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judge or commissioner shall also cause to appear, at said time and place, a jury of three citizens of his county, one of whom shall be a licensed practicing physician, who shall proceed to examine the person alleged to be insane; and if such jury, after careful examination, shall certify, upon oath, that the charge is correct, and the said probate judge or commissioner is satisfied that such person, by reason of insanity, is unsafe to be at large, and is incompetent to provide for his or her own proper care or support, and has no property applicable to such purpose, and has no kindred in the degree of husband or wife, father or mother, children, or brother or sister, living within this territory, of sufficient means and ability to provide for such care and maintenance, or if he or she have such kindred within the territory, and such kindred fail or refuse to properly care for and maintain such insane person, such judge or county commissioner shall make out duplicate warrants, reciting such facis, and place them in the hands of the sheriff of such county, who shall immediately, in compliance therewith, convey the person or persons therein named, and deliver him, her, or them, to the contractor aforesaid, at the place designated in the notification herein required; and such contractor shall acknowledge, by indorsement in writing, upon the back of each of said warrants, the delivery of such person, described therein, to him, and the date thereof; and such sheriff shall return one of said warrants to the office issuing the same, and forward the other to the secretary of the board of county commissioners aforesaid, who shall file and preserve the same.”

It will be observed that this law does not make any provision for the time within which any of its provisions may be had. From the time of the application to the delivery of the warrant of commitment to the sheriff,---from the time of the commencement of the proceedings to their close,—the time in which they may be done is not mentioned. · All the penalties of the law may be employed within a day, or even an hour. Under this statute no opportunity may be allowed for the person against whom the charge of insanity is made to obtain counsel or prepare for trial; but although this law does not seem to be in harmony with the spirit of our institutions and our other laws, which erect such substantial safeguards around the liberty of the citizen, nevertheless, we do not see that it is objectionable on the ground of unconstitutionality. But, providing, as it does, for such summary proceedings, we must hold that it was the intention of the legislature that they should be strictly pursued,—that there should be a strict compliance with every requirement of the law. On examination of the record, we do not find that such is the case. The proceedings are defective in several substantial features. There is not the certificate of the jury, upon oath, which the law requires. The statute requires that the jury summoned to try the question of insanity shall make their certificate upon oath that the charge is correct. In a law providing for proceedings of this summary character, the requirements are mandatory. The warrant does not, it is also true, recite all the facts required by the law to be set forth therein; such as that the person thereby committed "is incompetent to provide for his or her own proper care or support, and has no property applicable to such purpose, and has no kindred," etc. But this clause of the statute was virtually repealed by an act of the legislature, which became a law on March 7, 1883, providing “that all persons hereafter adjudged insane, whether indigent or not, shall be cared for by the territory," under its present contract for the care and maintenance of the indigent insane. Therefore, those facts need not appear in the warrant of commitment.

But not only does the record fail in that there was no such certificate of the jury upon oath as required by law, but also that the verdict, which was doubtless intended for such certificate, which was not signed by the jurors summoned, although three persons signed the verdict. Only two of the jurors who were summoned, and whom the record shows to have been qualified persons, signed the verdict. For aught we know, the third person may

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not have been a citizen of the county; as the law requires, and therefore an incompetent person. For these reasons, the judge at chambers erred in refusing to discharge the respondent.

The judgment is reversed, and the petitioner discharged.

(6 Mont. 300)

DAVIS 0. FREDERICK.

(Supreme Court of Montana. January 13, 1887.) 1. SET-OFF AND COUNTER-CLAIM-ACTION IN TORT - Counter-CLAIM ON ACCOUNT- DE

MURRABLE.

An action brought to recover damages for the wrongful issuance of an execution upon a judgment previously recovered against plaintiff by defendant, but alleged by him to have been satistied, and on account of the levy of such execution upon money of the plaintiff in the hands of the sheriff is founded in tort, and the fact that plaintiff claims judgment only for the amount seized, with interest, does not alter its nature, and defendant cannot, under the Montana Statutes, set up in his answer, by way of counter-claim, an indebtedness to her of the plaintiff upon an

account. 2. SAME-EVIDENCE:-PAYMENT OF A JUDGMENT.

In such a case, where defendant in his answer denies the payment of the judgment in respect of which the wrongful execution was issued, and the record shows that a certain sum had been paid to defendant's attorneys to be applied on the judgment, (which purported to be a balance,) and in full thereof, evidence is admissible to show that certain amounts of money had been paid to defendant's attorneys to be applied on such judgment. Appeal from district court, Gallatin county.

Henry N. Blake, for appellant, Frederick. Chumasero & McCutcheon and Vivion & Shelton, for respondent, Davis.

GALBRAITH, J. The respondent in this case brought his action to recover on account of the wrongful issuance of an execution upon a judgment previously recovered by the appellant against the respondent and another, and which the respondent alleges had been satisfied before the execution was issued, and the levy of such execution upon the property of the respondent, the same being money in the hands of the sheriff, and the payment thereof to the appellant upon the execution. The answer, after denying the allegations of the complaint, sets up a counter-claim, alleging an indebtedness from the respondent to appellant, upon an account. The appellant demurred to this counter-claim, which demurrer was sustained, and the action of the court is assigned as error. The court evidently sustained the demurrer upon the ground that, the complaint having alleged a tort, the appellant could not set up a cause of action arising upon contract, which is the nature of an account, as a counter-claim.

Our statute upon this subject is as follows: "The answer of the defendant shall contain

* second, a statement of any new matter constituting a defense or counter-claim.

The counter-claim * * shall be *

a cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff's claim or defendant's defense, or connected with the subject of the action; second, in an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action.” Code Civil Proc. $ 87.

The complaint sets forth an action in tort. The action was brought for the wrongful issuance of the execution, and the complaint sets forth the facts which constitute such wrongful act. The cause of action set forth in the complaint being in tort, the counter-claim, being on an account, did not certainly arise out of this. The subject of the action was the money seized under the execution, and paid to the appellant. The counter-claim cannot be sail to be connected with the subject of the action. The cause of action being in tort, the counter-claim does not come within the second provision above

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set forth. It is true, the respondent might have waived the wrongful issue of the execution, and brought his action upon the implied contract, to repay the money wrongfully seized and paid over under the execution, or, as the expression would have been before the adoption of the Code, waived the tort, and sued in assumpsit. But this is not a question of what might have been done, but of what, in fact, was done. We must take the pleadings as we find them. When the respondent chose to rely upon the tort, we cannot say that the cause of action was a contract. We do not think this was the kind of a contract meant by the above provision of the Code, but that it intends a cause of action arising ex contractu, and not ex delicto, which was the character of action set forth in the complaint in this case. It is argued that, because the respondent only claimed a judgment for the amount seized and paid over, with interest, that this constitutes an action on contract. We do not think so. Under the facts alleged, this is all he would be entitled to as damages. The demurrer was properly sustained.

The second error alleged and relied upon is as to the introduction of certain testimony upon the trial of the case. Certain witnesses testified, against the objection of the appellant, that certain amounts of money had been paid to the attorneys of the appellant, to be applied upon the judgment upon which the alleged wrongful execution was issued. The objection was that this testimony was "irrelevant, and contradicted the allegations of the complaint.” The allegation of the complaint was “that on the twenty-fourth day of April, 1882, the plaintiff fully paid and satisfied the said judgment by paying to Messrs. Johnson & Toole and Shober & Lowry the full amount thereof, principal, interest, and costs, at the time due and unpaid thereon." This was denied by the answer. The record shows the receipt, by the above-named attorneys, of a certain sum of money, to be applied on the judgment, which purported to be a balance, and in full thereof. It was necessary, by reason of the above issue, to show that the judgment was satisfied, and this testimony of prior payment of money on the judgment was relevant and admissible for this purpose.

This disposes of the errors alleged. The judgment is atlirmed, with costs.

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(14 Or. 356)

POWELL 0. DAYTON, S. & G. R. Co.

(Supreme Court of Oregon. January 10, 1887.). VENDOR AND VENDEE - AGREEMENT FOR SALE – DEPENDENT COVENANTS-FAILURE OF

VENDOR-BAR TO RECOVERY OF DAMAGES.

Where an agreement for sale and purchase of land is to the effect that vendee agrees to purchase of said vendor, and pay said vendor, on or before the expiration of said term, the [price] for all said property,” and that, “on the said payment of said vendee,

* the said vendor contracts and agrees to make and deliver to the said vendee a good and sutlicient deed,” the covenants are dependent and concurrent; and, where the vendor fails to tender his deed at the time tixed for the performance of the agreement, he cannot afterwards recover of the vendee for nonperformance. This is an action brought by the vendor of real estate against the vendee for the breach of a written contract to purchase the estate. The plaintiff leased the premises to the defendant for the term of five years, at a monthly rental, and the lease contained the further provision, and the defendant agreed, "to purchase of said Powell, and pay said Powell, on or before the expiration of said term of five years, the sum of for all the said warehouse property,” etc. The plaintiff alleges that he made out and tendered a deed to the defendant four months after the expiration of the five years, and, assuming therehy to have performed all conditions precedent on his part, claimed the entire purchase price. The case was before the court on appeal before, and is reported in 8 Pac. Rep. 544. That appeal was from a judgment in favor of plaintiff. The majority of the court then held that it would be useless to di. rect a new trial, for the reason that the failure of plaintiff to make a tender of a deed at the time fixed for the performance of the contract would be fatal to his claim, and reversed the judgment for plaintiff.

H. H. Northup, for appellant, Dayton, S. &. G. R. Co. James K. Kelly, for respondent, Powell.

LORD, C. J. This case is reported in 12 Or. 488, and 8 Pac. Rep. 544. It comes now on demurrer to an amended complaint. The only question involved and to be determined is whether the covenants in the agreement are dependent or independent. At the former hearing, we held that they were dependent, and we are now urged to reconsider the grounds of that decision. The provision in respect to the purchase and payment in the contract is that the defendant “agreed to purchase of said Powell, and pay the said Powell, on or before the expiration of the said term of five years,

and that, on the said payment of said company,

the said Powell contracts and agrees to make and deliver to said company a good and suflicient deed," etc.

In construing contracts, it is a primary rule that the intention of the parties must control, and this equally applies when the inquiry is directed to ascertaining whether the covenants in a contract are dependent or independent. It must be said, however, that, when the language of the contract will admit of it, justice and general convenience incline to the construction of a simultaneous performance.

Said THOMPSON, J., in Bank of Columbia v. Hagner, 1 Pet. 461: “In contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. A different construction in many cases would lead to the greatest injustice, and a purchaser might have payment of the consideration money enforced upon him, and yet be disabled from procuring the property for which he had paid

The seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return. Hence, in such cases, if either a vendor or vendee wish to compel the other to fulfill his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual perforinance of the agreement, or a tender and refusal. And an averment to that effect is always made in the declaration containing dependent undertakings, and that averment must be supported by proofs.".

In Ackley v. Richman, 10 N. J. Law, 306, the court said: "Such is the ordinary understanding and intention of the parties, in whatever language the scrivener may clothe their contract. They intend to create what are denominated concurrent or dependent covenants, and not those called independent, where each party must rely on the promise, and not on the performance, of the other.”

But it is argued that the words, “on the said payment of said company," indicate the order of time in which the intent of the transaction requires their performance, and means that the payment was to precede the execution and delivery of the deed, and consequently that the covenants are not mutual or concurrent, but independent. The basis of this argument rests upon the preposition “on,” and this is certainly giving to that word an import and an effect not countenanced by any judicial authority, when employed in a similar connection. In a contract for the sale of real property, where the purchaser covenants to pay the purchase money, and the vendor.covenants to convey the premises at the time of payment, or on or upon the payment of the money, or as soon as it is paid, the covenants are mutual and dependent, and neither can sue without showing a performance, or an offer to perform. Considering the variety of respects in which the question has been presented,

it. *

*

the authorities are numerous and uniform in holding such covenants to be dependent.

In Johnson v. Wygane, 11 Wend. 48, the covenant read: "And upon the payment thereof I am to receive from said Johnson a good warrantee deed of said land." The court say: "The payment of the last installment on the whole consideration money, and the giving of the deed, were to be concurrent acts. Upon the payment of the money the deed was to be given. It it is well settled that covenants like these are dependent, and that neither party can recover against the other without averring a tender of performance on his part; a mere readiness to perform is not sufficient."

In Frey v. Johnson, 22 How. Pr. 325, the plaintiff agreed to sell to the defendant the farm, and execute and deliver the deed, "provided and upon condition" that the defendant should pay him the sum of $19,000. The court say: "The words, provided and upon condition,' do not render them other than dependent. Similar language was used in the agreement on which the action was brought in Beecher v. Conradt, 13 N. Y. 108. The words there were, upon the express condition,' and it was held that the covenants were dependent, notwithstanding these words. In such case, when the delivery of the deed by one party and payment by the other are dependent, the one on the other, neither party can maintain an action for the breach without showing performance, or an offer to perform, on his part.' Van Schaick v. Winne, 16 Barb. 89; Garlock v. Lane, 15 Barb. 359; Beecher v. Conradt, 13 N. Y. 108; Stevenson v. Maxwell, 2 N. Y. 408; Culver v. Burgher, 21 Barb. 324; Williams v. Healey, 3. Denio, 363; Hepburn v. Auld, 1 Cranch, 321; Dunham v. Pettee, 8 N. Y.508; Lester v. Jewett, 11 N. Y. 453; Cunningham v. Jones, 20 N. Y. 486; Baker v. Higgins, 21 N. Y. 397.

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In Courtright,v. Deeds, 37 Iowa, 507, the instrument obligated the defendant to pay $500 upon a condition expressed in these words: "Provided, that upon such payment there shall be delivered to me a certificate of stock," etc. The court say: "It has been held that the use of the words upon' or 'on,' occurring in a like connection, make covenants dependant. Adams v. Williams, 2 Watts & S. 227; Halloway v. Davis, Wright, (Ohio,) 129; Taylor v. Rhea, Minor, 414. It clearly has that force in the obligation in suit. The word upon indicates, in the connection found in the instrument, a state of dependence which is extended to the covenant of the defendant by use of the word 'provided.' The covenant of defendant to pay the sum of money specified in the contract, and the obligation of the plaintiff to deliver the stock certificates, being mutual and dependent, to give plaintiff a right of action it is necessary that he perform or tender a performance of his covenants.' School-district v. Rogers, 8 Iowa, 316; Berryhill v. Byington, 10 Iowa, 223; Winton v. Sherman, 20 Iowa, 295. See, also, Bailey v. White, 3 Ala. 331; Hill v. Grigsby, 35 Cal. 663; Felter v. Weybright, 8 Ohio, 168.

22

In the event the option given the defendant was not exercised, (which it is unnecessary now to consider,) the contract bound the defendant to purchase on a particular'day, and at a fixed sum. It was to be a cash transaction, no credit whatever being given. Now, what was the defendant bound to do in order to make such purchase? It certainly was not bound to pay the price agreed upon without receiving anything in return. "A cash purchase," said EDWARDS, J.," can only be made by a payment of the purchase money on the one side, and the delivery of the thing purchased on the other. These are, and must necessarily be, concurrent acts. The purchaser is not bound to pay the purchase money unless he receives the thing purchased; and how can it be said that he has refused to receive the thing purchased, and to pay the money for it, when he never had the opportunity of receiving it? I cannot perceive how a person can be said to be in default for not doing a thing, when the party who alleges his default, and who alone could put it in his power to do the thing, has neglected to do so." Lester v. Jewett, 11 N. Y. 454.

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