curred, respondent would have been compelled to abandon the case, or find proof to show the palpably improbable fact that a committee of a political party, alleged to have nominated him, held a secret meeting for such nomination, and guarded the secrecy of that event so carefully and successfully that not only respondent, but even the secretary of the committee, did not know of any such meeting, even when they prepared and filed said certificate of nomination, on the last day fixed by law for filing the same. Where would respondent find evidence to prove such unnatural and improbable events? In the face of these exposures, which no doubt convinced respondent and his counsel that the committee had never adopted any such unnatural method of procedure, and, consequently, no such action could be proved, they raised a motion for nonsuit; and, under these circumstances, respondent must have needed the relief of nonsuit to escape from the contest. But, in my opinion, neither the law nor the facts warrant such decision.

(13 Mont. 293)

BOHN MANUF'G CO. v. HARRISON. (Supreme Court of Montana. Sept. 5, 1893.) NEGOTIABLE INSTRUMENT- ACTION ON-COUNTERCLAIM-PAROL EVIDENCE.

In an action on an accepted draft, defendant may show by parol, in support of his counterclaim alleged to have existed prior to the acceptance, that it was agreed between the parties that the acceptance should not operate as a waiver of the claim, as such evidence does not vary the terms of the written instrument, but only rebuts the presumption of waiver.

Appeal from district court, Lewis and Clarke county; H. R. Buck, Judge.

Action by the Bohn Manufacturing Company against William Harrison on a draft. Plaintiff had judgment, and defendant appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

The defendant appeals from a judgment rendered upon the sustaining of plaintiff's demurrer to the answer. The complaint alleges that on November 27, 1889, defendant accepted a bill of exchange drawn by the plaintiff, for $850, at 30 days from that date. The bill was not paid by defendant when due, and was duly protested. The demand for judgment is for the amount of the bill, $850, protest fees, and interest from December 30, 1889. The defendant set up in the answer three counterclaims, aggregating some $898. The nature of these counterclaims is the same, and the statement of one will present the principles involved in all. About May 1, 1889, the defendant and one Hall were partners in the building business. On August 5th, defendant bought out his partner, and assumed the obligations, and took the rights and demands, of the firm. This firm of Hall & Harrison had a contract with one Gates to erect a portion

of a building in Helena. They contracted with plaintiff to furnish the mill work for said building for a given sum. The answer then sets up that plaintiff failed in performing said agreement, and gives in detail a large number of items which the plaintiff failed to furnish in accordance with its contract. The answer then alleges that defendant was obliged to purchase these articles, and pay for them certain prices, which are named, and which are alleged to be reasonable, and the total of which is $720. The defendant then alleges that he had a fullyaccrued claim of $720 against plaintiff before his acceptance of the bill of exchange sued upon, and which was unsettled at that time. The answer further alleges that said bill of exchange was drawn and accepted with the expressed understanding and agreement be tween the parties thereto that, when paid, it should operate as a payment on their general unsettled account; that, before the bill of exchange was drawn or accepted, defendant had notified plaintiff of its failure to perform its contract as aforesaid, and plaintiff had promised to compensate defendant for any and all failure to so perform its said contract; and that, relying on said promise, this defendant accepted said bill, as alleged in the complaint. The other counterclaims, as above observed, are similar to this one. The plaintiff moved to strike out from the answer that portion which pleaded that the bill of exchange was accepted with the agreement that it should be a payment on the unsettled account, and that it was accepted by defendant, relying upon the promise of plaintiff to compensate defendant for the alleged failures in carrying out its contract. This motion was made upon the ground that this allegation was an attempt to set up a parol agreement to vary and contradict the terms of the written instrument; that is, the bill of exchange. This motion was directed at each of the counterclaims. and as to each was sustained by the court. The plaintiff demurred to the answer, as to each one of the three counterclaims, on the ground that they did not constitute a defense or counterclaim, for the reason "that when defendant executed and delivered to the plaintiff herein the bill of exchange which is the subject of this action, if he ever had any counterclaim or set-off to plaintiff's cause of action against him at that time, he (the defendant) waived the same in so executing and delivering said bill of exchange to this plaintiff." The demurrer was sustained, and, no further answer being filed, judgment was entered for plaintiff The position of appellant is that it was compe tent to allege that, when the bill of exchange was accepted, the parties agreed that it should be simply a payment on account, and not a settlement of the mutual and unsettled accounts between them, or a waiver of defendant's alleged counterclaims, and that such evidence of such agreement did not

vary the terms of a written instrument, to wit, the bill of exchange, and that, such allegations being competent, any presumption of waiver of the counterclaims by virtue of the acceptance of the bill of exchange is done away with, and the answer sets up counterclaims good as against the demurrer. Respondent's position is that the allegations stricken out could not be proved, for it was an offer to vary the terms of a written instrument by parol testimony, and without these allegations the acceptance of the bill of exchange waived the counterclaims.

Leslie & Craven, for appellant.

F. N. & S. H. McIntire, for respondent. If the acceptor of a bill of exchange has any claim or cause of action against the drawer, growing out of any dealings prior to the acceptance, by the acceptance he waives his claim. 3 Rand. Com. Paper, § 1870; Reid v. Field, 83 Va. 26, 1 S. E. Rep. 395; Leonard v. Hastings, 9 Cal. 236; Griffith v. Trabue, 11 Heisk. 645; Audleur v. Kuffel, 71 Ind. 546; Stiles v. Brown, 1 Gill, 350; Orr v. Hopkins, (N. M.) 1 Pac. Rep. 184; Allen v. Bryson, (Iowa,) 25 N. W. Rep. 820; Borchsenius v. Canutson, 7 Ill. App. 365; Dutcher v. Porter, 63 Barb. 15; Bish. Cont. §§ 791-795. Unliquidated damages are not proper subjects for counterclaims. Sedg. Dam. (8th Ed.) § 1031; 3 Rand. Com. Paper, § 1849; West v. Hayes, 104 Ind. 251, 3 N. E. Rep. 932; Daniel, Neg. Inst. §§ 1423-1425. The acceptance, on its face, appears to create an unconditional debt from defendant to plaintiff, which cannot be varied by parol evidence. Comp. St. div. 1, § 628; Fisher v. Briscoe, 10 Mont. 125, 25 Pac. Rep. 30; Tied. Com. Paper, § 42; 4 Lawson, Rights, Rem. & Pr. § 1476; 1 Daniel, Neg. Inst. § 80.

DE WITT, J., (after stating the facts.) The first matter for consideration in this case is whether it was an offer to vary or contradict the terms of a written instrument, when the defendant pleaded in his answer that it was understood between plaintiff and defendant that the acceptance of the bill of exchange should not be a waiver of the counterclaims which defendant alleged he then held against the plaintiff. It is our opinion that the pleading of this matter was not an offer of parol testimony to vary the terms of a written instrument. It is not the terms of the written instrument that are sought to be varied or contradicted by this evidence. Instead of that, it is simply a presumption, which, it is claimed by the plaintiff, arose from the fact of executing the instrument that is sought to be varied by this parol testimony. The defendant concedes the written instrument, in all its force. He concedes his liability upon it. The plaintiff contends that the execution of this instrument-that is, the acceptance of the bill of exchange-was a waiver of defendant's alleged counterclaims

existing at that time. The written instrument itself does not, on its face, disclose such waiver; but the waiver, if any there were, is a result, or an inference, or a presumption from the fact of executing the instrument, and the fact of the existence of the counterclaims at the time of such execution. Now, this parol evidence is offered to overthrow nothing in the instrument itself, but simply to combat an inference or presumption drawn from the instrument and other facts. This presumption is not a written instrument, nor contained in the terms of a written instrument. Therefore to overthrow it is not varying the terms of the instrument. Let us fully concede, for the purpose of this decision, the position urged by respondent,— that the acceptance of the draft, in itself, and unexplained, is a waiver of the counterclaims of the person accepting the draft. See cases cited by respondent. But, whatever legal presumption might arise from the acceniance of the draft, it is only a presumption arising from the conduct of the parties, and disappears before the positive allegation, admitted by the demurrer to be true, that the parties intended that no such presumption should arise from said acts; that is, it is pleaded that the parties intended that the acceptance of the drafts should not be a waiver of the counterclaims. It was perfectly competent for them to entertain this intention between themselves at the time of drawing and accepting the draft, and there are no third parties, as innocent purchasers, now interested, who have been misled by the actions of the plaintiff and defendant in the case. In the cases cited by the respondent in its brief, we find one of two situations: Either that the commercial paper in question was given expressly as a settlement of mutual accounts, and understood and agreed to be such settlement, or, as in the other case, of which Reid v. Field, 83 Va. 26, 1 S. E. Rep. 395, is a good example, the case was that it was not pleaded, or undertaken to be shown, that there was any understanding or intention between the parties that the giving of the commercial paper should, expressly, not be a waiver of the counterclaim. Therefore, the authorities presented by respondent are not in point upon the proposition raised by these pleadings. Fisher v. Briscoe, 10 Mont. 133, 25 Pac. Rep. 30, also, is not in point. The parol agreement there attempted to be brought into the case was one to defeat the payment of the note at the time when it was sued upon. But, as shown above, the parol matter in this case was not a defense against the note, and was not offered in resistance of the payment of the note. It was simply an agreement and understanding that the parties did not intend that there should arise, from the fact of accepting the draft, a presumption of waiver of the counterclaims. We are therefore of opinion that, whatever presumption of waiver could be held to arise from an un

explained acceptance of the draft, such presumption did not here arise, because the acceptance is not here unexplained. On the other hand, the parties expressly agreed among themselves that that presumption should not arise, and that the fact which it presumed was not true. Of course, the treatment of this case is upon the ground that all the allegations of the answer are confessed as true upon the demurrer. It therefore appears to us that a defense was set up by the answer, and that the demurrer should not have been sustained. In the view that we take of the competency of the allegations discussed, the court erred in sustaining the motion to strike them out. As a consequence, if they had been left in the complaint, the counterclaims would have been well pleaded, showing, as they did, their existence, and their non waiver. Consequently, if the motion to strike out had been denied, as we think it should have been, the demurrer should have been overruled. The judgment is reversed, and the case remanded to the district court, with directions to proceed in accordance with these views.

PEMBERTON, C. J., and HARWOOD, J., concur.

(13 Mont. 403)

STATE ex rel. CARTER v. VOTAW, Justice of the Peace.

(Supreme Court of Montana. Oct. 9, 1893.) LANDLORD AND TENANT - UNLAWFUL DETAINERJURISDICTION OF JUSTICE'S COURT-ESTOPPEL TO DENY LANDLORD'S TITLE-PLEADINGS.

1. Justices of the peace have jurisdiction of actions under Code Civil Proc. § 716 et seq., for the possession of premises by a landlord against a tenant holding after default in the payment of rent, as such jurisdiction is provided by the act, and Const. art. 8, § 21, expressly declares that such courts shall "have concurrent jurisdiction with the district courts in case of forcible entry and unlawful detainer."

a

2. Since Code Civil Proc. § 727, authorizes the administrator of a deceased landlord's estate to proceed against the tenant on breach of the lease as the landlord might have done, the rule which estops the tenant from questioning the landlord's title applies in favor of such administrator.

3. In an action by the administrator of a deceased landlord's estate for the possession of leased premises for nonpayment of rent, where the tenant's answer admits having leased the premises from decedent, and also default in the payment of rent, judgment on the pleadings for plaintiff is justified.

Original action in certiorari in the name of the state, at the relation of J. A. Carter against A. C. Votaw, justice of the peace, to review certain proceedings had before respondent. Judgment for respondent.

Statement of the case by the justice delivering the opinion:

This is an application for a writ of certiorari against the justice of the peace to review his action in giving judgment, on the pleadings, in the case of H. J. Simons, administrator of the estate of A. O. Simons, against

J. A. Carter, the relator herein. That action in the justice's court sought to obtain, under the provisions of the forcible entry and unlawful detainer act, (section 716 et seq., Code Civil Proc.,) possession of a dwelling house in the city of Helena. The complaint sets forth a cause of action against defendant, as a tenant holding after default in payment of rent, and after demand for possession. Answer was filed. Upon complaint and answer, the court rendered judgment upon the pleadings in favor of plaintiff, and thereupon a writ of restitution issued. Defendant in the justice's case now on this writ of certiorari contends that the justice's judgment is void, as being in excess of jurisdiction, and that the defendant therein has no appeal.

J. A. Carter, for relator. A. I. Loeb, for respondent.

DE WITT, J., (after stating the facts.) Relator contends that a justice's court has not jurisdiction, under the forcible entry and unlawful detainer act, (section 716 et seq., Code Civil Proc.,) of an action by a landlord against a tenant holding after default in payment of rent. Const. art. 8, § 21, as to jurisdiction of justices' courts, provides, inter alia, that they "shall also have concurrent jurisdiction with the district courts, in cases of forcible entry and unlawful detainer." We are of opinion that this leaves the jurisdiction in the justice's court of these cases as provided in the statute, (Code Civil Proc. § 716 et seq.)

Relator contends that the rule as to the tenant not disputing the landlord's title does not apply to such a landlord as the plaintiff in the case under review, who was an administrator of the estate of the deceased landlord, who leased to relator. He relies upon Reay v. Cotter, 29 Cal. 169. But section 727, Code Civil Proc.,' concludes that contention, which section, and section 37, Id.,' leave relator subject to the estoppel of the relation of landlord and tenant.

Relator contends that, in his answer, he denies the allegations by which plaintiff sets forth his right of possession of the real es tate in question, and that hence the justice was without jurisdiction to enter, without a trial, the judgment for restitution. Indeed, this allegation in his affidavit moved this court to grant the writ. It is true that the answer does deny plaintiff's right of possession, but such denial, besides being in the

The section authorizes the "heirs, executors, administrators, assigns, agent or attorney" of a lessor to proceed against a tenant on a breach of the lease the same as the lessor might have done.

The section provides that, where the relation of landlord and tenant has existed be tween any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, though the tenant may have acquired another title.

It

nature of a conclusion of law, loses all force in face of the admissions of the answer. is admitted by the answer that defendant leased the premises from plaintiff's intestate, and that, as such tenant, he is indebted and in default for seven months' rent. He thus concedes himself to be a tenant holding over after default in payment of rent. The judg ment on the pleadings was therefore correct. After an extended and patient hearing, the court asked relator, who appeared in person, what issues there were in the pleadings before the justice, upon which he claimed evidence could have been introduced which would have added anything to the facts pleaded and conceded. The relator was unable to point out to us any such reeded evidence, and our own investigation has discovered none. We are therefore of opinion that upon this review no reason has been shown why we should annul or modify the proceedings of the justice. The case is therefore remanded to the justice's court, at the costs of relator.

STATE ex rel. COFFIN v. HORTON, State Comptroller. (No. 1,390.)

(Supreme Court of Nevada. Oct. 14, 1893.) CLAIMS AGAINST STATE-SERVICES.

1. Gen. St. § 1813, makes it the duty of the state comptroller to institute and prosecute ail suits to recover the debts and moneys of the state, and an annual appropriation for the purpose of enforcing the collection of the revenue is placed under his control. Held, that only the comptroller could employ counsel to assist the attorney general in suing for delinquent taxes so as to create a valid obligation payable out of such appropriation.

2. The fact that counsel rendered services in such case, and that his claim therefor was approved by the board of examiners, does not entitle him to recover, as Gen. St. § 1811, provides that no claim for services rendered to the state shall be allowed unless such services have been specially authorized by law.

Application by Trenmore Coffin for a writ of mandate to compel R. L. Horton, state comptroller, to draw a warrant in favor of relator in payment for services rendered to the state. Denied.

Trenmore Coffin, in pro. per. J. D. Torreyson, Atty. Gen., for respondent.

MURPHY, C. J. This was an original application to this court for a peremptory writ of mandamus. The petitioner, Trenmore Coffin, seeks to compel R. L. Horton, the state comptroller, to draw his warrant on the state treasurer in favor of relator for the sum of $250, alleged to be due and owing from the state of Nevada to relator. By the affidavit upon which this application is based, it appears "that on the 16th day of January, 1893, there was pending in and on the calendar of this supreme court a cause

on appeal from the district court of Lincoln county, Nevada, entitled 'Sawyer v. Dooley;' that said action was brought and prosecuted for the purpose of having the law creating the state board of equalization declared unconstitutional, and the assessment made by order of said board declared to be illegal and void; that the relator was employed by the state of Nevada to assist the attorney general in the argument and presentation of the said cause in the supreme court; that it was agreed that the relator should receive the sum of $250 for his labor and services; that on the 5th day of May, 1893, the board of examiners allowed said claim; that the said claim, together with the indorsement of the board of examiners allowing the same, was presented to the comptroller in the month of May, 1893, and said comptroller requested to draw his warrant on the treasurer in favor of the relator for the sum of two hundred and fifty dollars, but said comptroller refused, and still refuses, to draw said warrant; that there is, in the treasury of the state, unexpended appropriation of public money sufficient in amount to pay said claim." It is admitted by the attorney general that the relator did assist in arguing and presenting the case of Sawyer v. Dooley before the supreme court, and that the services rendered by the relator were reasonably worth the sum claimed. The respondent, in answering the affidavit, "denies that the relator was employed by the state of Nevada, by any one who had authority so to act or bind said state in actions, of this character; denies that it was agreed that the relator should have the sum of $250 for his said services, or any sum of money; denies that there is any money in the state treasury applicable to the payment of the claim of relator." From the testimony introduced on the hearing of the application it could be inferred that the relator was led to believe, from conversations had between the board of examiners and himself, that his services would be acceptable, and with that impression on his mind he did assist the attorney general in presenting the case before this court; yet we know of no law authorizing the board of examiners to employ counsel to assist the attorney general in the prosecution or defense in actions for the collection of the public revenue. Section 1779, Gen. St., makes it the duty of the attorney general to attend each of the terms of the supreme court, and there prosecute or defend, as the case may be, on the part of the state, all causes to which the state may be a party. Section 1813 makes it the duty of the state comptroller to institute and prosecute, in the name of the state, all proper suits for the recovery of any debts, moneys, or property of the state, or for the ascertainment of any right or liability concerning the same. He shall direct and superintend the collection of all