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disturbing the grade of the Montana Union track. The principal objection to it by the Montana Union witnesses was that it was impracticable and unsafe because of passing over the hump, and, considering the general grade of the railroad, the Butte, Anaconda & Pacific trains would break in two, and thus, by wreckage and other mishaps, the Montana Union tracks would be obstructed and their traffic materially interfered with. It is difficult for us to say, in the radical disagreements of skilled engineers, what the probable effect of this hump may be, but it occurs to us that, as its dangerous tendencies are all primarily towards accident to the Butte, Anaconda & Pacific, and only indirectly to the Montana Union, the risk, if any, and the scientific error, if any, will fall much more heavily upon the respondent than upon the appellants, and that therefore it is proper for us to affirm the order of the district court. We see no error in referring the question of damages for crossings to the commissioners, as was done by the order of the court. The statute covers the matter. Comp. St. 1887, p. 218, § 607.1 The last objection of the appellants is to the order of the court giving the power and authority to the Butte, Anaconda & Pacific Company alone to employ and discharge watchmen at the crossings, for whose wages the plaintiff and defendants are jointly responsible. In view of the fact that the respondent company invokes the right to make these several crossings, it would seem quite just that the expenses of a watchman to guard the Haggin Spur crossing and others, if any, where the district court ordered watchmen, should be borne by the respondent alone. We see no objection to permitting the watchmen to be chosen by the Butte, Anaconda & Pacific Company, and it will be directed by this court that the order of the district court shall be modified so as to impose the expenses of watchmen entirely upon the respondent corporation.

Let the judgment and order of the district court be remanded for modification in conformity with the views expressed in this opinion, and when so modified it will stand as affirmed. Modified and affirmed.

PEMBERTON, C. J., and DE WITT, J.,

concur.

(16 Mont. 550) BUTTE, A. & P. RY. CO. v. MONTANA U. RY. CO. et al. (No. 518.) (Supreme Court of Montana. July 29, 1895.) RAILROAD COMPANY-RIGHT TO CROSS TRACKS OF

ANOTHER.

1. A railroad company will not be denied the right to cross the tracks of another company merely because the crossing will necessitate the raising of the grade of the latter's road

1 Comp. St. p. 218, § 607, provides that courts may regulate and determine the place and manner of making crossings.

18 inches, where the new grade is necessary because of another crossing.

2. A railroad company will not be denied the right to cross the tracks of another merely because the crossing will somewhat curtail the storage tracks of the latter.

3. Where plaintiff railroad company sought to cross defendant's road at a point where the latter maintained movable rails, the action of the trial court in allowing plaintiff to remove the rails to land not owned by defendant, and to make title to such land in defendant, will be reversed, and plaintiff required to cross elsewhere, though the change will compel plaintiff to make three crossings over defendant's road.

Appeal from district court, Deer Lodge county; Theodore Brantley, Judge.

Action by Butte, Anaconda & Pacific Railway Company against the Montana Union Railway Company and another for leave to construct crossings over defendants' roads. From a judgment for plaintiff, defendants appeal. Judgment modified.

The following is the plat referred to in opinion: [See opposite page.]

Shropshire & Burleigh and Forbis & Forbis, for appellants. W. W. Dixon, M. Kirkpatrick, and Wm. Scallon, for respondent.

HUNT, J. This case may be considered with reference to that of Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., 15 Mont. -, 41 Pac. 232. The formal averments as to the corporate existence of the parties are the same, and like questions of the character of the use of the plaintiff's tracks arise. The more direct object of this suit is for an order permitting plaintiff to construct certain crossings for its own railway, switches. and side tracks, over the main line, switches, side tracks, and spurs owned and controlled by the defendants, in and about the various smelting and concentrating works of the Anaconda Mining Company, situate north and east of the city of Anaconda. The Butte, Anaconda & Pacific Railway Company wishes to reach the same objective points, mining and smelting works, that the Montana Union tracks extend to. To accomplish this, certain crossings of the Montana Union tracks must necessarily be made. The letters A, B, C, D, E, F, G, H, I, J, K, L, and M show upon the map the points where plaintiff asks leave to cross, and the localities involved. That the switches, side tracks, and spurs of defendants and plaintiff are alike public highways, and that plaintiff has a right to cross, intersect, or connect with defendants' main road, spurs, and switches, in the manner provided by law, is decided by the opinion in the former case cited. It only remains, therefore, to inquire into the facts with a view of determining whether the crossings and intersections are made in a manner most compatible with the greatest public benefit and the least private injury.

The learned judge of the district court, accompanied by a civil engineer representing each party, made a careful personal inspection of the ground upon which the tracks are

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situated. He was thus enabled to critically apply the somewhat technical explanations of the witnesses to the physical objects directly in front of him. In his opinion, made part of the record, the crossings asked for were practicable. Certain of them, G and H, were disallowed, because, to cross at the point G would carry with it the right to run a side track from F to G, longitudinally for some feet with defendants' tracks, and upon their roadbed. This question was served. But no complaint being made by the respondent, the order of the court in this respect need not be considered. The order, in considerable detail, regulated the construction and location and method of operation of each switch. At one point, D, the Montana Union grade was raised a foot and a half, or a little more. It appears that the crossing in this manner is wholly practicable, and that the grade is necessary by the distance and grade betwen the triple crossings at C and D. Appellants object to other crossings, E and F especially, because they somewhat curtail appellants' storage trackage. But this was not so serious an inconvenience as to outweigh the legal rights of the respondent.

At the point J appellants had what is termed a "three-throw" switch, made of movable rails connecting the Montana Union track going up the grade towards mining works with three prongs. To have crossed the movable rails would have been a great injury to the appellants by preventing the use of their movable rails. To put the crossing further east plaintiff would have had to cross three tracks of defendants to reach the Anaconda works. The court, after seeing and considering the exact situation, ordered the plaintiff, at its expense, to move the defendants' switch north so as to allow respondent to cross one track, and not three, of the defendants'. The principal objection to this crossing seems to be the order of removal of appellants' tracks off their ground, rather than to any inconvenience or injury which may ensue therefrom. But it looks to us as if the crossing ordered would be made with less possible injury to appellants than elsewhere, and as the plaintiff was ordered to procure a good title to defendants for the necessary space for right of way over the new ground upon which it was permitted to construct the Montana Union three-throw switch, it is difficult to understand the real merit of appellants' objection, unless it be in the fact that the proposed change in the grade would slightly increase the curvature in one of appellants' tracks. It would seem, however, that a reduction of curvature in another track would equalize this. Nevertheless, in order to confine the plaintiff to changes of tracks within the rights of way already taken by the Montana Union, lest an unnecessary or unwarranted injury may be done by removing this switch to ground outside of that now lawfully occupied, we have con

cluded to modify the order of the court in relation to this crossing, by requiring the Butte, Anaconda & Pacific Company to swing its road further towards the north, and, if necessary, to make three crossings of the defendants' tracks beyond the switch, and thus obviate the need of moving the appellants' track off of their present occupied right of way at all. National Docks, etc., Co. v. State, 53 N. J. Law, 217, 21 Atl. 570; East St. Louis C. R. Co. v. East St. Louis U. R. Co., 108 Ill. 265; Kansas City S. B. R. Co. v. Kansas City, St. L. & C. R. Co., 118 Mo. 599, 24 S. W. 478; Lake Shore & M. S. R. Co. v. Chicago & W. I. R. Co., 97 Ill. 506.

That railroad crossings are inconvenient, particularly where they are on grade, and frequent, is indisputable. But the law in re garding railroads as public necessities has not extended its generous privileges to them altogether without some possible attending inconveniences. Among the latter are lawful crossings, intersections, and connections of a rival company legally competing for the transportation of freight. It is therefore ordered that that portion of the district court's order and judgment which permitted the three-throw switch of the appellants to be moved off its present right of way or roadbed to the north of its location at the time of the institution of this proceeding, be set aside, and that, unless otherwise agreed between the parties, in lieu thereof the plaintiff is ordered to move its track or tracks to a point further north, with the right to cross the several tracks of the defendants at a point easterly and at a point beyond the movable rails of the defendant company. The cause is remanded to the district court for modification in accordance with these views, and when so modified the judgment and order appealed from will be affirmed Modified and affirmed.

PEMBERTON, C. J., and DE WITT, J.

concur.

(16 Mont. 395) MERCHANTS' NAT. BANK ▾. GREENHOOD et al.1

(Supreme Court of Montana. July 22, 1895.) REVIEW ON APPEAL-PRACTICE-JURISDICTION IN EQUITY-SETTING ASIDE FRAUDULENT ASSIGNMENT.

1. A finding on conflicting evidence, made the ground of a motion for a new trial, which is overruled, will not be disturbed on appeal.

2. A court has power to change its own calendar.

3. Where a sheriff makes return on attachment levied in a suit against a debtor, commenced after an assignment by such debtor, to which the assignee is not a party, of no property to satisfy the attachment except the property attached, which is embraced in an alleged assignment, and it appears that an action at law is pending by the assignee against the attaching creditor for conversion in making the attachment, to which the debtors are not par

Rehearing denied. See 41 Pac. 851.

ties, a bill in equity will lie to remove the assignment as an obstruction to execution on a judgment for plaintiff in such action, on the ground that it is fraudulent.

4. Levy of execution is not an abandonment of an attachment levied in the suit, where it is shown that there was no intent to abandon by such execution.

5. On suit in equity to have an assignment declared fraudulent and removed as an obstruction to levy of an execution, the admission in evidence of a conversation between the plaintiff and assignors, occurring after the assignment, to the effect that the assignors had hoped to make a settlement with their creditors by borrowing money, but were prevented by plaintiff's action, if error, is harmless.

6. An objection to the admission of evidence cannot be urged for the first time on appeal.

7. A general assignment for benefit of creditors is not a conveyance to a purchaser for a valuable consideration, within Comp. St. div. 5, § 232, providing that statutes making conveyances to hinder creditors void shall not be held to impair the title of a purchaser for a valuable consideration without notice of the intended fraud, so that fraud of the assignors will render such an assignment void.

Appeal from district court, Lewis and Clarke county; William H. Hunt and Horace R. Buck, Judges.

Bill by the Merchants' National Bank against Isaac Greenhood and Ferdinand Bohm, copartners, and others, to have an assignment declared fraudulent and removed as an obstruction to an execution. From a judgment for plaintiff, defendants appeal. Affirmed.

The nature of this action will appear fully by the complaint therein, which pleading we have deemed it best to insert in this statement in full. After the close of the trial, the court allowed the plaintiff to amend its complaint. The complaint, as finally amended under that order, is as follows:

"Now comes the plaintiff, and by leave of court first had and obtained, files this its second amended complaint, and complains on behalf of itself and all others, the judgment creditors of Greenhood, Bohm & Co., who are parties to a certain deed of assignment hereinafter mentioned, and who shall come in and seek relief by and contribute to the expense of this action, and alleges that the subject of this investigation is of common and general interest to all of said creditors under the said deed of assignment. Wherefore the plaintiff sues for the benefit of all, and alleges:

"I. That it is now, and was at all the times hereinafter mentioned, a banking corporation, organized and existing under and by virtue of the banking laws of the United States, and doing business in the city of Helena, Montana, and elsewhere.

"II. That the defendants Isaac Greerhood and Ferdinand Bohm are now, and were at all the times hereinafter mentioned, copartners, doing business in the city of Helena and elsewhere under the firm name and style of Greenhood, Bohm & Co.

"III. (1) That on the 13th day of February, 1892, an action was duly commenced by said

plaintiff against said defendants Isaac Greenhood and Ferdinand Bohm, the copartners hereinabove referred to, doing business under the firm name and style of Greenhood, Bohm & Co., in the district court of the First judicial district of the state of Montana, in and for the county of Lewis and Clarke, in department No. 1 of said court, by the filing of a complaint and the issuance of a summons, for the recovery of a judgment for the sum of $20,000, together with interest thereon at the rate of 10 per cent. per annum from the 27th day of November, 1891, and for the sum of $13,500, with interest thereon at the rate of 10 per cent. per annum from the 19th day of November, 1891, and for the sum of $1,000, with interest thereon at the rate of 10 per cent. per annum from the 16th day of January, 1892, upon certain demand notes made, executed, and delivered by the copartnership of Greenhood, Bohm & Co. to this plaintiff. (2) That on said date a writ of attachment was duly issued in due form in said last-named action, after the issuance of the summons therein, and placed in the hands of the sheriff of Lewis and Clarke county for execution. (3) That on the 15th day of February, 1892, the sheriff, by virtue of the power and authority vested in him as such officer, and under and by virtue of said writ of attachment, did levy upon and seize and take into his possession that certain stock of goods, wares, and merchandise, situate and being in that certain store building on South Main street, in the city of Helena, known and designated as No. 24, and by garnishment levied said attachment upon all the money and other property and effects of said Greenhood, Bohm & Co. in the hands of the defendant Max Kahn, assignee. (4) That thereafter, on the 8th day of April, 1892, judgment was duly rendered and entered in said last named action in said district court, in favor of the plaintiff herein and against said Isaac Greenhood and Ferdinand Bohm, copartners, etc., for the sum of $35,945.48. (5) That thereafter, to wit, on the day of April, 1892, an execution was duly issued on said judgment against the property of said defendants Isaac Greenhood and Ferdinand Bohm, copartners as aforesaid, addressed to the sheriff of the county of Lewis and Clarke, state of Montana, in which county said defendants resided, and was by said sheriff returned as follows, to wit: 'No property to be found in my county to satisfy the foregoing execution, except the property attached herein and embraced in an alleged assignment of Greenhood, Bohm & Co. to Max Kahn, on the 12th day of February, 1892, and except the above garnishments, and I herewith return said execution unsatisfied.'

“IV. That, after the contracting of the indebtedness for which the aforesaid judgment was recovered, the said defendants

Isaac Greenhood and Ferdinand Bohm made, executed, and delivered to the said defendant, Max Kahn, a fraudulent, fictitious, and pretended assignment for the benefit of their creditors of all their property, a copy of which assignment is hereto attached, and marked 'Exhibit A,' and made a part of this complaint.

"V. That the said Max Kahn accepted the said pretended, fraudulent, and fictitious trust, and now claims all of the property of the said defendants Isaac Greenhood and Ferdinand Bohm under and by virtue of said fraudulent, fictitious, and pretended assignment, including the property levied upon and seized by the sheriff under said writ of attachment, as aforesaid.

"VI. That said Max Kahn has collected a large sum of money from the assets of said pretended assignors, amounting in all to over the value of $7,000.

"VII. That the said pretended, fraudulent, and fictitious assignment so made and executed by the said Isaac Greenhood and Ferdinand Bohm, copartners under the firm name and style of Greenhood, Bohm & Co., on the 12th day of February, 1892, as aforesaid, was made, executed, and delivered by the said defendants Isaac Greenhood and Ferdinand Bohm for the purpose and with the intent to hinder, delay, and defraud this plaintiff and the other creditors of said copartnership.

"VIII. That said assignment, and the said claim of the said defendant Max Kahn to the property of the defendants Isaac Greenhood and Ferdinand Bohm are fraudulent, fictitious, and pretended, because of the facts hereinafter stated, to wit: (1) The want of sufficient description of the property herein attempted to be conveyed, in that the following is the whole of the descriptive part of the said assignment, to wit: 'All and singular his goods, wares, and merchandise, bills, notes, book accounts, claims, demands, accounts, choses in action, evidences of debts, stock, and property, both real and personal, of every name, nature, and description and wherever situated, including the list of stock of boots and shoes, clothing, gent's furnishing goods, notions, whisky, and cigars, and general merchandise, book accounts, notes, etc., of the business carried on by them at their store on Main street, Helena, Montana;' that said defendant copartnership was the owner of real estate at the time of said assignment, situated in the city of Seattle, state of Washington, worth about $4,000, and no such description is made of such real estate that the title to the same could pass to the assignee. (2) That at the time of said assignment said defendant copartnership was the owner of a stock of goods situated in No. 11 Lispenard street, in the city of New York, state of New York, of the value of about $4,500, and no reference is made to said stock of goods in the said assignment, except the general description, 'all property, both real

and personal, of every name, nature, and description, and wherever situated.' (3) That the aforesaid imperfect description of the property owned by the defendants at the time of the said assignment was not aided by any schedules of the property attached to the same at the time of the execution thereof or since. (4) That at the time of the execution of said assignment by the defendants Greenhood and Bohm, and long prior thereto, the said defendants were carrying on business in the city of New York, and also in the city of Helena, Montana, under the firm name and style of Greenhood & Bohm in New York, and Greenhood, Bohm & Co. in Helena; that these several names were adopted for convenience in transacting business in said city of Helena, and said city of New York, but that it was one and the same copartnership. (5) That the laws in the state of Washington in relation to the assignment of property for the benefit of creditors provide as follows, to wit: Laws 1889-90, p. 83,-an act relating to estates of insolvent debtors: 'An act to secure creditors a just division of the estates of debtors who convey to assignees for the benefit of creditors. Section 1. No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors, in proportion to the amount of their respective claims. And such assignment shall have the effect to discharge any and all attachments on which judgment shall not have been taken at the date of such assignment; and after payment of the costs and disbursements thereof, including the attorney's fee allowed by law in case of judgment, out of the estate of the insolvent, and claim or claims shall be deemed as presented, and shall have pro rata with other claims, as hereinafter provided. * * Sec. 3. The debtor shall annex to such assignment an inventory, under oath, of all his estate, real and personal, according to the best of his knowledge, and also a list of his creditors, with their post-office addresses, and a list of the amount of their respective demands, but such inventory shall not be conclusive as to the amount of the debtor's estate.' The said assignment, executed by said defendants Greenhood & Bohm to said defendant Max Kahn, would not pass title, even if the description had been sufficient, to the said lands in Seattle, Washington, for the reason that the same prefers one class of creditors over another, contrary to the provisions of the laws of the state of Washington touching such assignment. (6) That, at the date of the said pretended assignment, the said defendants Isaac Greenhood and Ferdinand Bohm were, as plaintiff is informed and believes, individually indebted in large sums to divers and sundry persons. (7) That said pretended assignment provides for the payment of the individual indebtedness of the said defendants Isaac Greenhood and Ferdi

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