that he is an ex-convict, having served a term in the state prison for larceny. It is said, also, that the testimony of the two local physicians is not entitled to any weight because they had not made personal examination of the deceased, and because expert testimony is at best not worthy of much credit. [6, 7] The testimony of Reed and that of the physicians aside, they insist that the testimony of Dr. Story and that of the witness Patterson is uncontradicted and should have been deemed conclusive. The testimony of these witnesses, however, was competent. The weight to be given it was for the jury to determine; so, also, in the light of all the attendant circumstances, the credibility of the testimony of Dr. Story and the witness Patterson was for the jury to determine. The question as to who should sustain the burden of proof, we shall consider when we come to examine the instructions submitted to the jury.

the outset in every criminal case: That the defendant is sane until the contrary appears. As counsel say, it has no reference to the extent of mental capacity necessary to enable one to enter into a valid contract or make a will. Neither has it reference to the extent of mental capacity required for any other purpose. It states only the presumption which attaches generally to human conduct in the relations of life. There was therefore no error in giving it, although, perhaps, in the form in which it is stated, its meaning was not apprehended by the jury.

[10] Instruction No. 6 is clearly erroneous. In effect it told the jury to find for the plaintiff if the evidence showed that the deceased was insane at any time prior to December 12th, and at any subsequent time, unless the defendant had sustained the burden of showing by prepon lerating evidence that he was sane, and therefore competent at the time he executed the will. The burden of proof was thus cast upon the defendant.

[8] Upon the issue of undue influence, a great deal of evidence other than that summarized above was introduced. We shall not [11] Evidently the court had in mind the. undertake a discussion of it. We are satpresumption mentioned in section 7962, subd. isfied, however, that, taking into considera- 32, Rev. Codes: "That a thing once proved to tion the intimate confidential relations shown exist continues as long as is usual with to have existed between the defendant and things of that nature." This presumption the deceased, the weak mental condition of does not apply regardless of the nature of the the latter, assuming that he was mentally thing or condition in question. It applies competent notwithstanding his condition, to- only to those conditions which from their gether with all the other circumstances, a nature must continue for some appreciable case was made sufficient to go to the jury length of time. Scott v. Wood, 81 Cal. 398, within the definition of "undue influence," 22 Pac. 871. as declared by the statute. Rev. Codes, § 4981. Upon another trial, which we must order because of error in the instructions,

the trial court should bear in mind that undue influence cannot, in a legal sense, be exerted upon a person who is destitute of testamentary capacity, and submit the findings to the jury with explicit directions, in accordance with the suggestions heretofore made.

[9] Complaint is made that the court erred in submitting the following instructions:

"(4) The court instructs you that all persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity." "(6) The court instructs you that where insanity in the testator has been shown to exist at a time previous to the execution of the will, and is also shown to exist at a time subsequent to the execution of the will, the proponent of the will is then bound to show that it was executed at a time when the testator was of sound and disposing mind.”

[12] Lunacy, or insanity, if of a general, exist, is presumed to continue until the habitual, or permanent nature, once shown to presumption is overturned by countervailing evidence.

courts generally. In re Brown, 39 Wash. 160,
This rule is recognized by the
81 Pac. 552, 1 L. R. A. (N. S.) 540, 109 Am.
St. Rep. 868, 4 Am. & Eng. Ann. Cas. 488,
and notes; 16 Am. & Eng. Ency. Law (2d
Ed.) Where its existence is made to appear,
the presumption referred to attaches; for
we know from experience that the condition
But to cases of inter-
usually continues.
mittent or occasional insanity it can have no
application, because in the very nature of
things the idea of continuity is excluded.
So that, when this is the condition, proof
of its existence at one time raises no pre-
sumption that it existed either at an ante-
cedent or subsequent time.

[13] The question for determination is: Was the testator of sound mind at the time The criticism of instruction 4 is that it the will was executed? If he was, his prestates the test by which ability to form a cedent and subsequent condition is immacriminal intent is to be determined, and is terial. See cases cited in note to In re therefore inapplicable to a case such as this, Brown, supra; Beach on Wills, § 98; Bundy involving an inquiry as to mental capacity v. McKnight, 48 Ind. 502; People v. Francis, of an alleged testator, because it takes less 38 Cal. 183; Clark's Heirs v. Ellis, 9 Or. mental capacity to make a will than it does 128; In re Carithers, 156 Cal. 422, 105 Pac. to form a criminal intent. The instruction 127; Murphree v. Senn, 107 Ala. 424, 18 is taken from section 8113, Revised Codes. South. 264; Turner v. Rush, 53 Md. 65; In It states the presumption which prevails at re Nelson's Estate, 132 Cal. 182, 64 Pac. 294. 116 P.-64

The most that can be said of the evidence in | witnesses taken to be used in the guardianthis case is that it presented a controversy ship proceedings in April, 1909. They were as to whether prior to December 12th the admitted upon the assumption that this coninsanity of the deceased was general and troversy is one between the same parties and habitual, or whether it was intermittent only. | involving the same subject-matter. This was Under the statute the contestant occupies | error. The statute provides: "When a depthe position of plaintiff. Rev. Codes, $osition has been once taken, it may be read 7397. He has the affirmative of the issue by either party in any stage of the same and must prove it or be defeated. Section action or proceeding, or in any other action 7972. The procedure to be observed in this between the same parties upon the same subclass of cases is pointed out in Farleigh v.ject, and is then deemed the evidence of the Kelley, 28 Mont. 421, 72 Pac. 756, 63 L. R. A. 319.

4

party reading it." Rev. Codes, § 8010. The questions involved upon that application were [14] The trial is initiated when the formal whether the deceased was insane at that preliminary proof of the execution of the will time, and whether the defendant was a suitis before the court; that is, formal proof able person to act as his guardian. There that the testator was of sound and disposing was no controversy upon the question of inmind, and that the formalities required by sanity. The several witnesses were neither the statute were observed. Proof of these examined nor cross-examined as to the menfacts ving been made, the order admitting tal condition of the deceased at the time the the will to probate follows as a matter of will was executed. Upon such an application course, but for the contest. Thereupon the the adversary parties are the petitioner and general burden is upon the contestant the alleged incompetent. Rev. Codes, § 7764. throughout to establish, by a preponderance In this case the parties are not the same, nor of the evidence, the facts upon which he relies to have it set aside. Of course, when he has made out a prima facie case, the burden is cast upon the proponent to furnish rebutting proof, but he is not required to do more than this; and, if in the end the contestant has not sustained the burden, his contest must fail. Estate of Dolbeer, 149 Cal. 227, 86 Pac. 695. The instruction, given as it was, without qualification, in effect assumed that the mental condition of the deceased prior to December 12th was general and habitual; whereas, the evidence was in direct conflict. It thus invaded the province of the jury. Again, in instruction 12 the court correctly declared the rule which the jury should observe in reaching their verdict, telling them that the burden was upon the contestant throughout. Instruction No. 6 is in direct conflict with this. For these errors the defendant is entitled to a new trial.

Errors are alleged upon the giving of other instructions and a refusal to give one requested by the defendant. But what has already been said fully disposes of the contentions made in respect of them. The errors alleged upon the admission and exclusion of evidence are not of sufficient merit to demand special notice.

[15] The hypothetical question submitted to Dr. Scanland recited one fact not shown by the evidence; but this was not of material import. For this reason the question is subject to criticism, but otherwise it comes within the recognized rule. State v. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529; Carman v. Montana C. Ry. Co., 32 Mont. 137, 79 Pac. 690.

[16] The plaintiff has submitted under the provisions of the statute (Rev. Codes, § 7118) the ruling of the court in admitting over her -objection the deposition of Anna Shannon,

is the subject-matter the same. Depositions of witnesses, whether residing within or without the state, must have been taken upon the issue on trial, in the manner provided by the statute, upon notice to the adversary party and full opportunity accorded for cross-examination. Otherwise, as to him, they are merely ex parte affidavits and are not admissible against him.

The infirmity attaching to these depositions is that they were not taken to sustain any issue in this case; nor was there the opportunity for cross-examination which the law contemplates. They were not admissible from any point of view, even though the plaintiff did contest the fitness of the defendant to be appointed the guardian of her brother. The statute (Rev. Codes, § 7118, supra) requires this court to review the errors made, not only against the appellant, but also those made in his favor, if they are made to appear in the record by bill of exceptions, and prohibits the reversal of the judgment upon any error complained of by the appellant, if, but for the error against the respondent, the result of the trial would have been the same. As we have seen, a new trial of this case must be ordered for error which the error in the ruling in question cannot compensate. We have deemed it necessary to state our conclusion with reference to it in order to prevent a repetition of it upon the next trial.

In the trial of this case the procedure outlined in Farleigh v. Kelley, supra, was entirely overlooked. Upon another trial the court should observe it and thus avoid much of the confusion which attended the former trial.

The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded.

(43 Mont. 344)

STORER v. GRAHAM, Sheriff. (Supreme Court of Montana. May 27, 1911.) 1. PLEADING (§ 403*)-CURE BY PLEADING OF ADVERSE PARTY.

Butte Lumber Company, in the sum of $1,328.17; that thereafter the said Butte Lumber Company was duly served with summons and copy of said complaint, and more than 20 days having passed and the defendant not Under Rev. Codes, $ 6571, making it suf- having appeared, the default of said defendficient in a suit on a judgment to plead that itant was entered and thereafter on the 9th was "duly given or made," an allegation that a judgment was "made, filed, and entered," was cured by averments of a proposed answer that the judgment was duly given and made. [Ed. Note.-For other cases. see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*] 2. PLEADING (§ 403*)-COMPLAINT INSUFFICIENT ALLEGATIONS CURED BY ANSWER.

An insufficient allegation in a complaint that a certain company was "a corporation" was cured by averment in the proposed answer that the company was "a corporation of Mon

tana."

[Ed. Note-For other cases. see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*] 3. JUDGMENT (§ 161*)-DEFAULT JUDGMENT VACATION.

In determining whether in exercising a sound legal discretion a default judgment should be set aside, the allegations of the complaint and a proposed answer were properly considered. [Ed. Note.-For other cases. see Judgment, Cent. Dig. §§ 317, 318; Dec. Dig. § 161.*] 4. CORPORATIONS (§ 514*)-PLEADING-CAPACITY TO SUE.

Allegation that a defendant was a corporation was sufficient to show its capacity to be

sued.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2052-2081; Dec. Dig. § 514.*] 5. JUDGMENT (§ 143*)-DEFAULT-REFUSAL TO VACATE.

It was not an abuse of discretion to refuse to set aside a default judgment obtained through inexcusable neglect of defendant, no question of inadvertence or surprise being presented.

[Ed. Note.--For other cases, see Judgment, Cent. Dig. §§ 269-291; Dec. Dig. § 143.*] Appeal from District Court, Missoula County; J. Miller Smith, Judge.

Action by Frank Storer against Davis Graham, Sheriff of Missoula County. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry H. Parsons, for appellant. Hall & Patterson, for respondent.

day of September, 1909, a judgment was made, filed, and entered in the above-entitled cause, in favor of Frank Storer against the Butte Lumber Company, a corporation, in the sum of $1,328.17, together with costs in the sum of $15.90." It is then set forth that plaintiff filed an affidavit and undertaking on attachment, that a writ of attachment was issued and levied upon the property described in the complaint; that after the entry of judgment a writ of execution was issued and placed in the hands of the defendant with instructions to make the amount of the judgment out of the attached property, but the defendant "failed, neglected, and refused to sell said property under said execution, but unlawfully and without the consent of plaintiff and against plaintiff's protest, converted said property to his own use and wrongfully transferred the same to other parties and failed to execute and satisfy said judgment or any part thereof out of said property," to plaintiff's damage, etc. Summons and complaint were personally served on March 18, 1910. On April 14, 1910, defendant not having appeared in the cause, his default was noted, and on April 27, 1910, judgment was entered against him as prayed for in the complaint. On May 16, 1910, defendant through its attorney, Mr. Parsons, filed and served a notice of motion to vacate and set aside the default and judgment, and on May 18th the motion was served and filed. It reads as follows:

"Comes now the defendant above named and respectfully submits to the court herein his affidavit on merit and his answer in the above-entitled action, and respectfully moves the court to vacate the judgment and default entered in the above-entitled action on the 14th and 27th days of April, 1910, upon the grounds and for the reasons following, to wit: "I. That the complaint in the above-entitled cause does not state a cause of action against the defendant upon which any valid default could be entered or judgment taken.

SMITH, J. The complaint in this action alleges, in part, as follows: "That on and prior to the 12th day of June, 1909, and at all times since said time, the Butte Lumber Company, a corporation, was and has been the owner of the following described goods, chatteis, and personal property, and at all "II. That said complaint is defective partimes herein mentioned has been, has contin- ticularly in the following regards, to wit: ued to be, and now is, entitled to the posses- (1) That there is no allegation of any judgsion of said goods, chattels, and personal ment duly made or given by this court property, except as hereinafter set forth, said in favor of the above-named plaintiff and property being as follows, to wit [describing against the Butte Lumber Company. (2) it]. That on the 12th day of June, 1909, the That there is no allegation in said complaint above-named plaintiff, Frank Storer, com- showing whether or not said Butte Lumber menced an action against the Butte Lumber Company is a corporation, domestic or forCompany, a corporation, in the district court eign, so that any judgment could be pleaded in and for Missoula county, in which plain- in bar by it. (3) That there is no allegation tiff demanded judgment against the said of any service upon the said Butte Lumber For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

The following affidavits were filed in sup- L. Miller delivering copy of said complaint port of the motion, viz.:

Donlan v.

1910, at which time this affiant was informed of a sound legal discretion, the default and by the defendant above named that default judgment should be set aside. or judgment had been taken against him, the said defendant. Further affiant sayeth not. [Signed] Fred L. Miller."

"Harry H. Parsons, being first duly sworn upon his oath, deposes and says: That he is an attorney at law, duly and regularly licensed to practice in the state of Montana, located in the city and county of Missoula, state of Montana; that the said V. S. Kutchin, maker of the affidavit annexed hereto, never delivered to him the summons and complaint in the above-entitled action; that he never heard of such case or action until the 12th day of May, 1910, at which time the abovenamed defendant informed and apprised this affiant that judgment and default had been taken against him. Further affiant sayeth not. [Signed] Harry H. Parsons."

Thompson Falls C. & M. Co., 42 Mont. 257, 112 Pac. 445. If the defendant were allowed to file his proposed answer, all of the questions which he now raises as to the sufficiency of the complaint would immediately become altogether immaterial.

[4] The allegation that the defendant was a corporation was sufficient to show its capacity to be sued. Pearce v. Butte Electric Ry. Co., 41 Mont. 304, 109 Pac. 275.

[5] 2. We find nothing in the affidavits to warrant the conclusion that the district court abused its discretion in refusing to set aside the default and judgment. The appellant intrusted the matter of delivering the papers in the case to his deputy, Miller. While it was, of course, his privilege to do so, still he must abide the consequences of Miller's The proposed answer, after admitting sub- neglect to deliver them to Mr. Parsons perstantially all of the allegations of the com-sonally. He had no authority to deliver them plaint, sets forth affirmatively that the judgment against the Butte Lumber Company, "a corporation of Montana," "was duly given and made," and by way of confession and avoidance alleges that after the property was attached, one Wagner made a third-party claim thereto; that notice of the claim was duly given to the plaintiff with a demand that he furnish the defendant sheriff with a bond of indemnity to protect him; that the plaintiff refused to furnish the bond and "then and there notified defendant that the bond of indemnity would not be furnished," whereupon "defendant relinquished and surrendered the property to the third party so claiming the same." On June 12, 1910, the court refused to open the default and set the judgment aside, and this appeal is from

the order of refusal.

[1] 1. The contention that the complaint does not state facts sufficient to constitute a cause of action is of no avail to appellant on this appeal. The allegation therein contained that the "judgment was made, filed, and entered," while not strictly in the words of the statute (Rev. Codes, § 6571), is amply cured by the averment of the proposed answer that said judgment "was duly given and made." The defendant employed the exact words of the statute.

[2] The same may be said as to the allegation "the Butte Lumber Company, a corporation." The proposed answer supplies the information that it is "a corporation of Montana."

[3] The only question of fact presented by the answer is, whether the defendant was justified in releasing the property on a thirdparty claim. He tendered no other substantial issue. There is an implied admission therein that the plaintiff's judgment is still in full force and unpaid. The district court properly took these allegations into consideration in determining whether, in the exercise

to Mr. Kutchin, and it is not altogether clear
that he did so. There is no question of inad-
vertence or surprise presented. The district
court held that the neglect of Miller, defend-
ant's agent, was not excusable, and we find no
abuse of discretion in the ruling. That is the
only question for this court to determine.
The order is affirmed.
Affirmed.

BRANTLY, C. J., and HOLLOWAY, J., concur.

(19 Wyo. 255)

VINES v. STATE. (Supreme Court of Wyoming. June 14, 1911.) 1. CRIMINAL LAW (§ 1092*)-BILL OF EXCEP

TIONS-PRESENTATION TO TRIAL COURT.

Under Comp. St. 1910, §§ 4595, 4598, providing that time to reduce the exceptions to the first day of the next term, and requiring writing may be given, but not to extend beyond the party taking exceptions to present the same in writing to the court within the time given for allowance, a bill of exceptions presented in ly presented, though the court is presided over open court within the time allowed is sufficientby a judge other than the judge who presided at the trial.

[Ed. Note.-For other cases, Law, Dec. Dig. § 1092.*]

see Criminal

2. CRIMINAL LAW (§ 1092*)-BILL OF EXCEP-
TIONS PRESENTATION-ALLOWANCE.

in time may be signed and filed at a subsequent
A bill of exceptions properly presented and
date, and a bill of exceptions properly presented
in open court in due time may be subsequently
by the judge who tried the case.
allowed by order of court, while presided over

Law, Dec. Dig. § 1092.*]
[Ed. Note. For other cases, see Criminal

3. INTOXICATING LIQUORS (§ 207*)- SALES
WITHOUT LICENSE-ELEMENTS OF OFFENSE.

An information charging a violation of Comp. St. 1910, § 2832, prohibiting the sale of allege that the offense was committed in any intoxicating liquor without a license, need not particular place in the county; the particular

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes