using said highway is another allegation of special injury different from that sustained by the general public. The allegation that his buildings are so situated, with reference to the road, that to deprive the plaintiff of the use and benefit of the road would require him to move said buildings at great cost states another special injury different from the general public; that he has a valuable orchard adjoining the road, and to deprive him of the use of said road would damage his orchard, states another special injury; that he has a good and sufficient water right and ditches and laterals, and that if the road is obstructed, he will be compelled to build new ditches to his damage states another special injury. These allegations state special injuries which will be sustained by the plaintiff, and not by the general public. They are special in the sense that they are direct and substantial, and in which the public would not necessarily share. While it is true the general public might sustain injury by reason of the obstructions being placed in the highway, yet it would not follow from the allegations in the complaint that the general public would be affected in the same manner as the plaintiff, or suffer damages in the same way. Since the case of Blanc v. Klumpke, 29 Cal. 156, was decided, the Supreme Court of that state has had occasion at different times to discuss this question. The cases are commented upon in the case of San Jose Ranch Co. v. Brooks, 74 Cal. 463, 16 Pac. 250. In the latter case the court states the facts as alleged in the complaint to have been as follows: "That the defendants have obstructed a public highway in such a manner as to prevent the plaintiff having ingress or egress to and from a tract of land which it owns, situated at a point in a canyon above the place where the obstruction is placed, and which prevents it from making any use of its land which it desires." From these allegations the court concludes that the plaintiff did not show a special injury different from the general public; that although the injury alleged might be greater in degree than that sustained by the general public, yet the way in which the injury is inflicted is the same, as all parties would be restrained from traveling toward different points, and for different purposes, by the same barrier; but, as the barrier was not erected so that all persons except plaintiff could get into the public road at their land, the injury was not special. This case, however, while it reviews Blanc v. Klumpke, supra, yet it does not purport to overrule the same, and the latter case may still be recognized as authority in the state of California. In our opinion it states the correct rule, and is supported by the weight of authority upon this question. A very full discussion of this matter will be found in the case of Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123, and the annotations appended thereto. Cusáing-Wetmore Company v. Gray, 152 Cal. 118 92 Pac. 70. We think it therefore clearly appears from the allegations contained in the complaint that this case falls within the rule that special injuries are shown to have been sustained by the plaintiff, and that by reason of the alleged public nuisance, he will be deprived of the free use of his own private property. The judgment will be reversed, and the trial court directed to overrule the demurrer to the complaint. Costs awarded to appellant. AILSHIE, J., concurs. (15 Idaho, 719) CAMAS PRAIRIE STATE BANK v. NEWMAN et al. (Supreme Court of Idaho. Jan. 28, 1909.) 1. BILLS AND NOTES (§ 15*)—"Bank Check" -NATURE OF CONTRACT. A bank check is an instrument by which a depositor seeks to withdraw funds from a bank and as between the drawer and the payee it is an evidence of indebtedness, and in commercial transactions, as well as in law, it is equivalent to the drawer's promise to pay, and an action may be brought thereon, as upon a promissory note. [Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 15.* For other definitions, see Words and Phrases, vol. 1, pp. 690, 691.] 2. BILLS AND NOTES (8 442*)- ACTION ON CHECK-RIGHTS OF PAYEE. The payee of a bank check may maintain an action against the drawer to recover the debt evidenced by such check upon the drawee refusing to pay the same. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 442.*] 3. GAMING (§ 18*)-ACTION ON BANK CHECKRIGHTS OF PARTIES. Where a bank check is given for the purpose of procuring money with which to gamble, and the person to whom the check is given has knowledge that the same is to be used for such unlawful purpose, and cashes such check with that knowledge, he cannot recover the debt evidenced thereby from the drawer of such check. [Ed. Note. For other cases, see Gaming, Cent. Dig. §§ 36-38; Dec. Dig. § 18.*] 4. GAMING (8 50*)-APPEAL AND ERROR (8 1001*)-BANK CHECK-DEFENSES-QUESTION FOR JURY. In a suit by a payee of a bank check to recover the debt evidenced thereby upon the drawee refusing to pay the same, and a defense is interposed by the drawer, that the money advanced upon such check was used for the purpose of gambling, and that the payee knew such fact at the time the check was cashed, the issue is one of fact, to be determined by the jury, and the verdict of the jury will not be disturbed if the evidence supports the same. [Ed. Note.-For other cases, see Gaming, Dec. Dig. § 50:* Appeal and Error, Cent. Dig. § 3928; Dec. Dig. § 1001.*] 5. PARTNERSHIP (§ 146*)-PAYMENT OF INDIVIDUAL DEBT-DEFENSE TO ACTION ON FIRM CHECK. Where a member of a partnership draws a check in payment of his personal obligations or for a debt without and beyond the scope of the •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 99 P.-53 partnership and the payee named in such check also alleged in the answer that the check cashes the same without knowledge, either actual or constructive, that the check was drawn without authority, in an action by the payee to recover the debt evidenced by such check, the partnership cannot defend upon the ground that the member drawing such check had no authority to draw the same. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 252; Dec. Dig. § 146.*] 6. BILLS AND NOTES (8 241*)-BANK CHECK. The payee of a bank check may look to the drawer thereof for its collection, and is not required to apply money in its hands on deposit in the name of an indorser in payment of such check. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 241.*] 7. BILLS AND NOTES (§ 516*) ACTION ON CHECK-DEFENSES. The evidence in this case examined, and held to support the verdict. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 516.*] (Syllabus by the Court. was executed for the purpose of obtaining money with which to gamble with one Lee Mink, contrary to law, and at the solicitation of said Lee Mink, and that, when the check was drawn and presented to the plaintiff, the plaintiff required said Mink to indorse said check, which was done accordingly, and at the time the same was drawn the plaintiff had in its possession money of said Mink more than sufficient to pay said check, and which could have been applied in the payment of the same, but which was not done, although plaintiff knew that the money so obtained from the plaintiff on said check was to be used in gambling with said Mink and was lost to him in gambling, and that plaintiff willfully and fraudulently conspired with sald Mink and refused to apply the money in its hands for the payment of said check, although having the right and power so to do. Upon the issues thus presented the Appeal from District Court, Blaine Coun- cause was tried to a jury, which returned a ty; Edward A. Walters, Judge. Action by the Camas Prairie State Bank against H. E. Newman and others. Judgment for plaintiff, and defendants appeal. Affirmed. verdict for the plaintiff for the amount sued for. This appeal is from the judgment and from an order overruling a motion for a new trial. It is admitted by the evidence in this case Stockslager & Bowen, for appellants. Sul- that H. E. Newman, Jr., was a member of Irvan & Sullivan, for respondent. the firm of H. E. Newman & Sons; that Newman, Jr., drew the check in controversy, STEWART, J. The facts in this case are and the plaintiff cashed the same; that H. E. out of the ordinary of business transactions. Newman, Jr., received the amount named in On July 1, 1907, H. E. Newman, Jr., a mem- such check, to wit, $500, from the plaintiff. ber of the firm of H. E. Newman & Sons, It also further appears that H. E. Newman, drew a check on the First National Bank of Jr., had been gambling with one Lee Mink Shoshone, Idaho, payable to the order of the and had lost the sum of $300, and had drawn Camas Prairie State Bank, for the sum of checks for such sum upon the First National $500, and the Camas Prairie State Bank Bank of Shoshone payable to the order of cashed said check, and paid to H. E. New- Lee Mink, signed the same in the same man, Jr., the amount stated therein, $500. amount as the check in controversy, and The Camas Prairie State Bank presented that, after drawing the check in controsuch check to the First National Bank of versy, the three checks drawn in favor of Shoshone, which declined to pay the same. Lee Mink were taken up and paid with the This action is based upon such check, in money received from the plaintiff upon the which the plaintiff, the payee of said check, check in controversy, and that thereafter H. brings this action to recover from H. E. New- E. Newman, Jr., continued to gamble until man & Sons the amount paid upon said he had lost the balance of the money recheck. The answer of the defendants admits ceived from plaintiff. These facts are testhat H. E. Newman, Jr., drew such check, tified to by H. E. Newman, Jr. Thus the and that the plaintiff cashed the same, and facts in this case are rather out of the ordithat it was presented to and not paid by the nary, as it is clearly shown by the evidence First National Bank of Shoshone. The de- of H. E. Newman, Jr., that he was engaged fense made by H. E. Newman & Sons is that in violating the laws of this state in gamthe check was drawn by H. E. Newman, Jr., bling, and that the money paid upon the check for the purpose of obtaining money with in controversy was used for such illegal and which to gamble, contrary to the laws of this unlawful purposes. In this connection it state, being drawn for his own individual may be well to observe that it was the duty purpose, and not within the scope of the of the trial court, and we assume that the partnership, and that H. E. Newman, Jr., trial court performed this duty, to direct did not have the right or authority to draw that the parties engaged in such unlawful such check, and that the plaintiff had reason business, as shown by the evidence in this to know and believe and did know and be case, should be prosecuted for such offense lieve that said check was issued for such and dealt with as provided by the laws of purpose, and without the authority of said H. this state. Under the law, a check is an E. Newinan, Jr., to draw the same. It is instrument by which a depositor seeks to knowledge obtained by plaintiff, with reference to the purpose for which the money was to be used, was obtained after the transaction was closed and after the plaintiff had paid to Newman, Jr., the amount of said check. The liability of the defendants to the plaintiff must be determined from the conditions as they existed at the time the plaintiff cashed such check, and, after the check was cashed, it became a debt of the defendants and the plaintiff had a right to rely upon the defendants to pay the same, even though plaintiff might also have recovered the amount of such indebtedness from Mink by reason of his being an indorser. The fact that Mink was an indorser would not require the piaintiff to look to him to pay the indebtedness. The plaintiff in law could look to the drawer of such check as the maker of the original obligation, and there is no principle of law which imposed upon the plaintiff the recessity of applying money in its hands upor deposit in the name of Lee Mink in the discharge of such obligation, and certainly the facts did not require it. withdraw funds from a bank. As between however, with this contention is that the the drawer and the payee, it is an evidence of indebtedness. Usually a check is given for money borrowed or a debt contracted, and in commercial transactions, as well as in law, it is equivalent to the drawer's promise to pay, and an action may be brought thereon as upon a promissory note. 1 Morse on Banks and Banking, § 388. The check then in controversy in this case was an obligation on the part of H. E. Newman & Sons to pay a debt to the plaintiff, and, when payment was declined by the drawee, the plaintiff had a right of action to recover the debt of which such check was a mere evidence. If the check was given for the purpose of procuring money with which to gamble and the plaintiff was a party to such transaction and cashed the check with the knowledge that it was to be used for such unlawful purpose, the plaintiff cannot recover, as the courts will not lend their aid or assistance in violation of the laws of this state or to aid or abet in the commission of crime. 20 Cyc. p. 939. This question, however, was an issue of fact, to be tried and determined by the jury under proper instructions, and in this case It is also contended that the trial court having been submitted to the jury, and they erred in denying the defendant the right to having determined that matter against the show that previous to the time the check contention of respondents, their verdict will was cashed by plaintiff H. E. Newman, Jr., not be disturbed unless it is not supported had been drinking and was intoxicated at by the evidence. From an examination of the time the check was cashed. Whether the evidence we think it clearly appears that Newman had been drinking previous to the while the money procured upon said check time the check was cashed is certainly imwas used and lost by H. E. Newman, Jr.. material, and whether his condition was such gambling, yet it also appears that the plain- at the time the check was cashed, as to make tiff had no knowledge at the time the check him liable upon a contract made by him, was cashed as to the purpose for which the is a matter of defense which is not set forth money was to be used. and that the evidence in the answer in this case or plead as a declearly supports the verdict of the jury upon fense. If Newman, Jr., was incapable by this question. It is also argued that, inas- | reason of intoxication from making the conmuch as the check was drawn by H. E. New-tract or entering into the obligation to pay man, Jr., for purposes outside of and beyond the scope of the partnership business of H. E. Newman & Sons, for that reason the plaintiff cannot recover in this action. The check, however, appears regular upon its face, and it is admitted that H. E. Newman, Jr., had authority to issue checks in the name of H. E. Newman & Sons, and when the check was so issued, unless the plaintiff was advised or knew that the check was drawn for a purpose outside and beyond the scope of the partnership, the right to recover thereon will not be denied the plaintiff, and upon this question the verdict of the jury is conclusive, and we are satisfied the evidence is sufficient to support the verdict. It is next argued that inasmuch as Lee Mink indorsed such check, and the drawee refused to pay the same, and as the plaintiff was then advised of the purpose for which the check was drawn, it was the duty of the plaintiff to have applied money then in the bank on deposit in the name of Lee Mink in the discharge of such check and indebtedness, and that the plaintiff, upon failure to so apply the deposit of Lee Mink, cannot recover from the defendants. The trouble, plaintiff the money received upon the check, such facts should have been plead as a defense, and cannot be proven under the plea that the money was advanced for gambling purposes with knowledge on the part of the plaintiff of the use to which such money was to be applied. It is next urged that the court erred in not granting a new trial upon the ground of newly discovered evidence. The showing, however, is insufficient for the reason that it does not show diligence, but, on the contrary, shows that what is claimed as newly discovered evidence was in the possession and knowledge of the defendants at the time of the former trial. This is not newly discovered evidence. 12 Ency. Pl. & Prac. 804. There are some other questions presented by the record, but which we do not deem of sufficient importance to discuss in detail. We find no error in this record, and believe that the verdict of the jury is fully supported by the evidence. The judgment is affirmed. Costs awarded to the respondent. AILSHIE, J., concurs. (38 Mont. 298) MCLEAN v. MORAN. (Supreme Court of Montana. Feb. 8, 1909.) 1. STATUTES (8 212*) - CONSTRUCTION - PRE SUMPTIONS. When a statute prescribing procedure is changed, it must be presumed that the Legisla ture intended to establish a different rule. LENT." "Equivalent" means “equal in worth or value, force, power, effect, import and the like," and hence under Rev. Codes, § 6521, providing that, when publication service is ordered, personal service of a copy of the summons and complaint out of the state is "equivalent" to publication and deposit in the post office. and that service of summons is complete on the day of the fourth publication, a defendant has the same time within which to appear, four weeks and twenty days, whether service be by publication and mailing or by delivery of copies of the complaint and summons. [Ed. Note. For other cases, see Process. Dec. Dig. § 83.* For other definitions, see Words and Phrases, vol. 3, pp. 2449-2451.] Appeal from District Court, Silver Bow County: Jeremiah J. Lynch, Judge. Action by Winnifred A. McLean against Hannah Moran. From an order vacating a default judgment, plaintiff appeals. Affirmed. W. F. Davis and A. J. Rosier, for appellant. Breen & Hogevoll, for respondent. |complete upon a defendant residing in anoth- * HOLLOWAY, J. This action was originally brought against the New York Life Insur-publication is ordered, personal service of a ance Company to recover upon a policy of in- copy of the summons and complaint, out of surance. The insurance company appeared the state, is equivalent to publication and deand admitted its liability, but set forth that posit in the post office." Voorhies' New York Hannah Moran, individually and as adminis- Ann. Code, § 135, p. 167. "In the cases mentratrix of the estate of Patrick H. McGuire, tioned in section 135, the service of the sumdeceased, claimed the amount due on the pol-mons shall be deemed complete at the expiraicy, and asked leave to deposit the amount in tion of the time prescribed by the order for court and to have Hannah Moran substituted | publication." Section 137. Speaking of these as defendant. The order of substitution was provisions, the Court of Appeals of New York, made, and plaintiff thereupon redrafted her in Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84, complaint, and asked for an order for the said: "It is held, and we think correctly, in publication of the summons, as the defendant Tomlinson v. Van Vechten, 6 How. Prac. 199, Moran was a resident of the state of Penn- and in Abrahams v. Mitchell, 8 Abb. Prac. sylvania. The order of publication was made, 123, that, where personal service is thus made but, instead of causing the summons to be pub-out of the state, such service is not complete lished and a copy to be mailed, the plaintiff until the time prescribed for the publication had a copy of the summons together with a has expired. Section 137 requires the lapse copy of the complaint, served upon defendant of this time to render the service complete in Moran in Pennsylvania on April 16, 1908. On all the cases mentioned in section 135. It May 7, 1908, the default of the defendant makes no exception where personal service is Moran was entered for failure of an appear-pursuant to the same section, substituted for ance, and, proof being made, a judgment was actual publication." The statute of Idaho is rendered in plaintiff's favor. On May 8, 1908, identical with our statute of 1879, and in conthe defendant Moran moved the court to va- struing it the court in Bowen v. Harper, 6 cate the judgment and set aside the default | Idaho, 657, 59 Pac. 179, said: "When publion the ground that the judgment was premature. This motion was granted, and, from the order granting it, the plaintiff appealed. cation is ordered, personal service of a copy of the summons and complaint out of the territory is equivalent to publication and deposit But a single question is presented for so- in the post office; and in either case the servlution, viz.: When is the service of summons lice of the summons is complete at the expira * tion of the time prescribed by the order for publication. The qualifying words, in either case,' in the last clause of the statute under consideration, relate to both of the modes of serving the summons upon the absent defendant provided for in said statute; i. e., in case of publication of the summons and in case of personal service out of the state. In the first case the service becomes complete at the expiration of the time prescribed in the order for publication, computing from the date of the first publication, and in the last case it becomes complete at the expiration of such time, computing from the date of making the personal service out of the state." These statutes appear so plain that we wonder that any contention could ever arise as to their meaning. For some sufficient reason our Legislature in 1887 changed the statute so that in the event a copy of the summons, together with a copy of the complaint, was served out of the state in lieu of publication and mailing, the service was complete on the day the summons and copy of the complaint were served. The provision of 1879 was definite and certain in meaning, as likewise was that of 1857, and we are unable to understand why these or either of them should have been abandoned for the indefinite and uncertain provision of our present Code; but, when the change was made in 1895, we must presume that the Legislature intended to establish a different rule, otherwise the provision of 1887 would have been retained. This is a canon of construction recognized generally. Section 6521, then, provides for two modes of service upon a defendant residing in another state one by publication and mailing, and the other by delivering to the defendant personally a copy of the summons together with a copy of the complaint. The section then concludes: "The service of summons is complete on the day of the fourth publication." What service? Manifestly the service just mentioned in the preceding portion of the section; that is, the service by publication and mailing or by delivering a copy of the summons together with a copy of the complaint. The word "equivalent" means: "Equal in worth or value, force, power, effect, import and the like." Webster's International Dictionary. In other words, as a means of giving notice, the service of a copy of the summons, together with a copy of the complaint, is of equal worth with publication and mailing. The fact that the provision of the statute of 1887 was abandoned would seem to indicate that the legislative intent was to give to a defendant served out of this state more time for appearance than is extended to one served in this state, and whether that service is made by publication and mailing or by delivering a copy of the summons, together with a copy of the complaint to the defendant personally, the person so served shall have the full pe riod of four weeks and twenty days within which to make his appearance. This appears to be the object and meaning of the statute, if its meaning can be derived from the language employed, and the purpose to be accomplished. Under this view the order is correct, and is affirmed. Affirmed. BRANTLY, C. J., and SMITH, J., concur. (38 Mont. 222) ROBINSON v. HELENA LIGHT & RY. Co. (Supreme Court of Montana. Feb. 6, 1909.) 1. NEW TRIAL (§ 131*)-STATEMENT OR BILL OF EXCEPTIONS-STATUTES. § 6795), providing that a motion for a new trial Code Civ. Proc. 1895, § 1172 (Rev. Codes, may be made, either on a statement of the case, or a bill of exceptions, at the option of the movant, was superseded by Rev. Codes, § 6799 (Act taining no provision authorizing a statement of Feb. 26, 1907 [Sess. Laws, p. 90, § 4]), conthe case to be used as the basis of a motion for a new trial; the statement referred to in such act as a part of the record on appeal being a bill of exceptions, to be made up after the motion for a new trial has been disposed of. [Ed. Note.-For other cases, see New Trial, Dec. Dig. § 131.*] 2. EXCEPTIONS, BILL OF (§ 60*)-PREPARATION-MISNAMING-EFFECT. In of a motion for a new trial, was prepared in Defendant's bill of exceptions, in support conformity with the requirements of the statutes as a bill of exceptions. It was entitled and served as such. The acknowledgment of service by plaintiff's counsel so designated it; and, after service, plaintiff's counsel offered, and had incorporated therein, certain amendments. the preparation of the certificate of settlement, in the form of an order, however, defendant's counsel mistakenly designated it as a "statement on motion for new trial," but the certificate referred to the document as being "allowed, settled, and signed as and for a true and correct copy of the proceedings of the trial," etc. Held, that such misnomer was insufficient to justify striking the bill from the files. [Ed. Note. For other cases, see Exceptions, Bill of, Dec. Dig. § 60.*] 3. APPEAL AND ERROR (§ 655*)-RECORD-MOTION TO STRIKE. A document, which is part of the record in the trial court, and which has been properly certified to the Supreme Court on appeal as a part of the record as a bill of exceptions, or statement on motion for new trial, however defective, may not be stricken, but must remain in the record, to be given such effect on the hearing of the cause as it may be entitled to. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 655.*] 4. EXCEPTIONS, BILL OF (§ 56*)-CERTIFICATION-MODIFICATION. Where a bill of exceptions was settled and ordered filed prior to the hearing of a motion for new trial, the bill, including the certificate, betion, which having been denied, the trial court came a part of the record to be used on the mohad no jurisdiction to amend such certificate so as to make it designate the document as a bill of exceptions, instead of a statement on motion for new trial, at least without setting aside the order disposing of the motion for new trial. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 94; Dec. Dig. § 56.*] *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 1 |