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to ride ap and down on a freight elevator used therein, they are, while
so riding in going to and from work, omployees, and not passengers.
The degree of care required of a master toward his servant is imposed
apon the employer in such a case, and not that of common carrier of
passengers. McDonough v. Lanpher, 541.

ENTIRETIES.
See HUSBAND AND WIFE, 6; PABTITION.

EQUITY.
1. JURY TRIAL.-THE VERDICT OP A JURY IS NOT CONCLUSIVB upon a

court in an equity case by virtue of section 250 of the Code of Civil Pro-
cedure of Montana. It will not be presumed from any devious and
uncertain language that the legislature undertook to prune away one
of the most distinctive and important jurisdictional functions of the

equity courts. Kleinschmidt v. Greiser, 652.
& IF A Loss MUST BE BORNE BY ONE OF Two INNOCENT Persons, it shall

be borne by him who occasioned it. City Nat. Bank v. Kusworm, 880.
8. Equrry JURISDICTION.—THE TITLE TO AN OFFICE cannot be tried in

equity. State v. Van Beek, 397.
Mistake. —FOR A Mistake Of Law, pure and simple, there is gen.
erally no remedy, but relief may be afforded in equity if the sur.
rounding circumstances are of such a nature that the adverse party is
seeking to avail himself of the opportunities afforded by the mistake,
and is attempting to enforce an unconscionable advantage without con.
sideration, provided the other party is not blamable. Lane v. Holmes,

508.
& MISTAKE.-EQUITABLE RELIEF CAN BE Granted if there is a mistake of

fact, or a unistake of law and fact combined, especially if it does not

result in injury to the opposite party. Lane v. Holmes, 508.
R. CONTEST OF WILL-RELEASE OF Future PossibILITY-COVENANT NOT TO

CONTEST, AND ITS ENFORCEMENT IN EQUITY.-If the subject matter of
an existing covenant not to contest a will is in the mind of the contracting
parties, and the covenant operates as a release of an expectancy as heir,
a court of equity, upon the same principle that it upholds assignments
of such expectancies, will sustain such covenant as a release by the
presumptive heir of his contingent right to contest the will of his
ancestor, and enforce the same, when fairly obtained, and for an ade.

quate consideration. In re Estate of Garcelon, 134.
Boo CORPORATIONS, 15-17; JUDGMENTS, 18;. MORTGAGES, 11; SPECIFIO PEB-

FORMANCE.

ERROR, WRIT OF.

See CERTIORARI.

ESCROW.
See Deeds, 1.

ESTATES.
AN HEIR MAY RELEASE TO THE ANCestor His EXPECTED SHARE in the

ancestor's estate, and thereby estop himself from claiming as beir any

portion of such estato as might otherwise in the lataro root bon him u
mch heir. In re Estate of Garcelon, 134.

See DESCENT.

ESTOPPEL
1. AN ESTOPPEL MUST BE MUTUAL It inust bind both parties, and one who

is not bound by it cannot take advantage of its First Nat Bank v.

Northwestern Vat. Bank, 247.
2 TO CONSTITUTE AN ESTOPPEL IN Pais some thing most be said or done by

the person estopped. The independent act of another person, even
though such other person is her husband, cannot create such an a
toppel. City Nab. Bank v. Kusworm, 880.
Soo CORPORATIONS, 11, 19; ESTATES; INSURANCE, 7; OPTERS,

EVICTIONS,
800 LANDLORD AND TENANT, 24

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EVIDENCE
1. EVIDENOB OBTAINED BY Tort.-Courts do not pause in the trial of a

cuse to open up a collateral inquiry upon the question of whether a
wrong has been committed in obtaining information possessed by a wit-

Cluett v. Rosenthal, 446.
2 EVIDENCE OBTAINED BY TORT.-One who is in no way responsible for a

tort by which information is obtained may introduce evidence of the
facts so ascertained, although trespass has been committed by the wit-

ness in obtaining the information. Cluett v. Rosenthal, 446.
8. IMPROPERLY OBTAINED — CONTENTS OF ACCOUNT-BOOKS. — The fact that

knowledge of the contents of account-books was obtained by a witness
while they were in the hands of a sheriff under an authorized attache
ment does not render his testimony as to such contents incompetent
if, at the time such knowledge was obtained, he was not acting for the

person who seeks to introduce such evidence. Cluelt v. Rosenthal, 446.
4. JUDICIAL Notice is taken of the fact that wine is an intoxicating liquor.

Wolf v. State, 34.
8. JUDICIAL NOTICE is taken of the fact that a bank, when it makes

collection for a foreign correspondent, never, unless specially directed,
remits the specie collected, but instead thereof always takes the specie
to its own use, and sends therefor its draft or certificate of deposito

Bowman v. Firsl Nat. Bank, 870.
& JUDICIAL NOTICE_DESCRIPTION OF LANDS.—If lands are clearly and

distinctly described by the complaint in a judicial proceeding by refer-
ence to the section, township, and range of the United States govern.
ment survey, the court must take judicial notice of the county in which
they are situated, without any evidence on that point. This matter
must be determined bp the court in the same manner as a legal propos
sition, and cannot be made an “issue” between the parties to be deter-
mined by the court in each case upon conflicting evidence presented in
that case.

Rogers V. Cady, 101.
7. Law or FOREIGN COUNTRY.–The foreign law, as to questions raised in the

courts of this state, must be assumed, in the absence of any evidence
tending to show what that law is, to be the same there as here. This ralo

applies to England, as well as to sister states of the American anion.

Wickersham v. Johnston, 118.
FOREIGN LAW MUST BE PLEADED AND PROVED. —A foreign law is a mat
ter of fact, which the courts of this country cannot be presumed to be
acquainted with, or to have judicial knowledge of. Therefore it must

be pleaded and proved. Wickersham v. Johnston, 118.
9. DECLARATIONS OF DECEDENT.—Statements made by a grantor that he

bad delivered a deed to his daughter to be delivered to another of his
daughters, named as grantee therein, are adınissible in evidence in
an action, subsequent to the grantor's death, to compel a delivery of

the deed to the grantee. Brown v. Stulson, 462.
10. PAROL EVIDENCE IS ADMISSIBLE TO FILL OUT INCOMPLETE CONTRACT.

If a written order for the purchase of a chattel is incomplete, parol evi.
dence is adinissible to show what the whole agreement was that tho
article was ordered upon condition that it should be of a certain qual.
ity, and that performance on the buyer's part depended upon a com-

pliance with the condition. Aultman v. Clifford, 478.
11 JUDGMENT-ROLL OF ANOTHER State Court-EVIDENCE.-The judgment

roll of another state cour', or an authenticated copy of it, is evidence
of all that it properly contains, including the judgment; and is, et
least, prima facie evidence that the judgment was properly rendered

and entered so as to have effect. In re Ellis' Estate, 514.
12. BOOKS OF Account of a partnership which has executed a chattel morto

gage on its goods in trust to secure an alleged indebtedness to the
mortgages and others are admissible in evidence as tending to show
the malı sides of the transaction, if they tend to prove that part of the
alleged indebtedness never in fact existed, and that the mortgages was
80 familiar with the business of the mortgagors as to support the in-

ference that he had examined the books. Cluelt v. Rosenthal, 446.
See CONTRACTS, 11; DEEDS, 4; Extortion, 3; JUDGMENTS, 23; NUISANCE,

2, 3; PATENTS, I.

EXCUSABLE NEGLECT.

See JUDGMENTS, 19.

EXECUTION.
1. EXEMPTION.-WAQES EARNED IN ANOTHER Srate, by the laws of which

they are exempt from execution, are nevertheless subject to garnish.
ment in this state. The exemption laws of another stato cannot be
pleaded or relied on as a defense by either the garnishee or the judge

ment debtor. Lyon v. Calloj y, 396.
2 The INTEREST OF A BENEFICIARY UNDER A TrusT DEED IS NOT

SUBJECT to execution nor to garnishment when the estate is held by
trustees with the power to take and keep possession thereof, and to
apply the income and increase to the support, comfort, and education
of such beneficiary, so far as may be required for such purposes. Her
creditors can have no greater interest in the property than she possesses,
and she cannot control the disposition of the trustees, nor require them
to turn the property over to her. That result cannot be indirectly
secured through the action of her creditors attempting to reach the
property or its proceeds under process against her. Meek v. Briggs
410.

See Deeds, 3.

EXECUTORS AND ADMINISTRATORS.
1. EXECUTORS AND ADMINISTRATORS-SALE OF CHOSES IN ACTION. -Under

the statute choses in action are to be sold in the same manner as other

personal property. Wickersham v. Johnston, 118.
2 NEGOTIABLE INSTRUMENTS.—The executors of the estate of a deceased

person have no authority to sell and transfer notes belonging to the
deceased. They are assets of the estate which can be sold only under

and by order of the probate court. Wickersham v. Johnston, 118.
3. JUDICIAL SALES-ADMINISTRATOR'S SALE WITHOUT APPRAISEMENT-

COLLATERAL ATTACK.—The sale of real estate by an executor or adminis-
trator without having it appraised is an irregularity for which the sale
may be set aside in a direct proceeding for that purpose; but it is not
on this account absolutely void in a collateral proceeding after confir.
mation by the probate court; nor is it void because appraisement was
made before the entry of the order of sale. Noland v. Barrett, 572.
JUDICIAL SALES. - ADMINISTRATOR'S SALES OF REAL ESTATE, under
orders of the probate court, in those states which require such sales to
be reported to the court for its approval or rejection, are judicial

sales. Noland v. Barrett, 572.
8. JUDICIAL SALES. -ADJOURNMENT BY AN ADMINISTRATOR of a sale of real

estate to a time different from that fixed in the order of the probate
court authorizing the sale does not reuder void the sale as afterward
made, reported, and confirmed by such court, especially if the adminis-
trator has exercised a wise discretion in adjourning the sale for the par

pose of preventing a sacrifice of the property. Noland v. Barrett, 572
& JUDICIAL SALES-CONFIRMATION-CONCLUSIVENESS.—The judgment of

the probate court confirming an adjourned sale of real estate made by
an administrator is final and conclusive until set aside in a direct pro-

ceeding, and cannot bo collaterally attacked. Noland v. Barret!, 572
7. Right or EXECUTORS TO INVOKE COVENANT NOT TO CONTEST WILL-

Privity.-The executors of the will of a deceased ancestor are in such
privity with him that they have the right, as against an heir at law,
who petitions to revoke the probate of the will, to invoke the bene
fit of the heir's covenant in a compromise agreement not to contest the

will. In re Estate of Garcelon, 134.
8. EVIDENCE-JUDICIAL RECORDS-PROOF OF PROBATE OF FOREIGN WILL

How MADE TO BE EFFECTUAL.-A foreign judicial record of the pro
bate of a will may be proved by a copy thereof, attested and certified
as provided by statute, and is admissible in evidence, though, in the
absence of proof of the foreign procedure being different from that of
our own courts, it would be insufficient to support a right claimed
under the will, unless an exemplified copy of the pleadings, petitions,
or proceedings leading up to the order of admitting the will to probate
and giving jurisdiction to make it is also introduced to make the record

complete. Wickersham v. Johnston, 118.
. A JUDGMENT AGAINST AN ADMINISTRATOR OF A DECEASED Person in ono

state is no evidence of debt in a subsequent action by the same person
in another state against an administrator, whether the same or a dif.
ferent person, appointed there, or against any other person having

assets of the deceased. Braithwaite v. Harvey, 625.
10. JUDGMENTS_PARTIES.-AN ADMINISTRATOR UNDER A GRANT OR AD

MINISTRATION IN ONE State is not privy in law nor in estate to an ad-
ministration in another state. Braithwaite v. Harvey, 625.

11. JUDGMENT-PARTIES.-AN ADMINISTRA'ror has no authority to act for

or bind the estate outside of the jurisdiction of the state of his appointo
ment, and therefore cannot be bound by a judgment entered against an
administrator of the same estate in another state on the ground that he
participated in the defense of the action in the other state. Braith
waite v. Harvey, 625.

See APPEAL, 2, 3.

EXEMPTION.
See Deeds, 3; EXECUTION; FRAUDULENT CONVEYANCES, 4.

EXPECTANCIES.

See Sales, 1.

EXPERTS.
See WITNESSES, 8-10.

EXTORTION.
L ATTEMPT TO COMMIT. - This CRIME DEPENDS ON THE MIND AND

INTENT OF TAE WRONGVOER, and not on the effect or result upon
the person sought to be coerced. Hence, a person may be guilty of an
attempt to commit it though he does not, as he intends, produce fear
on the part of the person from whom he attempts to extort. People v.

Gardner, 741.
% WHERE ALL THE ELEMENTS OF THE CRIME OF AN ATTEMPT to commit

extortion are present the person having the guilty intent cannot ese
cape conviction on the ground that the person of whom he sought to
extort was acting as a decoy, and therefore was not put in fear by

the threats of the accused. People v. Gardner, 741.
& CRIMINAL PROSECUTION-EVIDENCE. - Where, on the part of the prosecu.

tion, evidence is received that the accused was frequently in the com-
pany of a person whom he is charged with attempting to extort money
from, and that he visited her at her house, and in saloons, etc., it is
error to exclude evidence on the part of the defendant that in these
acts he was under the direction of the officers of a society for the pro.
vention of crime, and seeking to aid them, and bringing other persons
to justice. People v. Gardner, 741.

FEES.
See OFFICERS, 5.

FELLOW-SERVANTS.
See MASTER AND SERVANT, 7–12; RAILROADS, IL.

FILING.
See Lis PENDENS, 8.

FIXTURES.
See MORTGAQES, 7, 8; PERSONAL PROPERTY,

FORECLOSURE.
Soo JODOMENTS, 14: MECHANIC's Lien, 8-10; MORTGAGES, 8-13

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