For these reasons the judgment of the Circuit
Court must be reversed, and the cause remand-
ed, with directions to remand the same to the
Court of Common Pleas of Fulton County,
Ohio.

It remains, however, to dispose of the ques-
tion of costs.

swer, setting up his title, and was made a co- | jurisdiction of the Circuit Court was not appar-
plaintiff with the United States. A decree was ent; but it was thought convenient and proper
made dismissing the libel, and confirming the to do so, in that case, because the record itself
title of Huckabee. The United States and Lyon made it probable that its omission of the state-
prosecuted a writ of error to reverse this judgments necessary to show jurisdiction was inad-
ment. This court decided that the Circuit Court vertent, and might be supplied for a future
was without jurisdiction of the subject-matter, trial in the same court. In the present case,
as it was not a case contemplated by the con- however, the want of jurisdiction appears af-
fiscation Acts, and that it could not be treated firmatively from the record.
as a private suit in equity between the claimants
for the determination of their conflicting titles,
because the remedy at law was adequate, and
also because there were citizens of the same
State. It decided, therefore, that the Circuit
Court had no jurisdiction to render any decree
in the case upon the merits of the controversy.
In stating the conclusion of the court, Mr. Jus-
tice Clifford, who delivered its opinion, said, p.
435 [464]: Usually where a court has no ju-
risdiction of a case, the correct practice is to
dismiss the suit, but a different rule necessarily
prevails in an appellate court in cases where the
subordinate court was without jurisdiction and
has given judgment or decree for the plaintiff,
or improperly decreed affirmative relief to a
claimant. In such a case, the judgment or de-
cree in the court below must be reversed, else
the party which prevailed there would have the
benefit of such judgment or decree, though
rendered by a court which had no authority to
hear and determine the matter in controversy,"
There, it will be observed, the plaintiffs in
error were seeking to reverse on the merits an
adverse decree, vesting title in the opposing
party, in a proceeding instituted by themselves.
The court reversed that decree to their advan-
tage, for want of the jurisdiction of the court
below which they had invoked and set in mo-
tion.

An analogous principle was acted on in Barney v. Baltimore,6 Wall., 280 [73 U. S., XVIII., 825], where a decree of the Circuit Court, dismissing a bill on the merits, was reversed because that court had no jurisdiction, and a decree of dismissal without prejudice directed; and in Thompson v. R. R. Co., 6 Wall., 134 [73 [386] U. S., XVIII., 765], where the question was one purely of procedure, whether the remedy was at law or in equity, although, in that class of cases, where the jurisdiction relates to the subject-matter and is administered by the same court, but in another form of proceeding, it would seem more reasonable that the objection might be waived by the conduct of the parties. See, also, Hurt v. Hollingsworth, 100 U. S., 100 [XXV., 569]. And in Williams v. Nottawa,104 U. S., 209 [XXVI., 719], it was held to be the duty of the Circuit Court to execute the provisions of the 5th section of the Act of March 3, 1875, ch. 137, 18 Stat. at L., pt. 3, p. 470, by dismissing a suit of its own motion, whenever it appeared that it did not really and substantially involve a dispute or controversy properly within its jurisdiction; and equally so of this court, when, on error or appeal, it appeared that the Circuit Court had failed to do so, in a proper case, to reverse its judgment or decree for that reason, and to remand the cause with direction to dismiss the suit.

In Grace v. Ins. Co., 109 U. S., 278 [XXVII., 932], it is true that this court passed upon all the questions in the case affecting its merits, although it reversed the judgment because the

It is clear that the plaintiffs in error, having wrongfully caused the removal of the cause from the State Court, ought to pay the costs incurred in the Circuit Court, and there is no want of power in the court to award a judg ment against them to that effect. By section 5 of the Act of March 3, 1875, the Circuit Court is directed, in remanding a cause, to make such order as to costs as shall be just; and the bond given by the removing party under section 3 is a bond to pay "All costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto." These provisions were manifestly designed to avoid the application of the general rule, which, in cases where the suit failed for want of jurisdiction, denied the authority of the court to award judgment against the losing party, even for costs. McIver v. Wattles, 9 Wheat., 650; Mayor v. Cooper, 6 Wall., 250 [73 U. S., XVIII., 852].

As to costs in this court, the question is not covered by any statutory provision and must be settled on other grounds. Ordinarily, by the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs, the exception being that where there is no jurisdiction in the court to determine the litigation, the cause must be dismissed for that reason, and, as the court can render no judgment for or against either party, it cannot render a judgment even for costs. Nevertheless there is a judgment or final order in the cause dismissing it for want of jurisdiction. Accordingly, in Winchester v. Jackson, 3 Cranch, 514, costs were allowed where a writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different States, the plaintiff in error being plaintiff below. But in respect to that case, it is to be observed, that the want of jurisdiction disclosed by the record was that of the Circuit Court, and that there was jurisdiction in this court to consider and determine the question of the jurisdiction of the Circuit Court and to reverse its judgment, had it been the other way, for want of jurisdiction. And the judgment for costs in that case is justified on that ground and seems to have been rendered against the plaintiff in error, because he was the losing party, in the sense of having ineffectually invoked the jurisdiction of the Circuit Court. And this is just what has taken place in the present suit. Here the plaintiffs in error wrongfully removed the cause to the Circuit Court. They seek by a writ of error to this

[387]

court to reverse upon the merits the judgment [388] rendered against them, and bring here the whole

[389]

MYRA CLARK GAINES, Appt.,

0.

record. That discloses the want of jurisdiction CHARLES MILLER, Admr. of SAMUEL HAM

in the Circuit Court to render any judgment;
and this court, in the exercise of its jurisdiction,
reverses the judgment for that reason alone, its
jurisdiction extending no further. It could not

MOND, Deceased.

(See 8. C., Reporter's ed., 395-400.)

delay in bringing action-ratification by prin-
cipal-judgment merges demand-presumption
of payment by lapse of time.

dismiss the writ of error for want of jurisdic-Action for money had and received-excuse for
tion in the Circuit Court, for that would be to
give effect to such want of jurisdiction; and
this court has jurisdiction of the writ of error
to reverse the judgment on that ground. A8-
sessor v. Osborne, 9 Wall., 567-575 [76 U. S.,
XIX., 748-751].

1. Whenever one person has in his hands money may recover it by assumpsit for money had and re

equitably belonging to another, that other person

2. Under the law of Missouri, an absconding or
concealing himself, by a debtor, to prevent the com-
mencement of an action, is available in an action at
law to excuse a delay in bringing the action and is
not a ground of equity jurisdiction.
3. If a principal ratifies that part of a transaction
which favors him, he ratifies the whole.

4. A judgment merges the demand on which it is
rendered, and a second suit by the same party can-
not be brought upon it.
5. By the common law, the lapse of twenty years,
without explanatory circumstances, affords a pre-
sumption of law that a debt is paid, even though it
be due by specialty..

In Montalet v. Murray, 4 Cranch, 46, the judg-ceived.
ment was reversed, because it did not appear
from the record that the Circuit Court had ju-
risdiction, and with costs, following Winchester
v. Jackson, ubi supra,and thereupon, it is stated
in the report, that, "On the last day of the Term,
the court gave the following general directions
to the clerk: that, in cases of reversal, costs do
not go of course, but in all cases of affirmance
they do; and that when a judgment is reversed
for want of jurisdiction, it must be without
costs." No formal rule of the court covers the
case of a reversal on that ground, although para-
graph 3 of Rule 24, which provides, that "In
cases of reversal of any judgment or decree in
this court, costs shall be allowed to the plaintiff
in error or appellant, unless otherwise ordered
by the court," leaves room for the exercise of
discretion in its application to such cases. The

whole subject was very much discussed by Mr.

Justice Woodbury in the case of Burnham v.
Rangeley, 2 Wood. & M., 417-424, where he
collects a large number of authorities on the sub-
ject. In the present case, the writ of error is
not dismissed for want of jurisdiction in this
court; on the contrary, the jurisdiction of the
court is exercised in reversing the judgment for
want of jurisdiction in the Circuit Court; and
although, in a formal and nominal sense, the
plaintiffs in error prevail in obtaining a reversal
of a judgment against them, the cause of that
reversal is their own fault in invoking a juris-
diction to which they had no right to resort, and
its effect is, to defeat the entire proceeding
which they originated and have prosecuted. In
a true and proper sense, the plaintiffs in error
are the losing and not the prevailing party and,
this court having jurisdiction, upon their writ
of error, so to determine, and in that determina-
tion being compelled to reverse the judgment,
of which, on other grounds, they complain, al-
though denying their right to be heard for that
purpose, has jurisdiction, also, in order to give
effect to its judgment upon the whole case
against them, to do what justice and right seem
to require, by awarding judgment against them
for the costs that have accrued in this court.

The judgment of the Circuit Court is, accord-
ingly, reversed, with costs, against the plaintiffs
in error, and the cause is remanded to the Circuit
Court, with directions to render a judgment
against them for costs in that court and to remand
the cause to the Court of Common Pleas of Ful-
ton County, Ohio; and it is so ordered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.
Cited-112 U. 8., 98, 231, 720; 113 U. S., 598; 114 U.

8., 264.

6. By the law of Missouri, a judgment is presumed paid after twenty years. This presumption is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an Act of limita[No. 313.]

tion.

Submitted Apr. 9, 1884. Decided Apr. 21, 1884.

APPEAL from the Circuit Court of the Unit

souri.

ed States for the Eastern District of Mis

The history and facts appear in the

Statement of the case by Mr. Justice Woods: This bill was filed by the appellant on May 11, 1880. Its material allegations were as follows: the appellant was born in 1806, and was the daughter of the late Daniel Clark of the City of New Orleans. On July 13, 1813, Clark duly executed his last will and testament, by which he devised and bequeathed to the appellant all his estate. He died August 16, 1813. Appellant did not know that she was the daughter of Clark until 1834. On June 18 of that year she propounded for probate in the Parish Court for the Parish of Orleans, Louisiana, his last will, [396] and after a litigation of more than twenty years it was admitted to probate on February 23,1856. In the meantime, in the year 1827, she had become of age; in 1832 she was married to William W. Whitney, who died in 1838; and in 1846 she was married to General Edmund P. Gaines. Gen. Gaines died in 1858, and appellant has since remained a widow.

A short time after the death of Clark, in 1813, Richard Relf and Beverly Chew "Began to act as executors of his estate in their own wrong and without authority of law, under a will of Clark executed in the year 1811, which had been revoked by his will of 1813." By power of attorney, they appointed Samuel Hammond, the defendant's intestate, their agent to sell and convey the lands belonging to the estate of Clark lying in the State of Missouri. Hammond,prior to April 9, 1819, sold lands and received therefor, over and above the credits and commissions to which he was entitled, the sum of $6,841.80. Relf and Chew sued Hammond for the money so received by him, and in August,

[397]

There is no averment in the bill of complaint of any ground of equity jurisdiction. No trust is alleged, no discovery is sought. The appellant has no lien on the property of Hammond's estate and avers none. The only semblance of a fraud alleged is, that Hammond fraudulently absconded and secretly left the State of Missouri, concealing himself by traveling in places unknown to the appellant. But this averment does not relate to the cause of action. It is only made as an excuse for not bringing the suit at an earlier time, and to take the case out of the bar of the Statute of Limitations. The law of Missouri, R. S., sec. 3244, provides that if any

1819, recovered a judgment against him there- | 464; Hall v. Marston, 17 Mass., 575; Claflin v.
for. On October 8, 1823, an execution was is- Godfrey, 21 Pick., 1. The remedy at law is
sued on the judgment and levied on lands of adequate and complete.
Hammond, being the north half of New Madrid,
survey No. 2,500, which were bought in by
Relf and Chew, and the purchase money there-
of, to wit: $427.77, credited on the judgment.
Hammond was a resident of Missouri from
about the year 1815 until December, 1824, when,
being insolvent and indebted to the estate of
Clark for the balance due on said judgment, he
fraudulently absconded and secretly left the
State of Missouri, concealing himself from_ap-
pellant by traveling to places unknown to her.
He went to the State of South Carolina, where
he lived until his death, which took place in
August, 1842. No letters of administration were
taken out on the estate of Hammond until Oc-person, by absconding or concealing himself,
tober 25, 1879, when property of his estate in
the State of Missouri having been discovered,
letters were granted to the appellee, Charles
Miller, by the Probate Court of the City of
St. Louis.

prevent the commencement of an action, such
action may be commenced within the time lim-
ited by the Statute, after the commencement of
such action shall have ceased to be so prevented.
The excuse made by appellant for not sooner
The prayer of the bill was, that the court bringing her suit was, therefore, available in an
would decree that the estate of Hammond was action at law. Having found assets of Ham-
indebted to appellant in the sum of money de-mond's estate in Missouri, and an administrator
manded, namely: $6,841.80, with the interest
thereon, and that she was equitably entitled to
recover the same in this suit.

The defendant filed a demurrer to the bill on
the following among other grounds: 1. Because
the case stated in the bill is one of which a
court of equity has no jurisdiction; and 2, be-
cause the bill shows that a suit had been brought
by those recognized by the court as the lawful
representatives of Daniel Clark, and that more
than sixty years ago judgment had been ren-
dered therein against Hammond for the same
money for which this suit was brought, and
that such judginent had never been vacated or
reversed.

The circuit court sustained the demurrer and
dismissed the bill, and the complainant appealed.
Mr. Britton A. Hill, for appellant.
Mr. Henry H. Denison, for appellee.

Mr. Justice Woods delivered the opinion of

the court:

The demurrer was properly sustained on both grounds.

The theory of the bill, as appears from its averments and as it is stated by counsel for appellant, is, that appellant is the proper party to sue, in her own name, for the proceeds of the lands of her father's estate, sold by Hammond in 1819 under power of attorney from Relf and Chew, and that by bringing this suit she affirms and ratifies the sale.

The appellant having ratified the sale, the only obligation which can rest upon Hammond's administrator is to pay over to the appellant the money received by Hammond as the consideration of the sale. It is, therefore, simply a case of money had and received by him for the use of appellant, and a declaration in assumpsit on the common counts would have fully stated the appellant's cause of action. Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Pickard v. Bankes, 13 East, 20; [398] Spratt v. Hobhouse, 4 Bing., 173; Israel v. Douglass, 1 H. Bl., 239; Beardsley v. Root, 11 Johns.

having been appointed, an action at law was the plain and adequate method for the recovery of the appellant's rights. The circuit court, sitting as a court of equity, had, therefore, no jurisdiction of the case. Hipp v. Babin, 19 How., 271 [60 U. S., XV., 633].

The second ground of demurrer is also well taken. The appellant, by ratifying the sale made by Relf and Chew, through their agent, Hammond, ratified the acts of Relf and Chew in respect to the purchase money received by Hammond. If Hammond, as their agent, had paid over to them the money received from the sales made by him, the appellant could not, having ratified the sale, repudiate the payment. If a principal ratifies that which favors him, he ratifies the whole. Skinner v. Dayton, 19 Johns., 554; Odiorne v. Maxcy, 13 Mass., 182; Menkins v. Watson, 27 Mo., 163; Atwood v. Small, 6 Cl. & F., 232. By ratifying the sale, the appellant places herself in the position of Relf and Chew, and Hammond has the same [399] rights against her as he had against them.

Relf and Chew having sued Hammond and recovered judgment against him for the money received by him, the demand for the money was merged in the judgment. They could not bring suit on the claim for the money. Biddleson v. Whitel, 1 W. Bl., 506; Wayman v. Cochrane, 35 Ill., 152. Neither could the appellant. Their only remedy was to enforce the judgment or to bring another suit upon it. If the judgment was paid, Hammond was discharged from any demand either by Relf and Chew or the appellant.

There is a conclusive presumption of law that the judgment has been paid. By an Act of the territorial Legislature, passed January 20, 1816, the common law of England was adopted as the law of the Territory of Missouri. By the common law, the lapse of twenty years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. Oswald v. Leigh, 1 T. R., 270. Lesley v. Nones, 7 Serg. & R., 410; Jackson v. Wood, 12 Johns., 242; Best, Presump., sec. 137;

And, by the Revised Statutes of Missouri of

1835, page 396, it was provided as follows:
"Every judgment and decree of any court here-
after rendered or made, shall be presumed to be
paid and satisfied after the expiration of twenty
years from the time of giving such judgment or
decree, and every judgment and decree ren-
dered or made at the time this Act shall take
effect, shall be presumed to be paid and satisfied
after the expiration of twenty years from the
time this Act shall take effect."

This provision has been substantially continued in force to the present time (1 R. S. Mo., sec. 3251) and forms a part of the settled jurisprudence of the State. In the case of Clemens v. Wilkinson, 10 Mo., 98, it was held by the Supreme Court that, as to judgments rendered prior to the Act of 1835, the presumption of payment after twenty years, raised by the common [400] law, continues unaffected by that Act, which, as to such judgments, is only cumulative. This presumption is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an Act of limitation. Cape Giraudeau Co. v. Harbison, 58 Mo., 90; Smith v. Benton, 15 Mo., 371.

Statement of the case by Mr. Justice Woods: The suit was brought by Stafford, the appellee, against Hornbuckle and Marshall, the appellants, to restrain them from diverting from his ditch a certain quantity of water to which he claimed to be entitled. The complaint alleged that the appellee was entitled to such quantity of the waters of Avalanche Creek or Gulch as it is sometimes called in the record, in the County of Meagher, and Territory of Montana, as would amount to thirty-five inches miners' measurement, at any point on said creek [390] above the place where the White and Tower ditch taps the same, and that his right to said quantity of water was, on July 11, 1871, established by a decree of the District Court for the Third Judicial District of Montana in a suit wherein one John Gallagher and the appellants were plaintiffs, and one Basey and the appellee and others were defendants. The decree was affirmed on appeal by the Supreme Court of the Territory of Montana and, on appeal from the latter court, was affirmed by this court. The case is reported under the name of Basey v. Gallagher, 20 Wall., 670 [87 U. S., XXII., 452]. The complaint further alleged that the appellee was the owner of a water ditch known as the Basey ditch, which tapped said creek about one mile below what was known as the Avalanche ditch, and above the White and Tower ditch, and was entitled to flow into said ditch such a volume of water of Avalanche Creek as would make thirty-five inches miners' measurement at the head of the White and Tower ditch, which would be equivalent to one hundred and twentyfive inches at the head of the Basey ditch. The complaint then charged that on April, 1878, the appellants unlawfully diverted all of the water of said creek above the heads of the Basey and the White and Tower ditches so as to prevent the water or any part of it from flowing James H. McKenney, Clerk, Sup. Court, U. 8. into the ditches of the appellee, and continued

If, therefore, twenty years after its date, suit
had been brought against Hammond, in his life-
time, on the judgment recovered against him by
Relf and Chew, he could have availed himself
of the conclusive presumption which that law
raises, that the judgment had been paid. The
presumption is no weaker when the suit is
brought against the administrator of his estate
sixty-one years after the date of the judgment.
The case, therefore, as stated by the bill, is
this: appellant seeks to recover on a claim for
money had and received, which had been re-
duced to judgment more than sixty years, and
which the law conclusively presumed had been
paid more than forty years before her suit was
brought.

We are of opinion, therefore, that the decree of
the Circuit Court sustaining the demurrer to the
bill was right, and it must be affirmed.
True copy. Test:

JAMES HORNBUCKLE ET AL., Piffs. in

Err. and Appts.

v.

JOSEPH V. STAFFORD.

(See S. C., Reporter's ed., 389-395.)

Pleadings as evidence of issues tried-exclusion
of immaterial evidence-decree, when conclusive
-evidence of reservation in a deed.

to do so, notwithstanding the demand of ap-
pellee that they permit the water to flow into
his ditch.

The prayer of the complaint was that appel-
lants be forever enjoined and restrained from
diverting the water from the appellee's ditches,
and for general relief.

The answer of the appellants contained denials of all the material allegations of the complaint and specially averred that in the year 1869, a company named the Hellgate & Avalanche Ditch Company was formed by Samuel Clem and four associates to construct a ditch to conduct the waters of Avalanche Creek to the

1. Where a decree has been put in evidence, the
pleadings upon which it was based are admissible to
show what was tried in the suit, in a subsequent ac-foot hills of Cave Gulch; that appellee became
tion between the same parties.

2. Where the exclusion of evidence offered, in no
degree prejudiced the party, the decree will not be
reversed for error in excluding it.
3. A decree which remains in full force is not open
to contest in a subsequent suit between the same
parties.
4. When a reservation is made in a deed, it is not
necessary in order to give it effect, that the grantor
should, when he executes the deed, assert verbally
his right to the property excepted from the convey-
ance, and evidence that he made no such assertion
is inadmissible.

a member of the company and contributed to its property the White and Tower ditch and the water connected therewith, and the other associates contributed certain mining ground, and that each member of the company owned one sixth of the common property; that the company constructed its proposed ditch and after- [391] wards purchased the Basey ditch, etc., and that in the fall of the year 1870 all the waters of the Avalanche Creek were turned into the Hellgate & Avalanche ditch, including all the water to Submitted Apr. 9, 1884. Decided Apr. 21, 1884. which the appellee had any title, and thence

[No. 315.]

[392]

pellee was entitled, in his own right, to thirtyfive inches of the water of Avalanche Creek, or whether he held such right in trust for all the associates of the Hellgate & Avalanche Ditch Company; and whether, if the appellee had a several and individual right in the water, the deed made by him to the appellants on March 30, 1878, conveyed to them such individual right.

forward the water had always been nsed by the | Montana and afterwards affirmed by the Su-
company as the joint property of its members, preme Court of Montana and this court, the ap-
and that the appellee, until a short time before
the beginning of this suit, never set up any claim
to the exclusive use of any part thereof; that on
March 30, 1878, the appellee conveyed, by his
deed of that date, to the appellants all his inter-
est in the Hellgate & Avalanche Ditch Com-
pany, and since that time they have been the
exclusive owners of the Hellgate & Avalanche
ditch and all the water rights connected there-
with, having previously purchased the interests
of the other owners. The answer denied that
on July 11, 1871, a decree was rendered as
averred in the complaint, but admitted that a
decree was rendered in a cause wherein John
Gallagher and the appellants were plaintiffs,
and Basey and the appellee and others were de-
fendants, adjudging to the appellee thirty-five
inches of the water of Avalanche Creek, and
averred that the decree was so entered, award-
ing the water aforesaid to the appellee by the
consent of the members of said company,
and because the title to said water right stood
in the name of the appellee, and for no other
reason, but that the water was awarded to the
appellee in trust for the benefit of the owners of
the Hellgate & Avalanche Ditch Company.

Issue was taken on the answer by replication, and the issues of fact were tried by a jury, which returned a general verdict for the appellee and also returned certain special findings, as follows: they found that the thirty-five inches of water, decreed to the appellee by the decree of July 11, 1879, was held by the appellee for himself and as his own property, and not in trust for the members of the Hellgate & Avalanche Ditch Company, and that he had never parted with his right to said water to the company, either before or after the decree, and that after the decree the water did not belong to the Hellgate & Avalanche Ditch Company. Upon the general and special verdict of the jury, as well as upon the pleadings, proceedings and evidence in the cause, the court decreed that the appellee was entitled to the possession and enjoyment of thirty-five inches of the water of Avalanche Creek to flow in at the head of the White and Tower ditch, or one hundred and twenty-five inches to flow in at the head of the Basey ditch, and that he hold and enjoy the same, and that the appellants be forever enjoined from interfering with the unobstructed flow of said water to the ditches of the appellee. From this decree Hornbuckle and Marshall appealed to the Supreme Court of the Territory of Montana, by which the decree was affirmed. The same appellants have brought, by the present appeal, the decree of the Supreme Court of Montana to this court for review.

Messrs. Luther H. Pike and John H. Shober, for appellants.

No counsel appeared for the appellee.
Mr. Justice Woods delivered the opinion of
the court:

The appellee asserted that he held under the decree individually and in his own right the thirty-five inches of water, and that he did not convey such right to the appellants by the deed of March 30, 1878. The decree in the case of Gallagher and the present appellants v. Basey and the present appellee and another, rendered June 11, 1871, is upon its face a decree in favor of the appellee, individually and in his own right, declaring him to be entitled to the thirtyfive inches of water in Avalanche Creek. The Hellgate & Avalanche Company is not mentioned in the decree nor is there any intimation that the appellee was to hold the right to the [393] water in trust for any other person or company of persons.

It is also clear that the deed of the appellee to the appellants, of March 30, 1878, did not convey to them the right to the thirty-five inches of water awarded to the appellee by the decree of July 11, 1871. It was a quitclaim deed for his undivided four fifteenths interest in the property known as the Hellgate & Avalanche Ditch Company, and contained this reservation: "This deed shall not be so construed as to affect individual rights to waters in Avalanche Gulch."

The decree of the Supreme Court of Montana Territory in the present case must, therefore, be affirmed, unless the appellants can make good some of their assignments of error,

The first assignment of error relates to the refusal by the district court to admit in evidence the complaint and answer in the case of Gallagher v. Basey, offered by the appellants, the court having already admitted the decree rendered in that case. The purpose of the evidence offered was to explain the decree, and to show, by the complaint and answer, that the right to thirty-five inches of water awarded to the appellee by the decree was not his individual right, but was decreed to him in trust for the Hellgate & Avalanche Ditch Company.

The decree having been put in evidence it was clearly erroneous to exclude the pleadings upon which this decree was based. Even parol evidence is admissible, when necessary to show what was tried in a suit, the record of which is offered in a subsequent action between the same parties. Campbelî v. Rankin, 99 U. S., 261 [XXV., 435]. But in order to sustain the exception to the exclusion of the pleadings in the case of Gallagher v. Basey, it was necessary that the exception should show what the excluded testimony was, in order that it might appear The case, in its nature and substance, belongs whether the evidence was material or not. Dunto the equity side of the court. Basey v. Galla- lop v. Munroe, 7 Cranch, 242, 270; Reed v. gher, 20 Wall., 670 [87 U. S., XXII., 452]. The Gardner, 17 Wall., 409 [84 U. S., XXI., 665]; testimony is all in the record. The points con- Montville v. Tract Society, 123 Mass., 129. This tested between the parties were: whether, un- was done by the appellants. A copy of the comder the decree made July 11, 1871, by the Dis-plaint and answer in the case of Gallagher v. trict Court of the Third Judicial District of Basey and others is set out in the bill of excep 111 U. S.

U. S., Book 28.

30

469