struction to limit this expression, and consequently the entire section, to the former class of cases. The legal meaning of the phrase "to prosecute" is, "to proceed against judicially." Had congress intended to confine this provision to suits begun before the proceedings in bankruptcy, the insertion of two words, at the most, would have placed such purpose beyond cavil, but the context and spirit of the whole sustain our interpretation of the words.

It is not clear from the language used, whether the suit mentioned in the statute is to be stayed by a restraining order from the bankruptcy court, or by order of the court in which it is pending. The statute simply says: "such suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy;" it fails to designate the forum in which this application of the bankrupt shall be made. Therefore, we are not aided by this expression in determining the question under consideration.

If a state court has power to say, in suits like the one at bar, where the unreasonable delay mentioned by the statute exists, in our judgment no previous consent of the court in bankruptcy is essential to the bringing of a creditor's action in the proper tribunal, so, when we have answered the second question raised by the demurrer, we have answered the third, also.

There is excellent reason for saying that the bankruptcy court is the only proper tribunal to determine whether or not the bankrupt has been guilty of unreasonable delay in procuring his release. For the court is most familiar with all the proceedings in bankruptcy, and best prepared to give intelligent judgment in the premises. Upon this theory, and upon principle also, such courts have taken jurisdiction to temporarily restrain parties from proceeding in actions pending before state courts upon "provable claims," which had not been proved, as well as those which had been: In re Schwartz, 14 Blatchf., 196; see also Phelps v. Selleck, 8 B. Reg., 390; and likewise cases hereinafter referred to.

On the other hand, it is said that "The creditor who has not proved his debt has no status in the court of bankruptcy. He has never submitted to its jurisdiction, and his right to proceed is no further affected than it is affected by the restraining words of the statute. But this restraint is, by the very words of the statute, subject to a condition, and that condition is that the restraint shall not exist if the bankrupt does not use reasonable diligence to obtain his discharge."

"In the case, therefore, of a creditor who has not proved his debt, there is no reason for sending him into the court of bankruptcy to apply for permission to proceed. If there has been unreasonable delay, the proceedings in bankruptcy do not arrest his suit, and he has a right to proceed which he has not surrendered by any act of his, and which the law has not taken away from him. * * In such a case, therefore, the question of unreasonable delay must necessarily be a question to be determined by the court, in which the

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creditor's action is pending:" Dingee v. Becher, supra. See, also, adopting a similar interpretation, Čalvert v. Peebles, 80 N. C., 334. In the latter case the suit was begun before proceedings in bankruptcy were instituted; but under our view above declared, of the statute, this fact does not affect the question. In National Bank of Clinton v. Taylor, 120 Mass., 124, the action was stayed by applica

tion in the state court.

We are disposed to adopt the conclusion reached in the case of Dingee v. Becher, supra, to the extent of holding that under circumstances presently stated, the state court may decide the question; though we do not concur in all the reasoning of that decision. We are not prepared to deny the entire jurisdiction of the bankruptcy court over creditors who have received the statutory notice of the proceeding therein, but have not yet presented their claims. We intimate no opinion adverse to the propriety of a temporary restraining order issuing in cases like this, from the bankruptcy court. The authority of that tribunal to restrain parties litigant in the state courts, whenever it was necessary to accomplish the purpose designed by the bankruptcy act, seems to have been thoroughly established: See Bump's Law and Practice of Bankruptcy, 10th ed., 227, et seq.; 698 et seq.; also, 327 and 335. In a majority of the cases mentioned by Mr. Bump the injunction issued to prevent the enforcement of liens against the bankrupt's property; but, in some instances, the writ simply restrained the prosecution to judgment of suits like the one before us.

But if the bankrupt does not see fit, by his application to the court in bankruptcy for an injunction, to there settle the question of unreasonable delay, why should the state court be estopped from considering the question? Why may he not, by his failure to act, waive a right to the statutory stay of proceedings through process issuing from the bankruptcy court? There seems to be no inconsistency in holding that in the absence of such effort by him in that form, the state court in which the action is pending may, under circumstances such as are here presented, take jurisdiction to determine this question.

Bearing upon the subject last discussed, see the case cited in Bump's Practice, p. 702, et seq.

From the foregoing views, it follows that in our opinion the demurrer ought not to have been sustained.

The judgment will, therefore, be reversed, and the cause remanded.

SUPREME COURT OF MONTANA.

TERRITORY V. Young.

August Term, 1884.

CRIMINAL LAW-MURDER-INDICTMENT-POSSESSION OF WEAPON.--An indictment for murder need not allege that the weapon with which the homicide was committed was had or held by the defendant at the time of the alleged killing.

THE QUESTION WHETHER AN INDICTMENT DOES OR DOES NOT SUPPORT THE JUDGMENT can be raised in the appellate court for the first time.

CRIMINAL LAW-CONCLUSION OF INDICTMENT.-Under the Montana statute, if the substantive averments in an indictment for murder are good and sufficiently describe the crime, the formal concluding words are immaterial.

THE SAME APPEAL FROM JUDGMENT REVIEW OF EVIDENCE.-On an appeal from a judgment alone the appellate court will not examine the evidence as to its sufficiency to support the verdict.

OBJECTIONS TO INSTRUCTIONS MUST BE MADE AT TRIAL.-Objections to instructions will not be considered by the appellate court, unless the same were made and saved at the trial in a proper bill of exceptions.

APPEAL from a judgment of the district court of Gallatin county. The opinion states the facts.

R. P. Vivion and J. B. Sanborn, for the appellant.

J. A. Johnston, Attorney General, for the respondent.

WADE, C. J. This is an appeal from a final judgment rendered upon a verdict, in which the defendant was found guilty of the crime of murder in the first degree. There was but one exception taken, and saved during the trial, and that has been abandoned by counsel for the defendant, in their briefs and arguments, as unworthy of their consideration. That exception is based upon the proposition that the facts stated in the indictment do not constitute a public offense in this: the indictment does not allege that the defendant had and held a certain gun, or had any weapon in his possession at the time of the alleged killing, and that the said indictment is therefore uncertain.

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A reference to the authorities will conclusively show that such an allegation is unnecessary. In the case of the Commonwealth v. Costley, 118 Mass., 1, which was an indictment for murder, the defendant moved to quash the indictment, because there is no allegation that the pistol named therein as the weapon with which the homicide was committed, was had or held by the defendant at the time of the commission of the offense in his, the defendant's, hand or hands."

The motion was overruled and the defendant excepted. In deciding the question raised by the exception, chief justice Gray said: "The only objection to the form of the indictment is for the omission to allege that the pistol was held in the hand of the defendant. This objection is supported by a statement in 2 Hale P. C., 185, and by a case there cited, decided in the time of Queen Elizabeth. But the materiality of such an allegation has been denied or doubted by the later English writers on criminal law; 2 Hawk C., 23, sect's 76-84; 1 East P. C., 341; 1 Stark Crim. Plds. (2d ed.), 62; 1 Russell on Crimes (3d ed.), 558; Archb. Crim. Pl. (10th ed.), 407.

It is not necessary to a full description of the crime, nor in order to inform the defendant of the particulars of the charge, which he is to meet, and, if inserted, need not be proved.

We are of the opinion that it is of the same character as a description of the size of the wound, the omission of which does not affect the validity of the indictment: Prain & Heard's Crim. Pl., 274.

But though there were no other objections to the indictment at the trial, still the indictment must support the judgment, and the question as to whether it does or not can be, as it has been, raised in this court for the first time in this case. It is admitted by counsel for the defendant, that the indictment is good for murder in the second degree; and that it is a good common law indictment for murder. If this be so, then this case is within the decision of this court in the case of the Territory v. Stears, 2 Mont., 326, which case is affirmed in Territory v. McAndrews, 8 Mont., 158, where it is held that an indictment for murder, good at common law, is good under our statute. More than this, the indictments in the Stears and McAndrews cases, are in every material particular, the same as the indictment in the case we are considering. The only difference is in the conclusion of the indictments. In the Stears case the indictment concludes as follows: "And so the jurors aforesaid upon their oaths aforesaid do further say that the said William H. Stears, the said Franz Warl, in manner and form aforesaid, then and there feloniously, willfully and of his deliberate and premeditated malice and of his malice aforethought did kill and murder contrary, etc."

In this case the indictment, after charging that the defendant, in and upon one Daniel McCarty, feloniously, willfully, unlawfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and then and there (describing the means used) feloniously, willfully, unlawfully, deliberately, premeditatedly and of his malice aforethought did strike, penetrate and wound the said Daniel McCarty (describing how and where) thereby giving to the said Daniel McCarty one mortal wound of which mortal wound the said McCarty instantly died,-concludes as follows: "And so the grand jurors aforesaid do say, that the said Frank Young, in the manner and by the means aforesaid, feloniously, willfully, unlawfully, deliberately, premeditatedly and of his malice aforethought did kill and murder, contrary, etc.," leaving out the words "him the said McCarty." These words are the mere conclusion drawn from the preceding averments. If the averments are bad the conclusion will not aid them; if they are good and sufficiently describe the crime as the law requires, by proper averments the formal, concluding words are immaterial. At common law the concluding words formally charging the defendant with murder were necessary in order to distinguish an indictment for murder from an indictment for manslaughter. If the term murder were omitted from the conclusion of the indictment the defendant could only be convicted of manslaughter: 3 Chitty Crim. L., 737; Faust v. State, 8 Ohio, S. R., 119-120.

The reason for the technical conclusion of indictments for murder at common law all disappear under statutes defining the degrees of the crime and providing that the jury shall designate the degree in their verdict. And so we are compelled to say that this indictment is clearly within the Stears and McAndrew decisions, and those decisions we cannot disturb. This conclusion seems irresistable when we remember our statute, which provides that no indictment shall be quashed or set aside for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged; or for any defect or imperfection which does not tend to prejudice the substantial rights of the defendant on the merits: Revised Stats., p. 311, sec. 171, subd. 5 and 6.

This is an appeal from the judgment. There was no motion for a new trial. The decisions of this court are uniform and numerous that the testimony cannot be brought here for review, except by statement on motion for a new trial. The testimony is not before us in such a manner that we can examine it as to its sufficiency to support the verdict. Only a motion for a new trial could have brought it here for that purpose. There is no exception to this rule. The defendant at the trial did not ask for any instructions to the jury in his own behalf, nor did he object to, or take an exception to those given by the court, or to any part or portion of them. He did not suggest an addition to, or a modification of the instructions as given. This being so, we cannot consider the questions raised by counsel for defendant in their briefs and argument, for the first time. Over and over again this court has decided that we cannot consider objections to instructions to the jury unless such objections were made and saved at the trial in a proper bill of exceptions. Under the law of the territory and precedents of this court there is nothing in the record by which the judgment can be disturbed. The judgment is affirmed.

All concur.

TERRITORY v. HANNA.
August Term, 1884.

CRIMINAL LAW NOTICE OF APPEal must be ServED ON CLERK.—An appeal in a criminal case will be dismissed if the appellant fails to serve a notice of appeal upon the clerk of the court in which the judgment was rendered, in the manner required by the statute. A notice directed to and served upon the attorney for the respondent, and filed with the clerk is not sufficient.

THE SAME TIME FOR FILING TRANSCRIPT.-After an appeal has been properly taken, a failure to file the transcript within the time required by statute, is not fatal to the jurisdiction of the appellate court. Such statutory requirement is directory and not mandatory. MOTION to dismiss an appeal. The opinion states the facts.

I. D. McCutcheon, for the appellant.

J. A. Johnston, Attorney-General, for the respondent.

WADE, C. J. The plaintiff moves the court to dismiss the appeal herein for the reason that no notice of appeal was served upon the