LAMB, appellant, v. GASTON AND SIMPSON GOLD AND SILVER MINING COMPANY, respondent. ATTORNEY IN FACT― authority for appearance. The attorney in fact of a corporation, who is not its general managing agent, cannot appear in an action against it without special authority. PRACTICE-default-how set aside. A default should not be set aside, if the service has been regular, without affidavits of excusable neglect or inadvertence, and also of merits. CASE AFFIRMED. The case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57, affirmed. Appeal from the Third District, Lewis and Clarke County. THE facts in this case are substantially the same as those in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57. The pleadings, motions and orders of the court, MUNSON, J., are the same. This case was argued at the same time with that of Brown against same defendant, and the arguments are given in the report of that case. SHOBER & LOWRY and H. N. BLAKE, for appellant. CHUMASERO & CHADWICK, for respondent. KNOWLES, J. The facts presented in this case are in the main the same as those of Brown v. Gaston and Simpson Gold and Silver Mining Company. The only difference is the manner in which the respondent was brought into court. In this case R. Carter, who, it is claimed, was the managing agent of the respondent, a mining corporation, made a memorandum on the complaint, which it is claimed was a waiver of service of summons, in the following words: "I hereby waive service of summons in this action, and hereby appear as attorney in fact of said company. "HELENA, Nov. 25, 1867. "R. CARTER." The affidavits and brief filed in this case, and the proceedings subsequent to the signing of this memoranda, are the same as in the aforesaid case of Brown against this respondent. The court below, it would appear, held that this appearance was insufficient, unless it appeared that Carter had authority to appear in this cause for respondent. To establish this fact the appellants filed affidavits to show that he was a general managing agent of the respondent. The affidavit of Burdick establishes the fact of the genuineness of Carter's signature to the memoranda. But as far as the authority of Carter to appear in the cause is concerned, he only recites what Carter told him. While the evidence of Carter would be sufficient to establish his agency, what he said is incompetent. It is hearsay testimony. The affidavit of Cowan is mostly hearsay testimony. So for as it is not, it shows only that Carter acted for the company in settling his account. This would not be sufficient to warrant him in appearing in an action. The affidavit of King recites that he had seen a power of attorney to Carter from respondent, which had been sent him by telegraph. Waiving all objections to the proving of a power of attorney sent by telegraph, he does not state that there was in this any express power to appear in an action against the respondent or any one else. Nor does it show that he was a general managing agent. Carter himself does not, in the memoranda he signed, describe himself as a managing agent, but only as an attorney in fact. An attorney in fact, unless he has express authority to appear in an action, cannot do so. The authority for an attorney in fact to appear in a suit must appear within the term of the grant of power to him, unless he is a general managing agent of a corporation, and then perhaps it would be presumed. The managing agent of a corporation, however, to have this authority, must be one whose powers extend to the whole business of the company, and upon whom service of summons could be made in accordance with the provisions of the statute. Believing that there is not sufficient evidence to establish the fact that Carter was a general managing agent of the Gaston and Simpson Gold and Silver Mining Company; and waiving all objections to the power of attorney VOL. I.-9. which he received by telegraph, it not appearing that he had express authority to appear in suits against the respondent, we find no error in the ruling of the court below. However, if we believe that the affidavits filed did establish these facts, as the court below seems to, we would hold it improper practice to allow the respondent to have the default set aside, and be permitted to come in and answer without an affidavit of excusable neglect or inadvertence and merits. We hold, as in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, that in a cause where the manner in which a defendant is brought into court is defective, it is not error to allow him to come in and answer without any affidavit of excusable neglect or inadvertence and merits. In accordance with these views the order of the court below is affirmed, and the cause remanded for further proceedings. WARREN, C. J., concurred. Affirmed. GRIFFITH et al., respondents, v. HERSHFIELD et al., appel lants. STAMPS ON GOLD DUST CONTRACTS. A writing stating that a certain quantity of gold dust is due, without specifying its value, and a mortgage executed to secure the delivery of the same, are not "instruments for the payment of money," under the act of congress requiring stamps to be affixed to them. COUNTY RECORDER-authority-stamps. A county recorder is not authorized to determine the value of gold dust described in a mortgage which is presented to him for record, and cannot know what stamp should be affixed thereto before he records it. STAMPS ON MORTGAGE AND NOTE. It is legal to affix stamps to a note, or the mortgage executed to secure its payment, or both, if the amount on both is sufficient. PRACTICE-judgment on reserved verdict. It is not error to enter judgment upon a verdict which has been reserved for consideration, on the motion of complaining party. INTEREST ON JUDGMENTS. Judgments bear interest in this Territory at the rate of ten per centum per annum. Appeal from the Third District, Lewis and Clarke County. GRIFFITH and Thompson commenced this action to foreclose a mortgage executed by Hermann & Star, to secure the payment of a number of ounces of gold dust. The suit was brought in the district court in Jefferson county, on June 18, 1867, which was then attached to Edgerton county for judicial purposes. The name of Edgerton county was changed to Lewis and Clarke county by an act of the legislature, approved December 20, 1867. Hermann & Star made the following instrument, which formed a part of the complaint: "VIRGINIA CITY, M. T., October 17, 1866. Due Griffith & Thompson, or order, for balance due for building quartz mill as per settlement this date, the amount of ninety-three and one-half ounces (933 oz.) in good merchantable gold dust, and the amount of four and two-thirds ounces (4 oz.) per month additional, in merchantable gold dust, from date until paid. $1 U. S. Rev. Stamp, canceled. HERMANN & STAR." On the same date Hermann & Star executed a mortgage on their quartz mill, to secure the payment of the gold dust contract. The mill was situated in Jefferson county. The mortgage was acknowledged in Madison county on November 8, 1866, before a notary public, and filed for record with the county recorder of Jefferson county on November 10, 1866. The mortgage was stamped with an internal revenue stamp of the United States of the value of two dollars. Hermann & Star answered on July 1, 1867, and Hershfield and Hanauer, on the same day, filed their petition to intervene in the action, and stated the following facts: That Hermann & Star, on November 8, 1866, executed to Hershfield and Hanauer a deed to the property described in the mortgage to Griffith and Thompson; that this deed was recorded in the county recorder's office in Jefferson county, on November 14, 1866; and that it was executed for a valuable consideration, to secure the payment of money due from Hermann & Star to Hershfield and Hanauer. They prayed to be made parties to the action, to contest the claim of Griffith and Thompson; that their deed be declared a prior incumbrance to the plaintiffs' mortgage, and that the property be sold to satisfy their demand against Hermann & Star, being $16,940 and interest. The plaintiffs filed their answer to the petition of the intervenors, and the cause was tried in April, 1868, in the district court, MUNSON, J. On the trial the intervenors objected to the introduction of the mortgage from Hermann & Star to the plaintiffs, and also a certified copy of the same, which plaintiffs offered in evidence, on the ground that the mortgage was not legally stamped, and that the evidence that it had been recorded was insufficient. The objection was overruled, and the intervenors excepted. The jury returned a general verdict for the plaintiffs, and, among other special findings, that the value of the gold dust, mentioned in the instrument dated October 17, 1866, was $2,103.75. On motion of the counsel for the intervenors, the entry of judgment upon the verdict and findings of the jury was stayed, until they could be heard thereon. After the argument of counsel the court rendered its decree in favor of plaintiffs, on May 18, 1868, and the intervenors appealed. The amount of the judgment was $3,993.75, with interest thereon from May 18, 1868, at the rate of two and one-half per cent per month. CHUMASERO & CHADWICK, for appellants. The mortgage should have been excluded, because it was not sufficiently stamped. The complaint showed that the gold dust was of the value of $2,770.60. The mortgage should have had upon it a stamp of $3. It actually had a stamp of only $2. Int. Rev. Laws and Regulations, Series 3, No. 10, May 10, 1867, p. 12. The mortgage was not made until the day before its execution, on November 8, 1866, although it has the same date as the note. The note was not sufficiently stamped at the |