terials were furnished and the work was done, they relled on a valid agreement that the mortgagee had theretofore made with the mortgagors to loan a certain sum, out of which the latter might liquidate their bills, in the absence of any agreement by the mortgagee with such creditors with reference either to the making of the loan, or the application of the money, when the loan should be made, to the settlement of the accounts.-MONTROSE HARDWARE Co. v. MONTROSE INV. Co., Colo., 50 Pac. Rep. 204.

65. MUNICIPAL CORPORATIONS-Regulations-Non-intoxicants. An ordinance of a city of the third class, which provides as follows: "An ordinance prohibiting the sale of hop tea, and other liquors containing alcohol in insufficient quantities to intoxicate and commonly used as a beverage. Section 1. It shall be unlawful for any person, within the corporate limits of the city of Fontana, Kansas, to sell or barter hop tea, hop tonic, hop tea tonic, or any other liquor containing alcohol in insufficient quantities to intoxicate and commonly used as a beverage,"—is unauthorized and void, and a conviction under it cannot be sustained.-GRANT V. CITY OF FONTANA, Kan., 50 Pac. Rep.

104.

66. MUNICIPAL CORPORATIONS - Taxation - Exemp tions.-Const. art. 9, § 17, limiting the amount of bonds issuable by a city to 8 per cent. of the assessed value of all the taxable property therein, refers to the assessment next preceding the issue of the bonds, and not to any subsequent assessment.-GERMANIA SAV. BANK V. TOWN OF DARLINGTON, S. Car., 27 8. E. Rep. 846.

67. MUNICIPAL CORPORATIONS-Tortious Acts of Offi. cers.-Remedy-Where a valid city ordinance requires a special permit of the supervisors before poles can be erected in the streets, and such permit is issued to one electric company, and denied to another, the remedy of the latter is not an injunction restraining the superintendent of streets from interfering with its erection of poles in violation of the ordinance.-MUTUAL ELECTRIC LIGHT Co. v. ASHWORTH, Cal., 50 Pac. Rep. 10.

68. MUNICIPAL CORPORATIONS-Use of Streets-Nuisance.-Though Rev. St. 1894, § 8541, cls. 11, 29, 33 (Rev. St. 1881, § 3106), provide that cities have power to establish and regulate public markets, yet the city cannot set off the residence portion of a street for a public market, over the protest of the owners of the adjoin. ing property, thereby permitting a nuisance caused by Impeding the traffic, attracting crowds, and befouling the street.-CITY OF RICHMOND V. SMITH, Ind., 47 N. E. Rep. 630.

Gestæ.-Plaintiff

70. NEGLIGENCE Evidence-Res having been injured while in the front end of an open street car that ran into a car in front of it, a witness, who was in the rear end of the front car, and saw the rear car coming, may testify as to what he and other passengers did when the collision became imminent, as a part of the res gesta, on the question of plaintiff's contributory negligence in jumping off.-HOLMAN V. UNION ST. RY. CO. OF SAGINAW, Mich., 72 N. W. Rep. 202.

71. NEGLIGENCE-Infants-Imputation of Negligence. -The negligence of a parent cannot be imputed to a child who is non sui juris so as to defeat its action for its own injury caused by defendant's negligence.CITY OF EVANSVILLE V. SENHEIM, Ind., 47 N. E. Rep.

certain machinery sold to a retall dealer he made notes promising to pay the amounts stated therein "with exchange," having agreed that the machinery and prcoeeds of the sales made by him should be held as collateral security till his indebtedness for the machinery should be paid in full: Held, that the notes were not such payment, because rendered non-nego. tiable by the words "with exchange.”—ORNER V. SATTLEY MANUFG. Co., Ind., 47 N. E. Rep. 645.

73. PARTITION-Title Deeds. -Appellants' contention that a certain deed in the respondents' chain of title, under which they obtained a judgment in partition, is void, need not be considered, where it appears that appellants and respondents claim under a common grantor, and the validity of said deed is essential to establish the title under which appellants claim.DAVIS V. PACIFIC IMP. Co., Cal., 50 Pac. Rep. 7.

74. PARTNERSHIP.-The mere fact that two persons may both be interested peculiarly in the same business venture, and that each gives to it his time and atten. tion, does not carry with it, as a matter of law, the conclusion that they stand towards each other as partners.-COLLOM V. BRUNING, La., 22 South. Rep. 744.

75. PLEADING — Complaint - Sufficiency Amend. ment.-Although the Code does not authorize the sub. stitution of a new cause of action by amendment, nevertheless, under section 194, granting power to amend any pleading "by inserting other allegations material to the case," a complaint not stating a cause of action may be cured by amendment, where the de. fect is not an entire absence of a cause of action, but merely a faulty or incomplete statement thereof.RUBERG V. BROWN, S. Car., 27 S. E. Rep. 873.

76. PRINCIPAL AND SURETY-Extension-Release of Surety. The principal maker of a note, after maturity thereof, and while solvent executed and delivered, for the security of the holder of that and other notes, a deed of trust of all his property subject to execution, without the knowledge or consent of the surety on the note. The trust deed was conditioned for the payment of the indebtedness recited within six months after the date of such deed, and provided that, if default should be made in such payment on or before the end of the six months, then the trustee should proceed to execute the trust by sale of such property: Held, that no valid agreement for delay for a definite period, whereby such surety might be released, was to be nec. essarily implied from the terms of such deed.-WATAUGA BANK V. MATSON, Tenn., 41 8. W. Rep. 1062.

77. PUBLIC LANDS-Entries-Cancellation-Notice.Though the land department of the goverment may cancel a desert land entry for fraud, or on the ground that the land is non-desert land, after a hearing, of which the entryman has notice, a cancellation without such hearing and notice is a nullity.-DELLES V. SECOND NAT. BANK OF Brownsville, PA., Wyo., 50 Pac. Rep. 190.

78. PUBLIC LANDS-Homesteads-Exemptions.-The congressional enactment providing that no lands acquired under the federal homestead laws "shall, in any event, become liable for the satisfaction of any debt or debts contracted prior to the issuing of patent therefor," includes a liability for a tort growing out of a breach of a contract warranting the title to certain personal property. — FLANAGAN V. FORSYTHE, Okla., 50 Pac. Rep. 152.

79. RAILROAD-Contributory Negligence.-In an action for an injury by a railway train, the refusal to admit in evidence an ordinance prohibiting the running of trains faster than four miles an hour was harmless, where the negligence of plaintiff contributed to such injury.-SUTHERLAND V. CLEVELAND, C., C. & ST. L. RY. Co., Ind., 47 N. E. Rep. 624.

80. REAL ESTATE AGENT-Commission.-The fact that a real estate agent may seek to induce the owner of property to accept a less price than he has authorized the agent to sell the property for does not cause a forfeiture of the agent's commission, even though the

agent might know, or have reason to believe, he could obtain the purchaser's price for the property.-GORMAN V. HARGIS, Okla., 50 Pac. Rep. 92.

81. RELIGIOUS SOCIETIES-Rules of Tribunals.-Voluntary religious associations and churches, organized to assist in the expression and dissemination of religious doctrine, may, by their governing bodies, prescribe rules and regulations for their church gov. ernment and discipline, and such rules and regulation will be obligatory upon the members, congregations, and officers of such general association, and will be given effect to by the civil courts.-FIRST PRESBYTERIAN CHURCH OF PERRY V. MYERS, Okla., 50 Pac. Rep. 70. 82. REMOVAL OF CAUSES-Petition-Time of Filing.— Act Cong. March 3, 1887 (24 Stat. 554), provides that the party desiring to remove a cause from a State court to the Circuit Court of the United States on the ground of diverse citizenship must file his petition "at the time, or at any time before the time, when the defendant is required by the laws of the State to answer or plead to the declaration or complaint of the plaintiff:" Held, that this has reference to the time when he is required to plead to the merits of the cause, and does not limit the filing of the petition to the time when pleas in abatement must be filed under the State practice.WILSON V. WINCHESTER & P. R. Co., U. S. C. C., D. (W. Va.), 82 Fed. Rep. 15.

83. REPLEVIN-Action on Bond.-In an actionon the bond, on the dismissal of a replevin action, and proof of the breach of the condition to prosecute with effect, the obligee may recover whatever damages he may have sustained, to the amount of the penalty, though he obtained, in the replevin action, no alternative judgment for the return of the property or for its value.-Cox V. SARGENT, Colo., 50 Pac. Rep. 201.

84. SALES-Breach of Warranty-Damages. -M bought eggs under a warranty of freshness, giving notice that he intended to sell them at Washington, but changed his plans, and sold them to B, under the same war. ranty, for sale in Boston. The eggs were not fresh, and B disposed of them as "mixed" eggs, at a loss, and recovered damages from M on the warranty. The difference between the price of fresh and mixed eggs was the same in Boston as in Washington: Held that, in an action by M against the original seller for breach of his warranty, the amount of M's damages was prima facie the amount of B's recovery against him. — REESE V. MILES, Tenn., 41 S. W. Rep. 1065.

85. SALES- Fraud - Rescission.-Where a threshing machine sold and bought as new was in fact an old one, repaired and repainted, and where the pur. chasers knew this to be true within three days after they obtained the machine, but thereafter paid, without objection on this ground, one of the notes given for its purchase, held, that they waived the fraud in the sale, and the same did not furnish ground for the recovery of damages.-MINNESOTA THRESHER MANUFG. Co. v. GRUBEN, Kan., 50 Pac. Rep. 67.

86. SALES-Rescission by Buyer.-If goods purchased do not comply with the conditions of the contract, It is the duty of the vendee to return them to the vendor without unreasonable delay; and if he fails to do so, or to give notice of an intention to do so, he is presumed to have waived his right. LUGER FURNITURE Co. v. STREET, Okla., 50 Pac. Rep. 125.

87. SALE OF STOCK OF GOODS-Change of Possession. -On delivery of a chattel mortgage of a stock of goods to a creditor, he took immediate possession, closed the store, and took an inventory. Afterwards he took the goods from the place in which they then were to another city and placed them in a building he had rented, and proceeded to dispose of them in the ordinary course of business. After the delivery of the instrument the debtor was neither in possession nor had any control of the property. Held, that the change of possession was absolute, unequivocal, and notorious, and such as to advise the world of the change, and give the transferee a good title as against another creditor who attached the goods four months after

such transfer.-BURCHINELL V. SCHOYER, Colo., 50 Pac. Rep. 217.

88. SPECIFIC PERFORMANCE. Plaintiffs and defendant contracted to exchange certain lands, foot for foot, but defendant, by mistake, conveyed less land than it received. Upon discovery of the mistake five years thereafter, plaintiffs sued for relief: Held, that specific performance was the proper remedy, although the value of the lands had materially changed. MAX MEADOWS LAND & IMPROVEMENT Co. v. BRIDGES, Va., 27 8. E. Rep. 839.

89. TAXATION-Domicile-Evidence.-In a proceeding for relief from an assessment for personal property at D, on the ground that his domicile was at N, relator showed that he went to N to take charge of his father's property and business there, continuing in such employment, and living in a house owned by his father, for 10 years, when, on the death of his father, leaving a large estate in D of which he was administrator, he, with his famliy, came to D, where, two years later, he built an expensive house on a valuable lot purchased by him, which he continues to occupy as a residence, though it is offered for sale; that he has continuously claimed that his residence is at N; that he has returned thither to vote; that he has described himself in legal documents as a citizen of N; and that he was only temporarily at D, and should return to N as soon as his father's estate was settled: Held, that a finding that relator resides in D was warranted by the evidence, where it did not appear that he is not possessed of the property with which he was assessed, or that it is not subject to taxation, or that it was elsewhere as sessed.-BEECHER V. COMMON COUNCIL OF DETROIT, Mich., 72 N. W. Rep. 206.

90. TRUST-Resulting Trusts.-Whenever an estate is purchased in the name of one person, and the consideration is paid by another, a trust is created by operation of law in favor of the party paying the price.Cox v. Cox, Va., 27 S. E. Rep. 834.

91. VENDOR AND PURCHASER-Rescission-False Rep. resentations.-A vendor of town lots is not excused for false representations respecting the existence of rail. roads and industries of the town by the fact that he believed that such advantages would eventually materialize.-GROSH V. IVANHOE LAND & IMPROVEMENT Co., Va., 27 S. E. Rep. 841.

92. VENDOR and PURCHASER Title. An adminis. trator and guardian of one of the minor heirs at law in 1879 purchased, in his individual capacity, land belonging to the estate at a foreclosure sale. The youngest minor heir at law did not become of age until 1887. How. Ann. St. § 8702, provides that all persons who are minors when their right to sue for land first accrues may bring an action at any time within five years after maturity. The administrator, on May 11, 1892, contracted to convey to defendant, within 30 days, or thereabouts, a "perfect title" to the land: Held, that the possibility of a valid election by the heir at law to consider the administrator's holding as a trust for the heirs was a cloud upon his title sufficient to justify defendant's refusal to accept it.-FORD V. WRIGHT, Mich., 72 N. W. Rep. 197.

93. WATER COMPANIES-Rules - Closing Hydrant.-A rule of a water company requiring an applicant for water to agree to keep his hydrant closed except when using water is reasonable.-WATAUGA WATER CO. v. WOLFE, Tenn., 41 S. W. Rep. 1060.

94. WILLS-Descent and Distribution - Husband and Wife. Under a will directing the real estate "to be divided into seven equal parts, and sold at public sale to the highest bidder, each part separately," on the death of a tenant for life, "and the proceeds of said sale then to be divided into seven equal parts, and paid to the following heirs" (naming seven beneficiaries), the share of a legatee that died before the termination of the life estate vested in her personal representative, as such estate passed to the beneficiaries as personalty.-HARDIN V. YOUNG, Tenn., 41 W. Rep. 1080.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 5, 1897.

An exception to the general rule that a party will not be permitted to impeach his own witness is recognized by the Supreme Court of Vermont, in the recent case of State v. Slack, where it was held that the State may impeach its own witnesses in criminal cases, on account of the obligation resting on it to bring forward all witnesses obtainable for a criminal prosecution irrespective of their character. It is the established doctrine in that State that it is the duty of the prosecutor to produce and use all witnesses within reach of process of whatever character whose testimony will shed light upon the transaction under investigation, and aid the jury in arriving at the truth, whether it makes for or against the accused. That doctrine carried to its natural results exempts the State, in criminal cases, from the operation of the rule as to impeachment of its witnesses, and places it in the position of a party calling an instrumental witness. In many, if not in most jurisdictions, as the Vermont court admits, the rule is applied to the State in criminal cases, but it is upon the ground that the State stands like any other party and accredits a party by calling him, but such courts, as a rule, do not hold, as does the Vermont court, that the State is bound to call all the witnesses. "We are the more satisfied," says the Vermont court, "with the conclusion here reached because we think the State ought not to be hampered by such a rule. Prosecutions are carried on by the government, through the agency of sworn officers elected for that purpose, who have no private interests to serve nor petty spites to gratify, but whose sole and only duty is to faithfully execute their trust, and do equal right and justice to the State and accused. The course of public justice, thus directed, ought not to be obstructed by a rule without a reason. The ascertainment of the truth, which is the object of the prosecution, is of more consequence than the instrumentality by which it is sought to be ascertained; and when an instrumentality becomes an obstruction to the

course of justice, the State should be at liberty to remove it, and by trampling upon it if necessary."

According to the Albany Law Journal a Pennsylvania court has been called upon to struggle with the question as to what constitutes skim milk. The case is Commonwealth v. Hafnal, which came up on appeal from the judgment of a Philadelphia court. It appears that the defendant had been indicted under a recent statute, charged with unlawfully selling milk from which a certain valuable and necessary constituent had been wholly abstracted. It was shown that this milk which the defendant sold, instead of being skimmed in the usual way with a spoon or ladle, had been treated by the separator process, which, subjecting the fluid to a centrifugal force, operates on every particle, driving off all the lighter portion so that what remains is not worth considering. Milk so treated, the majority of the court held, is not skimmed milk, within the ordinary meaning of the term, so that it could be properly sold as such by a vendor, and the defendant was not acting honestly in selling it as such. The residuary product of this process has its distinctive name-separator skimmed milkto indicate just what has been accomplished. The court found that by the means used in this case a fraud had been practiced on the public, in delivering to the purchaser a cheaper as well as an entirely different article, and on the honest dealer who must be driven from the market by such deceit. The court added: "Usage and custom have not only given this product a name, but qualities and attributes which are associated with the name. As such, it is purchased and used for special purposes. The demand for the different grades of milk has been met by new devices which furnish new results, and each should be given a distinctive name to truthfully represent the strength, purity and health merit of the product. The sale of these is not prohibited by the Act of 1895, if they are honestly made as articles or ingredients of articles of food, and each and every package sold or offered for sale be distinctly labelled as mixtures or compounds and are not injurious to health."

NOTES OF RECENT DECISIONS.

LIFE INSURANCE PLACE OF CONTRACTFORFEITURE FOR NON-PAYMENT OF PREMIUM. -The Circuit Court of Appeals for the Ninth Circuit, in the case of Equitable Life Assoc. v. Nixon, 81 Fed. Rep. 796, decide some interesting questions in the law of life insurance, the holdings of the court being that where an application for life insurance was made in the territory of Washington, and the advance premium paid there to the company's agent, to be forwarded to the company, under an agreement that the insurance should not take effect unless the premium was accepted and the risk approved by the company in New York, and, by the terms of the policy issued, all premiums and the policy itself were payable in New York, and proof of death was to be there made, the policy is a New York contract, and the rights of the parties thereunder are governed by the statutes of that State, there being no statute in the territory or State of Washington affecting the right of the parties to so contract. The statute of New York providing that no life insurance company doing business in that State shall have power to declare a policy forfeited for non-payment of premiums, anything to the contrary in the policy notwithstanding, until 30 days after it shall have mailed a notice to the assured or to his assignee, as therein prescribed, and stating that the policy will be forfeited unless payment is made within 30 days, unless a similar notice shall have been mailed not less than 30 nor more than 60 days previous to the maturity of the premium, which shall state the date of such maturity, applies to and governs a policy issued and to be performed in New York, though the assured resides in another State. It was also held that under the provision of the New York statute making the affidavit of any officer, clerk, or agent of a life insurance company, that the notice required by the statute to be given to a policy holder before a forfeiture of the policy for non-payment of premiums can be declared has been duly addressed and mailed, presumptive evidence of such fact, evidence to rebut such presump. tion may be given by the adverse party, and may consist in part of evidence of the nonreceipt of such notice by the assured, and that the statute of New York declaring that no

life insurance company shall have power to declare a policy forfeited for non-payment of premiums until 30 days after the notice therein prescribed shall have been given is mandatory, and its requirements cannot be waived by the parties.

CONTRACTS OF GUARANTY-INTERPRETATION -PARTNERSHIP.-The law applicable to contracts of guaranty is well stated by the Supreme Court of Oklahoma, in McNeal v. Gossard, 50 Pac. Rep. 159. The propositions of law there laid down are as follows: Contracts of guaranty are to be construed like other contracts, and the intent of the parties, as collected from the whole instrument and the subject-matter to which it applies, is to govern; but, when an understanding is once reached of the true agreement, the rules and principles which pertain to the rights and duties of principal and surety apply so far as is appropriate to the form of that relation recognized in the case of guarantor and guarantee, or admissible in view of the nature and terms of the particular transaction. A written guaranty given to secure the payment of a promissory note already in existence, and identified in the instrument of guaranty, is to be construed as if the promissory note were copied into the guaranty; and where the promissory note is made payable three or five years after date, and the instrument of guaranty describes it as payable five years after date, such variance between the note and the guaranty will be disregarded, as the clear intent of the parties is deducible from the transaction. partner is a general agent, with authority to bind his firm by guaranty, where such partnership is a commercial partnership, and the giving of such guaranty is necessary in the transaction of business properly within the scope of the partnership. A partnership doing a general banking business is a commercial partnership. The discounting and rediscounting of commercial paper is within the scope of the business of a banking firm, and, when necessary to give a guaranty in order to rediscount commercial paper, a partner may bind the firm by such guaranty.

A

ATTORNEY AND CLIENT-EVIDENCE-VALUE OF LEGAL SERVICES - INSTRUCTIONS.-Upon the subject of proof of the value of legal services the Court of Appeals of Colorado in

the case of Millard v. Williams, 50 Pac. Rep. 207, holds that in determining the value of professional services, a jury may consider all the evidence in the case on the question, and apply their own experience and knowledge of the character of such services in determining whether they will accept the criterion of value which the expert witnesses have fixed, and that in an action for attorney's services, though it was not entirely accurate to charge that in arriving at the value the jury must consider "only the evidence of the attorneys who testified in the case, and not what they might think outside of the evidence," where no evidence as to the extent, value, and character of the services was offered except that given by two attorneys, defendant cannot complain, in the absence of a specific objection, or a request for an instruction giving the true rule.

WATER COMPANIES-CONDITION OF FURNISHING WATER-REASONABLE RULES.-The Supreme Court of Tennessee, decides in Crumley v. Watauga Water Co., 41 S. W. Rep. 1058, that a water company cannot as a condition to furnishing one water, require him to pay his outstanding duebill, which it had taken for water and piping furnished him a In another caseyear or more before. Watauga Water Co. v. Wolfe, 41 S. W. Rep. 1060-the same court holds that a rule of a water company requiring an applicant for water to agree to keep his hydrant closed except when using water is reasonable. In the first mentioned case the court says:

The trial judge was in error. There are exceptions to the general rule that a person engaged in business may, at his election, and without good reason, refuse to deal with some other person. These exceptions embrace innkeepers, common carriers, bridge compan ies, turnpike companies, telegraph companies, tele phone companies, gas companies, electric light com. panies, and water companies, and are based upon the public nature of the business done by such persons. Being engaged in public business under public grants, they are charged with public duties. The defendant, Watauga Water Company, is a public corporation, as contradistinguished from a private corporation. By the law of its creation it was charged with the impera. tive duty of erecting waterworks and machinery of sufficient capacity to furnish Johnson City and the in. habitants thereof with a plentiful supply of water, and by its contract with that city it bound itself to furnish an ample supply of water for the use of the city and for families and domestic purposes. Thereby it as sumed, first, by necessary implication of law, and, secondly, by express contract, to furnish water to all the inhabitants of the city upon reasonable terms, and without discrimination. From which it follows

that the company breached its duty toward Crumley in refusing to let him have water upon its regular rates, and, as a legal consequence, became liable to him in damages for whatever injury he sustained as the proximate result of the breach. These views are not without abundant support in the authorities. Dillon, with apparent approval, refers to the case of Foster v. Fowler, 60 Pa. St. 27, as holding that a company created to supply a city with water is a public, and not a private, corporation. 1 Dill. Mun. Corp. (4th Ed.) § 52, note. Cook says: "A waterworks company is also a quasi-public corporation. It must supply water to all who apply there for and offer to pay the rates." 2 Cook, Stock, Stockh. & Corp. Law, § 932. Morawetz places telegraph, water and gas companies in the same general class, treating them all as public corporations, and as charged with public duties, when organized under charters granting the right of eminent domain (as in the present charter), or other advantages not extended to private individuals engaged in private business. He says: "It may be laid down as a general rule that whenever the aid of the government is granted to a private company in the form of a monopoly, or a donation of public property or funds, or a delegation of the power of eminent: domain, the grant is subject to an implied condition. that the company shall assume an obligation to fulfilk the public purpose on account of which the grant was made." 2 Mor. Priv. Corp. § 1129. In the subsequent part of the same section the learned author illustrates and verifies the rule laid down by a citation and analysis of adjudicated cases. "The acceptance by a water company of its franchise carries with it the duty of supplying all persons along the lines of its mains, without discrimination, with the commodity which it was organized to furnish." 29 Am. & Eng. Enc. Law, 19. The decision of the Supreme Court of Oregon in a late case is well expressed in the headnote, as follows: (1) A corporation organized to supply water to a city and its inhabitants, and given the right to lay its pipes in the streets for that purpose, is engaged in a public business, and may be compelled to furnish water on reasonable terms to all inhabitants who apply for it, although there is no express provision in its grant of franchise to that effect. (2) (3) Mandamus is an appropriate remedy to compel a water company to supply water to a person who has a right to it." Haugen v. Water Co. (Or.), 28 Pac. Rep. 244. The Supreme Court of Nebraska in a later case held that: "A private corporation which procures from a municipal corporation a franchise for supplying the latter and its inhabitants with water, and by virtue of which franchise it is permitted to and does use the streets and alleys of such municipal corporation in the carrying on of its business, becomes thereby affected with a public use, and assumes a public duty. That duty is to furnish water at reasonable rates to all the inhabitants of the mu. nicipal corporation, and to charge each inhabitant for water furnished the same price it charges every other inhabitant for the same service, under the same or similar conditions." American Waterworks Co. v. State, 64 N. W. Rep. 711. Later still, the Supreme Court of Montana recognizing the same public character and duty of a water company, rules that the refusal of such a company "to supply water to a tenant in the possession and occupancy of a house, when he is ready to pay for it in advance, and the company is supplying the city and its inhabitants under a fran chise, cannot be justified by a by law declining to contract for water with any person except owners of property or their authorized agents." State v. Butte City