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The right of action survives in this case. The action is not for damage to character, feelings or person, but a tortious trespass upon the property of respondents, who were partners. Barb. on Parties, 158, 167; Sedgw. on Dam. 372, 453, 548.

WARREN, C. J. This action is brought to recover damages for the wrongful taking and conversion by defendants of $1,935 in treasury notes of the United States and national bank notes, the property of the partnership firm of Bohm & Aub.

The joint answer of Dunphy, Bentley and Armitage, by pregnant negatives, admits the taking of the money, and as new matter justifies it as having been done under a distress warrant for rent due defendants, Dunphy and Bentley, under a lease from them to one Ames, of certain premises, upon which the money in question was found, and from which it was taken. A demurrer was interposed to this answer, which was overruled, and afterward a replication was filed by plaintiff Bohm. Aub, the other partner, having died after the commencement of the suit, and the cause proceeding by leave of the court in the name of the survivor. The cause was tried by jury, who found a general verdict for plaintiff for $3,397.25, upon which judgment was rendered against defendants Dunphy, Bentley and Armitage. Defendant Morse, who answered separately, not being included in the judgment. A motion for a new trial was made and overruled, from which order, and from the judgment, defendants appeal.

With the view we take of this case it will be necessary to notice but few of the errors assigned. Upon the authorities cited in the exhaustive brief of appellants and that of the respondent, we are of opinion that the common-law right of distress for rent conflicts with the spirit of the legislation of this Territory, and is inapplicable to our condition. The statutory remedies given to the landlord by attachment, and for detainer of leased premises, supersede the right of distraint for rent, which had its origin in the feudal relations, and was the only means at common law to enforce payment of rent due. In all of the States in which the right is recognized in this country the legislatures have regulated the manner of its exercise and provided means for its execution, and the harshness and rigor incident to its origin have been mitigated. We have precedents in several States where, as here, the common law, so far as applicable, has been expressly adopted, for holding that the right of distraint for rent, even as modified by the acts of parliament cited by appellant in aid of it, is inconsistent with our institutions, and that it is peculiarly inapplicable here. Appellant claims that, inasmuch as the plaintiff did not abide his demurrer to the answer, but filed a replication, his denıurrer was thereby waived, and the issue of law thereby raised cannot be reviewed on this appeal. This would be true if the answer was defective only in form or in such matter as could be cured by a verdict, but it is our duty, in reviewing the errors assigned on an appeal, to review the entire record in respect to the matter assigned as error. The answer here purports to make a full defense by way of confession and avoidance, no replication was necessary, and the matter in avoidance being insufficient in substance for that purpose, to that extent an immaterial issue was formed which was wholly incapable of being tried, and no ruling of the court, or verdict of a jury, could give it validity. Had the verdict been for defendants, the plaintiff was entitled to a judgment non obstante veredicto. All that remained under the pleadings was the question of damages, which might properly have been assessed by jury. We are of opinion that, upon assessment of the damages, the facts alleged in the answer might, perhaps, have been given in evidence as a partial defense in mitigation of damages, even if not pleaded at all, but certainly were proper for the consideration of the jury when pleaded for that purpose, although not good as a full defense to the action.

In reference, then, to the measure of damages, the only thing before the jury. The complaint does not allege spe

cial damages and none were provable under it as such. The plaintiff could only recover such damages as directly and necessarily resulted from the act complained of, which would be the amount wrongfully taken, with legal interest for its detention, and such exemplary damages as the jury might give under proper instructions of the court, and within reason, under all the circumstances proven.

In this view all the instructions relative to the right and manner of distress are immaterial, except in so far as they might have misled the jury, which appellant does not claim.

The real error assigned, which is all we are to review, consists in the instructions upon the subject of exemplary damages. These are only given where the act complained of is willful, or there is either wanton recklessness or a deliberate intention to injure, and the court below erred in instructing the jury upon this subject that the fact that defendants acted under the advice of counsel could have no force. It is well settled that such fact, if in good faith, is proper for the consideration of the jury in connection with the question of exemplary damages, which have for their foundation the animus and circumstances attending the act. It appears from the evidence that the defendants in this case acted under the advice of an attorney whose recognized experience and abilities gave weight to his opinion upon a controverted question of law, which might well have commanded the confidence of defendants, and this fact should have gone to the jury for their consideration.

Regarding this action as prosecuted by Bohm as surviving partner to recover damages for the conversion of partnership property, we hold that it survived the death of Aub to the extent of such recovery, and that exemplary damages, being punitory in their nature, might also be recovered at the suit of the survivor, although matters personal in their nature to the deceased, which in his life-time might have been given in evidence in aggravation of damages, were improperly admitted.

For the errors in relation to the assessment of the damages contained in the instructions the cause is reversed and remanded for a new trial in accordance with the principles of this opinion.

Exceptions sustained.

1 312 2 471 2 540

1 342 12 349 12 527 30* 291 31 73

1 342 19 133

BLACK, respondent, 1. APPOLONIO et al., appellants.

11 342

24 79

1 342 28 356 1 342 136 81

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PRACTICE — continuance - diligence - affidavit and facts considered. The re

fusal of the court below to grant a continuance will not be reviewed if there has not been a gross abuse of discretion. In determining what diligence has been used to obtain evidence, the court must consider not only the affidavit for a continuance, but facts within its judicial knowledge of the con

dition of the country and means of communication. CASE AFFIRMED — mechanic's lien. The case of Mason v. Germain, ante, p. 263,

deciding that the lien of a mechanic is not destroyed, if the court finds that the party has claimed, without fraud, more than he was entitled to,

affirmed. STATUTORY CONSTRUCTION - law relating to mechanicsliens remedial. The

act "securing liens to mechanics and others” should be strictly followed,

but it is a remedial statute and should be liberally construed. STATUTURY CONSTRUCTION "just and true account.Under the act secur

ing liens to mechanics and others," the words, "a just and true account," do not mean the exact account for which judgment may be entered, but

an honest statement of the account by the party claiming the lien. STATUTORY CONSTRUCTION — mechanics' liens implied contract. Under tho

act“ securing liens to mechanics and others" a mechanic is entitled to his lien for the payment of his services, which have been performed under an

implied contract. HOFFMAN v. WALTON DOUBTED. Hoffman v. Walton, 36 Mo. 613, gives too strict

a construction to the statute securing liens to mechanics.

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Appeal from the Third District, Lewis and Clarke County.

BLACK brought this action in May, 1870, to recover $719.50 and interest, and have the same decreed a lien on the “Walla Walla Hotel.” The lien set forth in the complaint was as follows: “Know all men by these presents that, under an agreement with Joseph Appolonio, the owner of the premises (description omitted by reporter), the undersigned has performed labor and furnished materials in and about (description): That said materials were furnished and labor performed (time omitted by reporter): That the amount due thereof, and for which the undersigned claims a lien, is the sum of seven hundred and nineteen so dollars, over and above all payments and set-offs.

“I, the undersigned, Joseph Black, do hereby make known my intention to hold a lien upon the above described premises *

* for the said sum of $719% and interest thereon

In the affidavit, Black swears that the foregoing notice “is true in all respects, and contains a just and true account of the demand due him, after deducting all proper credits and offsets."

Appolonio failed to appear and answer. The other defendants, Higgins, Hagadorn and Woolman, who had a mortgage on the premises from Appolonio, answered and denied all the material allegations of the complaint, and claimed that their mortgage was a prior lien to the pretended lien of Black.

In July, 1870, the cause was continued, on the application of Higgins, Hagadorn and Woolman, to procure the depositions of Appolonio and one Rafferty. In October, 1870, another application was made by the same defendants for a continuance to enable them to obtain the same depositions. The affidavit alleged that Rafferty and Appolonio were near Cedar creek, in Montana, about two hundred miles from Helena, and that the defendants had written letters and made inquiries to ascertain their whereabouts before the term commenced.

This motion for a continuance was overruled, and defendants excepted. The cause was then tried by the court, SYMES, J., who entered a judgment for Black for $719.50, and a decree for the sale of the premises to secure the payment of $600 of said judgment.

The motion for a new trial was overruled by the court, SYMES, J., and defendants, Higgins, Hagadorn and Woolman, appealed.

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