& Co. and Leonardi & Co. were one and the same firm, or that the wood cut previously by A. & Co. was the property of L. & Co.

Plaintiff Tognini testified as follows: "There were three or four members of the firm of Leonardi & Co. Leonardi and Alberigi were all I knew." The witness might have meant, and, we presume, did mean, that Alberigi was one of that firm after he abandoned his own contract, November or December, 1879. That view accords with the testimony of defendant, and is not inconsistent with plaintiffs'.

Finally, it is said, the fact that the defendant gave plaintiffs a statement of the Alberigi & Co. coal shipped by him in February, 1881, is inconsistent with the idea that he did not, prior to that time, consider the A. & Co. coal and the L. & Co. coal were one and the same. Defendant said he gave the statement because plaintiffs asked for it. But he had given previous notice that the wood cut by A. & Co. was his property, and that he did not want it burned into coal. Plaintiffs not only failed to get defendant's consent to the manufacture of the Alberigi wood into coal, but they did so against his protest. They were not misled by his words or acts. And the fact that he subsequently, at plaintiffs' request, gave them a statement, is not any evidence of his previous consent or his subsequent ratification. We think the order appealed from should be affirmed; and it is so ordered.

We concur. HAWLEY, C. J.; BELKNAP, J.

(18 Nev. 66)

JOSEPH HIRSCHFELD

v.

CHARLES WILLIAMSON, Sheriff, etc.

Filed July 25, 1883.

The declarations of a vendor, made after a sale by him, and after he has parted with the possession to the vendee, cannot, for the purpose of impeaching the bona fides of the transaction, be received in evidence, and a verdict obtained upon such material illegal testimony, cannot stand.

A party cannot question the truth of his own allegations, and attempt in the appellate court to show that a sale which he alleges was made at a certain date, was really made at a different time.

LEONARD, J. Defendant appeals from an order of the court below granting to the plaintiff a new trial. The record shows these facts: Louis Ehrlick, a resident of New York city, on and prior to January 15, 1880, had a store in Virginia City, in this state, wherein he sold dry goods, clothing, etc. On the twelfth day of August, 1879, he executed and delivered to his son, Moses Ehrlick, a power of attorney

to do and perform in his name the matters and things therein stated. On the fifteenth of January, 1880, Moses Ehrlick, as attorney in fact of Louis Ehrlick, sold and delivered to Joseph Hirschfeld, plaintiff herein, all the goods in the store at Virginia City, and plaintiff retained possession thereof until February 6, 1880, when defendant, as sheriff of Storey county, attached the goods in question as the property of Louis Ehrlick. On the sixteenth day of February, 1880, plaintiff commenced this action to recover the goods so attached, or their value, to-wit, $4,786.50. On the third day of February, 1880, after being informed by telegram and letter, dated January 15, 1880, of the circumstances and conditions of the sale, Louis Ehrlick ratified the same by an instrument in writing, signed, sealed, and acknowledged by him. At the trial, and against the objections of plaintiff, defendant was permitted to prove certain declarations made by Louis Ehrlick in New York city, on the nineteenth and twentieth of January, 1880, the tendency of which was to impeach the bona fides of the sale and impair the title of plaintiff.

The only question presented for our consideration is as to the admissibility of these declarations. The defendant, in his answer, alleged that the pretended sale was made for the purpose of defrauding the creditors of Louis Ehrlick, one of whom was the plaintiff in the suit wherein the goods in question were attached by the defendant in this action, February 6, 1880. The verdict of the jury was for the defendant. It is general, and sustains the allegations of fraud. But it was found, in part, upon the declarations of Louis Ehrlick, admitted in evidence against plaintiff's objection. These declarations were harmful to plaintiff's case. Their tendency was to invalidate the sale. Defendant ought not to retain a verdict obtained upon material illegal testimony. If anything is well settled in the law it is that the declarations of a vendor, made after a sale by him, and after he has parted with the possession to his vendee, cannot be received in evidence against the vendee for the purpose of affecting or impeaching the bona fides of such sale, or of defeating the vendee's title on the ground that the sale was in fraud of the vendor's creditors. Counsel for appellant do not deny that such is the law, but they say that the declarations were made on the nineteenth and twentieth of January, when to all intents and purposes Louis Ehrlick was in possession, because, under the power of attorney, Moses Ehrlick did not have authority to sell out his father's entire business in Virginia City; that the sale, and consequently the delivery of possession, to plaintiff were void when made, and the râtification was not made by Louis Ehrlick until afterwards, on the third day of February, 1880. It is claimed, therefore, that the rule of law stated above does not apply to this case. Our impressions are that the power of attorney was sufficient to authorize M. Ehrlick to make the sale and transfer; but, under the allegations contained in the answer, we shall not base our decision upon this point. Defendant's theory of the case, as

shown by his answer and at the trial, was that the transfer was made on the fifteenth of January, 1880, by L. Ehrlick, by and through his attorney in fact, M. Ehrlick, but that the transaction was void for fraud.

A portion of defendant's answer is as follows: "And defendant avers, upon his information and belief, that on or about the fifteenth day of January, 1880, said [Louis] Ehrlick, intending to cheat and defraud his said creditors, did then and there combine and collude with the plaintiff herein, and said plaintiff did then and there conspire and confederate with said Ehrlick to cheat and defraud the said creditors of said Ehrlick, and in pursuance of said scheme, and in furtherance thereof, said Ehrlick did, on or about said day, pretend to make, and did make, a transfer of his said stock in trade, including the goods and chattels mentioned and described in the complaint herein, unto said plaintiff; and said plaintiff at said time well knew that said Ehrlick was largely indebted as aforesaid, and that said transfer was made with intent to cheat and defraud the creditors of said Ehrlick. And defendant avers, upon his information and belief, that plaintiff paid no consideration for said goods and chattels described in the complaint herein, and that he accepted said pretended transfer with intent to cheat and defraud the said creditors of said Ehrlick, and now claims said goods and chattels in secret trust for said Ehrlick."

The alleged fraudulent transfer referred to by defendant was the one made by M. Ehrlick on the fifteenth of January. In fact, that was the only one made. Referring to that transaction, defendant alleges that L. Ehrlick transferred to plaintiff the property in question, but that said transfer was made to cheat and defraud the creditors of L. Ehrlick. In the face of these allegations defendant cannot now question the power of M. Ehrlick to make the transfer. He cannot now dispute the correctness of his own allegations. His only right under the pleadings was to show by competent evidence that the transfer was void for fraud. The declarations in question were not admissible by reason of their being a part of the res gestæ. Meyer v. V. & T. R. Co. 16 Nev. 343 et seq.

The order of the court appealed from is affirmed.

(5 Mont. 68)

SUPREME COURT OF MONTANA.

HENRY M. Parcher and others

v.

SHIRLEY C. ASHBY.1

Filed January 30, 1883.

Where a town-site has been platted into lots, streets, and alleys, and the orig inal occupants respected and recognized such highways and alleys, the entry and survey of the probate judge must conform as near as may be to the existing rights and interests of such occupants, and no valid, subsisting easements can be destroyed by the survey of the probate judge and the acceptance of his plat by the county commissioners.

The streets and alleys did not so belong to the territory that its legislature could dedicate them to the public forever, and an act of the legislature enlarging or diminishing the rights and interests of the respective occupants to their lots, is unauthorized.

Appeal from third district, Lewis and Clarke county.

Chremasero & Chadwick, for respondents.

Sanders & Cullen, for appellant.

WADE, C. J. This controversy arose over a strip of land, 16 feet wide, on Rodney street, in the town of Helena, and extending westerly 90 feet in the rear of lots owned by plaintiffs, which they claim is an alley, and prosecute this action to have the same so declared, and to perpetually enjoin the defendant from obstructing the same. The defendant denies that the ground is, or that it ought to be, declared an alley, and claims to own the same by virtue of a deed from the probate judge. On the trial the court found the following facts and conclusions of law:

(1) That Scott's addition to the town of Helena was laid out, surveyed, and platted in the spring of the year 1866, with 16-feet alleys through the center of the blocks thereof, in an easterly and westerly direction, in which was comprised the 90 feet of alley in controversy, the title to the ground of which and as to all the ground occupied by the town, and the streets and alleys thereof being at the time, and until the entry of the town-site in 1869, in the government of the United States.

(2) That the original occupants of the lots adjoining that portion of the alley involved in this action, respected and recognized said alley, as did the grantees and successors in interest up to and at the date of the entry of said town-site by the probate judge of said county, and that the respective parties hereto, accepted and received deeds to their lots adjacent thereto, bounded by said alley, and in locating, fencing, and occupying their lots, respected, marked, and bounded

1See 7 Sup. Ct. Rep. 309.

said alley. At the western boundary of the ground in controversy, and at the eastern boundary of the "Watson" lot, said alley, as surveyed and platted in 1866, was obstructed by a fence shortly after the alley was laid out and surveyed, and thereafter was not opened or used as an alley westward from said 90 feet. There is no proof that this 90 feet was laid out as a cul de sac.

(3) That the 90 feet of said alley was used as an alley during the years 1866, 1867, 1868, 1869, 1870, and 1871, up to the date of the obstruction thereof by defendant. The principle use to which the alley was put was for taking in wood and hay, and for ingress and egress of the cows of the adjacent occupants. But the alley was a thoroughfare, so far as a street with an outlet at one end and closed at the other can become such.

(4) That the said plaintiffs and their predecessors in interest have erected valuable improvements upon their lots adjacent to said 90 feet of alley, and had and held a right of property therein at the time of the entry of said town-site by said probate judge, and the same was used as an alley by all the inhabitants of said town residing in the vicinity thereof.

(5) That the same was an alley, at the time of the acquisition of the title of the defendant and his predecessors in interest, to the lots owned by him adjacent thereto, and was so designated in his deed to said property, and was acquiesced in and recognized as such by himself and grantors up to the time of his obstruction of the same.

(6) That the map of the town, made by direction of the probate judge, as trustee, and presented to the county commissioners and approved by them under the town-site act, did not show that the locus in quo was an alley. No action of the county commissioners has been taken to lay out this ground as an alley, highway, or cul de sac. No appeal or proceedings were ever taken from the survey or map made by direction of the probate judge and filed with the county clerk and recorder, and approved by the board of county commissioners. No appeal was ever taken from the decision and action of the probate judge conveying this property to the defendant, or from the survey and map, whereby the alley was ignored, and the same put down as a lot for sale.

(7) That notice to occupants by said probate judge to prove up and enter their lots was duly given.

(8) That said defendant, on the sixth day of December, A. D. 1871, made application to enter the property designated in his answer, and on the 1872, received a deed there

day of

for from the probate judge.

And, as conclusions of law, the court found:

(1) That at the time of the entry of said town-site by the probate judge, the said plaintiff and other adjacent lot-owners on said alley had a subsisting and valid right therein, and to the use thereof as such alley, and the probate judge entered the same in connection