instance the certificate offered was an original, and was properly identified by the parties who made the affidavits, by the county clerk who attached his certificate, and by proof of the signatures of the defendant to the jurats, and to the inspector's certificate. A witness, J. L. Foster, was permitted to testify for the state, over the objection of the defendant, that his name was not indorsed on the information. It does not appear from the record whether this witness was known to the county attorney at the time the information was filed. Section 1734 of the Penal Code provides: "The county attorney must indorse upon the information at the time of filing the same, the names of the witnesses for the state, if known." This section was considered in State v. Sloan, 22 Mont. 293, 56 Pac. 364, and State v. Schnepel, 23 Mont. 523, 59 Pac. 927, and the question now raised by defendant, determined by this court adversely to his contention.

The defendant Newman was a bounty inspector in Custer county and was charged with forging a bounty certificate. There is not any conflict in the testimony. S. A. Hotchkiss, a resident of Custer county, took to the defendant, as bounty inspector, three coyote skins in order to receive the bounty upon them. There seemed, however, to be a well-founded opinion prevalent that, instead of defendant performing the duties of his office, as required by law, he was engaged in trafficking in bounty claims; so that when Hotchkiss took these skins to the defendant, instead of proceeding according to law to secure the bounty, he merely sold to the defendant the bounty claims at a discount of 45 cents on each, signed in blank the affidavit of the person killing the animals, and an assignment of the claim in blank, and received his money for the claims. The defendant himself solicited one Herman to sign the resident stockgrower's affidavit, and this was done, although Herman says himself that he did not even see the skins. Defendant then filled up the affidavits, and made his own certificate as inspector, in which he certified that Hotchkiss had presented for examination, and that he as such inspector had examined and properly marked, 16 coyote skins. These papers were then taken to the county clerk, who certified that Hotchkiss had presented the bounty inspector's certificate that 16 coyote skins were marked as required by law, although as a matter of fact Hotchkiss had not seen the papers from the time he signed them in blank in Newman's place of business, until the time of the trial of this case in the district court. The assignment of the claim which Hotchkiss signed in blank was filled up, and the name of one Etna Western inserted as assignee of Hotchkiss, and a claim of $48 on the state's bounty fund duly preBented to the state board of examiners for

allowance, although Hotchkiss' claim had amounted to but $9, and this he had sold to the defendant for $7.65. For the purpose of showing that the insertion of the figure "16" instead of the figure "3" in the inspector's certificate, as designing the number of skins presented by Hotchkiss, was not the result of accident, mistake, or inadvertence, but done malo animo, the state, over the objection of defendant, offered evidence to show a general plan or system by which the defendant was operating. The evidence consisted of bounty-claim certificates and testimony of witnesses, showing other like transactions by Newman about the same time that the one was had with Hotchkiss. For instance: Homer Lewis presented three coyote skins at Newman's place of business, and, although Newman was not present at all, sold the bounty claims to Newman through Newman's sister who acted for him, signed an affidavit in blank and a blank assignment of the claim, had his witness sign the resident stockgrower's affidavit in blank, received $2.50 or $2.65 for each skin, and left, not having seen Newman at all. The affidavits of Lewis and his witness were filled up, and Newman attached his jurats as inspector, reciting in one instance that Lewis, and in the other his witness, had subscribed and sworn to the facts set forth in the respective affidavits before him, Newman. Newman then filled up his own certificate as inspector, reciting that Lewis had presented nineteen coyote and three wolf skins, and that he had examined and properly marked the same. The county clerk's certificate was procured, the blank assignment filled up, and Etna Western named as assignee, and a claim for $72 on the state bounty fund presented for allowance, although Lewis had received less than $8 for his claim, which in any event could not have amounted to more than $9. John M. Smith went before Newman, signed a blank affidavit as of a person who had killed certain stock destroying animals, the skins of which were then presented to Newman as such inspector, signed in blank an assignment of the claim for bounty, and received $13.65 for doing so, although as a matter of fact Smith had not presented any skins whatever for examination or marking. A resident stockgrower was procured to sign the affidavit, which, by reference to the inspector's certificate, in effect stated that Smith had presented 18 coyote and 2 wolf skins, and to the best of the stockgrower's knowledge, information, and belief the animals had been killed by Smith within 60 days preceding that date, and in Custer county. Newman then filed up these affidavits, and his own certificate as inspector recited that Smith had in fact presented to him as bounty inspector 18 coyote and 2 wolf skins, and that he as such inspector had examined and marked the same as required by law. The county clerk's certificate was procured to be attached, the blank assignment of the claim was

filled out, and Etna Western named as assignee, and a claim against the state bounty fund for $64 duly presented. Charles Hout presented the skins of two coyotes and one wolf to Newman as inspector, signed the affidavit and assignment of the claim in blank, had the stockgrower's affidavit made by one J. H. Daly, received $2.40 for each claim for bounty on the coyote skins, and $4 for the bounty claim on the wolf skin. Newman made out his certificate as inspector, that Hout had presented fourteen coyote skins and one wolf skin, the assignment of the claim was made out, and Etna Western named as assignee of the claim, the county clerk's certificate procured, and a claim against the state bounty fund for $47 duly presented, though the total amount of Hout's claim was but $11, and this he had sold to the defendant for $8.80. Ralph Gilmore went before Newman, signed an affidavit as one who had killed certain stock destroying animals, told Newman that he had not any of the skins with him, but had them at his ranch, and would send them to Newman; and it was then agreed between Newman and himself that for whatever number of skins Gilmore did send, Newman would give him credit on account. The stockgrower's affidavit was made by one Hostetter. Gilmore afterwards sent up to Newman three coyote skins. The defendant made out his certificate, in which he certified that Gilmore had presented 16 coyote skins, and that he, as such inspector, had examined and marked the same as required by law. The assignment was filled up, and Etna Western named as assignee of the claim. The county clerk's certificate was procured, and a claim for $48 presented to the state. It does not appear from the record for what amount Gilmore received credit.

The defendant urges that the introduction in evidence of the certificates showing these transactions, particularly the certificates showing the transactions other than the one with Hotchkiss, was error prejudicial to the defendant. With this contention we are not able to agree. It is a well-settled rule of the law of evidence that proof may be made by the state of facts, tending to show a uniform course of action recently pursued-a system or plan on the part of the accused, for the purpose of showing guilty knowledge or criminal intent, and to negative the idea that the particular act with respect to which the accused is charged with committing a crime, was the result of accident, mistake, or inadvertence. In 12 Cyc. 411, the rule is thus stated: "Where the crime charged is part of a plan or system of criminal action, evidence, of other crimes near to it in time and of similar character is relevant and admis sible to show the knowledge and intent of the accused, and that the act charged was not the result of accident or inadvertence," and numerous decisions are cited in support of the text. See, also. 1 Wigmore on Evidence, 304; Underhill on Criminal Evi

dence, § 423. The defendant in his own behalf offered to show that he was a furrier and taxidermist; that while acting as bounty inspector he had purchased from parties who had killed the animals the skins of coyotes and wolves upon which bounty had not been paid; and that by agreement with Hotchkiss he, Newman, had properly marked 13 coyote skins of his own which he had theretofore purchased, and had included them in his certificate as having been presented to him by Hotchkiss; that his transaction with Hout was had under a like agreement; and that as to the claims of Lewis, Smith and Gilmore, he had not in any wise included in his certificates any "skins which were not bountable in any wise." These offers were made to negative any criminal intent on the part of the defendant, and to show that in fact he did not intend to commit a crime or wrong, or defraud the state or any one else; and exception is taken to the ruling of the court excluding these offers. An analysis of these offers shows that, according to the defendant's own statement as contained in the offers, in addition to being guilty of the crime for which he was being tried, he was likewise guilty of subornation of perjury, if he procured Hotchkiss to swear that he, Hotchkiss, had killed 16 coyotes, and had presented these skins to Newman as bounty inspector, when in fact Hotchkiss had killed but 3, and had presented but 3 skins. Section 3078, Pol. Code. He was also guilty of a felony in purchasing these claims against the state. Section 136, Pen. Code. He was likewise guilty of perpetrating a fraud upon the state in presenting for bounty and procuring the payment of bounty, upon skins for which no bounty could be collected by law. It is perfectly clear from section 3071 of the Political Code, as amended by Act March 6, 1903 (Laws 1903, p. 166, c. 94), that the state's bounty is only given to the party himself who kills a stock-destroying animal, and if any such party sold the skin of the animal to Newman, he thereby waived his right to claim the bounty, and from that moment the state was not liable for bounty on such skin. In attempting to collect it, Newman was attempting to defraud the state out of the amount of such bounty. So, instead of defendant's offers of proof tending in the remotest degree to excuse him, they convicted him of numerous other crimes. If the evidence offered had been received, the court must have instructed the jury that the facts which the evidence tended to prove, if considered proved, would not constitute any defense.

Complaint is made of certain instructions given by the court, and of the refusal of the court to give certain other instructions requested by the defendant. None of these instructions are set forth in the brief of ap pellant, as required by subdivision "b," paragraph 3, Rule 10, of the rules of this court

(82 Pac. x), and, under the practice uniformly followed, these assignments will not be considered.

We have examined the other assignments made by appellant, but we do not find anything in them which would justify this court in interfering with the verdict of the jury or the judgment of the court. The evidence

is amply sufficient to sustain the judgment. The defendant appears to have had a fair trial.

The judgment and the order are affirmed.

BRANTLY, C. J., concurs.

MILBURN, J. I dissent for the reasons stated by me in Re Terrett, 34 Mont. —, 86 Pac. 266. The defendant is not, in my opinlon, guilty of forgery.

(13 N. M. 466)

BACA v. PARKER, Judge. (Supreme Court of New Mexico. Oct. 27, 1906.) OFFICERS-APPOINTMENT-COMMISSION-TESTING RIGHT TO OFFICE.

Where the Governor has power of appointment to an office, a commission therefor issued by him must be recognized till title to the office has been tried by quo warranto proceedings; so that writ of prohibition will not lie against the appointee.

Application to Leandro Baca for writ of prohibition to Frank W. Parker, Judge of district court of county of Socorro. Writ denied.

Chas. A. Spiess and E. W. Dobson, for relator. Wm. C. Reid, Atty. Gen., for respondent.

PER CURIAM. The court in this case considers itself bound by its former decisions, to the effect that in this territory, the commission of the Governor, in a case where he has the power to appoint, must be recognized until resort is had to a trial of title to the office in question in a proceeding by quo warranto. Such being the case, this court will decline to issue a peremptory writ of prohibition, under the order to show cause which has just been argued.

The issuing of the peremptory writ of prohibition is denied.

(73 Kan. 466)

ATCHISON, T. & S. F. RY. CO. v. POOLE.* (Supreme Court of Kansas. April 7, 1906.) CARRIERS LIVE STOCK SHIPMENT DELAYDAMAGES.

A stipulation in a live stock shipping contract that a written notice of a shipper's claim for damages should be a condition precedent to a recovery for any loss or injury to stock during transportation, does not apply to damages such as loss of market or depreciation in

*Reversed on rehearing pro forma on stipulation on October 1, 1906.

87 P.-30

the market price of live stock, occasioned by the carrier's negligent delay.

(Syllabus by the Court.)

Error from District Court, Jewell County; R. M. Pickler, Judge.

Action by Walter M. Poole against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. R. Smith, O. J. Wood, and A. A. Scott, for plaintiff in error. E. P. Hotchkiss and Lee Monroe, for defendant in error.

JOHNSTON, C. J. Walter M. Poole shipped seven car loads of cattle from Loveland, Kan., to Kansas City, Mo., over the Atchison, Topeka & Santa Fé Railroad. The time reasonably required for transportation between the points named is said to be about 13 hours, but Poole's cattle were on the road about 24 hours, and did not arrive until the market for the day was closed; making it necessary to hold them over till the following day, when there was a decline in the market value of such cattle. Poole claimed that negligent delay of the company caused a shrinkage in the value of the cattle during transportation of $206.98, also a depreciation in the market value during the detention to the extent of $485.83, and required an extra expenditure of $14.40 for feed. To recover these damages an action was brought by Poole, and the railroad company has answered that the shipment was made under a written contract, the terms of which precluded a recovery of damages. The contract provision mainly relied on was that: "As a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper, or his agent in charge of the stock, will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery. before such stock shall have been removed from the place of destination above mentioned, or from the place of the delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages." No such notice of a claim for damages was in fact given prior to the removal of the cattle, and the question arises whether the failure to give the same bars a recovery. In charging the jury the trial court ruled that the failure to give

the notice cut out any recovery for the shrinkage of the cattle during the delayed transportation, but left to the jury to determine what, if any, damages were sustained because of the depreciation in the market price of the cattle by reason of the delay and detention.

It is competent for parties to make contracts limiting a carrier's common-law liability, and stipulations that the shipper shall give notice of injury or loss to live stock while being carried have been sustained. Goggin v. K. P. Ry. Co., 12 Kan. 416; Sprague v. Missouri Pacific Ry. Co., 34 Kan. 347, 8 Pac. 465; Railroad Co. v. Temple, 47 Kan. 7, 27 Pac. 98, 13 L. R. A. 362; W. & W. Railroad Co. v. Koch, 47 Kan. 753, 28 Pac. 1013; Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438. Such contracts and the notices required by them must be reasonable. Agreements of this character are viewed with some strictness by the law, and unless the exemption from liability is clearly expressed, it should not be allowed. Assuming that the contract in question is valid, the limitation does not fairly cover the loss of a market. It does extend to damages for loss or injury to cattle during the transportation, and hence the trial court excluded a recovery from shrinkage in their condition during shipment. Reference is made to the Kalina Case as holding that damages for the decline in the market price were not recoverable in the absence of a notice, but it will be seen that the contract there involved provided generally for all loss, damage, and detention that might be claimed, and 10 days were given in which to present the claim. Here the claim specified in the contract of which notice is to be given is confined to loss or injury to stock during transportation, and the notice was required to be given before the removal of the cattle from the place of the delivery or destination, and before they were slaughtered or intermingled with other stock. A loss of market differs distinctly from a loss or injury to the cattle. Depreciation in the price or the loss of a market is not fairly embraced within the terms of the contract requiring notice of loss or injury to the cattle during transportation. Kramer & Co. V. Railway Co., 101 Iowa, 178, 70 N. W. 119. Obviously, it was intended that these cattle should reach their destination on a particular market day, and be sold on arrival. The particular time for the transportation was not specified in the contract, but the character of the shipment and surrounding circumstances, well known to all, required the carrier to transport the cattle with reasonable dispatch. The testimony tends to show an unreasonable delay in shipment, whereby there was a loss of market on the day of arrival, and a consequent loss to the shipper, for which the carrier is liable.

The judgment will be affirmed. All the Justices concurring.

(71 Kan. 880)

CRANE v. CAMERON et al. SAME v. PENINGER et al. CAMERON et al. v. CRANE. PENINGER et al. v. SAME.

(Supreme Court of Kansas. July 7, 1905.) 1. WRIT OF ERROR-DISPOSITION OF CAUSEMODIFICATION OF JUDGMENT.

Where, on error in ejectment, the Supreme Court held that the trial court was in error in permitting a recovery for rents after the defendants had disclaimed and surrendered possession of the premises, the Supreme Court had no jurisdiction to order the entry of judgment in the trial court for a reduced amount, in the absence of a finding of facts by the court or jury, or an agreement on the facts by the parties. [Ed. Note.-For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 4589, 4590.] 2. COSTS WRIT OF ERROR - SEPARATE PROCEEDINGS.

-

Separate proceedings in error by the plaintiff and defendants being improper where the relief can be obtained by cross-petition in error in the same case, where defendants by a separate petition in error subsequent to that of plaintiff show a right to some relief, the entire costs will be taxed against them on their petition in error, and the costs in the original case will be divided.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Costs, §§ 930, 964.]

On motions to order judgment reformed and to retax costs. Motion to order judgment reformed denied, and motion to retax costs granted.

For former opinion, see 81 Pac. 480.

PER CURIAM. The proceedings instituted by Crane were separate actions against the respective defendants in ejectment and for rents. While the actions were pending, and about one year after their commencement, the defendant in each case filed a disclaimer. The causes were continued for about one year after the disclaimer before judgment was entered. Judgment was rendered in each case for the plaintiff in ejectment, and for the rents of the premises during the whole period. In Crane against Cameron the judgment for rent was $150; in Crane against Peninger the judgment for rent was $225. According to the opinion of this court, it was error for the court to render judgment against either of the defendants for rent after they had abandoned the premises and filed their disclaimer. pears that the defendant in each case was actually chargeable with only about one-half of the amount of rent for which judgment was rendered. The plaintiff in error now applies to this court for an order directing the trial court to enter its judgment, so that in Crane against Cameron the judgment shall be for $75, instead of $150, and in Crane against Peninger the judgment shall be $115, instead of $225. This would appear to be just, but this court has no jurisdiction in any case to order a judgment for a particular amount, except where the facts are found by the court or jury, or where they are agreed upon by the parties. Application should have been made to the court that ren

It ap