the correctness of the opinion cited, insists that, if the Woodworths were bound by the suit against the sheriff, Mrs. Gorsline was also bound, and that the judgment in replevin, followed as it was by a tender of the goods, settled the controversy. We cannot agree with counsel. The Woodworths were not parties to the replevin suit. An execution could not have been issued against their property. By voluntarily indemnifying the sheriff and defending the suit against him, they did not deprive the plaintiff of the right to sue them as trespassers. She elected to sue the sheriff upon his separate liability, and the recovery of judgment against the sheriff is no bar to the action against the Woodworths; and unless the tender pleaded is equivalent to a satisfaction of the judgment, or the actions brought by the plaintiff are inconsistent, the demurrer was properly sustained. The replevin suit was begun in December, 1894. On March 15, 1898, the tender was made. During all of this time, except a month or two, when they were in the hands of the sheriff, the goods have been in the possession of the defendant. Whatever the rule may be in cases where there is only one trespasser, or in cases where the defendant tenders the goods in response to a demand or in compliance with the terms of a judgment, we are satisfied that the plaintiff in a replevin suit is not bound to accept a tender of the goods at the termination of long litigation, in satisfaction of his judgment, in cases where he has the right to bring other suits against other trespassers. The case of Blann v. Crocheron, 20 Ala. 320, and cited by Mr. Justice Miller in the case of Lovejoy v. Murray, above, held that, when two persons jointly commit a trespass, the injured party may sue them severally, yet he can have but one satisfaction, and, when separate judgments are recovered, he must elect on which recovery he will seek it. A plea setting forth a former recovery against a co-trespasser, and a voluntary payment of the damages and costs to the clerk in open court by the defendant to that judgment, without averring that the plaintiff accepted such payment in satisfaction of his recovery, is bad on demurrer. Upon this authority, therefore, it would seem that, until the plaintiff accepts satisfaction of a judgment which she has obtained against the sheriff for the possession of the goods, a mere tender of satisfaction is no bar to this action in trover. If, then, the action brought against the sheriff and the action we now have before us are not inconsistent, the plaintiff has the right to determine for herself which judgment she will satisfy. Sheldon v. Kibbe, 3 Conn. 214, 8 Am. Dec. 176; Atwater v. Tupper, 45 Conn. 144, 29 Am. Rep. 674. It is said in Russell v. McCall, above, that "when, subsequent to the first action, the plaintiff commences one against all of the wrongdoers, he has not lost the right to maintain it by reason of an election to waive such remedy, but has lost it in their case only for the reason that he has no right to vex them twice for the same cause of action." We are of the opinion that the action of replevin we have under consideration and the action in trover now before us are not inconsistent. There might be an inconsistency between the actions of replevin and trover, but in this case there was a tortious taking. The primary object of the plaintiff was to obtain the immediate possession of the goods. In this she has failed by reason of the action of the defendant in retaining the possession, as was his right, and in ordering the goods sold. She alleged in her replevin suit, and established, that she was entitled to the immediate possession of the goods, and that they were unlawfully taken and wrongfully detained. The taking was a conversion. So was the sale. She alleged nothing in the action of trover antagonistic or contrary to her allegation in the replevin action, nor were the two actions based upon conflicting theories. She did not seek vindictive damages in either proceeding. She did not waive the tort in the action of replevin. In fact, her action in replevin is founded upon the tort. In her suit in trover she founds her action upon the same tort, and the liability of the sheriff and Woodworth being a joint and several one, and the several actions brought successively against them not, in our opinion, being inconsistent, we think she had the right to maintain them. The case which more nearly resembles this than any other we have examined is that of Elliot v. Porter, 5 Dana, 299, 30 Am. Dec. 689. The facts of the case are that Porter, having obtained a verdict and judgment against Elliot for $600 for the conversion of 125 barrels of salt, appealed to the supreme court, and claimed that the circuit court erred to his prejudice in refusing to permit him to read a certified copy of the record of an action of detinue in which Porter had previously obtained an alternative judgment against one Jacob Luce for the same salt, or for its assessed value, of which judgment there had been no satisfaction. "The judgment in detinue," says the court, "merged all right of action by the same plaintiff against the same defendant for the same cause of action, because the judgment was of higher dignity than the previous right to sue for the salt or for its value. * * But the judgment did not extinguish any cause of action which the same plaintiff may have had for either a trespass upon or a detention or conversion of the same property by another person, either at a different time, or in conjunction with the party first sued. It is a general rule that wherever there are several concurrent remedies for the same cause of action, in favor of the same person, against several different persons, judgment against one will not bar a suit against another. There must be satisfaction. We can perceive no reason, and know of no authority, for deciding that where several persons have been guilty, either jointly or severally, of detaining the * same thing from the same owner, a judgment in detinue against one of them, without satisfaction, would bar a suit against another of them either for the detention or the conversion of the same thing. If, as we presume should not now be controverted, a judgment against one of several persons who were severally and jointly liable by contract, or for assault and battery, would not extinguish the same plaintiff's legal cause of action against any one of the others whom he might in the first instance have sued, there can be no consistent reason for making a judgment in detinue a bar to another action of detinue or trover against another defendant for the same cause of action, or, rather, for the detention or the conversion of the same property from the same owner. Why, in such a case, should a mere judgment against one exonerate another? He cannot plead that the plaintiff has been satisfied; nor that his cause of action, once perfect against himself, has been extinguished by a judgment, without satisfaction, against another person. Nor could he, like the defendant in that judgment, object that the second suit was vexatious, as it was the first and only one against himself." The testimony of Rockwell and Charles, deceased witnesses, given in the replevin suit, was properly received. "The admissibility of this evidence seems to turn rather on the right to cross-examine, than upon the precise nominal identity of the parties; and, though the trial were not between the parties, yet if the second trial is between those who represent the parties to the first by privity in blood, in law, or in estate, the evidence is admissible." 1 Greenl. Ev. § 164. The record shows that the testimony of these witnesses as contained in the bill of exceptions in the trial of the .replevin sult was read. We must presume that it was correctly read, and that the bill of exceptions was properly authenticated. The instruction given by the court was correct. "The general rule of damages in actlons of this kind, when the plaintiff recovers Judgment for the value at the time of the taking, is legal interest on such valuation from the date of the taking to the date of trial." Johnson v. Bailey, 17 Colo. 59, 28 Pac. 81. For the reasons given, the judgment is affirmed. Affirmed. (27 Mont. 135) CITY OF HELENA ▼. ROGAN et al. (Supreme Court of Montana. July 21, 1902.) CITIES WATER SUPPLY-EMINENT DOMAIN— CONSENT OF OWNER. 1. Since the amendment of Pol. Code 1895, 4800, by Sess. Laws 1897, p. 203, to read as in such act provided, and omitting the provisions of such section and of the act of March 7, 1893, requiring a city, before condemnation proceedings to acquire title to property for a water supply, to endeavor to agree with owners of such property for the purchase thereof, in 1. See Eminent Domain, vol. 18, Cent. Dig. §§ 462, 533. proceedings by a city to condemn property for such purpose it is not necessary to allege or prove that the city had endeavored to obtain the consent of the owners of the property to the taking thereof. Petition for rehearing. Denied. MILBURN, J. This cause is before us or. motion of the appellant for a rehearing. It is contended that we erred in what is held in the opinion (26 Mont., 68 Pac. 798) respecting the necessity of sufficiently describing the property to be taken. We have carefully considered the able brief of counsel, but do not see any reason why we should modify anything we have said upon this matter. A question was submitted in the briefs of counsel which was not discussed in the opinion, and we are asked to pass upon it now. It is this: Is it necessary to allege and prove that, before beginning suit to condemn the property, appellant endeavored to obtain the consent of the several defendants to take the same for the intended purpose? The laws of this state as they are now, and were when the suit was commenced, do not and did not require such an allegation to be made. In the absence of any authority supporting any contention that such allegation or proof must be made, and there being no such requirement in our Code as amended by the session laws, we hold that it is not necessary to allege or prove that appellant negotiated with the defendants for a cession to it of the property which it seeks to obtain under the law of eminent domain. There are many authorities which hold that suck an allegation, with proof if the allegation be traversed by answer, is necessary to be made; but such authorities seem all to be in states where laws require such attempts to obtain the consent of the owners to be made prior to suit; we find none which hold thus in the absence of such requirement of statute. Upon principle, we do not see that such allegation or proof need be made. The owner of the property owes no duty to the would-be taker thereof. He therefore cannot be put in the wrong. No tender is necessary. He cannot be taxed with costs. If the suit be just, and plaintiff prevail, then the law presumes that a just and reasonable compensation will be made to each owner under the direction of the court. The case of Glass v. Concentrating Co., 22 Mont. 151, 55 Pac. 1047, cited contra, is not in point. as that case was decided under the law, then in force, requiring a mine owner, under section 1497, of the fifth division of the Compiled Statutes of 1887, to make an attempt to come to an agreement with the owner of certain land over which he wished to run a ditch, before he could exercise his right to construct such ditch over the land, against the will of the owner, in the way provided by law. In the case before us there is not now, as we have said, any such condition precedent to the bringing of the suit to condemn. The Political Code of 1895 (section 4800), prescribing the powers of cities, was amended by House Bill No. 203 (Sess. Laws 1897, p. 203), entitled, "An act to amend section 4800 of the Political Code relative to legislative powers of cities and to enable cities and towns to acquire by purchase, construction or condemnation proceedings water plants, water supplies, franchises, public buildings and sewers." The phrase, "so as to read as follows," was used by the legislature in the enactment of the bill. The act of March 7, 1893, was one of the acts enumerated in sections 5183 and 5184 of the Political Code, continuing in force certain acts or parts of acts. The subject-matter of the powers of city governments in respect of acquiring water, water plants, water works, and the like, conferred in the act of 1893 and section 4800, are covered and revised in the act of 1897. Revision of statutes implies a re-examination of them. A revision is intended to take the place of the law as previously formulated, and operates to repeal it. Where a provision is amended by an act using the words “to read as follows," it must be the intention of the lawmakers to make the amendment a substitute for the old provision, and to have it take its place exclusively. Suth. St. Const. (Ed. 1891) § 154; Territory v. Ashby, 2 Mont., at page 94; Proctor v. Cascade Co., 20 Mont. 315, 50 Pac. 1017. In the statute of 1897 (Sess. Laws 1897, p. 203), there is not anything requiring such attempt to agree with the owner, and therefore there is no such requirement. The motion for rehearing is denied. Denied. BRANTLY, C. J., and PIGOTT, J., concur. (27 Mont. 103) STATE ex rel. RIDDELL et al., State Board of Medical Examiners, v. DISTRICT COURT OF FIRST JUDICIAL DIST., DEPARTMENT NO. 2, FOR LEWIS AND CLARKE COUNTY. (Supreme Court of Montana. July 21, 1902.) BOARD OF MEDICAL EXAMINERS-DECISIONAPPEAL NOTICE-TITLE-CERTIORARI. 1. Under Code Civ. Proc. § 1892, providing that a notice without the title of the proceeding in which it is made, or with a defective title, is as effectual as if duly entitled, if it intelligibly refer to such proceeding, a notice of appeal from a decision of the board of medical examiners, sufficient in other respects, is effectual, though entitled, "In the Matter of the Application of [the appellant] for a Certificate from the Board of Medical Examiners to Practice Medicine and Surgery.' 2. Where, on an appeal from a decision of the board of medical examiners, a sufficient notice of appeal was served on the board, it is immaterial whether the board was represented at the trial or not. 3. Under Pol. Code, § 603, providing that, when an application to the board of medical examiners for a certificate is refused, the applicant may appeal to the district court, and that such appeal shall be conducted in all respects as an appeal from a decision of a board of county commissioners disallowing a claim, the board, when aggrieved by the decision of the district court, may appeal or move for a new trial. Application for certiorari, on the relation of W. C. Riddell and others, as the board of medical examiners of the state of Montana, against the district court of the First judicial district, department No. 2, in and for Lewis and Clarke county. Writ denied. Jas. Donovan, Atty. Gen., for relators. BRANTLY, C. J. Application for writ of certiorari. The relators constitute the board of medical examiners of the state of Montana, and make the application in their official capacity. The affidavit sets forth, in substance, the following matters, upon which they predicate their demand for relief: At a regular meeting of the board held at the city of Helena on October 2, 3, and 4, 1900, one Arthur G. Allan, having previously applied therefor, and having produced a diploma from a school of medicine legally organized and in good standing, whose teachers were graduates of such a school, was granted an examination by the said board to test his fitness to practice medicine and surgery in the state of Montana. He was unable to attain the grade required to entitle him to such certificate, and was so notified by the secretary of the board. Thereupon, and within 30 days from the receipt of notice of the action of the board, he served upon the secretary his notice of appeal to the district court of Lewis and Clarke county, as follows: "In the matter of the Application of Arthur G. Allan for a certificate from the Board of Medical Examiners of Montana to Practice Medicine and Surgery in the State of Montana. To the Board of Medical Examiners of the State of Montana, and to the Secretary Thereof: You will please take notice that Arthur G. Allan hereby appeals to the district court of the First judicial district of the state of Montana, in and for the county of Lewis & Clarke, from the decision of said board in refusing to issue to him a certificate to practice medicine and surgery in the state of Montana, notice of which decision was received by him on the day of October, 1900, and which notice is in words and figures following, to wit: "Helena, Montana, Oct. 15th, 1900. Dear Doctor: I am instructed by the board of medical examiners of Montana to inform you that at the examination held on the 2nd, 3rd, and 4th inst. you did not reach the general average required to entitle you to a permanent license to practice. Very truly, Wm. C. Riddell, Sec'y Bd. of Med. Ex. "Arthur G. Allan, Butte, Montana.' "Sanders & Sanders, "Attorneys for Appellant. "State of Montana, County of Silver BowSS.: Arthur G. Allan, being first duly sworn, says that the foregoing contains a true copy of the notice of the decision of the board of medical examiners of Montana in his case, from which he appeals, and further says not. Arthur G. Allan. "Subscribed and sworn to before me this 12th day of November, A. D. 1900. W. M. Hardcastle, Notary Public in and for the County of Silver Bow, Montana." After service this notice was filed with the clerk of the district court of Lewis and Clarke county. Thereafter, and on April 30, 1901, the matter was brought on for trial before Honorable J. M. Clements, judge of department 2 of said court, sitting with a jury. On the following day the jury found a verdict in favor of the appellant, that he was qualified to practice medicine and surgery in the state of Montana. Upon this verdict, judgment was entered reversing the action of the board, and declaring the appellant entitled to a certificate. It is charged by relators that the judgment of the district court is void, and was rendered and entered without jurisdiction, in that the board was not properly made a party to the appeal; that the said Allan is engaged in the practice of medicine in the state of Montana without other authority than the said judgment, no certificate having been issued to him by the board; that the board has certain duties in connection with enforcing the law against those who engage in the practice of medicine and surgery without certificates of fitness; that though the said Allan assumes to engage in the practice under the authority of said judgment, but in violation of the law, the relators cannot, by reason of its existence, successfully maintain a prosecution against him; that there was and is no right of appeal by the board or the relators from the judgment, because neither the board nor they were made parties to the appeal; and that there is no plain, speedy, and adequate remedy, other than by this proceeding. The statute (Pol. Code, § 603) authorizes an applicant to the board for a certificate of fitness, when aggrieved by a refusal thereof, to appeal to the district court of the county in which the meeting of the said board was held. The appeal must be taken within 30 days from the date of receipt by the applicant of the board's action. It is perfected by serving notice upon any officer of the board, and filing within the 30 days with the clerk of the proper court a verified copy of the board's decision. "The appeal is conducted to a determination in all respects as an appeal from a decision of a board of county commissioners disallowing a claim." The particular matter in the proceedings upon which the relators predicate their claim that the judgment is void is that the notice should have been entitled, "Arthur G. Allan vs. The Board of Medical Examiners of the State of Montana." and that, not being so entitled, it was not sufficient to give the district court jurisdiction of the appeal. There is no merit in the contention. Section 1892 of the Code of Civil Procedure provides, "An affidavit, notice or other paper, without the title of the action or proceeding in which it is made or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding." Though the proceeding upon the appeal in such cases is not properly an action, in the strict sense of that term, but a special proceeding, it should, perhaps, have been entitled as the relators insist; yet the failure of the clerk to so entitle it did not affect the merits of the controversy. It does not appear from the affidavit whether the board was represented at the trial. This is of no moment, however, since the notice was sufficient to meet the requirements of the statute. It contained intelligible reference to the decision of the board, by which the appellant felt aggrieved, and his purpose to appeal therefrom. That the board allowed the appeal to go by default, if such be the fact, does not affect the case. Upon the theory that the board is the person aggrieved by the action of the district court, the proper course to be pursued by it was to appeal to this court from the judg ment, as provided in the statute (Pol. Code, § 603), or to move for a new trial. Under the statute no formal pleadings are required. The district court therefore had jurisdiction of the appeal, and to render the particular judgment. Hence the writ must be denied. Denied. PIGOTT and MILBURN, JJ., concur. (27 Mont. 154) RAMSEY V. BURNS, Justice of the Peace, et al. (Supreme Court of Montana. July 28, 1902.) APPEAL-RECORD- JUSTICE OF PEACE LIABILITY FOR ACTS OF SPECIAL OFFICERLEVYING ATTACHMENT - POSSESSION OF PREMISES-INSTRUCTIONS. 1. Sufficiency of the evidence cannot be considered on appeal, the record not showing that. it contains all the evidence. 2. An officer attaching goods in a building may, without liability to the debtor, enter, and have possession of the premises a reasonable time for packing and removing the goods. 3. An instruction in action for levying on personalty in a café and lodging house, and taking possession of the premises, that if plaintiff sustained any damages, and defendants were liable therefor, she would not be limited to the damages she sustained for the time the business was closed, but would be entitled to all damages from their unlawful acts, is objectionable as allowing the jury to include remote and fanciful damages. 4. An official act of a special officer, for which a justice of the peace will be liable, is what is done under color of or by virtue of his office, but in excess of his authority, as where, having a writ of attachment, he destroys the property instead of seizing and holding it, or imprisons the debtor while seizing and holding the goods, and pretends to do these things under warrant or color of his office. 5. A requested instruction, though technically stating the law, being expressed in language which will probably be misunderstood by the jury, and requiring more than verbal change to make it clear, may be refused. 6. An instruction to the effect that, in determining questions of fact, the jury should be governed solely by the evidence introduced, and that they have no right to indulge in conjectures or speculations not supported by the evidence, should be given when requested. Appeal from district court, Silver Bow county; John Lindsay, Judge. Action by Cora E. Ramsey against P. II. Burns, justice of the peace, and others. Judgment for plaintiff. Defendants appeal. Reversed. Jno. W. Kirk, for appellants. M. J. Cavanaugh, for respondent. MILBURN, J. This is an appeal from an order denying defendants' motion for a new trial. The appeal from the judgment was dismissed heretofore. An attachment having been issued out of the court of one P. H. Burns, a justice of the peace for Silver Bow county, the justice appointed one Rodgers as a special officer to serve the summons and the writ of attachment in the suit of the Beaverhead Meat Company, a corporation, plaintiff, against Cora E. Ramsey, defendant. Said Rodgers, as such special officer, levied upon the personal property belonging to the defendant, Ramsey, being the furnishings and supplies of a certain Elwood café and lodging house conducted by her. It appears that said officer entered the premises referred to, closed the doors, and remained in possession of the personal property and the premises from the 31st day of July up to and including the 5th day of August, 1897; he having appointed two custodians, S. O. McCall and George H. Chapman, to remain in the possession of the property and premises during the said period of time. On the 5th day of August, 1897, the officer released the said personal property, and left the premises, having discovered that all of the personalty had been bona fide mortgaged to another party. The plaintiff sued the justice, the special officer, and the sureties of the justice for damages alleged to have resulted from the destruction of parts of the personalty, for false imprisonment of the plaintiff in that she was detained in the house, and for interruption of her business as proprietor of said café and keeper of the lodging house. The trial resulted in a verdict in favor of the plaintiff in the sum of $500. The alleged insufficiency of the evidence cannot be inquired into, for the reason that there is not anything in the record to show that all the evidence adduced at the trial is before us. Such of the evidence as is in the record may be considered with exceptions saved thereto, and in connection with the instructions complained of, but for no other purpose. It is not necessary to discuss the specification relating to the ruling of the court upon the objection to the question propounded to the plaintiff as to the amount of damages, for the reason that, if the case be tried again, probably the obscurity and involved character of the question will not appear again. The appellant specifies as erroneous a number of instructions which were given. Instruction No. 3, complained of, tells the jury, pointedly, that an officer with a writ of attachment has not any right or authority to take and hold possession of any building in which the personal property to be seized is, and that he and his bondsmen are liable in damages "if he takes possession of such room or premises." This is error. An officer has the right to enter a business place against the will of the occupant, permission having been asked and refused, and to seize the property therein belonging to the occupant and subject to levy. It is impossible to make such levy in many cases, as where a whole stock of goods is seized, without taking possession of the place where the goods are. The officer must not linger longer than reasonably necessary to carefully pack up and prepare the goods for removal (Waples, Attachm. § 298); to do this packing may take an hour or it may require a week. The instruction is not cured of its vice by another part thereof which says that, if the jury believe from the evidence that defendant Rodgers took possession of the building, or any part thereof, and held the same for storage of the property, they then should find for the plaintiff, etc. The officer has a right to enter and have possession of the place, as above stated, for a reasonable time, and he may have there the goods in storage for such reasonable time as he may require to pack them and to procure the necessary transportation for their removal. He may also store them in the place for an indefinite time with the consent or acquiescence of the occupant of the place. The instruction as drawn did not state the law. It told the jury that the officer could not have possession of or use the place at all without being liable in damages to the debtor plaintiff. So far as instruction No. 4, is criticised, it does not appear to have been prejudicial to the appellant. The question raised, in connection with this instruction, as to responsibility of the appellants, or any of them, for acts of the custodians, will be discussed infra. The instruction is not a model, but we refrain from discussing points not raised. Instruction No. 5, given and complained of, is not discussed in the brief, and we do not pass upon it. Instruction No. 16 is as follows: "You are further instructed that if you find that the plaintiff sustained any damages in this action, and that the defendants are liable therefor, she would not be limited to the damages which she sustained for the time that the business was actually closed, but is entitled |