cause of action arising by reason of Tuttle having seized and held the hay. Whatever may be true as to Sears and Davidson hav ing a cause of action against Gleason for disposing of the hay, this did not deprive them of their cause of action against Tuttle for seizing and holding it. This cause of action they asserted against Tuttle, and ob tained a judgment against him. For such damages occurring to Tuttle by reason of his holding the hay, the defendants Mead and Smith agreed to indemnify him.

The Code of Civil Procedure provides, in section 533, as follows: "In an action brought against a sheriff for an act done by virtue of his office, if he give written notice thereof to the sureties on any bond of in demnity received by him, the judgment re covered therein shall be sufficient evidence of his right to recover against such sureties." Now, when Tuttle was sued by Sears and Davidson, he notified Mead and Smith, sureties, and they came in and defended the suit. The liability of Gleason and of Tuttle was tried in that case. As we have seen, there was a cause of action existing against Tuttle, We further find that it was tried and established in the suit against him,-a suit in which the indemnifiers appeared and defended. Under these circumstances, section 533, Code Civ. Proc., declares that the judgment recovered shall be sufficient evidence of the sheriff's right to recover against the sureties. Dutil v. Pacheco, 21 Cal. 438. All these matters appear in the complaint in the action. The judgment of the district court is there fore reversed, and the cause is remanded, with instructions to overrule the demurrers of defendants Mead and Smith.

PEMBERTON, C. J., and HUNT, J., con

cur.

(15 Mont. 244)

BROWN v. BOARD OF COM'RS OF DAWSON COUNTY.

(Supreme Court of Montana. Jan. 28, 1895.)

APPEAL-MOTION FOR NEW TRIAL.

As a motion for a new trial for errors of law is made on the minutes of the court or bill of exceptions or statement of the case, under Code Civ. Proc. § 297, an appeal from an order denying such a motion will be dismissed where the record shows that no such papers were before the court on the hearing of the motion. Appeal from district court, Dawson county; George R. Milburn, Judge.

Action by M. H. Brown against the board of county commissioners of Dawson county. From a judgment for plaintiff, defendant appeals. Affirmed.

Thomas C. Holmes and Ella L. Knowles, for appellant. Strevell & Porter, for respondent.

DE WITT, J. The defendant appeals from the judgment, which is rendered in favor of plaintiff, and also from the order denying

defendant's motion for new trial. A motion is made in this court to dismiss the appeal, on the ground that there was no statement on motion for new trial, and that it is impossible to determine from the record what was before the district court upon the motion. This motion to dismiss, as far as the appeal from the order denying a new trial is concerned, must be sustained. We cannot ascertain that the court had anything whatever before it in hearing the motion for new trial. There is in the record a document called "Statement of Errors and Grounds of Appeal." This paper contains some evidence; whether the whole or only a part does not appear. But the document could not have been used upon the hearing of the motion in the district court, because it did not come into existence, as appears by the certificate of the judge, until three months after the motion for new trial had been decided, and one month after the appeal had been taken to this court. What appears in the record as a statement on motion for new trial was also not settled until three months after the motion was decided, and one month after the appeal was taken to this court, as appears by the stipulations in the record extending time for preparation of the statement, and, indeed, as is conceded by the appellant's brief. The motion for new trial was solely upon the ground of errors of law occurring on the trial, and excepted to by the defendant. Code Civ. Proc. § 296. Such a motion is made upon the minutes of the court or a bill of exceptions or a statement of the case. Id. § 297. But the record in this case affirmatively discloses that no such papers were before the district court on the hearing of the motion. In fact, it does not at all appear by the record that the motion was heard upon anything whatever. Id. § 438. The appeal from the order denying the motion for new trial is therefore dismissed.

As to the appeal from the judgment, there is no error apparent upon an inspection of the judgment roll. Not only is the record in this case fatally defective in matter and substance, but in its arrangement and preparation it offends several of the rules of this court upon that subject. The judgment of the district court is affirmed.

come flooded in case of rains does not entitle he tenant to avoid the lease.

3. The fact that the landlord, after the celar had become flooded with filth and water, gratuitously undertook to remove the same, and lid so negligently, does not entitle the tenant o abandon the premises.

4. Where a tenant, after having abandoned the premises with knowledge of their condition, resumes possession, he waives any right to avoid the lease on account of concealments by the landlord at the time of the execution of the 'ease as to their condition.

5. In such a case he also waives his right to claim a prior eviction.

6. An agent authorized to collect rent for his principal has no implied authority to accept a surrender of the lease.

7. The retention of the key to leased premises by the landlord, it having been accepted by his agent, who was only authorized to collect the rents, and delivered by him to the landlord, and a subsequent offer of the premises for rent, are not an acceptance of a surrender of the lease.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by James Blake against Dell Dick. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Affirmed.

Blake sued Dick for $120, rent due by Dick for certain premises for the months of October, November, and December, 1891, under the terms of a lease made April 16, 1891, wherein Blake leased a certain dwelling house in the city of Helena to Dick for one year from May 1, 1891, at a rental of $40 per month, payable in advance. There were no Covenants of any kind whatever wherein the landlord Blake agreed to keep the premises in repair or tenantable. The defendant, by answer, admitted the lease, denied any debt under it, and set up that after entering into the lease, and while occupying the premises, the same became untenantable on account of defects in the location and construction of the dwelling, by means of water flowing into the basement room, and washing large quantities of mud and filth from the back yard into said apartment, so as to render the same unfit for use, and dangerous to the health of defendant and his family. Defendant also pleads that Blake agreed to render the place fit for use and tenantable, being notified by defendant so to do, and did thereafter partially remedy the same, but neglected to remedy the primary cause of the deposit of water and filth, and that at the occasional rains of the season the basement became flooded with water flowing down from the rear of the premises, carrying mud and filth from the back yard, so as to render the place untenantable and dangerous to the health of defendant and his family. Defendant then says that at various times he notified Blake of the condition of the premises, and requested him to remedy the same, or that he would have to leave, and abandon the lease, and that Blake partially removed the mud and filth, but v.38p.no.15-68

spread the same over the yard, rendering the place unfit for habitation, and more dangerous to the health of the occupants; and that because Blake neglected to make the premises habitable, and on account of their unhealthy and untenantable condition, defendant removed on September 13, 1891, and abandoned his lease, notifying plaintiff, and surrendering possession. It is further set forth that Blake accepted the premises, has been in possession since, and offered the place for rent, and that the defendant paid rent for September, and since the abandonment has not claimed possession or control. The plaintiff denied all the affirmative matter set forth in defendant's answer. The cause was tried to a jury. At the close of the defendant's testimony, upon motion of plaintiff, and by instructions of the court, the jury returned a verdict for the full amount claimed in the complaint, $120. Judgment was entered for said sum. A motion for new trial was made and overruled. Defendant appeals.

Kinsley & Blackford, for appellant. Massena Bullard, for respondent.

HUNT, J. (after stating the facts). The lease between Blake and Dick was the ordinary contract between landlord and tenant. There was therefore no implied warranty on the part of Blake that the dwelling house leased was in tenantable condition, or would be kept in such condition; nor at the time of the original contract between the parties was there any obligation on Blake's part to make any repairs of the cellar or ground. These rules of law are too well settled to require a citation of authorities to support them. Bowe v. Hunking, 135 Mass. 383, and cases cited. Defendant, in his answer, having admitted the execution of the lease and nonpayment of rent, assumed the burden of proof to escape liability under its terms. He was asked "if there was any change in the condition of the basement about that time [meaning July, 1891] from what he found it." This question was ob jected to, and the objection sustained. Whereupon defendant made the following offer of proof: "I now offer to show that these premises were so situated that any rain or storm was liable to flood this basement, and render it unfit for use; that at the time this defendant leased this building it was warm, dry weather, and that defect was not apparent to him at the time; that tenants who had occupied the building before this defendant occupied it complained, and were obliged to leave on account of a similar defect; that by the rain of about July 4th this cellar was filled with filth, manure, múd, and water, which ran into it from a stable yard belonging to the plaintiff on the premises immediately adjoining; that the basement was filled with

water to the depth of some six or eight feet, and also with the filth from the barnyard; that it remained so for some week or ten days; that the plaintiff or his agent came there and offered to remove it, admitted that they were liable to remove it, and undertook to remove it; that they took it from the basement, and spread it around in the yard of the premises, and left it in manure piles, and piles of rubbish and garbage, and that these piles of rubbish and garbage so distributed upon the premises rendered the whole premises unfit for occupation; and that by reason of this change in the premIses, making it dangerous to the health and lives of the family of the defendant, he was obliged to and did surrender the premises to the plaintiff." Plaintiff objected to the offer upon the ground that such proof was irrelevant and immaterial, and, if established, would constitute no defense to the complaint. The court sustained this objection.

The defendant contends that because the facts in relation to the situation of the premises, and the construction of the dwelling house, and the liability of the water to run down into the cellar, were not apparent to him at the time he leased the property, it became the duty of the landlord to disclose all such "defects" to him, and that, not having done so, he was guilty of fraud in procuring the lease. But the tenant cannot complain. The landlord did not warrant the condition of the premises. The tenant, by the evidence, inspected them. He took the risk of their condition. Tayl. Landl. & Ten. § 328. We find no plea of concealment by the landlord of any fact of which the tenant did not have full opportunity of informing himself, and accepting, as we do, all the facts to be true, as pleaded and offered, in relation to the occasional rains, causing draining of water into the cellar from the stable yard of the landlord, there can be no deduction that, by reason of such overflow or drainage, there was any suppression of the truth, or any concealment of facts, or other conduct positively or inferentially fraudulent on the part of the plaintiff, before or at the time of the execution of the lease. Milliken v. Thorndyke, 103 Mass. 385, relied on by appellant, was decided upon a wholly different state of facts from that in this case. There the lessees set up that before the execution of the lease they had a conversation with the lessor, and that by the false representations of the lessor of material facts which he knew to be false when he made them, or positively affirmed as of his own knowledge, they were induced to sign the lease, and that such conduct was fraudulent, and rendered the lease null and vold; and the decision in that case based entirely upon the ground that by the deceit of the landlord, and the abandonment of the premises immediately upon the discovery of the fraud, the defendant could obtain relief. The case has no application. Here

was

Blake, the landlord, was not obliged, by any relation of the parties to the lease under consideration, to remove the mud and filth from the cellar. His act in so doing was therefore gratuitous, and any agreement on his part to remove it was without consideration and void. Purcell v. English, 86 Ind. 34; Wood, Landl. & Ten. § 382.

The further argument, that the landlord incurred a liability when he undertook to remedy the defect, but failed, might be applicable, under proper averments, in tort, upon the principle, however, that where a person has assumed to make repairs, and has failed to exercise a proper degree of care in making them, and injury results, redress is afforded the injured party, independent of any contract existing between the parties. But there is no such plea or contention before us.

The defendant next says that by the spreading of the filth upon the yard the premises became unfit for habitation, and more dangerous to the health and lives of the family of defendant, and thus a nuisance was created which constituted an eviction, and justified him in quitting the possession. The facts show, however, that the primary nuisance was the filth in the cellar, which made the premises unfit for use and dangerous to health. For this condition and its causes the landlord was not liable, and, where he cannot be held liable for the creation of the nuisance, we hold be cannot be held responsible for any act, not negligently or wrongfully done, in voluntarily, by request of the tenant, trying to abate it. Moreover, the conduct of the defendant, Dick, is inconsistent with the claim on his part that he was evicted. He swears that he left the premises in July, but after about 10 days' absence returned, and remained in them until September. We are

of opinion that by his return and stay he waived any rights he may have had to set up fraud, deceit, or eviction. Wood, Landl. & Ten. § 481; Gear, Landl. & Ten. § 160, and note.

He

Defendant finally pleads a surrender. testified that, when the October bill for rent was rendered to him, he returned the key, writing at the foot of the bill rendered that he considered the house untenantable, and refused to pay any more rent, and that he afterwards saw a notice "For Rent" posted upon the premises. The key and note were delivered to a Mr. Hopkins, who worked for Wallace & Thornburgh, from whom defendant hired the premises, and who appear to have offered the premises for rent in September after defendant vacated. But no surrender is proved. The defendant did not establish any authority whatever in Hopkins to terminate the lease, or to consent to the abandonment of the premises. Thomas v. Nelson, 69 N. Y. 118. Even granting that Hopkins, as a clerk of the agents of the landlord, had authority to collect the rent from the defendant, such authority was a recognition of the existence of the contract, and

that it would continue in force; but an agency to collect the rent of premises does not, by implication, and without further proof of authority, carry with it the right to accept a surrender, where a tenant, without legal justification, has quitted the premises before the term is completed. Woodward v. Lindley, 43 Ind. 333; Baylis v. Prentice, 75 N. Y. 604. The appellant argues that the conduct of the landlord, however, in not returning the key, and in offering the house for rent, amounted to an acceptance and release. But it was not incumbent upon the landlord, if he got the key, to seek out the tenant and return it to him; and we hold that in the absence of any testimony of a surrender to the landlord himself, or of any acceptance of the premises by him, or by his authorized agents, proving an intent to consent to an abandonment by the tenant, the delivery of the key to Hopkins, and its retention, and a subsequent offer to rent, are not, without further evidence, sufficient to relieve the tenant of rent due under the lease for such time as the house was empty. Nelson v. Thompson, 23 Minn. 508; Withers v. Larrabee, 48 Me. 570; Ladd v. Smith, 6 Or. 316; Bowen v. Clark, 22 Or. 566, 30 Pac. 430. In conclusion, upon a review of the authorties and facts, we are of opinion that there was no eviction and no surrender by agree ment, or by operation of law, and that the direction to the jury to find for the plaintiff was correct. The order denying a motion for new trial and the judgment are affirmed.

1. The acceptance of a juror over a party's objection will not be considered unless the record shows that, at the time of his acceptance, such party had used all his peremptory chal lenges.

2. Comp. St. div. 5, § 1483 et seq., provides that, when owners of mining claims have performed the required labor, they may make an affidavit of the facts, and file the same with the county recorder, and such affidavit shall be prima facie evidence of the facts therein stated. Held, in an action to try the right to the possession of mining land, that, where the person who made the affidavit testified as to the facts therein contained, the admission of the affidavit could not prejudice the adverse party.

3. An affidavit signed by affiant is not invalid because affiant's name does not appear in the body thereof.

4. It appeared that, the day before location of a mining claim, it had been surveyed. The locator testified that the vein showed very plainly on the surface, and was a good-looking vein, and described its strike and width, but that he did not make any assays at the time, but that assays made after the location proved the value of the vein. Held that, in the absence

of evidence that the vein was not a good one, there was sufficient evidence of a discovery of a mineral vein before the location.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by James Davidson and others against John R. Bordeaux and others. The defendants made an application to the

United States land office for a patent upon the St. Lawrence lode mining claim. The plaintiffs filed an adverse claim in the land office, under the provisions of section 2326 of the United States Revised Statutes. The matter was then referred to the appropriate court of competent jurisdiction to determine the rights of said claimants. The result was the commencement and trial in the district court of Silver Bow county of the case now at bar. The case is what is commonly known at the bar as an "adverse suit." The character and object of such suit are so well understood, and have been so often stated by this court (Wulf v. Manuel, 9 Mont. 282, 23 Pac. 723; Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725; Ormund v. Mining Co., 11 Mont. 303, 28 Pac. 289, etc.), that a further statement is not necessary to explain the errors alleged by appellants, and treated in the opinion below. The judgment was for the defendants. The plaintiffs appealed from the judgment, and from an order denying a new trial. Affirmed.

L. J. Hamilton and Geo. Haldorn, for appellants. Forbis & Forbis, for respondents.

DE WITT, J. (after stating the facts). The first error asserted by appellants is that the court overruled two of appellants' challenges to jurors for cause, when it appeared, as claimed, by the examination of said jurors on their voir dire, that they were disqualified by virtue of opinions which they were shown to entertain. But it does not appear by the record that the defendants, at any time before the swearing of the jury, had used any of their peremptory challenges; and, for all that appears by the record, the defendants went to trial with the alleged objectionable jurors, and, at the same time, had unused all of their peremptory challenges, with which they might have excluded said jurors. In the case of Territory v. Hart, 7 Mont. 42, 14 Pac. 768, it was held that a party objecting for cause to an incompetent juror waived the objection made in that case if he failed to challenge said juror peremptorily, and went to trial with his peremptory challenges unexhausted. In that case it is true that it appeared by the record on appeal that his challenges were not exhausted. But we are of opinion that the rule does and should go a step further than was necessary to hold in the Hart Case, and that a party undertaking to save such objection for review on appeal must also be held to show in his record that, when he finally accepted the jury, he had not remaining a peremptory challenge by which he

could have excluded such objectionable juror. This is simply holding that a party claiming that he was injured by a ruling of the court below must present the appellate court with a record which shows the facts upon which he relies. Thomp. Trials, § 115, and authorities; Burrell v. State, 18 Tex. 730; Robinson v. Randall, 82 Ill. 521; Stout v. Hyatt, 13 Kan. 232; State v. Hoyt, 47 Conn. 518, and cases there cited; Brown v. State, 57 Miss. 424; State v. Raymond, 11 Nev. 98. This assignment of error is therefore overruled.

There are some questions argued in appellants' brief as to a forfeiture for nonrepresentation of the St. Lawrence lode mining claim in certain years, but this issue was not made by the pleadings (Wulf v. Manuel, 9 Mont. 287, 23 Pac. 723, and cases collected), except as to the year 1887. But appellants now abandon any claim of error as to the finding in respondents' favor in regard to the representation in the year 1887, except as noted in the assignment treated in the next paragraph. There are several other assignments of error mentioned in the brief of appellants which counsel, on the argument, abandoned.

Another error assigned by appellants is that the court allowed to be introduced in evidence by respondents the affidavit of one John W. Merrill as to the representation of the St. Lawrence claim in the year 1887. This was an affidavit made under the provisions of section 1483 et seq., div. 5, Comp. St. Mont. That statute provides (stating it generally, and not by detail) that, when owners of mining claims have performed the required labor or made the required improvements upon a claim, they may, within 60 days after the termination of the year, make an affidavit of those facts, setting out the nature of the labor and improvements, and file the same with the county recorder, and that such recorded affidavit shall be received or admitted in evidence in any court of justice in this state, and be prima facie evidence of the facts recited therein. It is not required that such affidavit be made, but, if it be so made and recorded, it may be used, as above noted, as prima facie evidence. The making and recording of the affidavit are simply a convenient method provided for preserving prima facie evidence of the representation, if one chooses to avail himself of this provision of the law. Coleman v. Curtis, 12 Mont. 301, 30 Pac. 266.

When the case came on for trial, the said affiant Merrill was present, and testified as to the representation of said claim in that year. His affidavit, above described, was also used in evidence. The objection is that it was secondary evidence when the primary evidence was at hand. But, in this case, what the appellants call the "primary evidence"-namely, Merrill's own testimonywas introduced. We are of opinion that the introduction of the affidavit was wholly immaterial. In the absence of a statute, it would, of course, not be evidence. But the

statute expressly made it evidence. It was not necessary or material, in the presence of the fact that the affiant was at the trial and testified orally. But the introduction of the affidavit could have done no possible injury to the appellants. The finding of the court as to the representation in the year 1887 was established by Merrill's testimony, without the use of the affidavit. That finding is not attacked, and it is conceded by appellants in their argument that the Merrill testimony was sufficient to sustain the finding without the use of the affidavit. It is a clear case of damnum absque injuria.

Appellants allege another error in the introduction of evidence of the location notice of the St. Lawrence claim. Appellants objected to the affidavit verifying the location notice. The affidavit was not alleged to be objectionable in any respect, except that the name of the affiant did not appear in the body of the affidavit. The affidavit commenced: "Territory of Montana, County of Silver Bow-ss.: Being first duly sworn according to law, deposes and says that she is a citizen," etc. The affidavit was then signed, "Mrs. Susan A. Smith." A formal jurat was attached, signed by the notary public. It is held by this court that the declaratory statement of the location of a mining claim must be under oath. O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; Id., 9 Mont. 452, 23 Pac. 1018; Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037. If this affidavit, therefore, is insufficient, the location notice is void. But we are of opinion that the affidavit is sufficient. It is not such an affidavit as was held to be bad in Metcalf v. Prescott, supra. In that case the affidavit was not signed. There was no jurat to it, and there was nothing about it to show that the alleged affiant ever signed it, ever swore to it, or was ever before the notary. But, in the affidavit now under consideration, the affiant does appear to have been before the notary. It is certified that she swore to it, subscribed it, and her name appears as a subscriber. We said in Metcalf v. Prescott that "an affidavit is one method of taking an oath. An affidavit is 'a statement or declaration reduced to writing, and sworn or affirmed to before some officer who had authority to administer an oath.' Bouv. Law Dict." The affidavit before us was a declaration reduced to writing, and it clearly appears that it was sworn to and subscribed before an officer having authority to administer an oath. See cases cited in Metcalf v. Prescott, 10 Mont. 294, 25 Pac. 1037; People v. Sutherland, 81 N. Y. 1.

The last assignment of error is that the evidence is insufficient, in that it does not show that, prior to the location of the St. Lawrence claim, there was any discovery of a mineral-bearing vein. The location of this claim appears by the evidence to have been made with much care. The claim was surveyed by a surveyor the day before the lo