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MR. JUSTICE SANNER delivered the opinion of the court. Action by T. N. Howell to recover from Wallace Bent, Bert Bent, Michael Wrote, Tony Garcia, George Crosby, John Sad-ring, Charles Ingram, C. M. Young, W. R. Bainbridge, James Pauley, Tillman C. Graham, A. W. Adams and Curtis Beeler, as defendants, for injury to and loss of crops on account of the alleged wrongful diversion of the waters of Sage creek. Sage creek is a small stream which rises in Montana and flows into Wyoming, and upon it or its tributaries all the parties reside or have lands which require artificial irrigation for the successful raising of crops. The appellant possesses a right to 110 miner’s inches of the waters of Sage creek for the irrigation of his lands, which lie in the state of Wyoming some miles below the lands of respondents, and this right is prior and superior to any that may be asserted by the respondents or any of them. For the purpose of utilizing his right the appellant has, since August 1, 1890, maintained a dam across said creek about a mile above his place, and also a' ditch, tapping the creek at that point, of sufficient size and character to divert and conduct the water to his land. It is alleged that in the year 1908 the appellant tilled, and cultivated 160 acres of his land in a good, husbandlike manner, constructed laterals from his main ditch so as to distribute the water over the land, planted and seeded a large portion of the land to alfalfa and wheat, and in all respects properly cared for the same. The burden of the complaint is set forth in paragraph 8 as follows: “(8) That said defendants, and each of them, in the years 1908, 1909 and 1910, had ditches tapping said Sage creek and its tributaries above the intake of plaintiff’s said ditch; that when it became necessary to irrigate said crops of wheat and alfalfa in the year 1908, said defendants and each of them tapped said Sage creek and diverted therefrom all of the waters of said Sage creek and its tributaries, and thereby deprived plaintiff' of the use of any of the waters of said Sage creek and its tributaries for the irrigation of said crops, which deprivation and wrongful use of said water by said defendants continued throughout the entire irrigating season of that year; that plaintiff notified said defendants and each of them of his right to the said waters of Sage creek and its tributaries, and that they and each of them were diverting the same from plaintiff to his damage, and demanded that they allow said water to flow down said Sage creek in sufficient quantity to allow him to divert therefrom 110 miner’s inches thereof, to which he was entitled; that notwithstanding such notice and demand from plaintiff, said defendants and each of them, from the commencement of the irrigation season and throughout the whole season, wrongfully and unlawfully diverted all of the waters of said Sage creek and its tributaries, and thereby deprived plaintiff of the use of any of said waters in that year; that by reason of said wrongful acts of said defendants, the plaintiff’s aforesaid crops of wheat and alfalfa were entirely ruined and destroyed, and said alfalfa killed, and plaintiff suffered the entire loss of said crops by reason thereof and for no other reason.” To the complaint four separate answers were filed: one by Wallace Bent and Bert Bent, one by Beeler and Adams, one by Young, Ingram and Sadring, and one by Bainbridge. These answers differ slightly in detail, but the general effect of each of them is to raise an issue upon the material allegations of the complaint. The trial was to the district court sitting with a jury, and after dismissal by appellant as to Tillman C. Graham, the verdict was for the respondents. Judgment on' the verdict was entered, and appellant in due time presented his motion for new trial, which was denied. The cause is before us upon appeal from the judgment, and from the order denying the motion for new trial. The brief, of appellant assigns sixteen alleged errors. One of these relates to the pleadings, four to the instructions, and the remainder to rulings upon the evidence. No good purpose could be served by discussing these assignments in detail, because, for reasons presently to appear, the judgment must be affirmed in any event. Suffice it to say that we see no error in any of these rulings, except the admission of testimony to the effect that the waters of Sage creek sank and were lost between the ranches of respondents and that of appellant. We think this subject was not open to inquiry as between the parties to this action. The complaint alleges, and the respondents have admitted, that on May 28,. 1908, in the circuit court of the United States, ninth circuit, district of Montana, in an action involving the right to the use of the waters of Sage creek, wherein one W. A. Morris was plaintiff, the appellant herein was intervener, and the respondents or their predecessors in interest were defendants, such proceedings were had that the judgment and decree of that court was duly entered establishing the right of appellant to 110 miner’s inches of the waters in said Sage creek and its tributaries as of August 1, 1890, and prior both in time and right to the rights of any of defendants. In and by this decree the. defendants were enjoined from in any manner interfering with the rights of the present appellant, but were commanded to allow a sufficient amount of water to flow down to satisfy his claim whenever needed by him: While it is true the pleadings in that action are not before us, the decree itself—as admitted by the respondents—is of such a character that we must presume, in the absence of anything to the contrary, that the court had properly before it, not merely the relative rights of the parties in order of time, but the possibility of interference with the right of Howell on account of diversions above him. If at that time the waters of Sage creek sank and were lost between the ranches of respondents and that of appellant, no assertion of rights to such waters by respondents or their predecessors in interest, and no diversion of such waters by the respondents or their predecessors in interest, could constitute an interference with Howell. In such a situation there would have been no occasion for the injunctional portion of the decree. As we cannot presume the decree to have been without foundation or meaning in any of its substantial particulars, it follows that the circuit court of the United States in entering the decree necessarily determined that at that time the waters of Sage creek did not sink and become lost between the ranches of respondents and that of appellant. (Rev. Codes, sec. 7917; Lokowich v. City of Helena, 46 Mont. 575, 129 Pac. 1063.) This conclusion is strengthened by the testimony in the record before us, as well as by the decision of the case in the circuit court of the United States in the first instance (Morris v. Bean [C. C.], 146 Fed. 423), and in the circuit court of appeals, where it was intermediately affirmed (Bean v. Morris, 159 Fed. 651, 86 C. C. A. 519). It being the adjudicated fact that when the decree of the circuit court of the United States was entered the waters of Sage creek did not sink and become lost, no evidence to the contrary was admissible until a change in the conditions subsequent to the decree was shown. But the error is of no avail because the plaintiff was not entitled to judgment. The complaint leaves one in some uncertainty as to whether the pleader intended to charge that the respondents acted jointly or severally in diverting the water. If jointly, it is not sustained by any evidence; if severally, then the complaint, the evidence presented by the appellant, and the instructions given to the jury at his instance were consistent, but were grounded upon a theory wholly untenable. It is well settled that when two or more parties act, each for himself, in producing a result injurious to the plaintiff, they cannot be held jointly liable for the acts of each other; nor, in the absence of statutory authorization, can they be sued in one action for the entire damage, either with or without an apportionment to each of his share of the damage. In pursuing their course, counsel for appellant doubtless proceeded upon the assumption that such authorization is to be found in section 4852, Revised Codes; but, as early as 1895, the law was declared other wise in Miles v. Du Bey, 15 Mont. 340, 39 Pac. 313. That case arose squarely upon the interpretation of ~?ction 1260, Fifth Division, Compiled Statutes of 1887, which is identical with section 4852, Revised Codes, and in deciding it this court held that an action like the one at bar will not lie, and that the section in question authorized the proceeding here employed only in a suit in equity to “settle the relative priorities and rights of all the parties to the water, or the use thereof, of the stream mentioned,” in which the damages claimed are a mere incident. (See, also, Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Beach v. Spokane Ranch & Water Co., 25 Mont. 379, 65 Pac. 111.) We fully realize that the foregoing consideration is not made a matter of specific argument in the briefs' before us, but it is argued that the judgment should be reversed and a new trial directed because of the errors assigned. If—as is the ease—the judgment is correct, if it could not in this action be other than it is, then the errors assigned could in no wise affect it; and we are forbidden, as well by the statute (Rev. Codes, sec. 6593) as by the rules of reason, to order a reversal (Knipe v. Washoe Copper Co., 37 Mont. 161, 95 Pac. 129). Accordingly, the judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. On June 22, 1912, Stephen Roberts, as administrator of the estate of Martha Roberts, deceased, filed his petition in the district court of Broadwater county—that court having jurisdiction of the administration—alleging that he believed, and had reason to believe, that one Willard Roberts had embezzled, conveyed away, and disposed of certain goods and chattels belonging to the estate, and praying that a citation issue requiring the said Roberts to appear and be examined on oath touching the property, and that the court order him to make disclosure to the petitioner of his knowledge thereof. In response to a citation issued upon the petition, Roberts appeared and answered, denying all the allegations in the petition, and alleging title to the property in himself. Thereafter an examination was had, and at its conclusion the court made an order requiring the disclosure to be made in accordance with the prayer of the petition. From this order, Willard Roberts has attempted to appeal as from a final judgment. During the oral argument in this court the question arose whether the appeal lies. If it does not, this court is without jurisdiction to determine it upon the merits, and hence must order a dismissal. The proceeding was instituted under sections 7505 and 7506 of the Revised Codes, which provide a means by which an. executor or administrator may obtain a discovery of assets belonging to the estate of the decedent which have been concealed, embezzled, smuggled, conveyed away or disposed of by any person, or of knowledge of any deeds, conveyances, etc., showing a claim or right of the decedent to any real or personal estate, or any claim or demand, or of a lost will of the decedent. These provisions are remedial in their nature, and confer power upon the court, when sitting in probate proceedings, analogous in its scope and object to the power of a court in chancery upon bills of discovery. (Mesmer v. Jenkins, 61 Cal. 151.) The proceeding authorized by them is of an ancillary character, however, and is confined to securing a discovery of evidence upon which the administrator or executor may recover assets belonging to the estate which would otherwise be lost. The adjudication of disputed rights of property is not within their scope, for the order which section 7506 authorizes the court to make cannot go further than to require a disclosure which may be used in an action pending or to be brought in behalf of the estate. (Ex parte Casey, 71 Cal. 269, 12 Pac. 118.) The order cannot finally adjudicate any right. The utmost effect such an order could have in any case would be to fix the rule of evidence to be observed in an action brought to establish the right asserted in behalf of the estate. From this point of view it is not a final judgment, within the meaning of section 6710 of the Revised Codes, from which an appeal lies under subdivision 1 of section 7098. It is a mere order of judgment in a probate proceeding. As was pointed out in Éstate of Tuohy, 23 Mont. 305, 58 Pac. 722, the expression “final judgment,” as used in this subdivision, refers only to those judgments known at common law as final judgments as defined in section 6710, and does not include statutory determinations termed “orders” or “judgments” in probate proceedings. (See, also, In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244.) The appeal, there fore, does not lie under subdivision 1 of that section, providing for an appeal from a final judgment. Subdivision 3 of this section provides for appeals from orders and judgments in probate proceedings, and enumerates all those from which appeals lie. Among these we find no mention of an order made in the proceedings under consideration. Hence the appeal does not lie at all, and is therefore dismissed. Dismissed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On October, 28,1910, the Smith River Development Company, a Montana corporation, with its principal place of business at Helena, executed and delivered to John Ringling its promissory note for $16,000, due six months after date with interest at eight per .cent per annum. About the same time it procured a contract for the purchase of certain lands in Meagher county known as the Catlin lands, payment for which was to be made in installments covering a period extending to February, 1914. The defendant, having paid two installments due upon the contract, went into possession of the land, and thereafter, on December 28, 1910, by an instrument in writing it transferred, set over, and delivered to Ringling the Catlin contract, with all its right, title, and interest therein, as collateral security for the payment of the note above. About the same time it also secured an option in writing to purchase the Mayn & Heitman ranches in Meagher county, upon installments extending to May, 1915, and on February 9, 1911, it assigned, set over, transferred, and delivered this instrument, with all its right, title and interest therein, to Ringling as further collateral security for the pay ment of the same note; $5,519.58 was paid upon the indebtedness in June, 1911, and, no further payments having been made, this suit was instituted in 1912 in Lewis & Clark county to secure a judgment for the balance due and a decree foreclosing the defendant’s interest in the securities mentioned. A demurrer for want of jurisdiction was interposed and overruled, and the defense of want of jurisdiction was made in the answer. The plaintiff prevailed upon the trial and secured a decree fixing the amount due, and directing the sheriff to sell the securities mentioned, upon five days’ notice,, and to execute to the purchaser a certificate of sale without the right of redemption. This appeal is from the judgment, and. the record presents only the pleadings, the decree and the notice of appeal. We have purposely omitted reference' to many matters contained in the pleadings, which, while proper for consideration in the district court, do not reflect in any manner upon the question before us. If the assignment of the contract in the one instance, and the option in the other, conveyed to Ringling an interest in land as security for the debt due, the transactions amounted to a real estate mortgage which could only be foreclosed in a suit instituted in Meagher county, and in that event the defendant would be entitled to the statutory period of redemption. If we were called upon to determine the character of the security given to Ringling, our inquiry would be limited to construing the agreement made on December 28, 1910, when the contract wac assigned, and also, the agreement of February 9, 1911, by which the option was transferred as further security; but that is not the question before us. The trial court held that those agreements resulted in Ringling receiving into his possession the contract and option as personal property, delivered in pledge as security for the payment of the $16,000. We enter upon our investigation indulging the presumption that the trial court did not err, and the appellant must assume the burden of overcoming that presumption. (Toole v. Weirick, 39 Mont. 359, 133 Am. St. Rep. 576, 102 Pac. 590.) In the absence of any evidence disclosing the circumstances under which the securities were given, or reflecting the intention of either the debtor or the creditor, and, indeed, in the absence of the writing assigning either the contract or the option, appellant must assume the burden of showing that the trial court’s conclusion is erroneous under any possible state of facts consistent with the declaration of the record that by an instrument in writing, duly executed by it, the defendant assigned, transferred, and delivered the contract in the one instance, and the option in the other, as collateral security for the payment of a debt. So far as this record discloses, the defendant company had not paid anything upon the Heitman option, and had not taken possession of any of the lands described in that instrument at the time the option was assigned, and therefore it did not have any interest in the lands themselves (Smith v. Jones, 21 Utah, 270, 60 Pac. 1104), and could not have given a real estate mortgage upon them or upon any interest in them (Provident Life & Trust Co. v. Mills (C. C.), 91 Fed. 435). It did, however, have the right to purchase, and that right may have been valuable. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.) It was such a species of property as might be sold, transferred, or assigned (Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136), and, being personal property, it could be pledged. When the record discloses that the option (the writing) was actually delivered to Ringling as security for his note, it would seem that a pledge was created, within the meaning of sections 5774 and 5775, Revised Codes. In any event, the appellant has failed to overcome the presumption in favor of the correctness of the trial court’s ruling, so far as the option is concerned. Although the subject is a debatable one, we may assume, without deciding, that by reason of making certain payments upon the Catlin contract and taking possession, the defendant had acquired an equitable interest in the land prior to the time the contract was assigned to Ringling. If so, it is very clear that such an interest could be mortgaged. We may further assume that the assignment of such a contract, as security for the payment of a debt, would, generally speaking, create an equitable mortgage upon real estate. Still that result does not necessarily follow. “But here, as in other cases, the question whether the transaction creates an equitable mortgage depends upon the intention of the parties in that behalf, and this is to be determined by a consideration of the circumstances attending it.” (27 Cyc. 981.) While our attention has not been directed to any case directly in point, our conclusion is fortified by the logic of analogous cases. The authorities seem quite uniform in holding that a lease of, or mortgage upon, real estate may be pledged (Dewey v. Bowman, 8 Cal. 145; Jones on Pledges and Collateral Securities, sec. 143; Denis on Contracts of Pledge, 56; Colebrooke on Collateral Securities, 3), and we see no difference in principle between the pledge of a lease and the pledge of a contract to purchase land. If the parties so intended, they might have created a real estate mortgage by complying with the provisions of section 5749, Revised Codes, but whether the assignment in this instance contained the formalities required in the case of a grant to real property we have no means of knowing. The assignment is not set forth in the pleadings, but so far as we are able to determine its character from the description given, it did not pretend to transfer any interest in the land itself (Gardner v. McClure, 6 Minn. 250 [Gil. 167]), but referred only to the contract and to the defendant’s interest in it. If this be true, then we are of the opinion that the defendant’s interest in it was such that the contract might have been pledged. Since it is possible that these transactions might have constituted a pledge of each of these instruments, the appellant has failed to overcome the presumption attaching to the judgment of the district court, and for this reason that judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

PER CURIAM It is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed in accordance with stipulation of counsel on file herein.

MR. JUSTICE SANNER delivered the opinion of the court. Suit by appellant to quiet title to the south half of the southwest quarter of section 25, township 12 north, range 16 west, Missoula county, Montana. The complaint alleges that plaintiff is the owner of the land; that defendant, without right, claims some estate or interest therein; and that sueh claim casts a cloud upon the title of plaintiff. The prayer is that the defendant be required to set forth the nature of his claim; that the same may be adjudged null and void; that the defendant be enjoined from asserting sueh claim; and that plaintiff have its costs and such other relief as may be meet and equitable. The defendant’s answer, after admitting that he claims some title, right and interest in the land and denying the other allegations of the complaint, contains the following “further and separate answer and defense”: “This defendant avers that ever since the 20th day of March, 1901, this defendant has been and yet is in the actual, open, peaceable, uninterrupted, exclusive, undis turbed, adverse and hostile possession of the lands described in the complaint herein, holding and claiming to own the same by reason of said possession of land, exclusive of any other right as against the world.” The prayer of the answer is that the plaintiff take nothing, and that the defendant have his costs. No demurrer, reply, or other pleading to the answer was ever filed, and the defendant, after the time for filing reply expired, caused the default of plaintiff to be entered. Thereafter, on motion duly noticed, the court entered judgment for the defendant upon the pleadings. In this judgment it is ordered', adjudged, and decreed that the plaintiff take nothing by its action; that defendant have his costs; and that the claim of defendant to the premises “shall be and is hereby declared to be established, and # * * that the title to and the right of possession of said above-described premises shall be and the same is hereby forever quieted in and to the defendant Charles Thomas as against the claims of plaintiff, ’ ’ etc. After the entry of judgment the plaintiff filed a motion to vacate and set it aside, which was denied. This appeal is from the order denying that motion. The contentions of appellant are: (1) That the so-called “further and separate answer and defense” does not contain any matter requiring a reply; (2) that it is ineffective to support the judgment as rendered; and (3) that it is ineffective to support any judgment at all. 1. As a matter of pleading, the allegations of defendant’s “further and separate answer and defense” were such as to require a reply, and, since none was filed, he was entitled to have judgment entered without other proof than the pleadings. (Rev. Codes, sec. 6562; State v. Quantic, 37 Mont. 32, 94 Pac. 491; State ex rel. Montana C. R. Co. v. District Court, 32 Mont. 37, 79 Pac. 546.) This conclusion is not affected by the reference to the lands in question as “the lands described in the complaint herein,” instead of by legal description, since it not only could not mislead but served every substantial purpose attainable by a repetition of the description. 2. The plaintiff, asserting that the defendant claimed some right to the land which operated to cloud its title, brought him into court, demanding that he set forth the nature of his claim. He did so, and, if the statement of new matter contained in the answer and admitted by failure to reply wás such as to entitle him to any relief, it was the duty of the court to grant whatever relief he was entitled to upon such statement. (Rev. Codes, sec. 6562; State v. Quantic, supra.) Disregarding questions of form, the new matter alleged in the answer is confessedly sufficient to support the affirmative relief awarded; but the contention is that such relief was not warranted here because there was no formal plea for it. If the action were at law, the want of a counterclaim complete within itself would be fatal; but the action is in equity, and the pleader is not concluded by his prayer (Gillett v. Clark, 6 Mont. 190, 9 Pac. 823; Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Davis v. Davis, 9 Mont. 267, 23 Pac. 715; Kleinschmidt v. Steele, 15 Mont. 181, 38 Pac. 827) nor by the form of his pleading (Davis v. Davis, supra). “It is a settled rule of equity practice that when the court has before it all the parties to any difference, and when it has obtained complete jurisdiction of the whole subject matter, it will finally settle the whole controversy.” (Davis v. Davis, supra.) Under this rule, the new matter set up in the answer was sufficient to support the decree. (Davis v. Davis, supra; Walker v. Burks, 48 Tex. 206; Chicago etc. Land Co. v. Peck, 112 Ill. 408; McCormick v. District of Columbia, 18 D. C. (7 Mackey) 534; Sale v. Crutchfield, 8 Bush (Ky.), 636.) 3. The contention that the answer is insufficient to sustain any judgment is based upon the assumption that judicial notice must be taken that the lands in question were unsurveyed and therefore not subject to adverse possession within the period of ten years next preceding the commencement of this action. As we view the case, determination of this question and others involved in it is unnecessary. The defendant alleged that he had since March 20, 1901, been “in the actual, open, peaceable, uninterrupted, exclusive, undisturbed, adverse and hostile possession” of the lands in question, and all this, precisely as pleaded, the plaintiff admitted by failure to .reply. This admission was as complete and effective as if it had been made in set terms, and it necessarily admitted that the lands were such as to permit possession of the character alleged by the defendant, during the entire period mentioned. The plaintiff cannot now say, under the shield of judicial notice or otherwise, that such was not the fact. The decree of the district court is not vulnerable to any of the objections urged by the appellant. Accordingly it is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Rehearing denied December 29, 1913.

MB. JUSTICE HOLLOWAY delivered the opinion of the court. Action in claim and delivery to recover certain cattle or their value. Defendant appealed from an adverse judgment, and from an order denying him a new trial. The plaintiffs claim that they owned the cattle in dispute, and let them to one John D. Busch under an agreement which amounted to a bailment, with an option to Busch to purchase. The defendant alleges that he purchased the cattle from Busch while he was in possession of them, and for their fair value, without notice of any outstanding claim. 1. Plaintiff Henry Cuerth testified that Busch came to him a stranger, and that, upon the security of $300 left with him, he permitted Busch to take fifty head of cattle, valued at $1,400, forty or fifty miles away under an agreement to keep them for three months, and to purchase them if Busch had the money to make payment. Upon cross-examination he was asked if he made any investigation as to Busch’s standing or character. This was excluded as not proper cross-examination, and incompetent and immaterial. The witness had given his version of his transaction with Busch. Whether it amounted to an absolute sale, a conditional sale, an agreement to sell, or a mere bailment with an option to purchase, depended upon the truth of Cuerth’s statements. It was a vital question, and any evidence, otherwise proper, which would reflect upon the probability of the story should have been received. The jury might have concluded properly that, if Cuerth did not make any inquiry into Busch’s liability, it was because he then treated the transaction as a sale. In any event,, the inquiry was proper, and the ruling erroneous. 2. Mrs. Cuerth, who claims to be interested in these cattle, testified on her direct examination to the negotiations between her husband and Busch, and that a sale to Busch was not made. On cross-examination the details of the transaction were sought; but practically every effort on the part of counsel for defendant to ascertain the facts was met by an objection that it was not cross-examination, and these objections were sustained. In fact, the rulings amounted practically to a denial of the right to cross-examine the witness. While it is the general rule that cross-examination must be confined to the material matters brought out on direct examination or connected therewith (sec. 8021, Rev. Codes; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 Pac. 778; Borden v. Lynch, 34 Mont. 503, 87 Pac. 609), and that mere excursions into matters foreign to the subject considered on direct examination will not be permitted, still the section above is to be liberally construed, and the general rule extended, rather than restricted. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; Hefferlin v. Karlman, 30 Mont. 348, 76 Pac. 757; Knuckey v. Butte Electric R. Co., 45 Mont. 106, 122 Pac. 280.) The declaration of this court upon the subject was tersely made in Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884, as follows: “Section 3376, Code of Civil Procedure [8021, Rev. Codes] permits a wide range for cross-examination, and the courts should incline to extend, rather than to restrict, the right. Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them whether directly or indirectly, which tend to enlighten the jury upon the question in controversy.” In State v. Biggs, 45 Mont. 400, 123 Pac. 410, this was repeated, and in addition thereto we said: 1 ‘ The rule necessarily includes questions, the purpose of which is to bring out facts illustrative of the motives, bias and interest of the witness, of as reflecting upon his capacity and memory. The right would be of little value if inquiry into these matters were not permitted.” 3. Defendant offered in evidence the cheeks which he had given for these cattle when he purchased them from Busch; but upon objection they were excluded, and erroneously so. In an attempted defense of the rulings, counsel for plaintiffs contends that, by failing to reply to the affirmative matter set forth in the answer, the purchase from and the payment to Busch were admitted; but with this we do not agree. The so-called affirmative matter amounted only to an argumentative denial of plaintiffs’ title, and everything which could be proved under it could likewise be proved under a general denial. (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, 1135; Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881.) Defendant was entitled to show that he purchased the animals from Busch, and to offer the best evidence he had of that fact. 4. The trial court erred also in excluding defendant’s offer in evidence of the note given by Busch to Fruchtbar, and a chattel mortgage upon these same cattle to secure the debt evidenced by that note. The mortgage was duly filed for record in Chouteau county, the home of these plaintiffs, on June 23, within two weeks at most from the day upon which they had given the cattle into Busch’s possession, and remained of record uncanceled on July 30, when the defendant alleges that he purchased the cattle from Busch, who was then in possession of them. The evidence was competent for the purpose of re-en forcing the presumptions which the Codes declare: “8. That a thing delivered by one to another belonged to the latter. * * * 11. That things which a person possesses are owned by him. 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership.” (Rev. Codes, sec. 7962.) 5. At the time these transactions between plaintiffs and Busch and between Busch and the defendant occurred, section 5092, Revised Codes, was in force, as.follows: “All contracts, notes and instruments for the transfer or sale of personal prop- erty where the title is stipulated to remain in the vendor until the payment of the purchase price, or some part thereof, shall be in writing, and the original or a true copy thereof certified by the county clerk and recorder shall be filed with the county clerk and recorder of the county wherein the property is situate, otherwise any such contract, note or instrument is void as to a purchaser or mortgagee of such property prior to such filing.” The trial court should have defined an agreement to sell and should have instructed the jury that, if they found that the transaction between plaintiffs and Busch amounted to such an agreement, and further found that defendant purchased the property from Busch while in his possession, then their verdict should be for the defendant, for it is uneontroverted in the evidence that there was not any contract reduced to writing, or any contract filed as required by section 5092 above. 6. The trial court instructed the jury “that a brand duly recorded with the recorder of marks and brands of this state is prima facie evidence of the ownership of an animal bearing such brand; in other words, that the owner of a duly recorded mark or brand is prima facie the owner of an animal bearing such brand. ” Counsel for respondents contends that the instruction is justified by the rules of the common law, as well as by sections 1791 and 1793, Revised Codes, and cites Queen v. Forsythe, 2 N. W. Ter. 398, 4 Territories L. R. 398, wherein it was held, by a divided court, that proof that an animal bore John Lawrence’s mark and brand, that it was a steer three years old, and that Lawrence had not sold or otherwise disposed of locally any steers, was sufficient proof of ownership to sustain a conviction for larceny. Nothing whatever is said by the court of any rule of the common law, and no authority whatever is cited for the holding • but much emphasis is laid upon the fact that identification of cattle by brands is a common custom in that territory. Upon a somewhat similar state of facts the like conclusion was reached by the supreme court of Oklahoma, in Hurst v. Territory, 16 Okl. 600, 86 Pac. 280, and in State v. Cardelli, 19 Nev. 319, 10 Pac. 433; but in neither of these last two eases is there any mention made of a rule of the common law, and in neither is it asserted that a brand, or the record of a brand, is prima facie evidence of the ownership of the animal which bears the brand. We are satisfied that authority for the trial court’s action based upon a rule of the common law cannot be found, and that such rule was never enforced except by virtue of some statute which promulgated the rule. In State v. Keeland, 39 Mont. 506, 104 Pac. 513, and again in State v. Trosper, 41 Mont. 442, 109 Pac. 858, this court treated the brand upon an animal as evidence tending to identify the animal, and to show ownership in the one who owned the brand; while in State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084, we said: “The fact that the O L brand belonged to Houk, and that the horses bore such brand, was not proof that they belonged to Houk at the time they were driven away, or that defendant was not rightfully in possession of them.” In other words, we have-said that the brand upon an animal is a circumstance to be considered with others as tending to show ownership, but in itself insufficient to prove ownership. (Territory v. Harrington (N. M.), 121 Pac. 613.) It is doubtless true that in the early days, when the livestock industry was of commanding importance in this western country, common custom decreed that ownership of range animals should be determined by the brand, and that controversies over livestock should be settled by tribunals created by the owners of the herds; but, just as the jueces del campo gave way to legally con stituted tribunals, so the rules and customs of the plains were superseded by positive legislative enactments. In probably every western state mark and brand laws have been enacted, and provision made for records. In many instances the statute declares in language unmistakable in its meaning that a recorded brand or the certificate from the recorder shall be prima facie evidence that the person who owns the brand owns the animal which bears the brand (N. M. Comp. Laws 1897, sec. 67; Colo. Gen Stats. 1883, sec. 3174; Idaho Rev. Stats., sec. 1179; Nev. Gen. Stats. 1885, sec. 761; Cal. Pol. Code, sec. 3172; Or. Laws 1893, p. 52; Ordinances N. W. Ter. [Can.] 1900, p. 42); but this is not true in all the western states. In Utah the statute merely provides that the recorder’s certificate “shall be deemed evidence in law.” (Utah Comp. Stats. 1897, see. 39.) In 1887 the Arizona statute made the brand upon an animal pi'ima facie evidence that the animal belonged to the owner of the brand (Ariz. Rev. Stats. 1887, sec. 2788) ; but this was repealed, so far as the rule was applicable to civil eases, in the compilation of the laws with reference to livestock, approved March 1, 1897, which declares that the certificate of the recorded brand “shall be competent evidence of the registration of such brand, and prima facie evidence of ownership.” (Ariz. Laws 1897, p. 25, sec. 50.) In Brill v. Christy, 7 Ariz. 217, 63 Pac. 757, there was involved the ownership of certain cattle. A certificate of the record of the brand was offered in evidence for the purpose of showing prima facie title in defendant, whose brand the cattle bore. The court, after quoting section 50 of the Act of 1897 above, said: “If the ownership of the brand or the fact of its registration was in controversy, the provision quoted would be applicable. * * * Neither is the registration of the brand an issue in the case. Section 50 applies solely to the requirement for and the manner of the registration of brands, the proper evidence of such registration, and the ownership of the brands thus registered, and does not deal with the cattle that may be in such brands, the mode of their transfer, or the evidence of their ownership. # ® * While, therefore, section 50 of the said Act constitutes the certificate of the registration of a brand competent evidence of such registration, and prima, facie evidence of the ownership of such brand, it does not make such certificate either competent or prima facie evidence for any other purpose. The history of our own statute furnishes some insight into the legislative intention in passing it. By an Act approved January 10, 1872, provision was made for recording marks and brands, and for certificates to be delivered to the owners. Section 4 provided that such “certificates shall be deemed evidence in law.” The same Act required that upon á sale of branded livestock the brand should be vented, and section 8 declared: “The venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals.” These provisions were carried into the compilations of 1871-72, 1879, and 1887, without change, and were the law up to the adoption of the Codes in 1895. As the Political Code was reported, and as it first passed the House of Representatives, it contained, in lieu of the two sections above, first, a provision that a certified copy of the record of the brand shall be “prima facie evidence of the ownership of the brand,” and, second, that “the venting or counterbranding is prima facie evidence of sale. ’ ’ In the Senate these provisions were stricken out, and in lieu thereof the language as found in the Codes to-day was substituted. These amendments were concurred in, and the Act thus amended became the law which went into effect July 1, 1895, and provided that the general recorder of marks and brands must “furnish to the owners of recorded brands a certified copy of the record of the same, which certificates are prima facie evidence of the ownership of the brand or mark so recorded” (Pol. Code 1895, sec. 2941), and “every person who sells * * * cattle, must vent or counterbrand such animals, * * * and the venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals so vented.” (Pol. Code 1895, see. 2943.) These provisions were carried into the Revised Codes of 1907, and are found in sections 1791 and 1793, respectively. It will thus be seen that, through all the changes which have occurred in our livestock statute since 1872 the legislature, while asserting repeatedly that a vented brand is prima facie evidence of a sale of the animal bearing the brand, has studiously declined to say that the brand on an animal or a certificate of a recorded brand shall be prima facie evidence of ownership of the animal bearing the brand. On the contrary, while there may have been room for doubt as to the meaning of the original statute, which declared that the recorded certificate “shall be deemed evidence in law,” the legislature which enacted the Codes declined to approve the somewhat equivocal terms employed by the Code commissioners, but cleared away all uncertainty by declaring, in language whose meaning cannot be questioned, that the certificate of a recorded brand “is prima facie evidence of the ownership of the mark or brand so recorded. ’ ’ Other state legislative bodies have had no difficulty in making a recorded brand, or a certificate of such brand, prima facie evidence of ownership of the animal bearing the brand, and doubtless our assemblies could have done equally as well if they had chosen to do so; but their refusal to adopt a statute similar to those in force in sister states where conditions are similar, and their final adoption of the statute in its present form, furnish most persuasive evidence that it has been the policy of this state to go no further than to recognize a brand as evidence, just as a flesh mark or other distinguishing mark or characteristic is evidence. The purpose of the statute is to secure to anyone who records his brand the exclusive use of the design adopted (Stewart v. Hunter, 16 Or. 62, 8 Am. St. Rep. 267, 16 Pac. 876), and the object sought in requiring a brand to be vented is to foreclose the vendor’s claim to the animal sold (Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135). The instruction given is erroneous. It provides a rule of evidence not warranted by statute or the common law. 7. Counsel for appellant requested the trial court to include in an instruction the provisions of subdivisions 8, 11, and 12 of section 7962 above; but the request was denied. It is not commendable practice to submit to jurors abstract rules of law, even though they are correct, and error cannot be predicated upon the action of the court in refusing defendant’s request in this instance. (First Nat. Bank of Portland v. Carroll, 35 Mont. 302, 88 Pac. 1012.) If a concrete application of the rules to the facts of this ease had been made, it would have been reversible error to refuse to submit the instruction. ■Since this cause must be remanded for a new trial, the attention of counsel is directed to the fact that the verdict returned upon the trial of this case does not respond to all the material issues tried, and is insufficient to sustain a judgment. (Hickey v. Breen, above.) The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This is an appeal from certain findings and an order made in a proceeding in eminent domain, instituted by the Great Falls & Teton County Railway Company against E. H. Ganong and others, to condemn certain lands for railway purposes. The facts disclosed by the record are: That in 1910 the Chicago, Milwaukee and Puget Sound Railway Company, which had by construction and purchase secured a main line of road from Mobridge, South Dakota, to Seattle and Tacoma, in Washington, duly authorized the construction of a branch line from its main line at Saugus, Custer county, through the cities of Lewistown and Great Falls, the town of Chouteau, and on to the Canadian boundary. In August, 1912, the engineers of that company, acting under Charles A. Goodnow, assistant to the president, made a survey of the line and particularly that portion which passes through the town of Chouteau; staked out the center line through the center of Grove street in the town of Chouteau; made a map of the proposed route, which was submitted to Mr. Goodnow and by him approved on August 29, 1912, at which time he also selected a strip of ground 400 feet wide and 2,600 feet long, lying immediately east of and adjoining Grove street, for depot grounds, yards and other railway purposes. Thereafter options were taken for some of the lands wanted, and on September 6 the county commissioners of Teton county granted to the Puget Sound company a perpetual franchise for the use of Grove street for railway purposes1 (Chouteau being unincorporated) upon certain conditions mentioned in the resolution evidencing the grant, one of which conditions was that the company should by writing, filed with the county clerk within 30 days, indicate its acceptance of the grant upon the terms imposed. On September 12, 1912, the Great Falls & Teton County Railway Company received its charter as a Montana corporation, and on the same day, at a meeting attended by all the stockholders, the three persons named as incorporators were elected directors of the company, and, the directors having quali fied, a meeting was held at which a line theretofore surveyed by engineers employed by the promoters and incorporators was adopted as the line of definite location of the road to be constructed, and authority was given to institute proceedings in eminent domain to obtain lands for right of way, depot grounds, and other railway purposes. On the same day this proceeding was instituted by the filing of the .complaint and the issuance of summons. In so far as involved here, the line of definite location of the Great Falls company runs parallel with the east boundary line of Grove street'in the town of Chouteau, and the lands sought to be acquired in this proceeding constitute a plot of ground, in general terms, 300 feet wide and about 2,000 feet long, lying immediately east of and adjoining Grove street and included within the plot of ground selected by Mr. Good-now for station grounds, yards, etc. The Puget Sound company appeared by answer and set forth that it had acquired the interests in the lands sought to be condemned theretofore owned by certain of the defendants named; and further alleged that it had taken the steps set forth above looking to the location and construction of its branch road from Saugus to the Canadian line. The trial court found, among other things, that all the lands sought to be condemned are necessary for the use of the Great Falls company, but that a strip thereof 60 feet wide, lying immediately east of and adjoining Grove street (hereinafter called the disputed strip), had theretofore been appropriated by the Puget Sound company for a public use of equal necessity. The order made by the court for commissioners to assess the damages includes all the land desired by the Great Falls company except the disputed .strip mentioned, and as to that strip the court dismissed the complaint and refused to include it in the order. The Great Falls company appealed from the order and from the findings in so far as they determine that the disputed strip had been appropriated by the Puget Sound company, and submits for our consideration the contention that the evidence is insufficient to support the findings or conclusion, so far as this disputed slip is concerned. Upon this appeal we are not concerned with any question which might arise between a railroad company and the private owner of land sought for railroad purposes. Our concern is only with the question of the priority of right to acquire property for railroad purposes as between competing railroad companies themselves. In authorizing the Great Falls company to condemn the land described in the order, the court impliedly found that the Puget Sound company had not appropriated any ground for station purposes, yards, or terminal facilities, and of this conclusion complaint cannot well be made. So far. as the land sought for those distinct purposes is concerned, nothing was done except that Mr. Goodnow selected it. Whatever rule may be adopted for determining the priority as between rival roads seeking the same property for railroad purposes when neither company has attached itself to the property by contract or condemnation proceedings, we think that no authority has ever gone to the extent of holding that the mere mental process of selecting a particular tract of ground wanted for railroad purposes is sufficient to give that company, whose authorized representative may conceal his selection in his own mind, a preference right to acquire the ground. But the trial court did find that, as to the disputed strip, an appropriation thereof had been made by the Puget Sound company “in order to lay out its road, and the laying out of its road is the public purpose to which said property had already been appropriated.” It will be observed that in this the trial court has followed the language of subdivision 4 of section 4275, Revised Codes. That section is entitled: “Powers of a Railroad Corporation.” The introductory clause is: “Every railroad corporation has power.” Then follow eleven subdivisions enumerating those powers. Subdivision 4 reads as follows: “To lay out its road, not exceeding in width one hundred feet on each side of its center line, unless a greater width be required for the purpose of excavation or embankment, and to construct and maintain the same, with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same.” In view of the language employed by the court above, and the facts that Grove street is 80 feet wide, that the center line of the Puget Sound company is in the center of that street, and that this strip 60 feet wide is necessary to give the Puget Sound company 100 feet on the east side of its center line, it seems reasonably clear that it was the theory of the trial court that by making a survey of its center line, staking and mapping the same, and causing the survey to be approved, all prior to the commencement of this condemnation proceeding, the Puget Sound company thereby acquired a preference right, as against its rival, to secure land over which to lay out its road, by virtue of subdivision 4 of section 4275 above, and that the acts which gave rise to such preference right effected an appropriation, to a public use, of a strip of ground 200 feet wide—100 feet on each side of the center line. For the purposes of this appeal we may assume, without deciding, that in every contest between rival railroads, each seeking the same land for railroad purposes but neither having acquired an interest in it, the question of priority of right is to be determined by the equities of the particular case, and that in the instant case the acts enumerated above are sufficient, in effect, to give the Puget Sound company a preference right. We •then approach the important question presented by this appeal, vis.: What is the extent of the right acquired under subdivision 4 of section 4275 above, by the company which has the superior equities? While that subdivision contains a grant of power to lay out a roadway or right of way and to construct and maintain a single or double track thereon, it does not assume to grant such right of way or roadway. The language “not exceeding in width one hundred feet on each side of its center line” is not a grant but a limitation. In the absence of any necessity for additional grounds for excavation or embankment, the strip 200 feet wide simply marks the utmost limits of the' extent of land which a railroad company may take in invitum for roadway or right of way purposes. But no obligation is imposed upon any company to take the full amount permitted, and in the absence of any necessity it cannot do so, either as against the will of the owner or the necessities of a competing road. The strip 200 feet wide is the utmost that it can take, but it may be content with any quantity less which is justified by its reasonable necessities. The line of stakes through the center of Grove street—the only outward, visible evidence of the center line of the Puget Sound company’s right of way— gave no indication of the extent of the land which that company desired or needed. But if we adopt the theory of those courts which indulge the presumption in such a case that the full amount allowed by law was intended to be claimed, we are still unable to agree with the conclusion of the trial court. So far as the extent of the right of way is concerned, subdivision 4, above, at most extends to a railroad company the privilege of taking a strip 200 feet wide, if necessary. The privilege may be accepted or it may be waived; and it is waived by taking a less amount. (Joplin & W. Ry. Co. v. Kansas City, Ft. Scott & M. R. Co., 135 Mo. 549, 37 S. W. 540.) If the Puget Sound company’s preference right to acquire this disputed strip cannot be justified under subdivision 4 above, it cannot be justified at all. It was not in possession of that company; its exterior boundaries were not staked or even surveyed, so far as this record discloses. The right attaches, if at all, by virtue of surveying, staking, mapping and adopting the line through the center of Grove street; and the trial court must have found that it was by virtue of these acts that the Puget Sound company had availed itself of the privileges and powers granted by subdivision 4 above. No other .reasonable construction can be given the trial court’s findings. That subdivision 4 deals exclusively with land sought for right of way purposes, as distinguished from land needed for yards, depot grounds, terminal, and other railroad facilities, is apparent. That it was not the intention of the legislature to limit a railroad company to a strip 200 feet wide for all railroad purposes is clearly indicated by the language employed. Subdivisions 3 and 7 of the same section provide for acquiring lands for other railroad purposes. Our inquiry, then, must be limited to the extent of the preference right which the Puget Sound company acquired to secure land under subdivision 4 above for a right of way. In the first place, that company was not claiming a strip of ground 100 feet on each side of its center line. Beyond the west line of Grove street it was not claiming anything at all except one-half of blocks 4 and 11, and that was claimed only for the purpose of locating a passenger station. It secured a franchise for the use of all of Grove street if it chose to accept the conditions imposed by the- county commissioners. But[ furthermore, as if to set at rest the question as to the purpose for which all of the land lying east of Grove street, including this disputed strip, was wanted, Mr. Goodnow, who made the selections and who was the only person who assumed to represent or to speak for the Puget Sound company, testified that on August 29, 1912, when the map of the survey was brought to him, he then selected the station grounds desired by his company—a plot of ground 400 feet wide and 2,600 feet long, lying immediately east of and adjoining Grove street and including the strip, 60 feet wide, now in dispute. Continuing, the witness said: “On the west side of Grove street I selected half of block 11 and a portion of the lots immediately north of that in block 4; that is to say, the east half of block 4. * * * That selection was made for the purpose of locating the passenger station. * * * The ground to the east of Grove street was selected for the ordinary purposes of station grounds. I selected 400 feet in width, because it would be necessary to straighten out Spring creek'and because I thought it would take some room from the station grounds in order to do that, probably 50 or 75 feet. We expect, of course, to locate elevators and industries of that character on this ground. '* * # The west side of Grove street simply accom mo'dates the passenger business. ■ * * * We would propose to hold the land on the east side of Grove street entirely for industrial and passing tracks, etc.” To our minds this seems 'conclusive that the Puget Sound company was not claiming any ground east or west of Grove street for right of way purposes, but was content to use the street, 80 feet in width, for right of way. Counsel for that company drafted the franchise granting the use of that street, and the intention of his company is indicated, in a measure at least, by Article 1, which reads as follows: “Article 1. That there be, and there is hereby granted, unto the Chica'go, Milwaukee & Puget Sound Railway Company, * * * the perpetual right to use that certain street known as Grove street in the town of Chouteau, and the additions thereto, for the purpose of laying down and maintaining thereon a railway track or tracks, together with the necessary switches, turnouts and sidetracks, and to operate a line of cars over and along the same for the purpose of conveying passengers, freight, express and mail matter, and carrying on such other business as is ordinarily carried on by a railway company.” It cannot be claimed that any part of the strip 400 feet wide east of Grove street was wanted for right of way. The entire strip was selected for other purposes, and purposes recognized by the statute as altogether distinct from the right of way. Under the most favorable view which can be adopted, the evidence fails- to sustain the finding that the strip of ground 60 feet wide lying immediately east of and adjoining Grove street was appropriated for any public use at the time this proceeding in condemnation was instituted. There is not any evidence that the board of directors of the Puget Sound company ever authorized Mr. Goodnow to adopt a line of definite location of its road, even assuming that so important a corporate act can be delegated. Neither is there any evidence of authority conferred upon the president of that company by the statutes of its parent state or the by-laws of the corporation. There is little, if anything, more than a bare scintilla of evidence that Mr. Goodnow acted by virtue of a common custom. There is not any evidence that the franchise granted by the county commissioners for the -use of Grove street was ever accepted. The order of the trial court is reversed and the proceeding is remanded, with directions to eliminate the finding that the disputed strip was appropriated for a public use by the Puget Sound company, and to modify the order for commissioners, so as to include such strip. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur. Rehearing denied November 13, 1913.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. The defendant was convicted of murder in the first degree and sentenced to imprisonment for life. He has appealed from the judgment and the order denying his motion for a new trial. The integrity of the judgment is assailed on the ground that prejudicial error was committed by the court in its rulings upon questions of evidence and in submitting instructions to the jury. Contention is also made that the court permitted such misconduct by the county attorney that the defendant was prevented from having a fair trial. The defendant admitted the homicide and undertook to justify it on the ground of self-defense. The encounter resulting in the homicide occurred in the early (Sunday) morning of March 31, 1912, in a saloon known as the Manhattan Club, at the head of Joliet street in the city of Helena. The place was kept by the deceased, Robert Johnson, and one Ward Cole, both negroes, and was a popular resort among a certain class of colored people. On the evening of the 30th a visit was made to it by several persons with the purpose of promoting the interests of candidates for election to office at the approaching city election. The deceased, who had charge at the time, asked the defendant to go ont and invite in colored men from other places. This he did. There was then some discussion by speakers as to the merits of the parties represented by them and their candidates, during which beer and other refreshments were served at the expense of the visitors. The defendant asked to be served with beer. He was told by deceased that he could get a glass of beer by paying for it. The defendant remonstrated, calling the attention of deceased to the fact that the drinks were free and that he (defendant) had accommodated deceased in various ways during the evening, especially by going to invite in a crowd at the request of the latter, but remonstrance was fruitless. The result was an altercation during which vile epithets were exchanged and a fight was narrowly averted. -Finally the deceased ordered the defendant from the place. He did not go at once but waited until the meeting adjourned. He then went, after using threats against the deceased. This was about 11 o’clock. Having walked about the streets for some minutes and visited other places in the neighborhood, he went to the saloon of a friend and borrowed a revolver with which the killing was done, explaining to his friend that he going out early in the morning with another friend to shoot rabbits. This intention he mentioned to others also. The revolver was not then loaded, but the defendant, having some cartridges of suitable caliber, went to his room and obtained them and after loading the revolver, put it into his pocket. One witness testified, substantially, that he met the defendant on the street in the vicinity of the Manhattan Club; that the defendant referred with feeling to the treatment he had received at the hands of the deceased; that when the witness parted with the defendant, the latter invited him to go to the Manhattan Club, saying that he was going to have it out with the deceased, and that “they would either carry him out dead or Johnson out dead.” The witness refused to go. Some minutes later the defendant entered the resort. There was then present, besides tbe deceased, one John Davis, who was the only eye-witness, other than defendant, as to what was the order of events immediately preceding the homicide. We shall not state the testimony in detail. Davis stated that when the defendant entered he referred to the episode of the evening before and remonstrated with the deceased; that the deceased refused to discuss the matter, telling the defendant that the incident was closed and that he should go out; that he himself interposed by suggesting that life is too short to permit worries over such small affairs; that he invited the defendant and deceased to have a drink at his expense and advised them to forget 'their differences ; that the deceased then gave the defendant a twenty-five cent piece; that the defendant bought a drink; that when this occurred the witness thought the deceased and defendant had become friendly again; but that immediately thereafter while he was apparently waiting for deceased to serve him a cigar, the defendant shot the deceased. He stated that when the defendant began to shoot he hurried from the place, but as he passed out he saw the deceased fall. The story of the defendant is in substantial agreement with that of Davis, except as to who ordered the drinks and except, also, as to who was the aggressor. ■According to his story, he himself ordered the drinks inviting Davis,to join him. He stated that Davis declined the invitation saying that he did not drink; that he then ordered a drink of whisky for himself, putting a twenty-five cent piece upon the bar; that after he had taken the drink and as he was returning the glass to the bar, the deceased reached over with his left hand and struck him, knocking off his hat, which fell behind the bar; that he stepped back to avoid further assault and demanded the return of his hat; that the deceased, applying to him a vile epithet and saying, “I will give you your hat,” raised a revolver and shot him in the abdomen; that he then drew his revolver and began firing; that the deceased attempted to continue firing but that his revolver seemed to “hang”; that the deceased turned as if to secure another weapon; that the defendant thereupon hurried from the place leaving his hat and calling for the police, without, however, hé stated, having seen the result of the shooting. An autopsy disclosed that deceased had been shot four times, one shot passing entirely through the brain cavity from the left temple and lodging under the scalp on the opposite side of the head. The other wounds were not mortal, but this was and was of such a character as to destroy the power of muscular control and must have caused the deceased to fall as soon as it was inflicted. As defendant left the scene of the shooting and in answer to an inquiry by a witness whom he met on the street as to what was the matter, he stated that he had been shot by Johnson and that he was going to a hospital for medical aid. He did not go to a hospital nor to the police station as he was advised to do by the witness, but went first to the saloon at which he procured the pistol and returned it. He there exhibited to the proprietor a flesh wound in his abdomen, a bullet dropping out as he opened his clothes. He stated that he believed that he had killed “that fellow,” without explaining whom he referred to. From there he went to different places, finally going to his rooming-house, where he was later arrested, apparently in hiding in an outhouse. There was evidence that prior to Ms return to the Manhattan Club the defendant made other threats against the deceased. One witness stated that while he was at a place kept by one Silverman, where the defendant had his room, the defendant came in and, giving the proprietor his keys, asked him to take care of his dog and other properly there. Upon being asked what he was going to do he said that “he was going to kill that black s-o-b-.” The witness had been present at the Manhattan Club when the altercation occurred there. Other witnesses testified to similar threats made at different places visited by the defendant prior to the homicide. The defendant denied making any threats at all, and accounted for his return to the Manhattan Club by the statement that he knew that the barber-shops did not close on Saturday evenings until about midnight; that the club was supported by the men that worked in the barber-shops; that his purpose on returning to the club was to meet them, and that he had no idea of having trouble with the deceased. The body of the deceased was found lying between the front and back bars, near the end leading from the front into the space between. In the right hand was a revolver containing two cartridges, one of which had been recently exploded. This brief resume of the evidence shows that it was in sharp conflict on every material point. If we accept the story of the encounter as told by the witness Davis, keeping in mind the antecedent threats of the defendant and. his procuring the revolver with the apparent purpose of carrying them out, we are compelled to the conclusion that the defendant was properly found guilty as charged. On the other hand, accepting his own story as the correct version of the encounter, the homicide was justifiable because done in necessary self-defense. There is not ground for any other than one of these two conclusions. Counsel for defendant have assigned and discussed in their brief many alleged errors which are wholly without merit; so much so that we cannot think counsel serious in urging them. For example: The witness Harry Johnson during cross-exam- ination was questioned as to what he heard the defendant say about the deceased at Silverman’s saloon a short time before the homicide. He was questioned and answered as follows: “Q. You didn’t say a word to him? A. I asked him where he was going. Q. Is that all you said to him? A. He told me that he going to kill that s-o-b-and I laughed at him.” Counsel asked to have the answer stricken out as not responsive to the question. The court overruled the motion. A party is entitled to have a responsive answer to a question propounded to a witness by counsel (Jones on Evidence, sec. 815; Underhill on Criminal Evidence, 2d ed., see. 216), and to have an -answer stricken out in which the witness volunteers statements of facts not called for by the question. The refusal of the trial judge to strike out such an irresponsive answer is error, and, if it appears that the evidence embodied in it has probably wrought prejudice to the party complaining, the result will be the reversal of the judgment. The ruling in question was erroneous but clearly not prejudicial, for the reason that during his examination in chief the witness twice imputed •to the defendant the threat embodied in the irresponsive answer, using almost the exact words employed by him in the latter. The statement was relevant, was already in the ease, and the repetition of it by the witness could not from any point of view have wrought prejudice. A judgment may not be reversed for such an error. (Rev. Codes, secs. 9415, 9548; State v. Vanella, 40 Mont. 326, 20 Ann. Cas. 398, 106 Pac. 364; State v. Byrd, 41 Mont. 585, 111 Pac. 407.) We shall, therefore, omit notice of all the assignments which may properly be classed under this head, and give attention to those only which have some basis of merit. Henry Baker was called to testify as to the reputation of the defendant for peace. He testified that it was good. On cross- examination by the county attorney he was asked: “Did you ever hear about the episode at the Castle when he went up there to beat up a woman ? ’ ’ Objection was made that the question embodied a statement of fact which could not be proved by independent evidence, viz., that the defendant had at some prior time gone up to the Castle (a notorious resort in Helena) to beat a woman, and that the county attorney in putting the question in this form in effect stated to the jury that such an episode had in fact occurred, whereas he would not have been permitted to show it by independent evidence. The county attorney thereafter called other witnesses to whom he put the same question or others similar in form, touching this and other alleged unlawful acts of the defendant. The court overruled the objection. Thereupon the witness answered in the negative. It is argued that the ruling was prejudicial for the reasons stated in the objection, and for the additional reason that in thus putting the question the county attorney was guilty of gross misconduct on. account of which alone the defendant ought to be awarded a new trial. It will be noted that the objection did not technically present the question whether the county attorney was guilty of misconduct. We gather from the colloquy between the presiding judge and counsel that the judge was of the opinion that it would be competent for the county attorney to introduce independent evidence of special instances of lawlessness by the defendant, to rebut the evidence tending to show his good reputation. The rule is well settled that when a defendant in a criminal case calls witnesses to testify that he possesses such a general reputation in the community in which he resides as tends to rebut the notion that he is guilty of the crime with which he is charged, these witnesses may be questioned on cross-examination as to their knowledge of disparaging rumors or common reports affecting his reputation. As the favorable testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements. If, therefore, it can be shown that there are or have been rumors or reports affecting the reputation, to this extent the statements of the witnesses are shown to be without foundation in fact and therefore not entitled to credit. (2 Wigmore on Evidence, sec. 988; Underhill on Criminal Evidence, sec. 82.) The purpose of the inquiry is to ascertain what the witness has heard to the disparagement of the reputation, and not his knowledge of particular acts of misconduct. Extrinsic evidence of particular ‘wrongful acts is therefore not admissible, because it violates the rule against proof of particular facts to establish reputation, declared by the statute. (Rev. Codes, see. 8024; Wigmore on Evidence, sec. 988; Underhill on 'Criminal Evidence, see. 82; 1 McClain on Criminal Law, sec. 307.) The question as put by counsel assumed as a fact that the defendant did go to the Castle for the purpose stated. Though the statement was in the form of an interrogatory, it was as objectionable as if it had been stated in the form of a declaratory sentence and therefore was obnoxious to the rule against proof of particular facts. . The situation was not aided by the negative answer of the witness. The answer did not negative the fact stated, but only that the witness had heard of the fact. If he had answered in the affirmative, the answer would have implied the existence of the fact as well as hearsay knowledge of it by the witness. If it had not been answered at all, it was still objectionable, for it was calculated to leave the jury under the impression that the episode did occur, and hence to furnish them some basis for the damaging inference that the defendant was a lawless character. It is never proper for counsel to so frame questions as to assume the existence of facte which are not admissible if offered as independent evidence. (3 Wigmore on Evidence, 1808; Jones on Evidence, 2d ed., sec. 815; Gale v. People, 26 Mich. 157; People v. Wells, 100 Cal. 459, 34 Pac. 1078; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Aiken v. People, 183 Ill. 215, 55 N. E. 695; State v. Irwin, 9 Idaho, 35, 60 L. R. A. 716, 71 Pac. 608; Howland v. Oakland Con. Ry. Co., 115 Cal. 487, 47 Pac. 255; People v. Ah Len, 92 Cal. 282, 27 Am. St. Rep. 103, 28 Pac. 286; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609.) The attorney who does it is guilty of misconduct which is wholly indefensible, not only because he is proceeding in total disregard of the fundamental rule of evidence, but is at the same time not fair to the defendant. Assuming that in putting the question as he did counsel did so with full knowledge of the limitations of the rule applicable, the observation made by the supreme court of California, in People v. Mullings, 83 Cal. 138, 17 Am. St. Rep. 223, 23 Pac. 229, and approved by this court in State v. Rogers, 31 Mont. 1, 77 Pac. 293, is pertinent: “It is quite evident that the questions, and not the answers, were whait the prosecution thought important. The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facte which could not be proven, rand thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based.” Whether such questions are answered or not, the putting of them is condemned by the courts and text-writers as gross misconduct. (State v. Rogers, supra; Wigmore on Evidence, sec. 1808; State v. Irwin, supra; Gargill v. Commonwealth, 12 Ky. Law Rep. 149, 13 S. W. 916; People v. Grider, 13 Cal. App. 703, 110 Pac. 586; Watson v. State, 7 Okl. Cr. 590, 124 Pac. 1101; People v. Wells, supra.) And we do not think the case is aided by the fact that similar questions put to witnesses previously called, as was the fact in one or two instances, were permitted to pass unchallenged. By overruling the objection, the trial judge not only signified the opinion that the statement of fact embodied in the interrogatory was relevant and material, but stamped with approval the course pursued by the county attorney, thus emphasizing the error committed. The failure of counsel to object earlier did not justify the court in permitting further error; nor did his fail-ure to renew his objection thereafter when the same or similar questions were put to other witnesses. The objection should have been sustained and all similar questions subsequently asked should have been excluded. When a party has seasonably objected to evidence of a certain character and his objection has been overruled, proper decorum would indicate that he should not thereafter interrupt the course of the trial by constant repetition of his objection. (Schierbaum v. Schemme, 157 Mo. 1, 80 Am. St. Rep. 604, 57 S. W. 526.) Counsel for the defendant introduced the depositions of four witnesses who reside at Boise, Idaho, for the purpose of showing that the reputation of the deceased for peace was bad. All of them gave testimony to the effect that one Robert Johnson, who had for some years and until the latter part of the year 1911 been a resident of Boise, was reputed to be a turbulent, violent man. One of these witnesses was asked to attach to his deposition a photograph of Johnson, marking it with the initials of his name so as to identify it. This he did. Upon objection by the county attorney -the photograph was excluded on the ground that it was irrelevant and immaterial. Counsel also offered the testimony of witnesses who knew the deceased, to identify the photograph as his. This was- rejected on the same ground, the court remarking that it was the province of the jury to determine whether or not it was a photograph of the deceased. The evident purpose of the offer was to render the evidence contained in the depositions of avail to the defendant, by showing definitely that the deceased was the same person to whose character they had testified. As it was not permitted to go to the jury with some evidence as to whose picture it was, the jury had no office to perform with reference to it, and the evidence of all these witnesses, as to the character of the deceased was in effect rendered worthless because there was nothing to identify the deceased as the man about whom the witnesses spoke, except the slight presumption arising from the identity in name. Even this slight presumption was probably wholly neutralized by a remark made by the court during the colloquy with counsel as to the admissibility of the photograph, to the effect that it might be that there were other persons who bore the name of Robert Johnson, thus indicating an opinion that there should be some evidence identifying the deceased as the man who had formerly resided in Idaho. The ruling was erroneous. While there is some diversity in the opinions of the courts as to whether evidence of the reputation of the deceased is competent for any purpose unless it is known to the defendant at the time of the homicide (and evidence of such knowledge was not introduced at the trial of this case), the weight of authority, we think, gives support to the rule that when, as in this case, the issue is self-defense and there is doubt as to who was the aggressor, such evidence is admissible in order to enable the jury to resolve the doubt; for it is entirely in accord with every-day experience that a turbulent, violent man is more aggressive and will more readily bring on an encounter than one who is of the contrary disposition. (State v. Shafer, 22 Mont. 17, 55 Pac. 526; 1 McClain on Criminal Law, 307; 1 Wigmore on Evidence, sec. 63.) Such evidence serves the same purpose as uncommunieated threats, which are always admissible when the. question is in doubt, in order to enable the jury to determine who probably brought on the conflict. (State v. Shadwell, 26 Mont. 52, 66 Pac. 508; State v. Hanlon, 38 Mont. 557, 100 Pac. 1035; State v. Whitworth, 47 Mont. 424, 133 Pac. 364.) This much we have taken occasion to say touching the competency of the evidence in question, in order to answer the argument of the attorney general who undertakes in his brief to justify the ruling on the ground that the reputation of the deceased is never competent unless it is first shown to have been known to the defendant. It is the general rule, also, not questioned anywhere so far as we are aware, that when a photograph is shown to be a fair and correct representation of a person whose identity is in question, it is admissible to identify such person; That it is a fair and correct representation may be shown by the person who made it or by any competent witness. (McClain on Criminal Law, sec. 406; Underhill on Criminal Law, sec. 50; 1 Wigmore on Evidence, 660; Mow v. People, 31 Colo. 351, 72 Pac. 1069; People v. Durrant, 116 Cal. 179, 48 Pac. 75; People v. Crandall, 125 Cal. 129, 57 Pac. 785; People v. Grill, 151 Cal. 592, 91 Pac. 515; State v. Roberts, 28 Nev. 350, 82 Pac. 100.) In the case of People v. Durrant, supra, the witness who testified as to the character of the photograph in question was a sister of the deceased, and we think the court properly held that her testimony to the effect that it fairly represented the appearance of the deceased at the time of her death was entirely sufficient to warrant its admission. That the one offered here was such a representation of the deceased was not questioned. Besides, the witnesses whose evidence was offered as preliminary proof of its character apparently knew the deceased well in his lifetime. By excluding it the court virtually excluded the testimony of all the Idaho witnesses; and though there was some testimony by other witnesses, of the same import as that thus excluded, this did not render the error harmless. (State v. Shadwell, supra.) Nor was the photograph rendered inadmissible by the fact that it bore upon it some evidence that it had been taken while the deceased was an inmate of the state prison in Idaho. It appeared incidentally from the testimony of the witnesses, one of whom was the warden of the prison, that the deceased had served two terms in the prison. The warden testi fled that his observation of the deceased had been had and his acquaintance with him acquired, m-ainly during the imprisonment of the latter. This evidence went' in without objection. It was not relevant to the inquiry in hand, and we think counsel, in the form of the interrogatories submitted to the witnesses, undertook to give undue prominence to the fact that deceased was an ex-convict, evidently with the purpose of giving to the jury the impression that he was a bad man. For this reason the court properly struck out several of the interrogatories with the answers to them; nevertheless the evidence as to the repu-. tation of deceased, even though it incidentally appeared from it that he was an ex-convict, being competent and material, it was prejudicial error to exclude the photograph and the evidence identifying it as a correct representation of the deceased. The court should have admitted it for the purpose for which it was offered, under proper restrictions, along with the depositions, after striking out the objectionable portions thereof. It is argued that prejudicial error was committed in submitting the following instruction: “12. You are instructed that in order to constitute murder of the first degree the killing must have been done and perpetrated with malice aforethought and must have been done willfully, deliberately and premeditatedly, and before the jury are authorized to convict the defendant of the crime of murder in the first degree, they should be satisfied from the evidence in the case beyond a reasonable doubt that the defendant killed Robert Johnson willfully, deliberately, premeditatedly and with malice aforethought, and you are instructed that if you find from all the evidence in the case beyond a reasonable doubt that the defendant, William Jones, shot and killed Robert Johnson on or about the 31st day of March in this year in the county of Lewis and Clark, in the state of Montana, with malice aforethought, willfully, deliberately and premeditatedly, and that he was not justified or excused for so doing, then you should find the defendant guilty of murder in the first degree. ’ ’ The criticism made is that the obligation resting upon the jury to be satisfied of the guilt of the defendant beyond a reasonable donbt before they may find him guilty is absolute, whereas by the use of the term “should,” instead of “must,” the court left it discretionary with the jury to convict, whether they were so satisfied or not. The same criticism is made of instructions 13 and 14, as to the duty of the jury to acquit in case they should not be so satisfied. We think the contention is without substantial merit. But for the fact that we feel impelled to order a new trial because of error in the rulings upon the questions of evidence heretofore discussed, we should not deem the contention deserving of any notice. Of course, it is absolutely necessary that the jury be convinced beyond a reasonable doubt before they can convict, and that the duty to acquit, when the jury is not so convinced, is equally absolute. We venture the assertion that the average juror does not stop to speculate as to the distinctions in the meaning of such terms as “must,” “ought” and “should,” all denoting moral obligation, but recognizes the obligation of his official duty enjoined by the use of one of them as not differing in any respect from that enjoined by the use of the other. The average juror understands without being told in terms that in no case may a defendant be convicted unless the evidence establishes his guilt beyond a reasonable doubt. For present purposes we deem it sufficient to refer to 'the discussion of the terms in question, found in State v. Blaine, 45 Mont. 482, 124 Pac. 516, as conclusive against the contention of counsel. We suggest, however, that it is always wiser and safer for a trial court to use such terms in the formulation of its instructions as will inform the jury as to the full measure of their duty as well as the limitations imposed upon them by law. Contention is made that the court erred in submitting the following instruction: “You are instructed that no provocation by words only, however opprobrious or threatening, will mitigate an intentional killing, so as to reduce the killing to manslaughter.” The objection interposed to it in the trial court was that there was no evidence in the ease rendering this instruction necessary or proper. As we have already pointed out, un der the evidence, as we view it, the homicide was either murder or entirely justifiable. There is no ground in the evidence for any other conclusion. Davis testified that the defendant drew his revolver and shot the deceased without any words of threat or opprobrium by either. The defendant testified that the deceased, after applying to him an opprobrious epithet, first struck him and then shot him. While, therefore, it was entirely proper for the court in its instructions to define and distinguish the various grades of homicide as it did, and thus enable the jury to reach a correct conclusion (State v. Shafer, 26 Mont. 11, 66 Pac. 463), it would also have been proper to instruct them that if they were not satisfied that the homicide was murder, they should acquit the defendant. It was therefore neithér necessary nor proper for the court to submit such an instruction as the one in question, when there was. no evidence to which it could apply. (State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Mitten, 36 Mont. 376, 92 Pac. 969.) For this reason the instruction ought to have been refused. Counsel discuss somewhat at length in their brief the question whether the instruction is correct in point of law. This objection was not made in the trial court. We shall therefore not undertake to determine whether it is or not, because the question is not properly before us.- Complaint is made that -the defendant was prejudiced by the following instruction: “The law is that where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the evidence as evenly balanced. The jury have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit and to give credit accordingly.” It is said that the instruction as a whole permitted the jury to weigh the evidence under the rule applicable to civil cases, and, having so weighed it and ascertained on which side the scale preponder ated, to decide the ease accordingly. It is also said that it is for this reason in direct conflict with other instructions in which the jury were told that in order to convict, the evidence must satisfy them of defendant’s guilt beyond a reasonable doubt. The court had already properly instructed the jury as provided by the statute (Rev. Codes, see. 8028) that they were not bound to decide in conformity with the declarations of any number of witnesses which did not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds. To this was added the second sentence of the instruction in question. This was entirely sufficient for all purposes. We agree with counsel that their criticism of the instruction in both particulars is justified. Even if it did not suggest an erroneous measure for the quantum, of evidence necessary to warrant a conviction, it was well calculated to mislead and confuse the jury. From any point of view, such an instruction has no place in a criminal case. The judgment and order are reversed and the cause is remanded for a new trial. Reversed and remanded. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. On March 26, 1912, a judgment upon a verdict was entered in favor of the plaintiff and against the defendant, in an action for damages for malicious prosecution. Some time thereafter— the record does not disclose when—defendant was granted sixty days, in addition to the time allowed by law, within which to prepare a bill of exceptions in support of his motion for a new trial. On April 26 another like order was made, and on July 1 a third extension of sixty days’ additional time was granted by the trial court. All of these orders exténding the time were made without the consent of the adverse party. The bill of exceptions was finally served on August 30, 1912. Plaintiff immediately presented written objections to its settlement on the ground that it had not been presented in time. Defendant then moved the court to relieve him from his default in failing to present the proposed bill within seasonable time, upon the grounds of mistake, inadvertence, • surprise and excusable neglect, and supported the motion by an affidavit of Mr. T. T,Lyon, his former attorney. On December 19, 1912, the court granted this motion on condition that plaintiff’s objections and these other subsequent proceedings be incorporated in the bill, and further time was granted for the presentation and settlement. The suggested amendments were made, the bill of exceptions settled on February 13, 1913, and the motion for a new trial denied on March 8, 1913. Section 6788, Revised Codes, requires that a bill of exceptions shall be presented for settlement within ten days after the entry of the judgment upon a verdict, or within such further time as the court or judge may allow. Section 7190, Revised Codes, provides that the court or judge cannot extend the time for presenting a bill of exceptions more than ninety days without the consent of the adverse party; so that the order made on July 1, 1912, granting defendant further time was a nullity, and the bill of exceptions presented on August 30, came too late and plaintiff’s objection to it upon that ground, was well taken. Without determining whether the provisions of section 6589, Revised Codes, have any application to the predicament in which a party finds himself when he has not presented his bill of exceptions in time, but assuming-that he is then in default and may invoke the rule of that section for relief, still the authority conferred can be exercised only when the discretion of the court is set in motion by an application supported by a showing of mistake, inadvertence, surprise or excusable neglect. If defendant can claim any benefit under that section, it is only by complying with its requirements. The affidavit of Mr. Lyon upon which defendant relied and the trial court acted is barren of any facts which tend to excuse the delay. It is asserted in the affidavit that the bill of exceptions could not be prepared without a transcript of the stenographer’s notes of the testimony taken at the trial; that the affiant made repeated requests of the stenographer for such a transcript; that the stenographer informed him it could not be delivered until the latter part of June and in fact was not secured until June 25. There is not presented any affidavit by the stenographer, and Mr. Lyon is altogether silent as to when the demands upon the stenographer were made or whether he tendered the legal fees. For all that he says, he may not have requested the transcript until June. There is not a word in explanation of the stenographer’s delay. Nothing is disclosed as to whether Mr. Lyon applied to the district court for an order compelling the stenographer to deliver the transcript at an earlier date. All that we have from the stenographer is conveyed by a hearsay declaration, which under these circumstances is not entitled to any evidentiary value. Mr. Lyon is frank- enough to say in his affidavit: ‘ ‘ That the deponent was not aware of the time # # * of such limitation upon the court’s power to grant such extension of time and therefore did not procure the consent of counsel of plaintiff to such order.” But a mistake as to the law is not the mistake contemplated by section 6589 above, and ignorance of the law does not constitute an excuse within the meaning of that statute. (Willoburn Ranch Co. v. Yegen, 45 Mont. 254, 122 Pac. 915; Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 Pac. 445; Mantle v. Casey, 31 Mont. 408, 78 Pac. 591.) It is the rule in this state that if upon a motion to set aside a default the showing made leaves in the mind of the court a doubt as to whether it should be granted, that doubt is to be resolved in favor of the motion (Greene v. Montana Brewing Co., 32 Mont. 102, 79 Pac. 693), but the rule presupposes that a proper showing under the statute has been made, and in many instances where defaults have been set aside without such showing, the orders have been reversed. (Lovell v. Willis, 46 Mont. 581, 129 Pac. 1052; Scilley v. Babcock, 39 Mont. 536, 104 Pac. 677; Chambers v. City of Butte, 16 Mont. 90, 40 Pac. 71; Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814.) The very purpose of section 7190 in fixing a limit upon the period of time which the court may grant for the presentation of a bill of exceptions is to compel diligence by .the moving party and to prevent unreasonable delays such as occurred in this instance, which have been the cause of much animadversion upon the administration of our law. Mr. Lyon’s affidavit is eloquent with silence as to any facts showing diligence on his part or any excuse for the delay of more than five months in presenting the bill of exceptions for settlement. After plaintiff’s objections were incorporated, the bill should have been settled and the motion for a new trial denied upon the ground that the bill was not presented in time and therefore could not be considered. This would have conformed to the practice indicated in Sweeney v. Great Falls & C. Ry. Co., 11 Mont. 34, 27 Pac. 347, and approved in Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124, and in Vreeland v. Edens, 35 Mont. 413, 89 Pac. 735; or the court might have refused to settle the bill because presented too late., (Wright v. Mathews, 28 Mont. 442, 72 Pac. 820; Beach v. Spokane Ranch & W. Co., 25 Mont. 367, 65 Pac. 106.) But if the trial court’s ruling upon the motion was right, it will be approved even though it was prompted by a wrong reason. (Brown v. Daly, 33 Mont. 523, 84 Pac. 883; Butte v. Goodwin, 47 Mont. 155, 134 Pac. 670; Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055.) The ruling can be justified upon the ground that the bill of exceptions was not presented in time, and no valid excuse being offered for the delay, it could not be considered. Counsel for appellant invoke the rule repeatedly ‘announced by this court, that every matter should be considered,upon its merits, if possible; but counsel overlook the fact that it is absolutely impossible in this case to determine appellant’s motion for a new trial upon the merits, even if we had before us a bill of exceptions presented in time. Our Code prescribes the grounds upon which a new trial may be granted (section 6794, Rev. Codes), and it cannot be granted upon any other. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.) The grounds of a motion can be disclosed only by the notice of intention which is required to be filed within ten days after receipt of notice of the entry of judgment. (.Section 6796.) This record is silent as to whether a notice of intention was ever filed. To the end that this court may review an order granting or refusing a new trial, it must be apprised of the grounds of the motion, and section 7114 requires that the appellant shall furnish this court with a duly authenticated record containing a copy of the notice of intention. The appellant in this instance has failed to comply with that requirement. The record before us does not contain any copy of the notice of intention, nor does it mention such a paper, and in its absence it is impossible for us to know whether •there was any merit in appellant’s motion. On September 24, 1912, defendant moved the trial court to set aside the judgment entered in this cause, on the ground that the judge who presided at the trial had no authority to do so. The motion was overruled and we are now asked to review that order upon this appeal. The order was a special one made after final judgment and as such is made appealable by section 7098, Revised Codes. The proceeding upon that motion is no part of the new trial proceeding, and in the absence of a separate' appeal, the ruling upon that motion is not before us for review. The order refusing a new trial is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action for damages for loss sustained by the plaintiff by reason of the sale to him by defendant of a glandered horse. The defendant suffered default, and judgment was thereupon entered for the. relief demanded. On motion of defendant, an order was made setting aside the default and judgment, and he was permitted to file an answer. Plaintiff has appealed. The appeal cannot be considered on the merits, for the reason that, whereas the motion was based upon a showing of excusable neglect, the record does not embody properly authenticated copies of the affidavits filed in support of it. It has often been announced by this court that, upon an appeal from an order such as the one at bar, the papers actually used as the basis of it in the district court must be embodied in a bill of exceptions certified by the judge a quo, and that copies certified by the clerk or attorneys only will not be considered, that further announcement on the subject ought not to be necessary. On the authority of Latimer v. Nelson, 47 Mont. 545, 133 Pac. 680, the latest announcement on the subject, and the cases cited therein, the order appealed from is affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. In plaintiff’s complaint as originally presented he alleged that in May, 1910, he entered into a contract with defendant by the terms of which he agreed to perform work and labor for defendant in skidding, hauling, and loading logs and ties, and in scaling the logs, for which defendant agreed to pay $7 per thousand for the work so done upon the logs, sixteen cents for each tie so handled, and $25 per month for sealing, amounting in the aggregate to $1,320; that he commenced work immediately, “and afterward, to-wit, on the 8th day of December, 1910, completed the contract so far as the terms and conditions were to be performed by plaintiff”; that no part of the contract price had ever been paid except the sum of $420; and that there remained due $900, for which amount judgment was demanded. The answer denies generally all the allegations of the complaint; pleads an entirely different contract, an abandonment of it by plaintiff, and a counterclaim for $688.72 for goods, wares, merchandise, and cash furnished to plaintiff at his special instance and request. All of the affirmative- allegations in the answer and counterclaim were put in issue by reply. Upon the trial plaintiff amended his complaint by adding after the word “plaintiff” in the portion quoted above the following: “To this date, and would have entirely performed the same had he not been prevented by act of this defendant.” The trial resulted in a verdict and judgment in favor of plaintiff for $500, and defendant appealed. The complaint as amended does not even charge that plaintiff was prevented from completing his contract by any wrongful act of defendant. If the act was rightful, plaintiff cannot complain upon any theory. If he seeks to justify his failure to complete the work under the contract, he must set forth the facts and circumstances constituting such excuse, to the end that the court may determine whether the acts of which complaint is made were wrongful, and therefore constitute an excuse, or whether they were rightful, and justify the defendant. These rules are elementary, and their enforcement necessary in order that issues may be framed for trial, and the defendant apprised of the charge he is called upon to meet. There is not any conceivable theory upon which the complaint, as it now stands, can be construed into the statement of a cause of action. If it be assumed that it was the purpose of the pleader to charge a wrongful interference by defendant, and that that was plaintiff’s theory of his case, then he had at least two remedies available to him: (1) He could treat the defendant’s wrongful act as a breach of the contract, and sue at once for damages arising from his having been prevented from reaping all the benefits and advantages which would reasonably follow a complete performance on his part, and the measure of his recovery would be the difference between the contract price and the expense to him of doing the work. (See. 6048, Eev. Codes.) But plaintiff did not choose this alternative. He does not state what portion of the entire contract he had performed, what amount remained to be done, what, if anything, is due to him for the portion already performed, or what, if any, profits or advantages to him were within the reasonable anticipation of the parties when the contract was entered into. Of course, if plaintiff could not reasonably expect any profit or advantage from completing the enterprise, he was not injured by the interruption. He does not allege any breach by defendant • but, if he did, that of itself would not warrant recovery for more than nominal damages. (Jacobs Sultan Co. v. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109.) He must disclose that he was injured as the consequence of such breach and the amount or extent of such injury. (Mergenthaler Linotype Co. v. Kansas State Printing Co., 61 Kan. 860, 59 Pac. 1066.) (2) He could treat the contract as at an end, and sue upon a quantum meruit for the work already done (Keyser v. Rehberg, 16 Mont. 331, 41 Pac. 74); but he did not do so. His failure to state what amount of the contract work he had performed renders it impossible to determine the extent to which he should recover. That a party who has been wrongfully prevented from completing his contract has his election between the two remedies just considered, the authorities all agree (3 Page on Contracts, see. 1569; 9 Cyc. 688); hut some go further and add a third alternative, viz.: He may stand by in readiness to perform until the term of the contract has expired, and then sue upon the contract. This third rule is recognized in Isaacs v. McAndrew, 1 Mont. 437, in Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33, 38 N. E. 773, and in some other authorities. Whatever may be said of it, plaintiff in this instance has not sought to invoke it. He does not allege that the term of his contract had expired when his action was instituted; on the contrary, the filing mark upon his complaint discloses that he commenced this proceeding immediately after the alleged interference. He never can invoke it, for his testimony discloses that, according to his theory, his contract had not expired—indeed, that the time for performing a substantial part of it had not arrived. The foregoing observations presuppose an entire or indivisible contract, and, in so far as any theory of the plaintiff can be adduced from his complaint, it is that the agreement upon which he relies is an entire contract. Of course, if the contract was severable, or if plaintiff was seeking relief under section 4926, Revised Codes, he would be compelled, in the one instance, to disclose the proportion of the work performed, and, in the other, the matters contemplated by the section of the Code, just mentioned. In its instructions the trial court failed altogether to advise the jury of the measure of plaintiff’s recovery in the event that he prevailed. Ordinarily, this would constitute reversible error, for it leaves the jury to determine the amount of their verdict by mere guesswork, and in this present instance the amount returned by the jury only serves to emphasize the fact that the jurors were at sea without chart or compass. There is not any evidence to justify a verdict for $500. It does not respond to plaintiff’s demand, nor to his proof; but the trial court’s failure was fully justified, for it was impossible to determine from the amended complaint the theory of plaintiff’s ease or the amount to which he was entitled, if entitled to recover at all. But we are disposed to afford plaintiff an opportunity to state a cause of action, if he can do so by amendment or otherwise. The judgment and order denying defendant a new trial are reversed, and the cause is remanded for further proceedings. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

MR. JUSTICE SANNER delivered the opinion of the court. The pleadings in this case unfold with progressive elaboration. In all they occupy 169 pages of the transcript, and to produce them here, to present even an abstract of their essentials, would take so much space and serve such little purpose that a bare statement of the ultimate issue must suffice. The respondent water company (plaintiff below) recovered judgment against the appellant, city of Butte, for $11,445 made up as follows: $8,464.50, with interest, for certain fire-hydrant water furnished the city in the months of July, August, September and October, 1911, under a written contract dated December 31, 1907; $1,524.85, with interest, as the reasonable value of certain water for street sprinkling, furnished the city in July, August, September, October, November and December, 1911; and $416.40, with interest, as the reasonable value of certain water furnished the city in July, August, September, October, November and December, 1911, at its corral, crematory and crematory residence; and of labor and material furnished in setting a water meter at the crematory in July, 1911, setting two hydrants in September, 1911, and laying a certain water main in October, 1911. Payment was resisted by tbe city on tbe grounds that all the items of charge, except that of fire-hydrant service, were the due of the city without other payment than the fire-hydrant rates under the contract of December 31, 1907, and that the charge for fire-hydrant service was more than offset by sums paid by the city under mistake of its officers to the company for sprinkling, corral and crematory water furnished after January 1, 1908, and before August 1, 1911. The material paragraphs of the contract in question (which we have numbered for convenient reference) are as follows: “(2) That the party of the first part (the water company) for and in consideration of the covenants and agreements hereinafter contained, and to be kept and performed by the said party of the second part (the city), agrees that it will furnish to the said party of the second part, all hydrant and water supply necessary for fire and general municipal purposes for a period of ten years from and after January 1, 1908, and ending on the 31st day of December, 1917. “(3) The said party of the first part further agrees that it will furnish to the said city of Butte, during the term of this contract, and keep supplied with water four hundred and fifty-two (452) fire hydrants, as the same are now placed at different points within the city of Butte, and that it will keep at all times said fire hydrants in good repair and ready for use for fire purposes for the sum of twenty-two thousand six hundred dollars ($22,600) per year, being $50 per annum for each of said hydrants. “(4) It is further agreed upon the part of the said first party that it will furnish to the said city of Butte, and keep supplied with water all hydrants installed by said city in excess of the said four hundred and fifty-two (452) hydrants at the rate of $50 per annum for each hydrant, and that each and all of such hydrants shall be placed and located as the fire committee and fire marshal shall direct, and that the said party of the first part will at all times keep the same in good repair ready for use for fire purposes. “(5) It is.further agreed upon the part of the party of the first part tliat it will furnish to the said city during the term of this contract all water that shall be required by the said city for flushing the public sewers, and for the use of the public buildings in the said city free of charge, provided, however, that the said city provide outlets through which such water shall be furnished, and provided, further, that reasonable rules as to the time of sewer flushing shall be agreed upon between the city and the company, so as not to impair the efficiency of the system fojr fire protection. * * * “ (7) The said second party, in consideration of the agreements hereinbefore contained to be kept and performed by said first party, agrees that it will pay to said first party the sum of $50 per annum per hydrant, for the period of ten years from and after January 1, 1908, in equal monthly installments, and the further sum of $50 per annum,for each hydrant which may .be added under the conditions hereinafter set forth. “ (8) It is further understood and agreed by and between the parties hereto that the said second party shall have the right at any time to order the water mains of the said first party extended upon any street in any part or portion of the said city, during the term of this contract, and that whenever the said .second party shall order said mains extended the said second party hereby agrees to and with the said first party to take and use of the said first party at the established rate hereinbefore mentioned, at least one fire hydrant for every city block so ordered to be laid; it being further understood and agreed that in no case shall more than three hydrants be placed for each one thousand feet of such main extensions. * * # ” 1. According to the appellant, the above contract is so clear that it “conveys but one idea to the mind of the child, the professional man, the ordinary business man, the entire community,” viz., that, for the hydrant rental specified therein the water company agreed to furnish to the city “all hydrant and water supply necessary for fire and general municipal purposes for a period of ten years from and after January 1, 1908.” If this be correct—and to determine its correctness is obviously the first step in the problem before us—then the''Contract is not open to interpretation (Frank v. Butte & Boulder M. & L. Co., ante, p. 83, 135 Pac. 904; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Harris v. Root, 28 Mont. 159, 72 Pac. 429), and the judgment, in part at least, must fall. Whether a document is or is not ambiguous is a matter of impression rather than of definition. This is obviously so, because every provision may be as clear and definite as. language can make it, yet the result of the whole be doubtful from lack of harmony in its various parts. The language used is to be resorted to in the first instance, but the conclusion to be reached depends, not upon the verbal clarity of the particular sentences or paragraphs, but upon the view to be taken of the contract ip its entirety. (O’Brien v. Miller, 168 U. S. 287, 42 L. Ed. 469, 18 Sup. Ct. Rep. 140; Page on Contracts, sec. 1112; 9 Cye. 579.) Recognition of this may be found in all the books upon the snbject, culminating in our Code provision that “the whole of contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Rev. Codes, sec. 5030.) Can it be said, then, that, taking the contract as a whole, its meaning is so clear that “he who runs may read”? We think not. Assuming that the language of paragraphs 2 and 7 clearly implies an undertaking on the part of the company to supply the city with all the water necessary for fire and for general municipal purposes in consideration of the hydrant charge, that construction cannot be applied to the contract as a whole, without ignoring the import of the paragraphs numbered 3, 4, and 5. Paragraph 3, for instance, appropriates the consideration named to the fire-hydrant service, and it is a permissible, if not a necessary, inference from the language of this paragraph that the only service agreed to be rendered for the consideration named was the fire-hydrant service; in other words, paragraph 3 may be said to limit the apparent scope of paragraph 2. (Railton v. Taylor, 20 R. I. 279, 39 L. R. A. 246, 38 Atl. 980.) Again, paragraph 5 cannot be given any meaning consistent with the idea that the hydrant charge was intended to be in payment of all water that might be supplied to the city for general municipal purposes; on the contrary, its clear implication is that at least some water within the definition of “general municipal purposes” should be free of any charge. Paragraph 5 is a material part of this contract, and it mry be reasonably viewed as an incidental or additional inducement to the city for its assent; but it is rendered valueless for this purpose because there was no need to stipulate for water “free of charge” if all the water was to be paid for by the hydrant rates. If, on the other hand, paragraph 5 is an incidental provision for free water, in the nature of an inducement to the city for its assent, then the purposes for which such water should be furnished are specifically enumerated, with the necessary inference that no other water was intended to be free. We are not unmindful of the provision of our Code that “repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract” (Rev. Codes, sec. 5041); but this itself is a rule of interpretation rather than of construction, and the general intent and purpose of the contract is the very matter that is put in doubt. “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract” (Rev. Codes, sec. 5037); and, granting that the contract before us may be construed so as to cover and include water for sprinkling, corral and crematory purposes, that it need not be so construed is apparent. In such a situation there is ambiguity within the meaning of the law which opens the contract to interpretation by the aid of evidence alkmde, so as to give effect to the mutual intention of the parties to it at the time it was made. (Rev. Codes, secs. 5025, 5036; Lozes v. Segura Sugar Co., 52 La. Ann. 1844, 28 South. 249; Pressed Steel Car Co. v. Eastern Ry. of Minnesota, 121 Fed. 609, 57 C. C. A. 635; Uinta Tunnel etc. Co. v. Ajax Cold Min. Co., 141 Fed. 563, 73 C. C. A. 35.). 2. The reply alleges in effect that the contract in question was a continuation or renewal of relations which had existed since January, 1893, under successive contracts of the same general character, and containing substantially the same provisions as the one at bar, and that it was formulated and entered into with the understanding and in view of the construction which both parties alike had attached to these prior contracts; that these contracts had never been understood by either the company or the city to require the furnishing of any work, labor or material whatsoever, or any water free of charge except for flushing sewers and for use in the public buildings of the city, but were all understood, construed and acted upon by both the company and the city so as to leave subject to independent arrangement the furnishing of water for sprinkling, corral and crematory purposes and the furnishing of labor and material of the character set forth in the complaint; that during such period separate and independent arrangements did in fact exist, under which the company furnished, and the city voluntarily paid for, all such labor and material and all the water used for sprinkling, corral and crematory purposes; and that from June 1, 1908, up to and including the month of June, 1911, the contract at bar was by both the city and the company understood and acted upon to similar effect. Doubt may be entertained whether the conduct of the parties under the prior contracts could aid in the interpretation of the contract at bar, since they were completed and past transactions; but, in view of the similarity of language employed, it does not seem unreasonable to say that, in the absence of an indication to the contrary, the meaning the parties put upon the language used in the prior contracts was the meaning they attached to it when they used it in the present contract. In any event, the evidence, which is both documentary and oral, establishes .without contradiction that the parties did put a common practical interpretation not only upon the prior contracts but also the one at bar for the first three and one-half years of its existence; and the manner in which they interpreted it sustains the conclusion that the intention of the parties when it was made was to provide for a supply of water for fire protection to be paid for as stipulated, to furnish free water for flushing sewers and for the public buildings, and that water required for other purposes was not deemed within the purview of the contract. It is an ancient and elementary rule that, where parties to a contract of doubtful or ambiguous meaning have placed a practical interpretation upon it, said interpretation is one of the best indications of their true intent. (Uinta Tunnel etc. Co. v. Ajax Gold Min. Co., supra; Thomas v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.), 81 Fed. 911; Chicago v. Sheldon, 9 Wall. (U. S.) 50, 19 L. Ed. 594; City of Vincennes v. Citizens’ Gas Light & Coke Co., 132 Ind. 114, 16 L. R. A. 485, 31 N. E. 573; Hill v. City of Duluth, 57 Minn. 231, 58 N. W. 992; Animas Con. Ditch Co. v. Smallwood, 22 Colo. App. 476, 125 Pac. 594.) Hence error cannot be imputed to the trial court in so far as the findings and judgment at bar effectuate the intent thus established. 3. But the contract is not subject to interpretation by the parties or by anyone else concerning any matter upon which it clearly speaks. We think this principle was infringed in the award to the respondent of the whole of its fifth cause of action. Included in this cause of action are certain items, to-wit: “Material and labor furnished in setting two-inch hydrant on comer of Montana and Granite streets, of the reasonable value of $71; material and labor furnished in setting hydrant at corner Broadway and Granite streets, of the reasonable value of $58.29; material and labor furnished in laying two-inch water main on Oregon avenue, 225 feet north of Gallatin street, to south side of Irvine street, of the reasonable value of $128.60. ” As we construe the contract, it is clear, unambiguous and not subject to interpretation touching the duty of the company to furnish fire hydrants and install water mains. In our judgment, paragraphs 4 and 8 clearly impose this duty upon the company. That these items were not of that character or were incurred in aid of purposes not covered by the contract we find nothing in the record to show. We must therefore assume them "to have been within the duty imposed upon the company by paragraphs 4 and 8 of the contract, and no recovery can be had. The total amount, including interest, represented by these items is $282, and the judgment should be reduced accordingly. The cause is remanded to the district court, with directions to correct the judgment as above suggested; the judgment when so corrected to stand affirmed. Mr. Justice Brantly and Mr. Justice Holloway concur.

MR. JUSTÍCE SANNER delivered the opinion of the court. Dr. Gideon E. Blackburn, of Butte, died intestate on March 24, 1912, leaving some estate, and surviving heirs as follows: Hannah A. Blackburn, his wife, Charles A. Blackburn, a son, and two daughters- On March 29, 1912, Charles A. Blackburn filed in the district court of Silver Bow county a petition for letters of administration of the estate, and also filed a writing signed by the widow, wherein she formally waived her right to such letters and requested his appointment. In the petition it is recited that the estate and effects in respect of which letters of administration are asked do not exceed the value of $5,000, and that it consists of office and household furniture, libraries, book accounts, and miscellaneous stocks and bonds .of unknown value. The petition came on for hearing in due course, and at the hearing the petitioner testified that, so far as he then knew, the value of the estate was not to exceed $5,000; of this, $2,900 was cash, the remainder being stocks, bonds, and other interests. The petition was granted, and Charles A. Blackburn has since acted as administrator. On June 5, 1912, he filed an inventory and appraisement, wherein he failed to list a gold watch and a pair of field-glasses as part of the estate, but did list as the property of said estate a large number of securities and various parcels of realty claimed by the widow as her individual property. By this inventory it was made to appear that the estate was of the value of $34,996.07. On June 7, 1912, the widow filed her petition, alleging, in substance, that the administrator had willfully and fraudulently failed and refused to list the watch and field-glasses above mentioned, and had converted the same to his own use, and that, with the intent to involve the estate in useless and unnecessary litigation, he had listed the securities and realty above referred to, belonging exclusively to her. On the following day the administrator filed a supplemental inventory, listing the watch, the glasses, a revolver, and an additional piece of real estate; so that, as finally presented by the two inventories, the appraised value of the estate is made to appear at $35,-558.07. To the petition of the widow two answers were filed: One by the administrator, and the other by H. L. Maury on behalf of Daisy I. O’Neill and Sister M. Florentia, the daughters of deceased; the answer of the daughters, praying “that no relief be granted to Mrs. Hannah A. Blackburn,” denies generally the allegations of her petition,.including her widowhood; denies that the watch and glasses are of any value; alleges that she is not related to them, and that their mother is still alive. The answer of the administrator puts in issue the widowhood of the petitioner ; explains the omission of the watch and glasses from tb*e 'irst inventory; denies the charges of fraud, waste, or intent -ijvolve the estate in unnecessary litigation, or that^v irrigation lie bring will be in bad faith; and allege- that any claim he\may assert or attempt to enforce will be under the permission of .^e court, for the sole use and benefit oí the estate. By way of fu.,. ther answer the administrator pleads the waiver and request.' executed by the widow, and alleges that in consequence thereof, and of expenditures by him of money in the care of the estate, “she is not entitled to now assert any rights which she may have or claim, as widow, to have letters of administration issued to her.” In reply to the answer of the administrator, the widow admits the execution of the waiver and request filed March 29,1912, and alleges that the same was made by her “upon the solicitations of Charles A. Blackburn and the advices of John 6. Brown, his attorney, and the representations of friendliness on the part of the said Charles A. Blackburn” toward her, and that since the issuance of letters of administration to him, he has become and now is hostile to her and to the best interests of the estate “and dishonest and untrustworthy, as more fully appears from the petition herein on file.” The matter was heard before the district court of Silver Bow county, the Honorable Jeremiah J. Lynch, judge presiding; and, upon the proceedings had, including the testimony taken, an order was made by which the petition of the widow was denied and the proceeding dismissed. From that order this appeal is taken. The appellant contends that the petition should have been granted, because the widow is vested by the statute with a prior right to administer her late husband’s estate, which cannot be affected by her renunciation; because the circumstances under which the administrator secured her renunciation were such that it ought not be held effective in view of his present attitude toward her interests, and because the evidence establishes that he is not a fit and proper person to have control of the estate. 1. The position that the widow is entitled, notwithstanding her renunciation and the appointment of her nominee, to have b removed and letters issued to her whenever she so elects'18 groimci-ea *■» the assumption that such is the unmistakable meaiLiu-g of section 1450, Revised Codes. Notwithstanding tU"' contention of a/ppellanu that this section is so clear as to T'e- self-interpreting/ its meaning cannot be ascertained from its \\anguage alone. Taken by itself&emdash;all collateral light excluded&emdash; we are without an;y information- as to .what right is recognized, what the character of that right is, or how that right may be asserted; all we can know is that whatever the right and however claimed, it would be unavailing where letters have been issued to the mother, since she is not mentioned among those as against whom it may be asserted. Such a conclusion, so manifestly contrary to the general plan and purpose of the statute, is of course untenable; but it serves to show that, to give the statute any intelligible meaning, we are required to construe it in connection with other provisions to which it stands in obvious relation. When this is done, a result is reached different from that upon which the appellant insists. “Administration of estate of all persons dying intestate must be granted to some one or more of the persons hereinafter mentioned, * * * in the following order: 1.'The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5. The. sisters. * * * ” (Sec. 7432, Bev. Codes.) “Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuance of letters to themselves” (see. 7444); but when letters have been granted to any other person than the surviving spouse, child, parent, brother, or sister, “any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration” by presenting to the court an appropriate petition (see. 7447), on which a citation to the administrator shall issue (sec. 7448), and a hearing be had (sec. 7449). “The surviving husband or wife, when letters of administration have been granted to a child, father, brother or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right and obtain letters of administration and have letters before granted revoked in the same manner prescribed in the three preceding sections. ” (Sec. 7450.) The primary purpose of these provisions is, of course, to confer a prior right of administration upon those most interested in the estate, to signify the legislative will concerning the order of priority, to provide a method by which it may be once asserted in every case, and to authorize its assertion by nomination in certain instances. There is no warrant for the inference that the legislature intended the right to continue after it had been once freely exercised; for, valuable though it is, the advantage conferred is solely for the benefit of the persons named, and involves no public purpose. It may therefore be waived (sec. 6181, Rev. Codes), and the effect of its waiver cannot be different from the effect of a waiver in other cases. This result, derived from our statutory provisions alone, is supported by an abundance of authority, and compels us to hold that if the renunciation and request of appellant, because of which the administrator was appointed, was fairly procured and freely given, she has exercised her prior right, and no longer has any to assert. (In re Estate of Moore, 68 Cal. 281, 9 Pac. 164; Slay v. Beck, 107 Md. 357, 68 Atl. 573; Estate of Keane, 56 Cal. 407; In re Evans’ Estate, 117 Mo. App. 629, 93 S. W. 922; Estate of Wooten, 56 Cal. 322; Stocksdale v. Conaway, 14 Md. 99, 74 Am. Dec. 515; In re Bedell’s Estate, 97 Cal. 339, 32 Pac. 323; Estate of Kirtlan, 16 Cal. 161.) 2. It is, however, the policy of our law that the widow shall control in limine the administration of her late husband’s estate. (Shiels’ Estate, 120 Cal. 347, 52 Pac. 808; Dorris’ Estate, 93 Cal. 611, 29 Pac. 244.) To that end she is authorized to either administer it herself, or to nominate some person in whom she places trust and confidence to administer it for her. (In re Watson’s Estate, 31 Mont. 438, 78 Pac. 702.) No condition or limitation is imposed upon her choice save that she or the person she nominates be competent; nor does the fact that she asserts claim to property which the other heirs contend belongs to the estate render her. or her nominee incompetent. (Rev. Codes, sec. 7436; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828; Brundage’s Estate, 141 Cal. 538, 75 Pac. 175; Estate of Bauquier, 88 Cal. 302, 26 Pac. 178, 532.) In the instant case, considerations touching the burden of proof in any action affecting the title to the disputed property might easily render the attitude of the administrator a matter of grave importance to the widow; and she was entitled to retain, until lost by her voluntary act, such legitimate advantage as might arise from her right to control the administration. Therefore, her due was absolute frankness on the part of the person seeking her nomination; and if he, pending her assent to his appointment, so demeaned himself as to deceive or lull her into a false security concerning his attitude, and she, believing him friendly to her and not hostile to her claims, waived her right and assented to his appointment to her disadvantage, it cannot be said that her waiver was fairly procured or freely given. The voluminous record before us tends to show that the claim asserted by the widow to certain stocks, bonds, and real estate which were not mentioned in the petition for letters, but which have been listed in the inventory, is not wholly baseless. The evidence bearing upon the attitude of the administrator toward her and her claims comes entirely from her and from him. Prior to his appointment, she says, he had been kind and affectionate to her, and she was depending upon him. On the day after the funeral of Dr. Blackburn she and the administrator had gone through the boxes at the bank and he had seen her remove some deeds, and had at her request erased the name of Dr. Blackburn from one of the boxes, and had put hers in its place. He claimed he knew that the stocks and bonds in the Miners’ Savings Bank belonged to her, and he gave her to understand that there was no question about it. When they were going up the steps to court the morning he was appointed administrator, she said, “Now, Charley, there is no question about my bonds and stocks at the Miners’ Bank, and I can have them?” and he said, “Yes, Mrs. Blackburn, I’ll see to it right away”; “but he talked very different after he was appointed. Prior to his appointment he had shown no disposition to sue me or bring my property in question at all; none whatever. ’ ’ Again, touching the real estate: “Charles Blackburn has talked to me and discussed with me my title to the property. He saw all the papers before he was appointed administrator, and after he was appointed he said, in the presence of my sister, that there was no question of my ownership of the real estate. * * * I cannot say how many times he made that statement, but he talked that way right along. He stated that more than once. I could tell you specifically the conversation we had about the Gallatin Addition, and it was this: I owed $2,000 on the Gallatin Addition, and the interest was 10 per cent, and I wanted to stop the interest; so I paid my $2,000. Charley was up in the room one day, and I said, ‘Now, Charley, I am going to pay my $2,000; as administrator you are not going to present any claim whatever to my Gallatin Addition?’ and he said, ‘No, Mrs. Blackburn, that is absolutely yours.’ * * * Charles Blackburn testified to the value and nature of the property belonging to the estate at the time he obtained his letters of administration. He at that time, as I remember, said there was no real estate in the estate, and that the property consisted of mining stock, office furniture, and book accounts, and I do not remember any more. # # * He did not mention the Tuolumne stock at the Miners’ Bank as belonging to the estate, nor the South Park Mining & Realty Company stock as belonging to the estate, nor the Independent Telephone bonds as belonging to the estate. As I remember it, he stated the value of the estate was from $5,000 to $7,000, or words to that effect-—that the estate was not over $7,000. He said there was no real -estate. Before he made these declarations under oath he had not only examined the papers of the estate, but he had seen my papers also. * * * As we came down from Judge D-onlan’s court T said something about, ‘Now, Charley, I will go and get my things,’ and you [Mr. Brown] said, ‘Oh, Mrs. Blackburn, Charley is under bond now,’ and I said, ‘Mr. Brown, those things don’t belong to the estate; they belong to me.’ * * * "What I wanted was my Tuolumne stock. Charley had promised to go over there to the bank as soon as he was appointed. * * * And this conversation was right after the hearing at which he testified in Mr. Brown’s presence that the ' estate was worth something like $5,000.” The deeds which she had removed from the bank boxes in the presence of the administrator ran from her to Dr. Blackburn; these she destroyed, claiming that they had been executed to avoid administration in case of her death, but never delivered. In regard to that she testified that Charles Black-bum knew of her intention to destroy them, before it was done, and both he and Mr. Brown knew of their destruction after it was done,, and before the appointment of the administrator. The waiver was signed on March 29, 1912. At that time she did not have, and had not had, any counsel. Concerning this, in response to inquiries by Mr. Brown, she testified: “You offered your assistance as attorney; otherwise I would have had an attorney to protect me. But Charley brought you to my house, and you offered your services, and I, as a professional man’s wife, did not consult any other attorney until Charles Blackburn was appointed administrator, and then I said to you, ‘Are you my attorney ? ’ and you did not know about it. ’ ’ The testimony of the administrator is as remarkable for what it does not contain as for what it does contain. On direct examination he gave no testimony in denial of the foregoing or concerning his attitude before and after administration, touching her and her claims, except that he had consulted counsel regarding the stocks, bonds, and real estate, and had listed them as the property of the estate on the advice of counsel. He also said: “I first knew the deeds had been destroyed when the matter was testified to here in court. * * * I can’t recall whether Mrs. Blackburn told me she was going to destroy them; my recollection is that she did tell me that her intention was to destroy them.” On cross-examination he said he could not tell when he first consulted counsel about the real estate, except that it was after his appointment. “I did not tell him about those deeds in the bank and their removal by Mrs. Blackburn before I petitioned for letters of administration. I knew about those deeds before I petitioned for letters of administration, but did not disclose the fact to my counsel. I don’t know why I didn’t, but it probably escaped me. I don’t know whether I disclosed that fact to him before I secured letters of administration or not. * * * I testified at the hearing of the application for letters of administration * * * that the estate did not, to the best of my knowledge, own any real estate. # * At that time I knew of those deeds which Mrs. Blackburn had removed, and had known of them some ten days before, but began to see the light in regard to this real estate as soon as I had put the facts up to my counsel.’ I cannot say what date that was, but I am quite sure it was after my appointment. * * * i first learned of those bonds being down in the Miners’ Savings Bank before Dr. Blackburn was buried. # * * I took this matter up with my counsel, and got advice from him shortly before I was appointed, I think. I am not sure that I talked that matter over with him about it before my appointment. I am not positive whether I did or not. * * * Upon the advice of my counsel, it was true of my own knowledge that this was the property of the estate. It was my own knowledge that that was property of the estate, and Mrs. Black-bum was endeavoring to get it for her own use. '* # # I remember Mr. Brown in my presence, and within a few minutes after I was appointed administrator, telling Mrs. Blackburn that those securities had to be turned into the estate. He told Mrs. Blackburn that standing in front of Judge Lynch’s courtroom on Granite street. That was a few minutes after I was appointed. At that time Mrs. Blackburn said, ‘Well, now, you can go right down and get my stocks and give them to me, can’t you?’ or ‘Get my bonds and stuff at the Miners’ Savings Bank,’ and Mr. Brown said, ‘Why, that stuff must undoubtedly go through the estate.’ * # # I presume Mrs. Blackburn addressed the remark, ‘ Go down and get my bonds or stocks, ’ to me. All three of us were there. I had not previously agreed to do that. In a general way the ownership of the securities at the Miners’ Savings Bank had been discussed between myself and Mrs. Blackburn. I did not tell her as late as the morning of my appointment .that I would go down and get those things for her as soon as I was appointed. In this general con vernation that I had about the ownership, I did not agree with her, that she was the owner. I did not say she was hot. I took the position that until I had been more fully advised in the premises and had seen the securities, and had had an opportunity to investigate the conditions under which they had been left there, and the physical appearance of them, that it was not up to me to decide as to whose they were. I don’t know whether I told her that at any time before' I was appointed administrator or not. As to telling the court that when I was under oath, I wasn’t asked about it. * * * • I consulted with Mr. Maury in regard to this proceeding. He is not my attorney in this case. I have not consulted with him quite as frequently as I have with Mr. Brown. I retained him on behalf of Sister M. Florentia and Daisy I. O’Neill. I do not feel that I am controlling their case. I do not feel that I am their representative. They "have not communicated directly with Mr. Maury or Mr. Templeman, to my knowledge. As far as I know, they have communicated with me. ” Counsel insist that the zeal of the administrator in getting together all the property of the estate is no fault or ground for removal. Assuredly not, but that is beside the mark. The question is whether the waiver of the widow and her request for his appointment was fairly procured and freely given. We think her testimony shows that it was not, and his serves only to confirm that impression. He received her consent to the administration by him of an estate of, a certain character, estimated at not to exceed $5,000 in value, and which did not claim any of the property in dispute; she never did consent that he should administer an estate of a different character, valued at $35,558.07, three-fourths of which consists of property claimed by her as her own. Before his appointment she undoubtedly believed, and had reason to believe, that his attitude toward her claims was not adverse; whether this arose from what he said or failed to say is of no importance. (Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950.) His duty under the circumstances was candor toward her and toward the court; he should have told her that her claims might have to be questioned, and he should have given the court, in his petition for letters and in his testimony at the hearing thereof, all the information he then had in regard to the matter; instead of this, he evaded to the point of deception, if he did not expressly deceive. Deception cannot be countenanced in matters of this kind. (Lutz v. Mahan, 80 Md. 233, 30 Atl. 645; In re Farnham’s Estate, 41 Wash. 570, 84 Pac. 602.) At the time he filed the inventories, at the time he filed his objection to her petition, and at the time he testified on this hearing, no material facts had come to his knowledge which were unknown to him at and before the time he received his appointment as administrator; yet he now questions her widowhood, is certain that none of the property is hers, charges her with endeavoring to convert the property of the estate to her own use, and causes counsel to appear and join in his attack on behalf of the other heirs. His offense is not in listing the property in question, but in the exhibition of an attitude so generally hostile to the widow as to warrant the inference that he had held it before his appointment, but carefully screened it from her until his position should be assured. It is urged, however, that there was no sufficient allegation in the appellant’s “pleading” in the way of excuse or avoidance of her waiver and request. We do not think that in a proceeding of this bind the parties should be held to a strict and technical observance of the rules of pleading. It is sufficient if the administrator was informed, by the allegations of the widow, of the nature and probable scope of her complaint, and that he was so informed is evident from the fact that no surprise was claimed, that he testified concerning the matter so far as interrogated, and that the subject was canvassed without any objection touching the sufficiency of the “pleading.” Some remarks are also made about the discretion of the district court and the willingness of the administrator to have the disputed questions of title settled by an agreed statement of facts. Discretion in the trial court arises only when there is room for it. From the testimony, which presents no substan tial conflict, it appears that the widow’s renunciation of her right to administer was not fairly procured nor freely given; her prior right has therefore not been exercised. It is not within the power of any court to deny her the exercise of that right. .As to the agreed statement of facts, the record does not show what the administrator proposed to agree to; hence we cannot tell whether his willingness to agree is a circumstance in his favor or not. 3. An examination of the record and of the authorities convinces us that the failure of the administrator to include the watch and glasses in his first inventory constituted no ground for his removal. As an impeachment of his integrity it was frivolous; but it illustrates the state of feeling and the lack of confidence on the part of the widow toward her nominee. We have said above that the widow is not incompetent merely because of her claims to the property in dispute; whether her conduct was such as to establish a want of understanding or integrity so as to render her incompetent we do not decide. But, competent or not, she still has her right of nomination. (McLean v. Roller, 33 Wash. 166, 73 Pac. 1123; Stevenson’s Estate, 72 Cal. 164, 13 Pac. 404; Bedell’s Estate, supra.) The order appealed from is reversed, wdth directions to the district court of Silver Bow county to revoke the letters of administration heretofore issued to Charles A. Blackburn, and to grant the petition for the appointment of the appellant, unless the court shall find, from the evidence taken or which may be taken at a further hearing, that she is incompetent for want of proper understanding or integrity, in which event to appoint such competent person as she may nominate. Reversed and remanded. Mr. Chibe Justice Brantly and Mr. Justice Holloway concur. Rehearing denied December 24, 1913.