show that no statement was ever settled or signed, and no bills of exception were ever prepared or allowed, and the minutes of the court do not appear. Then this motion must be considered, if at all, as being based upon the affidavits presented at the hearing of the motion. Upon examination of these affidavits it will be found that there is no certificate that they were used by the court below upon the hearing of the motion, as is required by the statute. They should have been included either in a bill of exceptions or a statement on motion for a new trial, or otherwise certified, so as to be identified properly not only as a part of the record but also to show that they were used by the court upon the hearing of the motion. Comp. St. Mont. div. 1, § 433; Mining Co. v. Weinstein, ante, 108; Raymond v. Thexton, 7 Mont. 19 ante, 258; Hayne, New Trials & App. § 264, and cases there cited from the California courts. We consider this motion for a new trial as an application to vacate and set aside the judgment under section 116 of our statutes, for no attempt has been made to comply with that section. And, even if that section had been complied with, and the matter passed upon by the judge at chambers, still, it being a matter entirely within his discretion under the statute, and no abuse of that discretion having been shown, we could not disturb the judgment on that account. Comp. St. Mont. div. 1, § 116, p. 88; Whiteside v. Logan, 7 Mont. - ante, 34. From the manner in which this appeal is presented to this court it would seem that there is a misapprehension among the members of the bar as to the practice upon this subject. This may probably arise from the change in the law of California. Our statute is similar to the old practice in California, under which there was a separate provision for a statement on appeal, and a statement on motion for a new trial, and one could not be used for the other. Under the present law of California the parties may consent to use the statement on motion for a new trial for a statement on appeal. But this does not change the rule in regard to what can be considered and reviewed by the court on an appeal from the judgment, and on an appeal from an order overruling a motion for a new trial, respectively. On an appeal from the judgment errors of law alone can be reviewed; but, on an appeal from an order overruling a motion for a new trial, the facts also may be inquired into. Our statute provides that certain orders are deemed excepted to, and, in order to have them reviewed by the supreme court, it is not absolutely necessary that a bill of exceptions should be prepared and signed, but they may appear in the statement on appeal, and must appear in either the one or the other when the appeal is from the judgment, including such orders. There being no bill of exceptions, and no statement, either on motion for new trial or on appeal, in this case, the order overruling the application for a continuance has not been properly brought before this court, it having no independent place in the judgment roll.

All presumptions being in favor of the correctness of the judgment of the court below, and no error having been properly presented in the transcript, the judgment of the district court is accordingly affirmed.

MCCONNELL, C. J., and GALBRAITH, J., concur.

(Supreme Court of Montana. January 28, 1858.)

Following Sherman v. Higgins, ante, 561.

MCLEARY, J. This is a case arising between the same parties and in the same court as the preceding one, and is entirely similar except that there was a default taken, and judgment rendered thereupon in favor of the plaintiff, which makes a stronger case for the respondent in this court. For the reasons set forth in the foregoing opinion there is no error properly presented in the transcript for review by this court. The judg ment is affirmed.

MCCONNELL, C. J., and GALBRAITH, J., concu“.

(7 Mont. 486)

CITY OF HELENA v. GRAY.

(Supreme Court of Montana. January 28, 1888.)

MUNICIPAL CORPORATIONS-ORDINANCES-REGULATION OF HACK-STANDS-MISDEMEANORS.

An ordinance providing that cabs shall stand on certain parts of certain streets, and that any violation of this ordinance is a misdemeanor, does not make a person standing a cab elsewhere than as provided guilty of a misdemeanor.

Appeal from district court, Lewis and Clarke county.

Chumasero & McCutcheon, for appellant. Alex. C. Botkin, for appellee.

BACH, J. The defendant appeals from a judgment of the court below adjudging him guilty of a misdemeanor for the violation of an ordinance of the city of Helena, which reads as follows: "The cabs shall stand on Broadway, between Jackson and Warren street, except in front of the post-office; on the east side of Jackson street, between Broadway and Breckenridge street; and on the south side of Sixth avenue, between Jackson and Clore street; and on Bridge street, from Clore to Main street; and on the north side of Bridge street, from Main street to opposite Water street. Sec. 2. Any person violating this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not exceeding twenty-five dollars.” It is admitted that the defendant did keep a cab standing on Main street, in the city of Helena, for the space of two hours.

The only question which we will consider is whether the ordinance makes the act of the defendant a misdemeanor. A crime or misdemeanor is an act committed or omitted in violation of a public law forbidding or commanding it. Such is the definition given by Blackstone in Book 4 of his Commentaries, and it has been universally accepted by the courts and text writers. There is nothing in the ordinance directly forbidding the admitted act of the defendant; and if the ordinance is, by implication, to be considered as forbidding this particular act, it must be considered as forbidding any act which violates the terms of the ordinance; hence all such acts would, by implication, become a misdemeanor. The ordinance thus considered would be so unreasonable that courts of law would not uphold it. See Field, Corp. § 296, and cases cited; Bish. Writ. Law, § 22. Considered as a command, the ordinance is equally uncertain and indefinite. The city undoubtedly has the right to regulate the use of public streets by ordinances reasonable in their nature. But the ordinance must be specific and definite, using such words as will state, without resort to implication, what constitutes a violation thereof. The judgment is reversed.

GALBRAITH and MCLEARY, JJ., concur.

(2 Ariz. 892)

O'TOOLE et al. v. MELANDER et al. (Supreme Court of Arizona. April 2, 1888.) APPEAL-REVIEW-WEIGHT AND SUFFICIENCY OF EVIDENCE.

In an equitable action where the evidence is contradictory, the verdict obtained in the court below will not be disturbed on appeal.

Daniel O'Toole et al., plaintiffs, brought action to quiet title against Daniel Melander et al., defendants. Verdict for defendants. Plaintiffs appeal. Ben Goodrich, for appellants. Neering & Neering, for appellees.

PER CURIAM. The only question arising in this cause is whether or not the assessment work of $100, required by the act of congress, was done in the year 1885. The action was to quiet title. A jury was had, which jury rendered a verdict for the appellees. The testimony was contradictory, and it is

too well settled to require citations of authorities, that the supreme court will not disturb the verdict of the jury when such a contradiction exists. This being an action in equity, and the verdict being only advisory, the trial judge would feel less hesitancy to disregard the verdict than in an action at law. The judge, as well as the jury, was brought face to face with the witnesses, and could judge of their credibility. The injunction is dissolved, and the judgment affirmed.

WRIGHT, C. J., and PORTER and BARNES, JJ., concur.

(4 N. M. [Gild.] 396)

MILLER v. PRESTON.

(Supreme Court of New Mexico. January Term, 1888.)

1. SUBSCRIPTION-ACTIONS TO RECOVER-PLEADING AND PROOF.

In an action to recover on a subscription paper, the declaration set out, literally, the paper, so far as it constituted the contract of defendant. Held, that the objection to the reading of the subscription list in evidence was properly overruled. 2. SAME CONDITIONS-PAROL EVIDENCE TO VARY WRITING.

Defendant signed a subscription paper, subscribing a sum in aid of a railroad, writing above his name, "on the completion of the road," as the conditioned time of payment. Held, that parol evidence offered for the purpose of adding the words, "by September 1, 1886," was not admissible.

3. SAME-CONDITIONS ATTACHED TO OTHER SUBSCRIPTIONS.

Defendant subscribed a sum towards the completion of a railroad, writing the condition above his name, "on completion of the road." Other parties signed the same subscription list, subscribing various amounts, and adding, as to defendant, certain conditions as to their payment. Held, that the conditions annexed to the names of the other subscribers in no way affected defendant's liability.

4. SAME-CONSIDERATION.

In an action to compel the payment of a subscription, the plaintiff proved that he had expended money on the faith of the subscribed subscriptions. Defendant did not contradict this, but simply proved that he was not to receive anything in consideration of the subscription, and asked the court to instruct for want of consideration. Held, that there was not sufficient evidence of want of consideration to warrant the court to so charge.

5. INSTRUCTIONS-FAILURE TO NUMBER-HARMLESS ERROR.

The failure of the court to number its instructions in consecutive paragraphs, as required by Comp. Laws N. M. § 2059, will not justify a reversal of the judgment, it appearing that no rights of the parties were affected thereby.

Error to district court, Santa Fe county.

BRINKER, J. This is an action of assumpsit, begun by George C. Preston, trustee, against Edward Miller, in the court below, upon an obligation in writing for the sum of $200. The obligation sued on was a subscription paper, and is set out in the declaration in these words: "To aid the completion of the Texas, Santa Fe & Northern Railroad, we, the undersigned, hereby promise and agree to pay, on demand, to George C. Preston, trustee, the respective sums opposite our names. ED. MILLER, $200, (two hundred dollars,) on completion of the road." The declaration then averred the completion of the road, and a demand upon the defendant, Miller, to pay, and a refusal; and also contained the common counts. The defendant filed three pleas. The first was the general issue; the second, that the defendant was induced to sign the paper by representations and promises of plaintiff, upon which defendant relied, that unless the road was completed to the city of Santa Fe on or before September 1, 1886, he was not to be called on to pay the amount of his subscription; that these representations and promises were indorsed in writing upon the paper before he signed it, and that the road was not completed to Santa Fe until long after that time; the third, that the contract was a gratuity, and that there never was any consideration for the signing of the same. To the first plea plaintiff filed a similiter, and to the second and third he filed replications putting in issue the matters in those pleas alleged. There

was a trial and judgment for plaintiff. A motion for a new trial was made and denied, and defendant brings the case here by writ of error.

To reverse the judgment the defendant assigns as error: (1) The action of the court in permitting the subscription list to be read in evidence; (2) in permitting testimony to go to the jury that it was understood generally that the completion of the road meant its building from Espanola to Santa Fe; (3) in not permitting the defendant to testify whether or not any representations had been made to him at the time of the signing of the subscription list that unless the road was completed to Santa Fe by the 1st day of September, 1886, he was not to be called upon to pay his subscription; (4) in not permitting defendant to testify whether or not the indorsement on the subscription list, "unless the road is completed by September 1, 1886," and other indorsements of like character, were written on the list before he signed it, and whether he signed it subject to the terms so written, and the representations then and there made to him by the person presenting the list; (5) in refusing to give to the jury the instructions asked by the defendant, and in not indorsing the refused instructions "Refused," as required by statute; (6) in giving to the jury that portion of the court's instruction as follows: "The conditions annexed to the names of other subscribers would not change the liability of the defendant;" (7) in failing to instruct the jury upon the issue raised by the plea of want of consideration; (8) in failing to give its instructions in consecutively numbered paragraphs; (9) in failing to file the instructions asked by the defendant, so that the same might become a part of the record; (10) in overruling the motion of defendant for a new trial.

A reference to the declaration will dispose of the first point made. The writing sued on was, so far as it constituted the contract of defendant, copied literally into the declaration, and even if the statute contemplated the filing of a writing of the kind here sued on, which may be doubted, (Workman v. Campbell, 46 Mo. 305,) the requirement was fully met in this case, (section 1921, Comp. Laws 1884,) and the objection to its admission in evidence was properly overruled.

As to the second point,-that the court erred in permitting testimony to go to the jury that it was generally understood that the completion of the road meant its being built from Espanola to Santa Fe,-it is only necessary to say that the record shows that this testimony was elicited from Mr. Knaebel, a witness for defendant, on cross-examination, and was admitted without objection. Section 2197, Comp. Laws.

The third and fourth assignments of error can be considered together, as they present really but one question, and are based upon the action of the court in sustaining objections to the following questions propounded to the defendant: "Sixth. State if, at the time you signed that paper, whether there were no conditions made between you and Dr. Longwill that it should not be paid unless the road was built by the 1st of September?"

The seventh question was but a restatement in substance of the sixth. "Eighth. Mr. Miller, state whether, at the time of signing, this paper had this indorsement just above your name, on completion of the road by September 1, 1866.' Was that indorsement written on that paper before you signed it?"

The instrument sued on was a subscription list, the body or heading of which was as follows: "To aid the completion of the Texas, Santa Fe & Northern Railroad, we, the undersigned, hereby promise and agree to pay, on demand, to George C. Preston, trustee, the respective sums opposite our names. Then follow about thirty names with the amount of the subscription of each set opposite each name, and in addition thereto many of these are. followed by various conditions, such as: "$250, as soon as a satisfactory contract is made for the completion of the road;" "$200, on completion of the road;" "$100 on completion of road by Sept. 1, 1886;" "$300, on completion

to Santa Fe by Sept. 1886." The names of the three persons which appear immediately above defendant's are followed by the words, "on completion of the road by Sept. 1, 1886." Then follows, "ED. MILLER, $200 (two hundred dollars) on completion of the road." The paper about which it was sought to interrogate the witness we assume was the subscription list, as no other paper appears in the record. This paper constituted the several contracts of each of the subscribers. It is not pretended that it is in any sense joint, for it could not be maintained that any one of the subscribers could be held for the amount subscribed by any other than himself. If the various persons had contented themselves with simply putting down their names and the amounts they were willing to pay, then this would clearly have been the separate agreement of each to pay on demand. But many of them have seen proper to add conditions to the contract so far as it affects them, and the condition opposite any particular name limits and determines the liability of that particular subscriber. The condition following the name of defendant is, “on completion of the road." Now, the question numbered sixth sought to add to this, by parol, the words, "by Sept. 1, 1886," and this the court very properly refused to permit. 1 Greenl. Ev. § 277. The eighth question was intended to elicit from witness the fact whether the words, "the completion of the road by September 1, 1886," were on the paper before he signed it. It is not pretended that these words were put there by defendant, or by his direction; but it was the purpose of defendant to have the fact that these words were on the paper go to the jury, so that the jury might infer that they constituted a part of his agreement. If one of these conditions preceding the name of defendant formed a part of his contract, then all of them that were placed there before his signing also entered into it; and if this be so, what was his contract? and upon what condition did his liability to pay depend? Was he to pay when a satisfactory contract for the completion of the road was made? or when the road was completed? or when completed by September 1, 1886? or when completed to Santa Fe by September 1, 1886?

As has been said, this is clearly the separate undertaking of each signer, and if this be true, the fact that all the contracts are on one paper cannot change the nature of the agreements. Suppose they had been on separate papers, each with the same general heading, but with the several conditions, and let it be supposed that these papers were all exhibited to defendant at the time he signed, and thereupon he signed a paper containing a like heading, but added the condition to his name, in the words of this agreement, "on completion of the road," could he with any show of reason say that the conditions on those other papers entered into his contract? The statement of the proposition refutes it. If these several conditions preceding his name were not a part of his agreement, then the question whether they were on the paper or not before he signed was wholly immaterial. If it had been inquired of defendant what he meant by "completion of the road," or what he understood by those words, the inquiry would have been proper, because the words, standing alone, do not clearly express a definite meaning. This is justified by the rule that where the agreement is expressed in short and incomplete terms parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms. 1 Greenl. Ev. § 282. This rule, however, does not permit the addition of words that will vary or change in any manner the meaning of the writing. The inquiry here suggested would have brought out the conversation, if say, that took place at the time of the signing, and would have enabled the jury to determine whether defendant meant that his payment should have become due upon the completion of the road to Santa Fe, or to Cerrillos, or as contemplated in the road's charter; but it would not have permitted conversations as to the time of completion. Defendant's liability depended on completion, no matter when it should be accomplished.