the gallows frame. Appellant in its brief says: "The testimony fails to disclose that any of the timbers broke, or that any of the bolts or lines gave way until after the gallows frame had pitched into the river." This being admitted, it necessarily follows that whatever defect, if any, there was in the structure, was due to the imperfect plan or faulty design upon which it was constructed and braced. It thus appears that this is a case where the master, and not the servant, provided the place of employment, and the appliances with which the work was performed. Therefore this case falls within that class where the master is required to use reasonable care to provide the servant with sufficient and reasonably safe appliances with which to do the work required of him by his contract of employment.

are

In the case of Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309, practically the same questions were involved as presented in this case, and the Circuit Court of Appeals, in the course of the opinion, say: "The liability of the master cannot be determined simply by showing that the place where the workmen were engaged in his service was a scaffold, but it must depend upon the nature of the scaffold, the purposes it is to subserve, whether it could be properly left to the workmen to determine and control the method of its erection, whether they did in fact control its erection, or whether the master had charge thereof. In the case at bar the scaffold was intended, not only as a place where the workmen were to stand, but as a support upon which was to be placed the entire superstructure of the bridge during the course of its erection it is clear that such workmen as the defendant in error [plaintiff] could not be expected to know the strain that would be placed upon this scaffold in the erection of a steel superstructure. It is equally clear that it would not have been open to the defendant in error [plaintiff] to exercise any control over the method in which the scaffold was erected or the material used in its construction. The purpose for which this scaffold was to be used, then, is inapplicable to the reasons upon which the rule is based, that ordinarily the master is not responsible for the safety of stagings which the workmen put up as aids in carrying out the particular work they are employed to perform. The use to which it was intended to subject this structure, in that there would be placed thereon, not only the dead weight of the material composing the bridge, but also the strain caused by placing the different parts in proper position, clearly shows that the erection of the staging was not a matter that could be safely left to the control of ordinary laborers, but required skilled control by persons who, from experience, would know what strain would be placed on the staging; and the evidence shows that in its erection the defendant in error [piaintiff] exercised no control or judg

ment; but, on the contrary, it was erected solely under the direction of Charles Killiper, who, as a skilled expert, had been sent out by the company to erect the bridge. The scaffold was being used to support the dead weight of the material placed on it, and also to aid in placing the beams into place, with all the additional strain caused thereby. * In view of the purposes

to which this scaffold was to be put, and of the fact that the workmen had no control over the mode of its erection, the trial court rightly held that the defendant company would be responsible to the plaintiff for negligence in its construction." Woods v. Lindvall, 48 Fed. 62, 1 C. C. A. 37; National Refining Co. v. Willis (C. C. A.) 143 Fed. 107. We fail to find any reversible error in the record. The judgment is therefore affirmed, with costs.

MCCARTY, C. J., and FRICK, J., concur.

(34 Mont. 443)

GILCHRIST v. HORE et al. (Supreme Court of Montana. Oct. 29, 1906.) 1. ATTORNEY AND CLIENT-ATTORNEY'S LIEN -PROCEEDINGS TO ENFORCE.

Code Civ. Proc. § 430, provides that, from the commencement of an action, the attorney for plaintiff shall have a lien on the cause of action which shall attach to any judgment in his client's favor and the proceeds thereof. Held that, where an attorney rendered services for the mortgagor in an action wherein an instrument on its face a deed was declared to be a mortgage, in an action by the attorney to enforce his lien on the land, it was not necessary for him to tender to the mortgagee the amount of the mortgage, as a condition precedent to the foreclosure of the lien.

2. PLEADING-REPLY-NEW MATTER-DENIAL. Code Civ. Proc. § 661, provides that the forms of pleading shall be those prescribed in the Code. Section 662 provides that the only pleadings allowed on the part of the plaintiff are the complaint, a demurrer to the answer, and a reply, and, on the part of the defendant, the demurrer to the complaint, the answer, and the demurrer to the reply. By section 690 the answer may consist of denials and statements of new matter, the new matter being a defense or counterclaim. By section 754 every allegation of new matter in a reply is deemed to be denied. By Laws 1905, p. 8, c. 5, the plaintiff, in a reply, may allege any new matter not inconsistent with the complaint constituting a defense to the counterclaim or new matter in the answer. In an action by an attorney to foreclose his attorney's lien on certain land, a defendant answered, setting forth that she had a mortgage on the property, and seeking the foreclosure of the same, and plaintiff filed a reply alleging that defendant had received rents and profits from the property amounting to a specified amount. Held, that plaintiff's allegations as to the amounts received by defendant were denied, a contention that defendant's pleading constituted a "cross-complaint," and plaintiff's second pleading an answer which required from defendant a reply, in the absence of which the affirmative allegations of plaintiff's second pleading were admitted, being untenable.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by M. P. Gilchrist against Jeremiah

Hore and others. From a judgment in favor of plaintiff, defendant Elizabeth C. Meyer appeals. Remanded.

Maury & Hogevoll, for appellant. W. D. Kyle, for respondent.

HOLLOWAY, J. M. P. Gilchrist commenced this action against Jeremiah Hore to foreclose an attorney's lien upon lot 10, block 6, Barnard's addition to Butte, and made Elizabeth C. Meyer a party defendant, alleging in his complaint that she had or claimed some interest in the property. The defendant Hore defaulted. The defendant Meyer filed a demurrer, which was overruled. She then answered, admitting the allegations of the complaint, and affirmatively set forth that she had a mortgage upon the property sought to be sold, for $1,785.13 and $316 accrued interest; that she had paid out for taxes and repairs upon the property $347.80; that $250 was a reasonable attorney's fee to be allowed her in foreclosing her mortgage, and that the lien of her mortgage was prior and superior to any claim of the plaintiff. She asked that her mortgage be foreclosed. The plaintiff filed a reply in which he disputed some of the items claimed by her. He further alleged that defendant Meyer had received rents and profits from the property amounting to $1,000, and had had the use of certain portions of the property herself, and that such use was reasonably worth $400. The reply admits that the lien of the defendant Meyer is prior and superior to the lien of plaintiff. The cause was tried to the court without a jury. The court found that the defendant Meyer had been in possession of the property in controversy from October 20, 1903, to July 28, 1905, and that during that time she had received in rents from the property $1,000. The court found that the balance due her, including attorney's fee for foreclosing her mortgage, was $1,616.06. A decree was rendered and entered. adjudging defendant Meyer's lien superior to plaintiff's, directing the sale of the property, and the proper application of the proceeds. From this decree, the defendant Meyer appealed. The evidence is presented in a bill of exceptions.

The errors specified are (1) that the court erred in excluding from consideration all testimony offered tending to show the amount defendant Meyer had actually received in rents from the property from October 20, 1903, to July 28, 1905; (2) the court erred in rendering a decree in favor of the plaintiff, for the reason that the complaint does not state facts sufficient to constitute a cause of action. The third and fourth specification each raises the same question as the first, and the fifth the same as the second.

1. Does the complaint state a cause of ac tion? The complaint is in the usual form in foreclosure. But counsel for appellant con

tend that it is insufficient in that it fails to state that any tender had been made to appellant of the amount due her on her prior mortgage. It is entirely immaterial that plaintiff's lien had its inception in services rendered in an action by Hore against Meyer (formerly Whitney) to have a certain instrument, on its face a deed, declared to be a mortgage. An attorney's lien is given by statute. Code Civ. Proc. § 430. Gilchrist was not in any sense a successor in interest of Hore. He merely acquired a lien upon Hore's property upon which Meyer had a prior mortgage lien. The situation was not different at all from what it would have been had Hore given Gilchrist a second mortgage upon the property to secure the payment of his attorney's fee. In commencing an action to foreclose such a second mortgage, it could hardly be contended that Gilchrist would have been compelled to pay or tender payment of the amount of the first mortgage as a condition precedent to foreclosing his second mortgage. There is not anything in this contention.

2. In his reply the plaintiff alleged that the defendant Meyer had received $1,000 in rents from the property from October 20, 1903, to July 28, 1905. When the defendant Meyer offered evidence tending to show that she had received only about $450, objection was made by plaintiff that, by failure to reply to his reply, defendant Meyer had admitted that she had received the sum of $1,000 as alleged in the reply. The court admitted the evidence subject to the objection, with the statement that, if it decided that a reply on the part of the defendant Meyer was necessary, the evidence offered by her would not be considered. There is not anything in the record in terms which discloses what the court's final ruling upon the matter was, but from the fact that the court found that defendant Meyer had received in rents the full sum of $1,000 as alleged in plaintiff's reply-a finding not supported by the evidence at all-it becomes apparent that in fact the court did hold that the allegation in plaintiff's reply was admitted, and that the evidence tending to show the exact amount received had been excluded from final consideration. The position of plaintiff in the trial court was that the pleading by which defendant Meyer set forth her claim for the foreclosure of her mortgage was in fact a cross-complaint, and that plaintiff's pleading putting in issue certain allegations therein and setting up affirmative matter was in fact an answer which required from the defendant Meyer a reply, or, in the absence of such a reply, the affirmative allegations were admitted. But this position is not maintainable at all. "The Code establishes the law of this state respecting the subjects to which it relates." Code Civ. Proc. § 3453. Section 661 of the same Code provides: "The forms of pleading in civil actions, and the rulas

by which the sufficiency of the pleadings are to be determined, are those prescribed in this Code." Section 662 provides: "The only pleadings allowed on the part of the plaintiff are: (1) The complaint. (2) The demurrer to the answer. (3) The reply to defendant's answer. And on the part of the defendant: (1) The demurrer to the complaint. (2) The answer. (3) The demurrer to reply." The only pleading of facts on the part of the defendant, then, is the answer, and this is so irrespective of whether the action is one at law or in equity, for there is now but one form of civil action known to our law. Section 460. The answer may consist of (1) denials, and (2) statements of new matter. The new matter may constitute a defense or a counterclaim. Section 690. When a cause is tried, judgment may be given which determines the ultimate rights of the parties on each side as between themselves. Section 1001. And this being so, and an answer being the only pleading of facts permitted on the part of a defendant, it must be apparent that a cross-bill or cross-complaint is not known to our practice, but that an answer under our Code affords a defendant every opportunity for relief which a cross-bill or cross-complaint could have secured to him. No matter, then, what form the answer assumes, it is nevertheless an answer, and the only pleading of facts on the part of the plaintiff thereafter is a reply. In such reply the plaintiff may allege any new matter, not inconsistent with the complaint, constituting a defense to the counterclaim or new matter in the answer. Chapter 5, p. 8, Laws of 1905. But every allegation of new matter in a reply is deemed denied. Code Civ. Proc. § 754. And in this case, no matter what the defendant Meyer may have called that portion of her pleading in which she sought foreclosure of her mortgage, it was in fact a part of her answer, and the pleading of facts thereafter filed by the plaintiff, no matter by what term designated, was in fact a reply, and every allegation of new matter in it was deemed denied. It was the last pleading of facts authorized by our Code. These conclusions appear plain upon principle from the language of the Code itself. They do, however, find support in the decisions of other courts treating similar Code provisons. Kollock v. Kaiser, 98 Wis. 104, 73 N. W. 776; Hughes v. Durein, 3 Kan. App. 63, 44 Pac. 434. Counsel for respondent refers to section 981 of the Code of Civil Procedure, and suggests that it may modify section 662 above. But the provisions of section 981 are by express terms applicable only to title 7 of that Code, and that title has to do with provisional remedies in civil actions and not qestions of pleading, which are controlled by title 6 of the same Code.

It is apparent from finding No. 5 that the trial court refused to consider the evidence offered by the defendant Meyer to show the

amount of rents received by her from the property, but must have held that the allegation in plaintff's reply-that the amount was $1,000-was admitted. In this the court erred.

The cause is remanded to the district court, with directions to hear proof and determine the amount of rents received by the defendant Meyer from the property, and to make such modification in the decree as may be justified by the finding upon the matter so considered. Remanded.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 448)

STATE ex rel. BRAY v. SETTLES, County Treasurer.

(Supreme Court of Montana. Oct. 29, 1906.) 1. INTOXICATING LIQUORS-LICENSES-NECESSITY OF OBTAINING LICENSE.

Laws 1905, p. 154, c. 71, requires retail liquor dealers to obtain a license from the county treasurer, but provides that he shall not issue a license until directed so to do by the board of county commissioners on a petition signed by a specified number of freeholders residing in the city, etc.. in which any person, seeking such a license, "intends to engage in business.' Code Civ. Proc. § 3135, provides that in the construction of a statute the intention of the Legislature is to be pursued if possible, that when general and particular provisions are inconsistent the latter is paramount, and that a particular intent controls a general one inconsistent therewith. Held, that one engaged in the liquor business, under a license, on the expiration thereof is not entitled to receive another license from the treasurer until there has been a petition to the county commissioners and favorable action thereon by them.

2. SAME-STATUTES-VALIDITY.

The statute is not obnoxious to constitutional principles on the ground that it grants to the board of county commissioners authority to act capriciously.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 17, 18.]

Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

Mandamus by the state, on relation of M. H. Bray, to compel W. M. G. Settles, as county treasurer of Lewis and Clarke county, to issue a liquor license to relator. From a judgment dismissing the proceedings, relator appeals. Affirmed.

C. B. Nolan, for appellant. Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for respondent.

BRANTLY, C. J. Mandamus. On or before September 9, 1905, the appellant (relator) "filed and presented to the board of county commissioners" of Lewis and Clarke county a petition signed by 20 freeholders residing in the village of Wolf Creek in said county, asking that a license be issued to him permitting him to carry on the business of a retail liquor dealer at Wolf Creek for six months, said village having a population of

less than 100. After considering the petition, the board ordered the county treasurer to issue the license, and that officer did so under date of September 9, 1905, upon payment of $165, this sum being fixed by the statute (chapter 82, p. 174, Laws of 1905, § 1) as the amount to be paid semiannually for such license. On March 9, 1905, the day the license expired, the relator tendered $165 to the county treasurer, and demanded a license to be issued to him to carry on the same business at the same place for the six months beginning on that day. The treasurer refused to grant the demand without an order of the board of commissioners, directing him to do SO. This action was then begun to compel the issuance of the license. The district court issued an alternative writ. The defendant showed cause by demurrer, which upon consideration the court sustained, dismissing the proceedings and rendering judgment for defendant for costs. Thereupon the relator appealed.

The contention is that it was the duty of the treasurer, under the provisions of chapter 71, p. 154, of the Laws of 1905, to issue the license on demand, because the appellant, having once presented his petition to the board of county commissioners, was not required thereafter at any time to present a new petition or to have any action thereon by the board. The act referred to is entitled: "An act to regulate the issuance of licenses of retail liquor dealers in cities, towns, villages or camps containing a population of less than one hundred;" and whether the appellant's contention is maintainable depends upon what construction is to be given to it.

Section 1 of the act, after declaring that all retail liquor dealers in all cities, towns, villages, or camps, etc., having a population of less than 100 shall obtain a license from the county treasurer, proceeds: "But before the county treasurer shall be permitted to issue such license, petition shall first be filed and presented to the board of county commissioners of the county, signed by at least twenty freeholders residing within the particular city, town, village, camp, or township in which any person seeking such a license, intends to engage in business, requesting the issuance of such license to such person, and they shall in their discretion thereupon direct the county treasurer to issue such license, but not otherwise."

Section 2 lodges the matter of directing the license to issue, entirely in the discretion of the board of county commissioners.

Section 3 provides for the revocation of such license, and specifies the circumstances under which the revocation may be made.

Counsel for appellant bases his contention upon the words "intends to engage in business," found in section 1 quoted supra, and argues that one already. engaged in business cannot entertain an intention to engage in it, and therefore the use of the word "intends"

precludes the idea that after a license has once been issued, an applicant for another license at the expiration of the term for which he has already been licensed, shall again apply to the board for an order. It is manifest, however, from reading the act, that it was the intention of the Legislature to prohibit specially the sale of intoxicating liquors in the class of communities mentioned in all cases, except where the people residing in them should give their consent. For unless this were the purpose, the act could not apply to a person already engaged in the business at the time of the passage of the act; and we may not conclude that the Legislature intended it to apply only to persons about to engage in it in those communities where no such business was then being carried on. "In the construction of a statute the intention of the Legislature is to

*

be pursued if possible; and when general and particular provisions are inconsistent, the latter is paramount to the former. So a particular intent will contro! a general one that is inconsistent with it." Code Civ. Proc. § 3135.

We think the general intention of the Legislature is manifest, and that the loose use of the word "intends" in the recital, upon which appellant founds his contention, cannot be held to be an expression of a particular intent which will control and in great measure render the act nugatory.. Literally interpreted, the word "intends" conveys the idea contended for by appellant; but we think it apparent that its use was the result of hasty and careless work on the part of the person who drew the bill, rather than that it is the expression of a well-defined intention on the part of the Legislature to limit its operation. It renders the act somewhat ambiguous, but the ambiguity must be resolved in favor of that construction which will render the act uniform in its operation in all localities to which it was intended to apply. And it can be no serious objection to the act as a whole, that it renders it exceedingly inconvenient for persons intending to obtain a second license, to apply to the board of county commissioners, for the reason that licenses expire at different dates, and that the board is not always in session, or that, in order to accommodate those engaged in such business, it must hold special meetings at the expense of the county. It is entirely within the province of the Legislature, in the exercise of the police power of the state to regulate the sale of intoxicating liquors and to impose such restrictions upon those engaged in the bustness as will carry out its purpose. "The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to the regulation and control of the police power of the state; a power of which the Legislature cannot divest itself; and such body is the exclusive judge of the manner in which such police power shall be exercised, and its action thereon should be liberally

construed." In re O'Brien, 29 Mont. 545, 75 Pac. 200. Any regulation of it is an inconvenience to the dealer, but no matter what inconvenience may be imposed upon him by the Legislature, so long as it bears equally upon all persous falling in his class, he has no right to complain. Counsel says that the legislation is obnoxious to constitutional principles, in that it grants to the board of county commissioners authority to act capriciously. The discretion referred to in section 2 of the act must be construed to be a fair administrative discretion. The act does not in terms nor does it impliedly authorize the board to act capriciously or arbitrarily. The fact that it may so act is no objection to the validity of the statute, because wherever discretion in a particular matter is lodged in any judicial or administrative officer, he may be guilty of an abuse of it; but the fact that he may abuse the power vested in him is no valid objection to the legislation which vests the power.

Let the judgment of the district court be affirmed.

Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 433)

ALEXANDER v. GREAT NORTHERN RY. CO. et al.

(Supreme Court of Montana. Oct. 29, 1906.) APPEAL-BRIEFS-FORM AND REQUISITES.

Sup. Ct. Rule 10, par. 3, subd. a (82 Pac. x) requires appellant's brief to contain a coneise abstract of the case, referring to the page numbers in the transcript in such manner that the pleadings, evidence, orders, etc., may be easily found; provided, that, where the transcript is not printed, the briefs shall contain so much of the record as is necessary to make out appellant's case, with references to the transcript by page and marginal numbers. Held, that where a transcript was not printed, and appellant's brief did not refer to the pleadings, and did not attempt to state the issues, or how they were raised, the appeal should be dismissed.

[Ed. Note.--For cases in point. see vol. 3, Cent. Dig. Appeal and Error, $$ 3095, 3126.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by Mrs. G. A. Alexander, Jr., against Great Northern Railway Company and Montana Central Railway Company. Judgment for plaintiff, and defendants appeal. Motion to dismiss. Sustained.

E. L. Bishop, for appellants. John A. Shelton, for respondent.

HOLLOWAY, J. This is an appeal by defendants from a judgment of the district court of Silver Bow county in favor of the plaintiff for $122, and for interest and costs.

The respondent moves to dismiss the appeal upon the ground that appellants have not complied with subdivision a, paragraph 3, Rule 10 (82 Pac. x) of the Rules of this

court which provides: "3. The appellant's brief shall contain, in the order here stated: a. A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised. The abstract shall refer to the page numbers in the transcript in such a manner that pleadings, evidence, orders, and the judgment may be easily found: Provided, that in cases in which the transcripts are not printed, the briefs shall contain so much of the record as is necessary to make out the appellant's case, with references to the transcript by page and marginal numbers." The transcript is not printed, and appellants' brief does not anywhere refer to the pleadings, and does not attempt to state the issues, or how they were raised. The purpose of the rule above is to relieve an appellant from the burden of printing the transcript in certain classes of cases, provided his brief contains so much of the record as will make out his case, and proper references are made to the transcript. It may not be necessary to print the pleadings in the brief if concise statements of their contents are made, with proper references to the pages of the transcript where they may be found, but, certainly, appellants do not make out their case in their brief, when they neglect to state whether any pleadings were filed, and, if any were filed, where they may be found, their contents or what, if any, issues were raised. The rule above was adopted for the benefit of appellants, and is deserving of more consideration than an observance of its existence by a breach of its conditions.

The motion is sustained, and the appeal is dismissed.

Dismissed.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 477)

JOHNSON v. MAIETTE. (Supreme Court of Montana. Nov. 12, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Where a servant was directed to perform certain work about an elevator, and he went on the elevator to do the work though he could have done it more safely standing outside the elevator, but he did not know that it was more dangerous to go on the elevator and the circumstances did not warrant the presumption that he ought to have known, negligence could not be imputed to him as a matter of law, but it was properly left to the jury to determine whether he ought to have known of the danger. [Ed. Note.-For cases in point. see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.] 2. SAME-INSTRUCTION.

Where, in an action for injuries to a servant, plaintiff requested an instruction that where an employé has two ways of performing a duty, one of which is dangerous and the other safe, and he knowingly and voluntarily or through negligent ignorance selects the dangerous one, thereby bringing upon himself an in