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So far as the order overruling the motion for a new trial is concerned, it is only necessary to say that no statement specifying errors, or bill of exceptions, was filed in the court below, and consequently the order must be sustained.

We see no error on the face of the record before us of which appellant has a right to complain. He is not injured by the form of the verdict. The respondent might complain that the jury failed to find, in their verdict, the value of the property ; that he was entitled to a return thereof, and to assess his damages, but the appellant cannot. Upon a general verdict for defendant upon these issues under our statute, as well as at common law, an order of return and judgment for costs followed, as a matter of course.

The court did not err in taking the motions under advisement.

The judgment and order of the court below is affirmed, with costs.

Exceptions overruled. KNOWLES, J., concurred.

LEE, respondent, v. Hudson, appellant.

PLEADING — complaint. The allegation of the release of a debt due the plain

tiff is sufficiently set forth in the complaint in this case.

Appeal from the Third District, Lewis and Clarke County.

On September 16, 1868, Lee filed his complaint in the justices' court of Lewis and Clarke county, A. J. Edwards, Esq., justice, and alleged :

“That, on or about the 25th day of August, A. D. 1868, one James Allen was indebted unto the said plaintiff in the sum of $125; that the above-named defendant, on the day aforesaid, was indebted to the said Allen in a sum of money greater than that due from said Allen to this plaintiff; that, at the special instance and request of said defendant, this plaintiff agreed to take the said defendant for the payment of the said sum due from the said Allen to this plaintiff, and to accept of his promise to pay the said sum in satisfaction of said debt; that this plaintiff did then and there so take and accept of the said defendant's promise and liability, and the said Allen then and there released said defendant from his liability to him the said Allen, to the extent and amount of this plaintiff's claim, to wit: the sum of $125, whereby the said defendant became liable to pay this plaintiff the said sum of $125; and on the 1st day of September, A. D. 1868, did pay this plaintiff upon said sum the sum of $75, leaving a balance due and unpaid from the said defendant to the said plaintiff, at the time of the commencement of this suit, and is now due and unpaid.”

The case was appealed to the district court, and tried in October, 1868. After the plaintiff closed his testimony, the defendant moved for a nonsuit, upon the following grounds: That plaintiff's complaint contained no allegation that the original debt, due from Allen to plaintiff, was ever canceled, or that Allen was released from his debt to plaintiff at the time of the transaction specified in the complaint. The court, KNOWLES, J., denied the motion, and defendant excepted.

J. A. JOHNSTON, for appellant.

CHUMASERO & CHADWICK, for respondent.
No briefs on file in this case.

WARREN, C. J. The release of the old debt, due from Allen to the plaintiff, is sufficiently alleged in the complaint. The judgment is affirmed, with costs.

Exceptions overruled. KNOWLES, J., concurred.

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INDICTMENT - officer taking illegal fees. An indictment against a party for

taking illegal fees, as a justice of the peace, must allege that he was such officer.









Appeal from the Second District, Deer Lodge County.

McELROY was indicted in September, 1868, by the grand jury of Deer Lodge county. The indictment alleged "that James McElroy, an acting justice of the peace for Elk township, in the county

while acting in that capacity as such officer in said township, * willfully did receive and take fees not allowed by law from

in the case of

then and there had and held before him to do and execute his duty as such officer therein, and then and there, at the time aforesaid, willfully and corruptly did ask and demand fees not allowed by law from * in the case of * as a condition precedent to the performance of his duties as such officer

The defendant moved to quash the indictment because it did not state facts sufficient to constitute a public offense. The court, KNOWLES, J., sustained the motion and the defendant was discharged. The Territory appealed.

W.J. STEPHENS, District Attorney, Second District, for appellant.

It is sufficient to state generally in the indictment that defendant is such officer without setting forth his appointment. Proof that defendant has acted as such officer is sufficient. 2 Chit. Cr. L. 259.

There is no conflict between section 110 of the criminal practice act, making it criminal to officiate, and section 112, making it criminal for such officer to receive fees not allowed by law.

He who usurps an office is in by his own wrong, and cannot defeat an action for taking illegal fees by proving that he is not such officer. “No person can take advantage of his own wrong."

SHARP & NAPTON, for respondent.

The indictment is found under section 112 of the criminal practice act. The very essence of the offense is, that the defendant, being a duly elected and qualified officer, received illegal fees, etc. The indictment only shows that he was an "acting officer.” 1 Whart. Am. Cr. L., SS 285, 1289 and 1292.

It would be no defense under this indictment to prove that the defendant was not a lawfully authorized and qualified officer. Usurpation of the duties or functions of an officer is made an offense by section 110 of the criminal practice act.

WARREN, C. J. This was an indictment under the statute against the respondent, as a justice of the peace, for willfully receiving fees not allowed by law. The indictment was defective in not alleging in the language of the statute that the defendant was such officer. This allegation might have been supported by proof that he acted as such. The order of the court below is affirmed.

Exceptions overruled. KNOWLES, J., concurred.

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LOEB, appellant, o. SCHMITH et al., respondents. PRACTICE - default set aside. The setting aside of the default in this case was

not an abuse of the discretion of the court below.

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87 32

Appeal from the Second District, Deer Lodge County.

This was an action on a promissory note commenced by Loeb in the district court. The complaint was filed and summons was issued on July 25, 1867. The names of the parties on the complaint were “Leon Loeb v. Jacob Smith & Co., and Joseph Holzbauer et al.The summons contained a notification to “ Jacob Smith & Co. and Joseph Holtzbauer, Henry Apple.” The sheriff made the follow

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ing return: "Served the within by reading to Henry Apple, on 1st day of October, A. D. 1867, on Bear gulch, Territory and county within mentioned.” Judgment by default was rendered at the October term, 1867, against “Jacob Smith & Co. and Jos. Holtsbor et al." for $907.

On September 10, 1868, a new complaint, for the same cause of action, was filed by Loeb against eight defendants, who were separately named, and included “ Henry Appel.” This complaint alleged that the defendants were partners at the time the note was made, under the firm and style of “Jacob Schmith & Co.” The summons, which contained the names of these defendants, including “Henry Appel,” was issued on the same day. The sheriff's return showed that personal service had been made upon “Henry Apple," on September 12, 1868, by reading the summons, and delivering a true copy of the same and a certified copy of the complaint. On September 23, 1868, judgment by default was rendered in the district court for $1,427.57, against all the defendants, and also “against the separate property of the said defendant, Henry Apple.” On the same day the defendant, “ Apple,” filed a demurrer to the complaint, and also a motion to set aside the judgment against him. On October 2, 1868, the affidavit of R. H. Williams, Esq., the attorney of “Eppel,” was filed in support of this motion, and stated the following facts: That he wrote the demurrer in good faith, and forwarded it to be filed from Beartown (so-called); that he made a special agreement with the express agent (no United States mail being then established between Deer Lodge City and Beartown) to carry through and deliver the letter containing the demurrer; that three days of the statutory time to answer were yet to expire when the letter was expressed ; that only one day is necessary to carry mail matter from Beartown, where the summons was served, to Deer Lodge City; and that through the delay of the express agent, and without any fault of “Eppel,” the letter was not delivered until one day after the time for answering had expired.

That Appel had never been a member of the firm described

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