiff. From a judgment entered on the verdict

of a jury in favor of defendant, plaintiff appeals. Affirmed.

Kimball & Allison, for appellant. Evans & Rogers, for respondent.

BARTCH, J. This action was brought for malicious prosecution, and the material questions raised on this appeal refer to the rulings of the court and to the charge to the jury. It appears from the record that the respondent instituted a suit against the appellant for the collection of a debt in the sum of $600, for rent due, and caused a writ of attachment to be issued and levied against the property of appellant, on the ground that he had departed from Utah territory, to the injury of the creditors. The appellant claims that the writ was issued and levied at the instance of the respondent, wickedly, maliciously, wrongfully, and without probable cause, with the intent to oppress him and bring him into disgrace. The respondent claims that it caused the writ to be issued in good faith, to aid in the collection of a debt due, acting and relying upon the advice of reputable counsel, to whom it had stated all the facts and circumstances, connected with the case, within its knowledge. On the trial, two questions were put to the appellant by his counsel, as follows: (1) "Mr. Hamer, prior to the time of your going east, do you know of any motive why Mr. Pingree should procure the issuance of a writ of attachment, other than a desire to collect that debt?" (2) "State, if you know, from what Mr. Pingree said, and his conduct, whether or not there was any other reason for filing that affidavit, and for causing the writ of attachment to be issued, other than an honest desire to collect a debt of the bank." Objections by the respondent that these questions were immaterial, irrelevant, and incompetent were sustained by the court, with permission to witness to state the facts. Counsel for appellant insist that the ruling of the court was erroneous. The general rule is that witnesses must state facts, and cannot state conclusions or opinions. There are exceptions to this rule, as where questions of value, of trade, or of science, and the like, arise. Here persons skilled in the particular subject-matter concerning which the question to be determined arose are permitted to give their opinions, as well as to testify to the facts. 1 Greenl. Ev. § 440. But these exceptions will not be enlarged or extended, except in cases where justice will otherwise be prevented. Teerpenning v. Insurance Co., 43 N. Y. 279. In the case at bar, the witness was asked, in substance, to state whether the respondent had any other motive or reason to procure the issuance of the writ than a desire to collect the debt. This was asking for the opinion of the witness as to the motive of another individual, and yet it does not appear from the record

that the respondent ever communicated his motive to the witness, and therefore the witness could simply draw his conclusion from the facts and circumstances known to him. and thus invade the province of the jury, besides being liable to give an erroneous conclusion, through bias and prejudice, being an interested witness. While a witness may be interrogated as to his own motive in the doing or not doing of a particular act or thing, it is difficult to observe by what principle of law he may be interrogated concerning the motive of another person, when such person has given no expression of his intentions to him. The court correctly held that the witness might state the facts, and the jury would determine the motive. 1 Whart. Ev. § 508; Whart. Crim. Ev. § 476; Real v. People, 42 N. Y. 270.

Likewise, the court properly excluded the testimony of the witness Marsh relating to the purpose of appellant in leaving Ogden city, and taking a trip. He could state facts within his own knowledge, and, from these facts and the circumstances, it was the province of the jury to determine what the purpose was. The testimony of the witness Rolapp to the effect that a feeling existed between the respondent and the witness and his institution, the Utah Loan & Trust Company, to which the appellant had transferred his business, and was one of the parties who organized the rival bank, was also properly excluded. The court correctly ruled that the appellant might show any feeling which existed between the respondent and himself. Clearly, any feeling that might have existed between the respondent and the witness or any other person, except the appellant, would be wholly immaterial, and would show no motive for causing the writ of attachment to be issued. The authorities cited by counsel for appellant on the points thus far considered do not appear to be applicable to this case, as shown by the record.

The remaining errors assigned relate to the charge of the court to the jury. The first, of which counsel for appellant complains, is as follows: "If the jury believe from the evidence in this case that the plaintiff, Daniel Hamer, departed from Utah territory, leaving no suitable person, of at least the age of fourteen years, at his residence or usual place of abode, in said territory, so that service of summons could not be had or made upon him, then I charge you, as a matter of law, that the defendant would have a right to have a writ of attachment issued against his property, provided he departed from the territory to the injury of his creditors, or the bank had probable cause to believe he so left." It is insisted that this instruction is erroneous, because the question of leaving a suitable person, of at least the age of 14 years, at his place of abode, that service of summons might be had when the plaintiff left the territory,