ently dead, negligence was committed, whereby the death was caused, there is no principle of reason or justice upon which the defendant can be exonerated from responsibility." The court further say: "The fourth prayer [which is what we would call a request for an instruction] was also erroneous, for the reason that it sought to exclude from the consideration of the jury all the evidence relative to the conduct of the defendant's agents towards the deceased, subsequent to the collision." This case is cited with approval in Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. Rep. 653. The supreme court of Illinois said in Railway Co. v. Still, 19 Ill. 499: "Neither has the right, because the other has omitted to use care, to cease the use of efforts on his part to avoid occasioning injury to the other. That would be to permit the party guilty of the first negligence to be wantonly killed by the other party." These cases put the doctrine strongly, and the Maryland case upon an aggravated state of facts, but the doctrine is correct. Shear. & R. Neg. § 99, remark, in discussing the leading case of Davies v. Mann, 10 Mees. & W. 546, and the cases which have reviewed that case: "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negli gence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed. See, also, 2 Thomp. Neg. p. 1157, note 8, and 4 Amer. & Eng Enc. Law, p. 75, note 2. These authors cite innuinerable decisions, and my examination of the authorities leads me to conclude that their text is fully sustained. See, also, cases cited in respondent's brief, (paragraphs 2,3, and 4,) in all of which, wherein the principle under discussion is considered, the views above expressed are sustained. The authorities cited by appellant are not in conflict with the views above expressed.

to an end at what I have called its "first period, the plaintiff should have been nonsuited. But it did not so end. The evidence of facts in the second period did not warrant the court in withdrawing the case from the jury, and the nonsuit was therefore properly denied.

But I am of opinion that the court did commit error in the instructions by which the case was submitted to the jury. The court said, in instruction No. 3, among other things, "the burden of proving contributory negligence in this case rests upon the defendant," and in instruction No. 7: "If you find from the evidence that he (plaintiff) was struck down by defendant, acting negligently, through its servant, as defined in these instructions, or if you find that the plaintiff was injured by defendant's negligence in not stopping its car sooner than it did after plaintiff was struck down, then the defendant would be liable in damages to the plaintiff, "—and in instruction No. 1: "If you find from the evidence that the plaintiff may have contributed, and did contribute, to the injuries he received, by attempting to cross the street," etc. But, as I have above observed, the burden of proving contributory negligence as to the first period of the accident was not upon the defendant, and the portion of instruction 3 quoted was therefore error. And when we notice the portions of instructions 1 and 7 quoted, and the instructions as a whole, we observe that the court thereby submitted to the jury the whole facts of the accident,

both the knocking down of the plaintiff, and the injuries alleged to have been caused thereby, and also the shoving him before the car. It was thus left to the jury to determine whether the defendant negligently knocked plaintiff down, and thereby injured him, as well as whether it injured him by negligence operating after the knockdown. The submission of this first matter to the jury, it is apparent from what I have said, I am of opinion was error. It was submitting to the jury that which the court should have decided. The case should have been submitted to the jury by excluding from their consideration, as an element of their verdict, the alleged negligence and injury occurring in striking down the plaintiff. Evidence of all these facts was of course competent in the case as part of the res gestæ, but was not matter to be considered by the jury, either as an element to determine whether plaintiff was negligently injured by defendant, or to determine the amount of the damages to which he was entitled, if any. All these matters the jury consid

ry negligence, the duty rests upon defendant to so couduct himself that no greater injury shall occur than that which naturally flows from such initiatory negligence of plaintiff. There are, of course, cases where the accident is not divisible, as in the case at bar, where all that occurs, occurs at once, and where the doctrine of after-occurring negligence would not apply, as in the case at bar. Therefore, if the accident in the case at bar had come

for consideration; and it is impossible to know how much weight there was with the jury of the matter which was improperly submitted to them. The subject should have been controlled by appropriate instructions. In accordance with these views, I am of opinion that the order denying the new trial, and the judgment, should be reversed, and the case remanded, with directions to the district court to grant a new trial.

(12 Mont. 82)

MCDONALD et al. v. SHREVE.

(Supreme Court of Montana.

March 28, 1892.) PRACTICE ON APPEAL-AMENDMENT OF TRANSCRIPT -RULES Of Court.

Rule 23 (27 Pac. Rep. vi.) of the supreme court provides that, when any "transcript or paper" is taken from the office of the clerk, upon the order of the court, the same shall be "returned within 20 days in all cases, etc. Rule 11, Id., provides that, "for the purpose of correcting any error or defect in the transcript, either party may suggest the same in writing, and, upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record required." Held, that where the court suggested that an appeal from an order granting a new trial was probably improperly presented by a "statement on appeal, and gave appellant leave to take the transcript from the clerk's office for the purpose of making amendments or a new record, no suggestion having been made by him under rule 11, he had no right to expunge several pages from the original transcript, and transform it into a "statement on a motion for a new trial," by replacing the first certificate of the clerk of the trial court with another; and, having done so, the appeal will be dismissed. DE WITT, J., dissenting.

Appeal from district court, Jefferson County; THOMAS J. GALBRAITH, Judge.

Action by Thomas McDonald and another against Amos Shreve. There was a judgment for defendant, and he appeals from an order granting a new trial. Appeal disinissed.

McConnell & Clayberg, for appellant. Ward & Smith, for respondents.

BLAKE, C.J. The following suggestions and order were prepared in this case by Mr. Justice DE WITT, and adopted by the court, January 18, 1892:

"This appeal is in this court upon a statement on appeal. The appeal is from an order granting a new trial. The statement on appeal seems to be made in pur. suance of the provisions of section 432, Code Civil Proc. This section is identical with section 338, Prac. Act Cal.. under which it seems to have been held, in that state, that a statement on appeal from an order granting or denying a motion for a new trial was improper. Hayne, New Trial & App. § 250. Furthermore, it is the proper practice, under the provisions of section 437 of the Code of Civil Procedure of this state, which provides that the provisions of section 432 do not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall be an. nexed to the order, in place of the statement mentioned in section 432. The appeal in this case is from an order made upon affidavits filed. Again, section 438, Code Civil Proc. of this state, provides that, on an appeal from an order, the appellant shall furuish the court with a copy of the notice of appeal, undertaking, the order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified, etc. If the statement on appeal is not the proper rec. ord in this case, then does this court know upon what papers the motion below was heard? There seems to have been a settlement of a statement on motion for a new trial. But there are no specifications in that statement, and it does not appear what portion of the transcript is included

therein, nor does it appear that it was used on the hearing below, nor does it appear that the evidence was before the court on the motion for a new trial. If the statement on appeal is not properly before us, does it appear that even the affidavits were used on the motion below? It seems that the only information that we have is a statement, in the statement on ap peal, that the motion was heard on the affidavits. Does it even appear that the pleadings, and the amending of the same, were before the court below? These matters are suggested as queries for the consideration of counsel. They were not suggested upon the argument of the case, and the court is not to be understood as expressing an opinion. The points mentioned are new in this court, and, as counsel have not been heard upon them, it is ordered that the appellant, if he desires, may file a brief upon these points within one week, and the respondents may reply by brief within one week after appellant's brief is tiled. Then, if appellant desires, he may dismiss his appeal, without prejudice to the taking of another appeal.

The appellant did not file any brief upon the points which were specified, and did not dismiss his appeal, but afterwards obtained permission to take the transcript from the office of the clerk, for the purpose of making amendments or a new record. The rules of this court authorize the taking from the office of the clerk, upon the order of this court, or any justice thereof, of any transcript or paper which has been filed in the case, and require the same to be "returned within twenty days in all cases, or within a shorter period if ordered." Rule 23, 27 Pac. Rep. vi. The eleventh rule provides, (Id.:) "For the purpose of correcting any error or defect in the transcript, either party may suggest the same in writing, and, upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record required. If the attorney or counsel for the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion must be accompanied by an affidavit showing the existence of the alleged error or defect." The appellant has not proposed or suggested any amendments to correct any alleged error or defect in the old record. He claims that the foregoing rules are inapplicable, and that, when the privilege of taking the transcript was granted, he understood that papers composing it were to be used in any manner that might be deemed necessary or proper. We know that counsel who appear in this court will not willfully disobey the rules or requirements of the statute, and no question of this nature arises upon this hearing. Did the appellant comply with the practice regulating this procedure? What has been done? The original transcript, which was filed August 24, 1891, has been altered by the removal of pages 26, 27, 28, 72, 75, and 76, and the substitution of other papers in lieu thereof; and the first certificate of the clerk of the court below, to the authentication of this document, has been replaced by another, which was made January 29, 1892. What pur

ported to be a "statement on appeal" has been transformed into a "statement on a motion for a new trial." The papers which have been thus removed are no longer in our custody, or on file in the office of the clerk. This is not a new transcript which has been prepared according to the Code of Civil Procedure, under the supervision of the judge of the court below, and the appellant and respondents. These radical and important changes have been made in the original record, within the same covers, and under the original filing which authenticated it as a part of the files of this court. We are asked to entertain this transcript, so reconstructed, as the document that was filed August 24, 1891. The old record has been abandoned by appellant, and this transcript has not been prepared in accordance with law. If a privilege of this scope can be given to the appellant, the same right should be conferred upon the respondents, and the acts of the parties proceeding therein in good faith would end in confusion and uncertainty, and the principles of sound practice would be undermined.

In State v. Gibbs, 10 Mont. 212, 25 Pac. Rep. 289, the appellant had leave to withdraw the transcript from this court, and refile it, so that the notice of appeal which was actually served would be shown. In Territory v. Harris, 7 Mont. 384, 17 Pac. Rep. 557, the appeal had been dismissed without prejudice, and the appellant had leave to use the same transcript in taking another appeal. The court held that this appeal must be dismissed, because the same notice of appeal had been refiled, and with the addition of the signature of the clerk of the court in the acceptance of service. These cases are illustrations of the liberality which has been exercised by this court, in order that parties may secure a hearing on appeal, but we are not aware of any precedent which allows the appellant to reconstruct a record in this way. Motions which have these objects in view are granted with the plain understanding that the party seeking relief will comply with the rules of this court, and laws which have been framed to provide appropriate remedies. It appears in the first transcript that the motion for a new trial was heard and determined on the affidavits. The clerk of the court below, in the new certificate, states: "Upon the hearing of the motion for a new trial, and the making of said order granting a new trial, there was before the court, and used by him, the aforesaid complaint, amended answer, replication to amended answer, statement on motion for a new trial, and the aforesaid affidavits." This officer is thereby made to contradict himself in the conflicting certificates. The notice of intention to move for a new trial, which was contained in the original record, and without which the court below could not entertain the motion, has disappeared, and we do not know what grounds, if any, were specified for its action. The appellant did not act upon the suggestions of the court, and it is evident that he desires to maintain his appeal, and have the benefit of the original fil. (ng, when it is conceded that the first

DE WITT, J., (dissenting.) The respondents moved to dismiss the appeal in this case upon several grounds, only two of which, as I understand the opinion of the majority, are noticed by the court. They are quoted from the motion of respond. ents as filed: "(1) That appellant bas wholly failed to comply with the order of this honorable court made in said cause on the 18th day of January, 1892; (2) that the transcript on file in this case fails to comply with the rules and practice of this court.' Are either of these grounds sufficient to authorize a dismissal of the appeal? I will examine them. First. This case came here on appeal from an order granting a new trial. It came on a statement on appeal. Such was the record. As appears by the suggestions and order made by this court January 18th, and recited in full in the majority opinion, an apparently important question of practice arose in the mind of the court, which had not been argued by counsel. It was whether the record filed was the proper record in an appeal of the nature of the one in question. The court suggested these matters, and made this order: “Ordered, that the appellant, if he desires, may file a brief upon these points within one week, and the respondents may reply by a brief within one week after appellant's brief is filed. Then, if appellant desires, he may dismiss bis appeal, without prejudice to the taking of another appeal."

An alleged noncompliance with this order (that is, that appellant did not file the brief or dismiss his appeal) is presented as a ground for now dismissing the appeal. Did this court order appellant to do anything? Has appellant disobeyed any order of this court? A reading of the order of January 18th is a full answer to any such inquiry. The order was this: That appellant might do certain things, if he desired. As he has not done those things, it would seem that he did not desire so to do. The order of January 18th was nothing more than a leave granted to appellant to file a brief or dismiss his appeal if he desired. The order will bear no other interpretation in reason. Respondents' contention that the appeal should be dismissed, because appellant has failed to comply with the order of January 18th, is too idle for any serious consideration. But, as I understand the opinion of the majority, it is based principally, if not wholly, upon the last ground made by respondents, to wit: "That the transcript on file in this case fails to comply with the rules and practice of this court." I will examine that point. The appellant did not see fit to adopt either of the suggestions of the

court of January 18th; that is, either file a brief or dismiss his appeal. He was not required to do so. He took another

course. After January 18th he "obtained permission to take the transcript from the office of the clerk for the purpose of making amendments or a new record. This permission rested in parol, and is not in the records of the court. I take this statement from the majority opinion. That a permission was given is certain, but what was its scope, intent, and extent is not made clear by any record. This permission was one of two things,either a leave to simply take the transcript from the clerk's office for the purpose, perhaps, of examining, reading, or referring to it, and returning it to the clerk's office in its integrity; or it was a leave to withdraw the transcript from the files, -to remove it from the records absolutely. The first view of the permission was that it was a loan of the transcript to the appellant; the second is that it was practically a striking of the transcript from the files, and giving it to appellant for his own use. I will examine what was done in the premises. The transcript, on appeal in the case, was filed August 24, 1891. As above noted, it would seem, from the suggestions of January 18th, that after the argument the court was not wholly satisfied with the nature and character of the record. The suggestions of January 18th did not express any opinion as to the point of practice which seemed to arise, but left that for future consideration. I speak of what seems to be a fair interpretation of the suggestions of January 18th. In those suggestions I find, among other things, the following: "Again, section 438, Code Civil Proc. of this state, provides that, on an appeal from an order, the appellant shall furnish the court with a copy of the notice of appeal, undertaking, the order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified," etc. From appellant's after-conduct, he seems to have heen guided by the words last cited, instead of by the order that he might file a brief or dismiss his appeal. He then obtained the permission above referred to. He did not undertake to make amendments to his old record. The suggestions of the court of January 18th make it apparent that the court had some doubt as to whether the nature and character of the old transcript were such that it could be entertained at all upon an appeal in the sort of case which seemed to be at bar. The suggestions of January 18th pointed out the provisions of section 438, Code Civil Proc., in the language quoted above. The appellant having it suggested to him by the court that a statement on appeal might not be the proper practice in his case, and also having his attention called by the court to section 438, and his case being an appeal from an order granting a new trial, and section 438 referring to an appeal from an order, what does appellant do? He gets the permission above referred to, to take out the transcript, upon which transcript some doubts had been thrown by said

suggestions of the court. As this permission is quoted in the majority opinion, it would seem that appellant had leave to take out the transcript for one of two purposes, either to make amendments or to make a new record. He did not undertake to make amendments, and the rules of the court as to the manner of suggesting and making amendments are inap| plicable. He could not amend the old record, under the circumstances, for, if the faults as suggested as possibly existing did in fact exist, they were radical,-they went to the very nature and life of the whole transcript. If a statement on appeal was wrong and out of place, and the correct practice was a certification of the papers used on the hearing of the motion below, under section 438, then the old transcript was not amendable. The only course was to present a new record, made under the provisions of section 438. It was not a question of supplying a deficiency in the record. The question was to get the case to this court by another vehicle,-by another procedure,-by making a record of another character; that is, of the character provided for in section 438.

Now, that is what appellant has done. He takes the old record out, and comes back with one of a different character, to which record the clerk certified as follows: "And I further certify that, upon a hearing of the motion for a new trial, and the making of said order granting a new trial, there was before the court, and used by him, the aforesaid complaint, amended answer, replication to amended answer, statement on motion for a new trial, and the aforesaid affidavits." This is the sort of record which seemed to be contemplated by section 438. This is the kind of record appellant has brought here. It is not material, to my mind, that he has neglected to have the clerk of this court mark it "Filed." It came here apparently after January 29th, for that is the date of its certification by the district clerk. It probably should have been marked "Filed" on the day of its arrival in the clerk's office. So now we have a record under section 438, instead of, as before, a record by statement on appeal. It is probably true that much of the material of the old record has been used in the new, and the material of the old that was not needed in the new has been omitted. The appellant has taken the material of the old record, and added some, and omitted some, and made a new record, of another character. And here is the difficulty as to the interpretation and understanding of the permission to appellant to take out the old record. If that permission were simply a leave to appellant to borrow the record, he, of course, had no right to disturb its integrity. The court holds that such was the intent or permission, and the court's interpretation of its own orders must, of course, prevail. Then appellant has, without leave, pulled to pieces a record of the court, and, with the material thereof, has constructed a new record. If he has done this willfully and knowingly, he has committed a serious offense against the sacredness of the court records. But if the permission were to appellant to ab

solutely take the transcript as his own; to remove it, not only from the office of the clerk, but from the files of the court; and to do with it as he pleased,-then he has committed no offense. He has simply used some of the cast-off material of an old structure, and therewith built a new

one.

He comes to court with a record, apparently, under the provisions of section 428. Whether that is a proper record for an appeal of this nature; whether it is not brought here too long after the appeal was taken, in order to comply with rule 11 (27 Pac. Rep. v.) of this court,-are questions not under consideration in this motion to dismiss the appeal. But this interpretation of the permission cannot prevail in fact, because the court views the permission in another light.

But there is another view of this matter. Assuming, as we must, that the permission was simply to borrow that transcript, still the fact remains that ap. pellant's counsel honestly believed that he had permission to take it absolutely. This is apparent from several facts. If he wanted the transcript simply for inspection, why did he not procure it under the simple procedure of rule 23. If he had thought that he was only borrowing the transcript, he would not have dared, as an attorney of this court, to pull it to pieces, and destroy its character, as he received it. Such an act was sure of detection, and the counsel made no concealment of his actions. He is an ex-chief justice, and now an attorney, of this court, in good and honorable standing; and he says in open court, on the motion to dismiss, that what he had done he believed he had permission to do. As long as he stands unimpeached as an attorney of this court, we must believe his statement in this respect. Again, the fact that he took the course that he did is evidence that he believed the court had given bim permission so to do. It is simply the fact that appellant interpreted the permission of the court as leave to do what he did, and then, upon the hearing of the motion to dismiss, he stood in this court, and said that, if he had misunderstood the permission of the court; that if in fact he did not have leave to do with transcript as he had; that if he had made a mistake, he was able to, and offered to, restore the transcript to its original condition, as it was when he took it from the clerk's office. He is then not in a position to deserve a dismissal of the appeal.

the

Reverting again to the transcript, have changes been made in the record without the knowledge of the court below? That court's clerk certifies to this record that it contains the papers on which the motion below was heard. Have the adverse parties been deprived of the right to be heard as to this record? The adverse parties, with their motion to dismiss the appeal, also in apparent lack of confidence in that motion, filed a suggestion of diminution of the record, stating that the record does not contain certain papers, among others a notice of motion for a new trial, which notice, it is observed by the majority of the court, is not present in

this record. If that be true, if the clerk below has omitted certain papers upon which the motion was heard below, and respondent suggests the matter as he does, would not the practice be to order such papers certified up to this court as part of the record, under rule 12, (27 Pac. Rep. v.,) and thus has not respondent all that he needs for the hearing? It is said: "What purported to be a statement on appeal has been transformed by the appellant into a statement on a motion for a new trial." It is true that in the original record there was a statement on appeal. In the present record there is a statement on motion for a new trial, which statement, on motion for a new trial, the clerk certifies was one of the papers on which the motion was heard. This certificate is supposed to import some verity. So, if appellant has rightfully brought this transcript to this court, and it is not sufficient, in not containing all of the papers on which the motion below was heard, it can be amended according to respondent's suggestions of diminution, which are filed. If appellant has not rightfully taken the course that he has, it was an honest mistake on his part; not a mistake of law, or of practice, or of the rules of the court, but a mistake arising from an honest misunderstanding of the nature and scope of a permission that was given him,-a mistake that he offers to rectify by restoring everything to the status in quo it was when he took the transcript. Under these circumstances, to order the appellant turned from the door of this court unheard is not an order in which I can concur.

(12 Mont. 226)

STATE V. RAYMOND. (Supreme Court of Montana. April 18, 1892.) GAMBLING HOUSE-LICENSE-EVIDENCE.

1. Defendant kept a gambling house for some time, and afterwards applied for and received a license to conduct such business, which license was regularly issued, and was antedate. so as to cover the period during which the business had been conducted prior to the issuance thereof. Held, that the acceptance of the license fee by the county treasurer and the issuance of the license did not estop the state from prosecuting defendant for keeping a gambling house without a license for the time covered thereby prior to the issue thereof; Laws 1857, p. 75, § 10, providing that any person who shall keep a gambling house "shall, before starting such business, pay a license, etc.

2. The fact that defendant did not pay at the time the law required him to do so could not release him from payment for the past period, and, the license for such period being an amount due from defendant, it was the county treasurer's duty to receive the same, and receipt for it.

3. A witness for the state testified that he visited the room where the gambling was carried on a dozen times during the period covered by the information, and that he almost always saw defendant there, either dealing faro or sitting about the place, and that defendant was running the game, and described the place as defendant's room. Held, that this evidence, taken in connection with the evidence of the county treasurer that defendant afterwards took out a license to conduct this same business, was sufficient to prove that defendant kept the room.

Appeal from district court, Lewis and Clarke county; WILLIAM H. HUNT, Judge. Defendant was convicted of keeping a