MOORE, J. (after stating the facts). The question presented for consideration by this appeal is whether the findings of fact support the judgment. It is argued by defendant's counsel that the common council of the town of Harney, having been authorized by the act of incorporation to issue licenses to sell intoxicating liquors, was necessarily invested with power to adopt ordinances providing for the punishment of persons convicted of selling such liquors without a license; and that, a municipal court having been created for said town, and invested with exclusive original jurisdiction to hear and determine all causes arising under the act of incorporation or ordinances passed in accordance therewith, the circuit court for said county was without jurisdiction to try defendant, and hence erred in refusing to discharge him. Counsel for the state maintain, however, that the act incorporating said town was conditional, and of no binding force until its provisions were fully accepted, and that until an ordinance had been duly passed by the common council prescribing the punishment for selling intoxicating liquors without a license the said circuit court possessed plenary power under the general law of the state to punish a person found guilty of unlawfully selling intoxicating liquors within the limits of said town. It is a sufficient answer to such argument to say that in this country a municipal corporation derives its existence from the act of the legislative assembly creating it, which takes effect without acceptance unless therein expressly required. Dill. Mun. Corp. § 44. Considering the case on its merits, the general license law of the state provides that no person shall sell spirituous or other liquors without first having obtained a license from the county court of the proper county, and prescribes a punishment for a violation thereof. 2 Hill's Ann. Laws Or. p. 1576. Section 11 thereof, however, reads as follows: "Nothing in this act shall be so construed as to apply in any manner to incorporated cities and towns in this state." The legislative assembly, as the guardian of the morals and conservator of the peace of the state, has exclusive control, and regulates the exercise, of the police power, delegating to municipal corporations such portions thereof as it may deem expedient. Tied. Lim. § 212; Dil. Mun. Corp. § 363. The lawmaking power has in emphatic language exempted incorporated towns and cities of this state from the operation of the general laws, and authorizes them to provide special legislation for themselves, and when this is done there is no conflict between the ordinances of the municipality and the general law as to such matters. Dill. Mun. Corp. § 367. The legislative assembly has not only excluded incorporated towns and cities from the operation of the general license laws of the state, but in incorporating the town of Harney authorized its common council to regulate and license the sale of such liquors therein (Laws 1891, p. 999), thereby leaving no room for doubt as to which municipal corporation should exercise this power within that territory. This delegation of power necessarily confers upon the common council authority to adopt ordinances, not only for licensing the sale of intoxicating liquors, but prescribing a punishment for selling such liquors without a license; and such ordinances have the force and effect of laws within the corporate limits. Dill. Mun. Corp. §§ 308, 393. The legislative assembly has power to establish municipal courts to administer the regulations of incorporated towns and cities (Const. Or. art. 7, § 1), and, having created the office of recorder for the town of Harney, and invested that tribunal with power to hear and determine all causes arising under the incorporation act or the ordinances of said town passed in accordance therewith, such delegation ipso facto deprived the circuit court for said county of all power therein, except to review the judgments of said recordCunningham v. Berry, 17 Or. 622, 22 Pac. 115; State v. Dupuis, 18 Or. 372, 23 Pac. 255; State v. Tamler, 19 Or. 528, 25 Pac. 71. True, there are certain crimes which, by reason of their magnitude, were indictable and could be punished at the common law; and, in the absence of a statute prescribing a punishment for the commission of such crimes, it has been held that courts of general jurisdiction may enforce the common-law penalty. Bish. St. Crimes, §§ 138, 166. The sale of intoxicating liquor, however, was not a common-law crime (Id. § 985), and hence the circuit court for Harney county was without jurisdiction to try the defendant. It follows that the judgment is reversed, and the cause remanded, with instructions to discharge the defendant. er. (23 Mont. 122) FORRESTER et al. v. BOSTON & M. (Supreme Court of Montana. July 10, 1899.) BILL OF EXCEPTIONS-PROCEEDINGS TO ES TABLISH-IMMATERIAL AMENDMENTS. 1. An original petition in the supreme court to prove exceptions, the objection being that certain amendments were allowed by the trial court to the bill of exceptions as served, will be dismissed, where the amendments allowed are immaterial. 2. A bill of exceptions, as presented for settlement, contained a copy of the order appealed from, which merely denied the motion to vacate the appointment of a receiver. The amendment to the bill, proposed and allowed, set out that the court refused to grant the motion to discharge the receiver because defendants had refused to comply with the order appointing the receiver, and had violated it, and stood charged with contempt of court, to which the judge directed to be added a statement corroborating such alleged facts. No such reasons were announced, either by express words or by implication, at the time the order was made. Held, that the reasons for the refusal of the order were immaterial, since the court, having "heard" the motion involving substantial rights, could not punish for contempt by deciding against the movants, and hence the supreme court cannot strike out such amendments from the bill, under Code Civ. Proc. § 1157, though it may disregard them. Action by James Forrester and another against the Boston & Montana Consolidated Copper & Silver Mining Company and others. Original proceeding by certain of defendants for leave to prove exceptions. Denied. Wm. H. De Witt, Wm. Scallon, W. W. Dixon, Ransom Cooper, Forbis & Evans, Wm. Wallace, Jr., and Carpenter & Carpenter, for appellants. Cullen, Day & Cullen, R. B. Smith, Clayberg & Corbett, and McHatton & Colter, for respondents. and the rules of this court. A referee was appointed ex parte, and without notice to the plaintiffs, and he has reported the testimony taken by him in support of the petition. The petition must be dismissed upon the ground that the amendments allowed are immaterial. Hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect of the power and right of the supreme court, under section 1157 and rule 5, to alter or remodel a bill of exceptions allowed by the trial judge; nor, on the present application, is it necessary either to interpret or construe the section. The avowed purpose of incorporating the amendments was to show that the defendants, and particularly the Boston & Montana Consolidated Copper & Silver Mining Company, were in contempt of the district court during the hearing of the motion, and at the time it was denied. For example, the bill, as presented for settlement, contains a copy of the order appealed from, which merely overruled and denied the motion to vacate the appointment of the receiver. In passing, we may say that there was no necessity of including the order in the bill, for it is deemed excepted to, no bill of exception is required, and it may be presented as part of the record proper by a copy certified as correct by the clerk. The amendment proposed and allowed in that regard sets out that "the court refused to grant the motion to discharge the receiver upon the ground and for the reason that the defendants in the case had refused to comply with the court's order contained in the order appointing the receiver, and had resisted and violated the same, and that the said defendants stood charged with contempt of this court, and therefore were not entitled to be heard or to have said motion granted, and thereupon said court overruled said motion," to which the judge directed to be added the following: "The court being of the opinion that on account of the contemptuous conduct of the defendants aforesaid, and their position before the court, they were not entitled to any relief asked, or to a consideration of their motion by the court, and the court denied the same for that reason; it appearing clearly from the evidence presented on the hearing of the motion that defendants had violated the order of the court appointing the receiver, and were during the course of the hearing violating the same, and doing everything in their power to avoid a compliance therewith, and were avoiding service of the process of this court issued in this action." The testimony taken and returned by the referee shows very clearly that no such reasons were announced, either by express words or by implication, at the time the order was made, and that, if they existed, they were known only to the judge of the court, who omitted to reveal or confide them to those PIGOTT, J. This is an original proceeding for leave to prove certain exceptions which the petition states the judge of the Second judicial district court has refused to allow in accordance with the facts. The petitioners are the Boston & Montana Consolidated Copper & Silver Mining Company, John F. Forbis, G. H. Hyams, and Frank Klepetko, the answering defendants in Forrester v. Mining Co., several phases of which case have been before this court in 21 Mont. 544, 55 Pac. 229; 21 Mont. 565, 55 Pac. 353; 22 Mont. 19 56 Pac. 219; 22 Mont. 56 Pac. 281; 22 Mont. —, 56 Pac. 687; 22 Mont. 56 Pac. 865; 22 Mont. 56 Pac. 1135, SGS. The petition purports to be drafted under the provisions of section 1157 of the Code of Civil Procedure, and of subdivision 14 of rule 4 (44 Pac. vi.), now rule 5, of this court. It appears that the petitioners moved the district court to vacate the order of December 15, 1898, appointing a receiver for the property of the defendant company, and to discharge him; that a hearing was had in obedience to the mandate of this court (State v. Second Judicial District Court, 22 Mont., 56 Pac. 865); that on April 10, 1899, the court denied the motion, and defendants appealed to this court (Forrester v. Mining Co., 22 Mont., 56 Pac. 1134, 868), where the cause is now pending. It further appears that the defendants served a draft of their bill of exceptions, to which plaintiffs proposed 10 amendments. Upon presentation for settlement, the judge allowed nine of the amendments, besides making an addition of his own, and ordered that the bill, as so amended, be engrossed and settled. Four of the amendments allowed are asserted to be discordant with the proceedings had upon the hearing of the motion, and one is said to be contrary to the facts attending the making of the order appealed from. Defendants therefore contend that the judge refused to allow their exceptions in accordance with the facts, and pray that the facts touching the matters to which the amendments are directed, and the refusal of the judge to allow the bill as presented, may be proved and certified under the provisions of section 1157 whose interests were, as he evidently believed, seriously affected thereby. But the reasons so given are not material to any issue or question presented on the appeal, and this court, although it may disregard, has no power, by virtue of section 1157 or otherwise, to strike out such matter from a bill. It may be conceded that the trial court might justly have refused to entertain the motion to discharge the receiver on the ground that the defendants were then in, or perhaps even charged with, contempt of its order or process, or to decide it until the moving parties had purged themselves of a contempt brought to the court's knowledge after the beginning of the hearing. In this case, however, the court did not refuse to hear the motion, neither did the court decline to decide. Both a hearing and a determination were had and made, respectively; and in a matter not of mere favor or privilege to a litigant, but involving substantial rights, a court cannot, without committing gross and palpable error, punish a party charged with contempt by deciding against him the cause or proceeding in which the contempt is alleged to have occurred. If it could, then, for instance, a demurrer interposed to an insufficient complaint may properly be overruled because the demurrant is in, or is charged with, contempt. If it could do so, then the court can rightly direct the jury to find against a party in contempt, although he would, except for the contempt, be entitled to recover. Such practice would be a travesty of justice. It will not be tolerated in a land where the fundamental principles of the common law are the rules of action. Counsel for the plaintiffs suggest, tentatively, that the district court and judge were compelled by our writ of mandate to hear and determine the application to vacate the order appointing the receiver while the defendants were in open defiance of said order, and that the judge "preferred, rather than to make answer to the alternative writ setting forth as a ground of his refusal to hear the application, the facts showing the defendants to be in contempt, to proceed with the hearing under the writ of mandate, and to deny the application for that reason." Reference to the opinion in State v. Second Judicial District Court, 22 Mont. 56 Pac. 865, shows that the district judge stated the reasons in detail why he had not heard the motion, and declared that in any event he intended to hear the motion on April 3, 1899, without regard to whether or not this court should issue a peremptory writ. Now, it appears that the answer to the alternative writ was made on April 1, 1899, and that the proceedings against the defendants for contempt were instituted in the district court, and before its judge, on the 13th and 15th days of March, 1899,some two weeks theretofore. The pretended excuse attempted to be made in behalf of the judge for the omission of the reasons mentioned from his answer and return is not even plausible. Moreover, instead of making the return to the peremptory writ show that he declined to decide the motion to discharge the receiver because the defendants' contempt had been proved since his answer to the alternative writ, he made a final return on April 10th that he had determined the motion. Had he made it appear to this court that the defendants were in contempt, it is hardly necessary to say that he would not have been commanded to entertain or to pass upon the application while that condition of affairs existed. The conduct of the judge to which we have adverted is unworthy of emulation. No one of the amendments by which the draft of the bill of exceptions is changed is either material or relevant, for the question to be considered upon the appeal will be whether or not the order appointing the receiver should have been vacated, and that officer discharged. The proceedings as for contempt, of which the defendant company has been subsequently adjudged guilty, are wholly foreign to the question. The prayer of the petition is therefore denied, and the petition dismissed, at the costs of the applicants. Dismissed. 1. Where a joint owner of personalty which is in the possession of another joint owner sells his interest, the purchaser's failure to take possession does not, as against execution creditors of the seller, avoid the sale, under Civ. Code, § 4491, providing that every transfer of personal property by a person in possession or control of the property shall be conclusively presumed to be fraudulent if not followed by actual and continued change of possession. 2. Where one of several joint owners of personalty sells his interest, the purchaser need not notify the other co-owners of the sale, in order to make it valid as against execution creditors of the seller. 3. After plaintiff had purchased personalty in possession of third persons, it was seized by an officer under execution against the seller. In an action against the officer for the proceeds of its sale, held, that plaintiff's failure to notify defendant and the seller's creditors of the sale, prior to the levy, did not preclude his right to recover. 4. The lessees of a mine agreed with plaintiff's assignor to operate the mine, in consideration of plaintiff's assignor furnishing all necessary supplies, the net proceeds of the ore, after milling, to be equally divided between the lessees and plaintiff's assignor. Held, that in determining the net proceeds only the cost of smelting, and not the costs of mining, hoisting, and handling the ore, should be deducted from the gross proceeds. 5. Where plaintiff purchased ore of one who obtained it of the lessees of a mine, his title was not affected by a forfeiture of the lease aft er the ore had been mined, in the absence of evidence that such forfeiture carried with it the right to ore previously mined. Appeal from district court, Silverbow county; John Lindsay, Judge. Action by John Yank against T. J. Bordeaux, constable. From a judgment for defendant, and an order overruling plaintiff's motion for new trial, plaintiff appeals. Reversed. Howell & Harney, for appellant. John W. Cotter, for respondent. PIGOTT, J. The plaintiff, claiming to own an undivided one-half interest, amounting to $434.38, in certain ores treated at the Parrot smelter, brought this action for damages against the defendant, who, as constable, had levied upon and seized such interest on executions against the property of Pohndorf, Pearson, and Thompson, in favor of their judgment creditors, and who, upon demand, refused to release the levy, or to pay the said amount to the plaintiff. The issues were tried by jury, and a general verdict for the defendant was returned. The plaintiff appeals from an order overruling his motion for a new trial and from the judgment. For the purposes of the case, the facts to be considered in deciding the questions necessarily involved may be summarized as follows: On the 11th day of March, 1896, one Hughes, and seven men associated with him, became the lessees for the term of 90 days of the West Elba lode mining claim. On the same day a written contract was entered into between Hughes and his associates as parties of the first part, and Pohndorf, Pearson, and Thompson, as parties of the second part, in which the parties of the first part described themselves as being lessees of the West Elba lode mining claim, and whereby it was agreed, among other things, that the parties of the first part should furnish the labor of eight men each day, and operate the mine, and the parties of the second part should provide all supplies and materials necessary to carry on the work; the net proceeds of the ore, after milling or reduction, to be divided equally, the parties of the first part to have one half and the parties of the second part the other half. From the 12th day of March to the 1st day of May, 1896, the parties of the first part were in actual possession of and working the mining claim, and whatever possession the parties of the second part had was merely constructive. On April 29, 1896, the parties of the second part, named in the contract, for a valuable consideration sold and assigned to the plaintiff all their right, title, and interest in and to about 20 tons of silver and gold ore then contained in the ore house and bins of, and extracted from, the West Elba mine, as well as their right and share in and to the net proceeds of the same as soon as it should have been milled or worked, as their interest appeared by the contract entioned. After the delivery of the bill of sale to the plaintiff, his agent, in company with Pohndorf, went to the mine, where they found Hughes, who was the only one of the lessees on the surface. They notified him of the transfer, and read the bill of sale to him, requesting him to inform his associates that the transfer had been made, which Hughes promised to do. Hughes, Pohndorf, and the plaintiff's agent then went to the ore house, and identified and examined the ore in the bins, but the plaintiff did not at any time take actual possession thereof. Even if the parties interested had desired to divide the ore, it was not susceptible of fair division, as it was of unequal grades, some portions of it going several hundred, and some only twenty, dollars to the ton. This ore was afterwards delivered by the lessees to the Parrot smelter, and while in the possession of the smelter, and between the 1st and 7th days of May, the defendant, as constable, levied upon one-half of the net proceeds of the ore as the property of Pohndorf, Pearson, and Thompson, under executions against their property, issued upon judgments rendered in actions brought by three of the lessees to enforce claims in existence when the assignment to plaintiff was made. The proceeds of the ore, after deducting the charges for its treatment, amounted to $868.76, one-half of which the defendant, by virtue of the writs in his hands, collected from the Parrot Company as belonging to Pohndorf and others. While the net proceeds claimed by the plaintiff were in the possession of the defendant, and before he had applied any thereof towards the satisfaction of the judg ments, the plaintiff demanded the release of the money, and requested the defendant to pay it to him, which the defendant refused to do. In the view we take of the case, the other evidence need not be stated. ** 1. Section 4491 of the Civil Code declares that "every transfer of personal property is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession." The theory of the court and of the counsel for the defendant was that this section applied to the facts disclosed by the evidence, and the jury were accordingly instructed that, if the ore had been broken, and hoisted out of the mine, and was in the bins, at or before the time of the transfer by Pohndorf, Thompson, and Pearson to the plaintiff of their interest in the ore, and the plaintiff did not take and retain the actual and continued possession thereof thereafter, then the sale to the plaintiff was void, and the verdict must be for the defendant. The theory of the court was wrong, and the instruction erroneous. The conclusive presumption that a transfer of personal proper ty, in the absence of an immediate delivery and actual and continued change of possession of the subject of the transfer, is fraudulent and void as to creditors of the person making the transfer, is to be indulged only where the person making the transfer has at the time the possession or control of the property. The presumption does not arise from want of immediate delivery unless the seller or assignor had at the time possession or control of the thing sold or assigned. Pohndorf, Thompson, and Pearson were the owners, in common with Hughes and his associates, of certain ore in bins situate upon the West Elba mining claim. They transferred their title and interest to the plaintiff. At the time of the transfer they were not in possession or control of the ore, but their coowners were then lawfully in the actual possession and control of the common property, and so remained until it was sent to the smelter for milling and reduction. Under such circumstances, a sale by a tenant in common may not be avoided by creditors upon the ground that the chattel was not delivered to the purchaser, for, as Mr. Freeman expresses the rule of law in section 167 of his work on Co-Tenancy and Partition: "If A. and B. together own personal property, of which A. is in actual possession, and B. sell his moiety to C., the possession of A. immediately becomes the possession of C. also. Therefore, being at once, by presumption and construction of law, put in possession as tenant in common with A., it is not necessary that C. should take actual possession with A. to make his purchase good under the statute of frauds as against the creditors of B. If A., the co-tenant in possession, had sold his interest, then the sale should have been followed by an actual change of possession, because there was no co-tenant whose actual possession could have operated for the benefit of A.'s vendee." And in section 153 of his treatise on Executions: "The sale by one of several joint owners also furnishes an exception to the rule that there must be a change of possession. If the cotenant selling is in the sole possession, he ought to give possession to his vendee; but, if the other co-tenants are in possession, the vendor has no right to take it from them. He may, therefore, from necessity, make a valid sale without placing the property in the custody of his vendee." The distinction pointed out is recognized in California, from the statutes of which state section 4491, supra, was adopted. Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538. Additional reason for applying this rule to the case at bar lies in the fact that the several portions of the ore differed so greatly in value as to make a division impracticable without defeating the design of the owners, and working injustice to some of them. For practical purposes, the ore was indivisible. In Brown v. Graham, 24 Ill. 628, the court say: "Property indivisible in its character, owned by tenants in common, is incapable of a several possession by each tenant. It therefore follows that the possession of one of the defendants is a constructive possession of the others. And when one of the joint owners, not in the actual possession, sells his interest in the property, the purchaser succeeds to all of the rights of his vendor, as held by him, without an actual delivery of possession. He, by such a purchase, becomes a tenant in common, and the possession of his co-tenant is constructively his possession. It is, however, otherwise when the tenant in common, having the actual possession, makes a sale of his interest, as the possession must, in that case, to be valid as against creditors and purchasers, accompany, and remain with, the title." Whether or not Hughes informed his mining partners of the assignment made to the plaintiff is, as matter of law, immaterial. Our attention has not been drawn to any rule of law requiring notice to be given to coowners in actual possession of the common property of a sale by co-owners whose possession is merely constructive. We do not think that the omission of notice avoids such sale as to creditors of the vendors, and hence we do not decide whether the notice given to Hughes served as a notice to his associates. 2. The jury were instructed that, if the plaintiff had not, prior to the levy, notified the defendant and the attaching creditors of the sale to the plaintiff of a half interest in the ore and in its net proceeds, the verdict should be in favor of the defendant. This was prejudicial error. Whatever may be the correct rule as to the necessity, in some cases, of giving notice in order to complete a transfer, or to protect or make secure the title of a vendee or assignee, as against a subsequent good-faith purchaser or assignee of the same chattel or interest therein, or of the same chose in action,-a subject upon which the courts hold divergent views (see Paper Co. v. Pembroke [Cal.] 56 Pac. 627),-it is not applicable to the facts of the case at bar. Subject to certain exceptions, none of which is presented in this case, the general rule is that an attaching or execution creditor succeeds to and acquires only the rights of his debtor (Reynolds v. Fitzpatrick, 23 Mont., 57 Pac. 452; Oppenheimer v. Bank, 20 Mont. 192, 50 Pac. 419; McAdow v. Black, 4 Mont. 475, 1 Pac. 751), while a purchaser for value and without notice may acquire greater rights and a higher title than his vendor possessed (Pom. Eq. Jur. § 698). Had the defendant, prior to notice of the plaintiff's claim, paid over the money collected under the levy, the plaintiff would doubtless be without remedy against him. It is plain, however, that notice to the defendant of the sale while he held the funds under the writs was sufficient to save and protect the right of the plaintiff thereto. 3. That the sum of $434.38 was one-half of the net proceeds of the ore was not controverted on the trial. Moreover, the funds levied upon were net proceeds, within the |