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REPORT OF CASES
HWLBWWY
DETERMINED I1 TH I
o\O.
SUPREME COURT
WIICZI.
UNIV.
OF
OI TH]
STATE OF COLORADO.
O-ii-.
BY L. B. FRANCE.
qu
J70
ii
VOL. V'.
CO.\"!AY.1\G cmsns DECIDED xr THE APRIL TERM, 1879; 1'1-11: oc
CHICAGOi
STATE OF COLORAD0.
SAMUEL H. ELBERT, C. J.
WILBUR F. STONE, J.
WILLIAM E. BECK.
KEYES DANFORTH,
Clerk.
CHARLES H. TOLL,
Attorney-general.
IPAGE
IPAGE
21
Charles v. Eshelman et al. Exrs 107
Cheeley, Clayton et al. v........ 337
Childs et al. Mattison v......... 78
342
People ex rel.........
-
281
Cody v. Filley.................
124
Smith....................... 160
Colorado Cent. R. R. Co. v.
Holmes..................... 197
Colorado Cent. R. R. Co. v.
Holmes..................... 516
Colorado Cent. R. R. Co. v. Lea
e t al......................... 192
118
v. Henderson
6
400
Behymer v. Cook.............. 395
Binkleman, Meyer et al. v...... 133
Binkleman, Meyer et al. v...... 262
Bissell et al. v. Cushman....... 76
C. Pueblo Co. v. Sloan
T. . . . . . . . . . . . . . . . . . . . . . . .
P:
*: C. C. Pueblo
*: Impl., &c.
247
et al. . . . . . . . . . . . . . . . . . . . . . . .
Co. Haas et
- W. . . . . . . . . . . . . . . . . . . . . . . .
206
338
184
395
VO. V. . . . . . . . . . . . . . . . . . . . . . .
Boughton, Peo
Boughner v. Meyer............
Bradbury et al. v. Davis....... 265
Bradbury et al. v. Davis........ 341
Brown v. Willoughby..........
30
1
345
26.)
341
295
Dickson v. Moffatt............. 114
(v)
- -
- - - -
- -
"
1%
vi
E.
PAGE
4:36
508
In re Roberts.................. 525
- - -
I.
F.
K.
124
Fisher v. Greene...............
Fraker, Morris v. . . . . . . . . . . . . . .
Fritz, Finnerty et al. v. . . . . . . . .
8.
541
4.25
174
400
2:;
I'
all . . . . . . . . . . . . . . . . . . . . . . . . . .
V. . . . . . . . . . . . . . . . . . . . . . . . . . .
14
192
54
George, Willoughby v. . . . . . . . .
162
80
- - - *
- - -
37
lo Co.... . . . . . . . . . . . . . . . . . . . 125
244
3 S7
M.
Mc.
McClelland et al. v. Burns. . . . . . 50t
McFarren v. Knox et al... . . . . . . 217
McGan et al. v. O'Neil... . . . . . . 43.3
McGan et al. v. O'Neil. . . . . . . . . 58
- - - -
- - - -
- -
Hawley v. Barker.............
Hedges, Morgan v. .............
118
50
Heiderer, Crisman v. ... . . . . . . . 589
Manning v. Haas..............
37
78
Meyer, Boughner v. . . . . . . . . . . . 71
Meyer et al. v. Binkleman. . . . . . 13.3
Meyer et al. v. Binkleman. . . . . . 262
Moffatt Dickson v. . . . . . . . . . . . . . 114
O.
Vll
PAGE
PAGE
P.
29
46
... I '.
' g|#
# ##": #|s'Anthony #####
Co.
# # v. Curley........v. #
' |########"
ney
582
. UO. etc. V. "I'ler-
J arte.......
''''"'.'s parte. . . . . . .
. ..;
; ; , . . . . . ;... . . . . . .
#|########
Pollard v. Shively et al. . . . . . . . . | Swisher, Lutterell et al. v......
ipe v. Smith................. 1
... we
--
W -
- -*
54
et al......... . . . . . . . . . . . . . . .
# ''
R.
Riddell et al. v. Animas Canon
T. R. Co.................... -2:30
Roberts,
T. Derry
H. inv.re.
Ross et al.
. . .. .. .. .. .. .. .. .. .. ..
525
295
2:
162
U.
371
W
-
Wadsworth,
Huston
et al. v....'.
v... . 213
Wheeler,
adr,
etc. Givens
598
S.
Willoughby, Brown v. . . . . . . . . .
65 | Willoughby v. George. . . . . . . . . .
Wooton v. Seigel....... . . . . . . .
Wyman v. Colo. Nat'l B'k.....
126
1
80
424
30
'
PAGE
Barron v. Mason . . . . . . . . . . . . . . 10
Barton v. St. L. & I. M.R. R. Co. 404
Adams v. Hackett . . . . . . . . . . . ..
Etna N. B. v. Fourth N. B... ..
Aldrich v. Cooper. . . . . . . . . . . . . .
Aldrich v. Dunbar . . . . . . . . . . . . .
Allain v. Hartshorne . . . . . . . . . . .
Allen v. Clark . . . . . . . . . . . . . . . . .
Allamnn v. The Mayor, etc. . . . .
170
189
101
121
34
470
-588
Z16
470
38-"1
499
4%..-">
362
Bradley v. Gregory.
Bradshaw v. Davis. . . . . . . . . . .
Brady v. Spurk . . . . . . . . . . . . . . ..
Brandas v. Barnett . . . . . . . . . . ..
Brennan v. Ford . . . . . . . . . . . . ..
Broad v. Murray . . . . . . . . - - . . ..
Brooks v. Norris....'. . . . . . . . . ..
Brooklyn Bank v. DeGramo. . ..
Brown v. European & N. A. Ry
Co . . . . . . . . . . . . . . . . . . . . . . . . . .
Brown v. N. Y. C. R. R. . . . . . ..
269
34
173
396
81
479
404
517
Brown v. Simms . . . . . . . . . . . . . . .
Brush v. Scribner . . . . . . . . . . . . . .
Buffalo R. R. Co. v. Ca.rey.. ...
Burch v. Hurdwicke . . . . . . . . . . .
Burch v. Scott . . . . . . . . . . . . . . . ..
Burlei h v. Piper . . . . . . . . . . . . . .
B. &
R. R. v. Bartlett . . . . ..
Burrou he v. McNeill . . . . . . . . ..
Butholg v. Goldsmith . . . . . . . . ..
Butler v. Walker . . . . . . . . . . . . . .
Butteriield v. Smith . . . . . . . . . . .
(ix)
470
34
2*"!
421
4'H
2->7
305
299
571
I167
260
PAGE
PAGE
Carlisle v. Cooper.............
299
Carlisle v. Stevenson. . . . . . . . . . . 594
157, 268
Carpenter v. Williamson.......
8
-
- - -
- - *
* *
* -
- - -
- - - -
- - -
g0. . . . . . . . . . . . . . . . . . . . . . . . . .
422
497
44
- - -
- - -
- - - - -
- - - - -
- - - -
- -
292
101
357
405
404
470
138
539
127
357
Clark v. Field................. 350 | Dow v. Rattle. . . . . . . . . . . . . . . . 77
Clark v. Gridley. . . . . . . . . . . . . . .
8
Drew v. Swift. . . . . . . . . . . . . . 315-317
Clark v. Merchants Bank. . . . . . . 34 | Duggan v. Gittings. . . . . . . . . . . . 131
Clarket al. v. Merchant's Bank.. 36 | Dunscombe v. Prindle......... 528
Cody v. Butterfield............
39
- -
288
Eggleston v. Buck...
... 127
357 | Eld v. Gorham................ 528
M.
Xl
PAGE
Field v. Jones.................
Filley v. Cody.............. 127.
Finley v. Stere. . . . . . . . . . . . . . . .
Finley v. Williams. . . . . . . . . . . .
5
10
239
316
189
Fisher v. Philadelphia......... 71
Fithian v. N. Y. & E. R. R. Co. 17
Fleet v. Young......... ..... 8182
Folger v. Columbian Ins. Co.... 17
Fordyce v. Godman........... 528
Fornshell v. Murray. . . . . . . . . . . 350
Forsythe v. Warren... . . . . . 355357
Fouke v. Fleming.............. 529
First N. Bk v. Whitman... . . .
||
|
|
|
|
|
|
Co.........................
Francis v. Wells............... 60 | Heaton v. Myers. . . . . . . . . . . . . .
Frank v. Miner................ 166 | Henkle v. Alslatt. . . . . . . . . . . . :
Frantz v. Fleitz............... 514 | Henley v. Wadsworth. . . . . . . . . .
284
2:39
470
540
79
12
470
470
483
540
190
124
159
2.85
485
Griffith v. Lovell.............. 470 | Jones et al. v. Smith. . . . . . . . . . . 228
Grim v. Norris................ 215 Jones v. Myreck. . . . . . . . . . . . . . . 470
509
Xll
PAGE
McDowell v. Stewart..........
Kelsey v. Murphy......... . . . .
Kennedy v. Williams..........
Kerfoot v. Hyman. . . . . . . . . . . . .
122
264
176
v. Watson. . . . . . . . . . . . 165
al. v. McFarran. . . . . . . 222
Howell. . . . . . . . . . . . . . . . 191
v. Heim. . . . . . . . . . . 478-485
Latapee v. Pecholier............
Lanson v. Patch. . . .
.
Leavitt v. Putnam
.
Lee v. Pile....................
Lee v. Tillotson................
22
# Co.M.
- - - - - - - -
588
agrath v. Magrath........ . . .
Manning v. McClure........... 34
March v. Wright.............. 165
Martin v. Cole................
Martin v. Force ...............
Mason v. Barff............... .
Mav v. Hanson....... . . . . . .
Mellor v. Walentine............
Merriman v. David............
136
3S5
190
79
27
176
Monroe v. West. . . . . . . . . . . . . . .
485
581
137
Morgan v. Clayton....
13
269
217
Legg et al. v. The Mayor... . . . . 528
v. Simonton......... 20, 172
Leroy v. Platte................ 299
Levy v. Brannan.... .......... 12
Lewis v. The Baltimore & O. R.
R. Co................... ... , 520
191
176
Logan v. Gadney..............
4:22
Loomis v. Tifft................ 226
Love et al. v. Miller............ 179
Lyles v. State................. 71
Lynch v. Fallon.....
176
Lynch v. Johnson.............. 170
- - - - - -
- -
Jyman v. Lyman..............
470
406
210
470
362
226
315
X111
PAGE
PAGE
499
119
I19
434
474
135
Scribner v. Collar............. 176
v. Draper..
.... 458
v. Fisher.......... 461 | Seaman v. Hogeboon..
316
432
v. Starne....
Shanon v. Marsells
470
v. Stewart.
Shaw v. Carbray...
581
v. Turner......... 131 | Sherman v. Story..
528
v. Utica Ins. Co... 42 | Sheets v. Selden......
360
v. Wilson. 279, 446, 453 | Shepherd v. Adams............ 470
People, The ex rel. etc. v. HurlShepherd v. Hedden...... ..... 176
burt........................
Shopshire v. Glasscock et al.... 74
People, The ex rel etc. v. LangShort v. Miller......... . . . . . . . 181
don . . . . ....... - - - - - - - - - - - Siegel v. Gould................ 176
People The ex rel. etc. v. KeelSkeil v. Sparks.............. . 470
ing. . . . . . . . . . . . ......
489 Skillman v. Lackman.......... 112
v. Mahaney........
- -
....
.
.
.
.
...
Seeley v. Peters......
- - - - -
Phelan v. Olney...............
Phillips v. Quick..............
469
514
Pierpont v; Crouch............ 41
Smith v. Pipe..................
Pim v. Nicholson..............
41
162
- -
- - -
176
222
. Warman. . . . . . . . . . ...
4's
v. Seay...........
V. S
490
2
368
573
.301
Robinson, arte. . . . . . . . . . . .
Rogers v. Dickey............
Rondell v. Fay.......... ... ... 285
xiv
PAGE
Veazie v. Williams............. 15
Vermute v. Shaw. . . . . . . . . . . . . . 3-6
s: et al. v. Marshall S. M.
O . . . . . .. . . . . . . . . . . . .. . . . .
74
17
17
102
282
Waters v. Moss.... . . . . . . . . . . . .
Watson v. Thrall.... . . . . . . . . . .
Weaver v. Fries. . . . . . . . . . . . . . .
Weed v. Bond................
Welch v. Darrah.... . . . . . . . . . .
Wellman In re. . . . . . . . . . . . . . . .
Wells v. Morton . . . . . . . . . . . . . . .
4:32
124
136
7.3
216
528
15
200
289
White v. Gray. . . . . . . . . . . . . . . .
Whitney v. Belden............
479
434
- - -
- -
Whittle v. Frankland..........
Tobey v. Foreman... . . . . . . . . . .
Todd v Old Colony R. R. . . . . . .
594
205
Troupe v. Smith...............
159
588
Willoughby v. George.........
- -
- -
- - - - -
- - -
Wilmarth v. Montford......... 10
Wilmerding v. Russ........... 157
Wilson v. Forsyth............. 226
Wilson v. McDowell. . . . . . . . . . . 127
Umstead v. Buskirk. . . . . . . . . . .
Union Gold M. Co. v. R. M. Nat.
B'k ........................
U. P. R. R. v. Rollins..........
U.S. v. Cornell.... . . . . . . . . . . .
v. Parrott...
. ..
Uther v. Riche...........
.
370
73
239
258
Young v. Cook.........
159
Young v. Jones............... 479
199
279
298
75
. . 446
Worthen v. Badgett...........
357
305
78
- -
52>
- - -
Young v. Ward...............
242
PROCEEDINGS
IN THE
' (Xv)
3(VI
C. W. WRIGHT,
Committee.
G. G. SYMEs,
J. T. DEw EESE,
I first be
the post. Soon after, Gov. King called on me, and I had a pleas
ant and instructive talk with him regarding the people, and state
existed during the war. During this time Gov. King was promi
nent in counseling on the side of wise moderation, peace, law, and
federates alike, as they were called. In the law suits arising out
of the war, he appeared as the advocate of both these classes, be
xvii
And
the advocate who has been reared and practiced in that school till
past fty years of age, attempts s. bold and difficult undertak
ing when he goes to such new, different, and, to him, untried
elds, and enters the lists with those to the manner schooled and
reared. And it would be surprising if for some time he did occupy
so prominent a position or succeed as well as his real ability and
merits deserved. I do not say this in disparagement of the real legal
acquirements and abilities of that class oflawyers who were ne po
I think I have
xviii
My a.cqua'mt
that he made on me was that he was open, frank, and sincere, and
who, in all the affairs of life, traveled broad highways and in the
light of the sun. His life was an illustration that the teachings of
our profession inspire, as its duties are in harmony with the high
est honor and purest manhood. As citizen and attorney, as social
gentleman and true friend, right action was the rule of his life, as
noble actions were its daily impulse and ornament. There is no
measure of value for such a life, and consequently we may not esti
mate our loss; but while we mourn, we feel thankful that he lived
and was our professional brother.
PROCEEDINGS
IN THE
Upon the 16th day of April, A. D. 1881, the same being one of
the days of the April term, A. D. 1881. Tuonas M. Pxrrsasou,
Esq., having been appointed for that purpose, presented to the
court the following preamble and resolutions which had been
Resolve, That the loss of our deceased brother from the pro
fession, and from the family and social circle of which he was ii.
loved and respected member, is one, the poignance of which time
alone can soften, but can never repair; for while lapse of years and
lifes busy cares may dull the pain and make the bitterness of the
present a hallowed memory in the future, yet that the world is so
much the poorer by the loss of his ability, integrity and kindness,
stands and must ever stand, a. sadly admitted fact for which coin
ing years offer neither hope of retum or present or future com
pensation.
(xix)
xx
ion of our fellows and thus deserve the smiles and approval of
i'0d, bis lifes work had been well and faithfully done; for we
now and cheerfully bear witness that he was able in intellect,
onest in purpose and action, pure in heart and ever conscientious,
-Jurteous and kind, which qualities, coupled with a noble ambition
1 be foremost in every good work, had drawn to him friends in
very walk in life, and has left to us an example to be emulated,
of his adoption, and that he was worthy to enjoy the rights and
privileges bestowed by our institutions, and has conrmed the wis
dom of the fathers in inviting all lovers of liberty to a. welcome
home upon our shores.
tend to them our sympathy and regard in the great loss, to the
one of a. husband, kind and true, and to the other of a son who has
xxi
Europe, and that the same be published in the daily papers of this
city."
his life been spared, greater success doubtless awaited his talents
of no ordinary mark, and of no ordinary training; still he
lived long enough to gather the richest harvest that life a'ords
the love, respect and condence of his fellow men.
No life, perhaps, is fuller of unencouraged etfort and post
poned reward than that of the earnest, conscientious, laborious
attorney.
most esteemed and admired him. I feel that the best service I
can render the profession upon this occasion, as well as the kind
est tribute I can pay to his memory, is to direct your attention to
his life and character, and this indorsement of them by his breth
xxii
ren of the bar, and bid you draw from them incentive encourage
ment and strength for lives of right action and high endeavor.
His home as well as his heart was ever open to receive his
friends, and his treatment of them was alwtys princely.
He was a. man of much intellectual power, and was possessed of
an indomitable energy and will. Cut down in the prime of man
hood, he had not reached the acme of fame to which he must have
risen had his life been prolonged, yet single handed, and upon his
merits, he had achieved a distinction as a lawyer, a soldier and a
statesman, of which any man might be proud.
In his death the bar has lost one of its brightest ornaments,
society one of its most useful citizens, while the loss sustained by
the home circle is beyond my power to express.
has cast a gloom over the entire community, wide spread and deep,
but there is one true and contiding spirit more nearly crushed by
the cruel blow than any other, and it is meet that she be assured of
our heartfelt sympathies. Her husband was her life, and the wor.<l
now seems dark and lone to her that he is gone. Doubtless, in her
bitter anguish, she has felt the force of the sentiment:
When the storm dies, the leaf that grew
Out of its heart must perish too."
But it should a'ord her some comfort to know that the many
hearts that grieve at the loss of her husband deeply sympathize
in
xxiii
with her in this great sorrow which has come to her life. The re
ection must also be consoling that he whom she chose in the
morning of life to be her protector and partner in lil'es journey,
acted well his part under all circumstances, and left a name un
RULES OF TELE
WRITS OF
RULE I.
ERROR-SUPERSEDEAS-PROCESS
ERROR.
ON
WRITS OF
When a writ
xxvi
the first day of the term of court next succeeding such return day
A defendant upon whom process has not been served may enter
his appearance, and upon five days' notice to the plaintiff, may
proceed in the same manner as if duly served with process.
RULE III. If a scire facias or summons to hear errors shall not
be served, an alias or pluries may be issued without an order of
court therefor.
from which it was issued, together with the copy of the writ of
error served on him, and shall set forth in his return to such exe
by an attorney-in
fact, the original power of attorney shall be filed with the bond in
xxvii
Rules of Practice.
the office of the clerk of this court, unless it shall appear that the
power of attorney contains other powers than the mere power to
execute the bond in question, in which case the original power of
attorney shall be presented to the clerk, and a true copy thereof
the verdict in jury trials, the judgment of the court below and
all orders of the court, the bill of exceptions, the appeal bond in
cases appealed.
Court.
RULE XIII.
xxviii
errors stated, but the court may, in its discretion, notice any other
errors appearing in the record.
ABSTRACT OF THE RECORD.
fully the points of the pleadings or evidence, and the points relied
upon for the reversal of the judgment or decree; the clerk of the
court below shall also number each folio of one hundred words in
the cause heard at the same term, or the court may dismiss the
appeal or writ of error.
RULE XVIII. If the abstracts filed shall not present the parts
of the record to which reference is made in the assignment of er
the appeal or writ of error may be dismissed.
xxix
Rules of Practice.
RULE XXIV.
XXX
WITHDRAWAL OF PAPERS.
AGREED CASE.
xxxi
Rules of Practice.
probable cause for granting the prayer of the petition, all further
have power to order and direct that such transcript be made and
furnished to the defendant without charge.
RULE XXXIII. No person shalt be admitted to practice as an
attorney or counselor at law upon evidence that he hath been ad
mitted to the bar of another State or Territory, if at the time of
his admission to the bar of such State or Territory, he was a citi
zen of this Territory.
RULE XXXIV.
this State, who shall not rst have taken and subscribed an oath
that it is bona cle his intention to become a citizen of the State
of Colorado and to make the practice of the law his permanent
and usual occupation, and that he will commence the practice of
law therein within three months from the date thereof; and the
fee of the clerk of the Supreme Court for ling such oath, and en
tering the name of such party upon the record and issuing a
license, shall be ten dollars.
LIBRARY.
RULE XXXV. No book shall be withdrawn from the library
of this court, for any purp_0se except by the order of the court in
open session.
xxxii
RULE XXXVI.
RULE XXXVII.
RULE XXXVIII.
any time upon order signed by either two of the justices of the
court, and led in the oice of the clerk at least fteen days prior
to the day appointed for the assembling of the court. The clerk,
on receipt of such order, shall forthwith enter the same at length
in the records of the court, and give notice of the appointment of
such special term, and the day appointed therefor, in one or more
newspapers published at the seat of government.
Rum: XXXIX. N0 appeal shall be deemed returnable to any
special term.
CONTESTED ELECTIONS.
RULE XL.
xx xiii
Rules of Practice.
Third.
The oice.
ing party, that the causes set forth are true, as he verily believes.
RULE XLI. It shall be the duty of the Secretary of State and
the County Clerk to safely keep and preserve all such statements
in their respective offices.
RULE XLII.
the ling of such petition the clerk of this court shall issue asum
mons directed to the sheri' of the county where defendant
sides, under the seal thereof, which summons shall bear teste in
name of the chief justice, and be returnable in not less than
nor more than thirty days, which summons may be served by
re
the
ten
the
case the court may grant the relief asked for, either with or with.
ont proof, as in its judgment is proper. If defendant appear he
shall answer the petition, which answer shall be under oath. The
suiciency of either petition or answer may be questioned by demur
rer, and if found defective, may be amended on suoh terms as the
xxxiv
tion of a jury.
to issue any and all orders to carry into eect its ndings and
judgments.
RULE XLVII. The court shall in each case award costs to the
successful party, and executions shall issue therefor, the same as in
xxxv
Rulcs of Practice.
rules of law to support the application, also set forth the circum
stances which, in the opinion of the applicant, render it necessary
or proper that the writ should issue originally from this court,
and not from such other c0urtthe suiciency or insufficiency of
such circumstances so set forth in that behalf will be determined
by the court in awarding or refusing the application. ln case
any court, justice, or other oiccr, or any board or other tribu
nal, in the discharge of duties of a public character, be named in
the application as respondent, the petition shall also disclose the
name or names of the real party or parties, if any, in interest, or
whose interest would be directly alfected by the proceedings, and
in such case it shall be the duty of the applicant obtaining an or
dnr for any such writ, to serve or cause to be served upon such
party or parties in interest a true copy of the petition and of the
CASES
IN THE
BROWN v. IVILLOUGHBY.
1. In taking an appeal from an order denying a motion for a new trial,
under section 338 of the code, notice of the appeal must be given within sixty
days after the making of the order.
2. An intermediate order within the meaning of section 346 of the
co e, is an order from which no appeal can be taken, and which, but for the
provision of the code, could not be reviewed.
3. Where no appeal is taken from an order denying a motion for a new
trial. the court will not examine the evidence with a view to determine
whether it is sufficient to support the judgment. But any error of law in ad
mitting or excluding evidence, may be reviewed on appeal from the judg
m--nt, if made part of the record by bill Of exceptions or statement on appeal.
4.
was committed is not necessary, nor is it essential that the prosecutor should
Irnorr the facts and circumstances upon which he predicates his belief. He
may act upon credible information or deceptive appearances of guilt, if he
acts in good faith.
5. If in such case the defendant can show that he had probable cause for
his conduct in instituting the proeecution. he is not liable.
Probable cause is
such a state of facts in the mind of the prosecutor as would lead a man of
ordinary prudence and caution to believe, or entertain an honest and strong
suspcion, that the person arrested is guilty.
6.
malice is also requisite to sustain the action. Actual malice may be proved
by the acts and clcclarutions of the party, or it may be inferred by the jury
from the want of probable cause.
(1)
his wife, and two ladies named Jochmus and Watson, with the
understanding that he was to account for the goods selected at
the same rates the like articles should realize at the public
sale. Being informed by Clark that he was content, Willoughby
made his selections prior to and during several days of the
sale. The goods so selected were divided into three parcels;
one lot was delivered to Mrs. Jochmus and one to Mrs. Watson,
thereupon requested Clark & Co. to sell the goods selected for
himself and wife, at public sale, which was done, and the pro
ceeds accounted for and paid to Brown.
Brown v. Willoughby.
ponderancc of testimony
- 1. That the defendant, Brown, instituted and prosecuted, or
caused to be instituted and prosecuted, the criminal suit against
the plaintiff, Willoiigliby, for the crime of larceny, upon the
3.
3d. Unless you believe from the evidence that Brown did
institute or cause to be instituted the said criminal prosecution
against Wrilloughby, then your verdict shall be for the de
fendant.
It is not to be inferred
cause, but upon the honest and reasonable belief of the party
prosecuting.
6th. The court further instructs the jury that if you should
nd from the evidence that there was a feeling existing in the
mind of Brown against Willoilghby that amounts to malice,
still from that fact, if you so nd, you will not presume that
the defendant, Brown, acted without probable cause that 'Wil
loughby had been guilty of larceny as charged.
+
h 7th. If you should nd from the evidence that defendant
did institute or advise the prosecution of the plaintiff, for the
larceny of the goods described in the indictment, then to enti
Brown v. Willoughby.
tle the plaintiff to a verdict, you must find also that he insti
tuted or advised the prosecution maliciously. .
8th. The fact that defendant employed an attorney to as
sist in the prosecution of plaintiff, if you find he did so, is no
evidence of malice sufficient to support this action.
9th. The court further instructs the jury that by the ex
pression without reasonable or probable cause, is meant the
want of the knowledge of the existence of such facts and cir
cumstances on the part of the defendant as would lead a pru
dent and careful person to honestly believe that the plaintiff
was guilty of the crime imputed to him in the said indict
ment; and if you believe from the evidence that the said
plaintiff was acquitted by the jury that tried him under the
said indictment; that the plaintiff upon that trial offered
no proof in his defense; that the plaintiff bore a good charac
ter prior to the making of that charge, and that his reputa
tion in this respect was known to the defendant; that the
plaintiff took the goods mentioned in the indictment, openly
avowing and declaring his intention so to do; that the plain
tiff told the defendant before the finding of said indictment
why and under what circumstances he had taken the said
goods; that the plaintiff accounted for the said goods to the
said defendant; that the plaintiff took the goods while he was
sheriff and holding them under a writ of execution; and that
the defendant knew all these facts, if they be facts, before the
finding of the indictmentthen the court instructs you that
there was a want of reasonable or probable cause, and your
verdict must be for the plaintiff, provided you further believe
from the evidence, that Brown maliciously prosecuted Wil
against Mines & Elliot, and that Brown was informed before
the commencement of the prosecution against Willoughby,
11th. The court further instructs the jury, that if the goods
levied upon by Willoughby, as sheriff, by virtue of the execu
tion in evidence, were the goods of Hobson and others, the
defendants in said execution, then in that case, Willoughby.
when he made said levy and took possession of said goods,
became the bailee ofsaid Hobson at al.,' and if he converted
any portion of said goods to his own use with intent to steal
the same, he would be guilty of larceny. And if you believe
from the evidence, that Brown believed said goods to be the
goods of said Hobson et al. when the levy was made, and he
was credibly informed that said Wllltlllgllby did convert a por
tion of said goods to his own use, without accounting for the
same, and without their being sold at public sale, and that said
Brown v. Willougliby.
tiff, upon the said indictment ; that the said plaintiff has been
damaged by reason of such prosecution, and that such prose
yet, if the jury further believe, that before the nding of the
said indictment, on the 18th day of September, A. D. 1875,
the said defendant learned that the information which he had
instruction:
Brown v. Willoughby.
separate and distinct crime, and the juryis elsewhere told sub
stantially that if Brown prosecuted or instigated the prosecu
tion of either one of the ve counts, maliciously and without
probable cause as to such count, he is guilty ot' malicious
prosecution.
10
there was probable cause for the prosecution, in the eye of the
law, he is guiltless. It therefore becomes important to con
sider what is meant by want of probable cause. If upon
this point the charge was erroneous, the verdict ought not to
stand.
11
Brown v. Willougliby'.
12
\\'illl'ully false.
Ile read
bond, the special execution and the return thereof, in the suit
13
Brown v. Willoughby.
Reversed.
A petition for a re-hearing was led in this case, and a re
hearing granted, with directions to counsel to conne their dis
cussion to the instruction upon the_question of want of probable
reversed.
14
BIN.
1. Under the Code ( 150) the clerks of the District Courts are authorized
to enter up judgments in vacation. The theory upon which judgments are so
entered is that the judgment is the sentence which the law itself pronounces
15
The
16
STATE or Cononano,
Arapahoe County,
S8
'
17
Tay
lor et al. v. Gllliqn. ct al. '23 Texas, 598; Field at cl. v. Jonas
18
Ilooper v. Win
19
that date for $439.45, with interest from date at the rate of
two per cent. per month until paid, payable on or before Oc
tober 10th, to the plaintiff or order; that defendants never
paid said sum of money or any'part thereof either when the
I.
II.
date until the same was paid, at the rate of two per cent. per
month.
of said sum and said note, said Moison executed and delivered
20
. . off.
21
[C LL
523
Reversed.
adoption of the constitution, clothed with all the powers theretofore possessed
by the probate courts.
4. A house built for the use of the mine and being part of the mining
property, may be sold with the mine for the purpose of enforcing a lien un
der the statute. Powder, steel and candles fumished for the use of the mine,
held to be clearly Within the meaning of the statute, and for which u lion
may be enforced.
'
24
Gallagher et al.
the office of the county clerk; that William Gillett and others
claimed to have liens, and prayed that they be made defend
ants; and that he might be decreed to have a lien, etc., for the
balance of the amount, $148.31, alleged to be due him. Sum
mons was issued, returnable to the April term, 1877. Some
per cent. per annum, be paid by July 25, 1877; and in default,
that the master should make sale of the property on the 25th
of August, 1877, upon not less than twenty days notice.
To
25
say:
26
the trial, must ascertain the sum due to each claimant before a
decree is rendered, directing the sale of the property, and the
application of its proceeds to the claimants in proportion to
But
where there are but few parties, and the claims are not com
plicated, no objection is perceived to submitting the whole
case to the same jury.' But a nal decree, ordering a sale of
the property, should not be rendered until the sum due each
claimants were led with the county clerk in the manner pro
vided by statute in the following month, January, 1877. Upon
this state of facts, it is claimed by plaintiffs in error that no
valid decree could be rendered against the Keystone Mining
27
Company, for the reason that at the time the property was con.
veyed to the company there were no liens in existence; that
such liens only attach from the date of ling the statements
that the legal effect of the latter clause of section 7, of the act
of 1872, which declares that all liens herein p'rovided for shall
be preferred to every other lien or incumbrance which shall
the time when the work or labor was commenced, or the rst
of the materials furnished; and also to all mortgages and en
cumbrances unrecorded at the time such work or labor was
gommenced, or the rst of' such materials were furnished, etc.,
tion claimed by such courts prior to June 22, 1877, but by the
provisions of Sec. 9 of the schedule of the constitution, which
are that The terms probate court, or probate judge,
28
The act under which the proceedings were had provides, that
the premises may be sold within the time and in the manner
provided for sales on executions issued out of any court of
record. That the sale was made in accordance with the statute
appears by the record. The regularity of the decree in this
29
Decree affirmed.
amend his return, he must apply to the court below. The affi
30
Bank (defendant) at the time for balance, overdraft. The draft was paid;
after payment, but before proceeds came to defendants hands, defendant was
notified that plaintiff had delivered the draft to C for collection, and that
plaintiff claimed the proceeds; held, that defendant was not liable in assumpsit
for the proceeds.
31
Respectfully Yours,
GEORGE C. CoRNING,
Thompson.
I inclose for collection and credit my
No. 2385, Norwood, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100.00
32
the draft. This notice was before the proceeds had come into
the hands of defendant, but after the draft had been paid in
London. On the 15th of March, plaintiff, through his attor
neys, notified the defendant by letter that he claimed the pro
ceeds of the draft, and demanded payment thereof. The exact
date of the failure of Corning is not given in the record, but
from the testimony referring thereto, it appears to have been
in the latter part of February. From the evidence preserved
in the record it appears, both by the testimony of Thompson,
cashier of the Boulder bank (which was owned by Corning),
and by copies of the book accounts of both banks, that the two
banks were mutual collection agents, correspondents, and de
positaries for each other in respect to funds collected for and
remitted by and to each, according to the usual course of bank
ing business. The checks of each bank were paid by the
other, and transactions embracing collections, checks and re
mittances of daily occurrence were debited and credited on the
books of each, and a settlement of accounts was had upon the
first of each month.
33
Ibid.
34
Bank.
Here,
The New
35
which latter bank made the collection and retained the pro
36
**
In this, as in all
other like cases, there is a hardship in the loss, let it fall upon
either the plaintiff or the defendant, but it is an elementary
rule that whenever one of two parties must suffer by the act of
a third, he who has enabled that third person to occasion the
loss must sustain it himself rather than the other innocent
party. The court below evidently found that the facts in this
case bring it within the law which governs in the case of a
bona fide holder of negotiable paper for value and without
notice, so as to discharge the defendant of the equities be
tween the original parties, and as we think the finding was
warranted by the evidence, we see no reason to disturb the
judgment.
Judgment affirmed.
37
MANNING v. HAAs.
1. In pleading under the Code, facts should be stated with certainty.
2. The execution of a note is a traversable fact, and it is a rule of plead
that it is necessary to state a time when every material or traversable fact
happened.
**
8.
3S
30
their bond.
Mr. JUSTICE SroNE, being a party, did not sit in this case.
40
(Laws 1864, p. 66, 28), may not establish and collect tolls at two gates
distant less than ten miles from each other.
41
If this be
42
43
such rates, and the said company have ever since collected tolls
at said gate, and still continue so to do; that in the month of
March last past (A. D. 1878), the said company erected a toll
house at a point upon their route, between the town of George
town, one of the termini of said road, and Fall River aforesaid,
in the county aforesaid, and have posted upon said house a no
tice of the rates of toll demanded by them thereat; that it is
less than ten miles from the said toll gate at Fall River to the
said last mentioned toll house, and that the rates of toll posted
thereat as aforesaid have never been prescribed by the county
commissioners of, or any tribunal transacting county business
in, said Clear Creek county, as required by law; that the said
company, for the space of at least three months last past, have
exercised without any warrant, charter, or grant, the franchise
1st.
44
may establish and collect tolls at two gates, distant less than
ten miles from each other. The section under which the com
pany was incorporated provides that said company shall have
Now
adjudge and decree that the said corporation, styled The Cen
tral and Georgetown Road Company, may erect toll gates upon
said road, not to exceed one to every ten miles of said road,
and may charge toll at said toll gate or gates, and the rates of
charges at any such toll gates shall be as follows, etc.
It is needless to say that the board of county commissioners
was powerless to authorize the erection of and taking of toll at
more than one gate to each ten miles. Their whole author
ity in the premises is based upon the statute under which the
company was organized, and it is to be presumed that the
45
46
ful.
the court in excluding the defendant only from the right and
privilege of collecting toll at the gate near Lawson, was, we
BARNDOLLAR ET AL. v.
PATTON.
2. Under the Code (section 31), a statement in the summons that said
action is brought to recover of the defendants herein named, the sum of
47
within one mouth after the ling of the complaint the plain
tiff may have a summons issued. This clearly refers to the
summons rst issued in the case. The Code makes no provis
ion for an alias summons. The Supreme Court of California,
in considering a like feature of the Code of that State, in the
case of Dupuy v. Shear, 29 Cal. 2-10, say: A technical alias
summons is not known to our law, and in fact, under our sys
The summons
4S
49
50
1\IoaG.\.N v. H1-mans.
Tins case will be found reported in volume four, Colorado
their conclusion, that the facts in this case warrant the affirm
but the net proceeds after sale thereof, that were. to be shared
between them.
51
Morgan v. Hedges.
the end of the growing season. There could have been little,
if anything, left for Morgan to do under the contract, until
the crop was ready to sell. Be this as it may, Hedges assented
to Morgans leaving. If then by reason of his going away, he
failed to perform any part of the contract, which by its terms
he was bound to perform, it was waived by Hedges in assent
ing to such modification of the contract. There was no express
relinquishment of Morgan's right of possession. Was it im
plied, and if so from what? Examine that portion of Morgan's
testimony quoted in the opinion of my brethren, as the prem
ises from which they hold that the jury might deduce the im
plication that Morgan abandoned his right of possession.
During the season the grasshoppers destroyed nearly all we
had at that time; the prospect was gloomy; there was some hay,
corn and onions left; I then told defendant I would go to Ro
sita, and that he should do what he could with what hay and
corn was left, so that I should get out of them what money I
had advanced.
and that I should have the money back that I had advanced
out of what should be left; that he had now a house to live in,
and would have no rent to pay, and that he could haul wood
to town to support himself through the winter. I then went
to Rosita.
the crops that were left, so that Morgan should get his money
out of them. What did this mean? Obviously, that
Hedges, who under the contract was to do the work of culti
vation, should go on with such work, care, cultivation
and harvesting of the crops, so that Morgan himself could
get his money out of them. Now let us see what interpreta
52
reasonable inference.
seed, and for the support of Hedges and his family during the
whole summer, agree that Hedges should not be liable for any
losses, work himself the most of the summer, and then with
out consideration abandon his right of possession of the entire
crop, and his chance of ever getting a dollar, is to my mind
53
Morgan v. Hedges.
54
50
St/sin v. Stein.
from which an appeal will lie are specied in the third divis
Appeal disrnissecl.
STEIN v. STEIN.
1. Desertion consists in the actual ceasing of cohabitation, and the intent
in the mind of the offending party to desert the other.
2. Matrimonial cohabitation must comprehend a living together as hus
band and wife, embracing relative duties as such.
Two
and four hundred dollars within one year; also that the
58
Stein v. Stein.
before October 1st. 1878, and that plaintiff have the care and
custody of the children. Other facts are stated in the opinion.
Otherwise, all
57
Stein v. Stein.
weeks slept in the barn, or at his oice, where he did sleep after
leaving the kitchen lounge.
Decree airmed.
58
2. Under the old system of practice a final decree could not be entered in
vacation.
59
3 Col. 562, this court uses the following: Whether the chan
YIWLWHWY
UMMOFMEL
Garrett v.
that the same should be read before the court on the nal
the special issues and at the nal hearing, and to found its
decree thereon, as may be warranted by all the facts elicited.
In so confused a state is the record that it is diicult
to say that it presents all the evidence taken.
The decree in some of its essentials was not settled and
signed during the term. The terms of sale, the length of
60
Section 1103 of the General Laws limits the duties of the Attorney-gen
eral to State cases instituted or pending in the Supreme Court of the State.
His duty to appear in State cases in inferior courts, would be obligatory only
when required to do so by the Governor or General Assembly.
4. It is the duty of the district attorneys to appear in the District Courts
of their respective districts on behalf of the State. (Gen. Laws, section 895;
Code, section 260.)
61
62
tion.
It is a general rule that where a statute provides the remedy
to test the right to exercise a franchise or otce, it is exclusive
of all other remedies. 2 Potter on Corp. Sec. 665; Palmer v.
Foleg/, 36, Superior Court Rep. (N. Y.) 14. An action for the
usurpation of an ofce or franchise, therefore, is a civil action
under the Code of this State, and must be governed by the
rules applicable thereto; must be instituted by ling a com
plaint and issuing a summons, and proceeded with the same as
63
Of such an
It
the proceeding.
The duties of the Attorney-general are prescribed by the
General Statutes, sections 1,103 to 1,108 inclusive.
Section
(id
With
this view, both the provisions of the general laws and the Code
harmonize.
65
CT ,-\ we
67
3 Black.
68
dismissed.
It is
69
\Ve are told that we must presume that they were English
speaking only.
Without this
In that
case the narr was in the Spanish language, and the doctrine
70
and the object of the statute was to banish from English courts
of justice the use of the Norman or low French introduced
after the Conquest. This appears to be the only statute on the
subject prior to the fourth year of James I. How far and with
71
Boughner v. Meyer.
Affirmed.
BoUGHNER V. MEYER.
& J C R 34
1. A wager as to whether an execution can be collected, cannot be consid
ered as a wager upon any game within the meaning of the statute.
But as
72
Boughner v. Meyer.
must aver that the plaintiff had notice of the original transaction, and the
burden of proof of bad faith rests with him who assails the title on that
ground.
73
Bong-hner v. Meyer.
void.
The language employed is open to no other construction
The protection which the law extends to an innocent holder,
who for value in the usual course of trade has received nego
tiable paper, is of no avail when the statute in terms or by
unavoidable implication has pronounced the instrument abso
lutely void. Stricken with nullity at its birth, it can there
after gain no vitality. There is, however, a distinction recog
nized by the authorities between the status of negotiable paper
held by a bonafide purchaser where the original consideration
is by the courts adjudged to be illegal. and negotiable paper
held under like circumstances, when the statute declares such
paper to be void.
In Vallett v. Parker, 6 Wend. 615, the court says: When
ever the statute declares notes void, they are and must be so,
in the hands of every holder; but where they are adjudged by
the court to be so for failure, or the illegality of the consid
eration, they are void only in the hands of the original par
ties, or those who are chargeable with or have had notice of
the consideration.
To the same effect see Weed v. Bond, 21 Geo. 195; Glenn
74
The act of March 2, 1864 (Sess. Laws 1864, p. 97, Sec. 3):
To suppress gambling and gambling houses, extended in
terms to all negotioble paper where the consideration was for
money won on any wager; but the Revised Statutes of 1868
contain the same provisions as the section now under examina
tion, omitting the clause relating to any wager.
Where the effect of a statute is to make void a certain class
\"| U!
Bouglmer v. Meyer.
Was the answer which merely set up that which would have
been a good defense between the original parties suicient?
If this wagering contract was within the prohibition of the
statute, the defendant need not to have alleged that the plain
ti' had notice of the illegal character of the transaction, which
ultimated in giving the check, for in such case, into whose
hands soever it might have passed it was equally void. But
this check originating a transaction not within the interdict
of the statute, is, in the hands of a bone de purchaser, unaf
fected by the fact that it arose out of an illegal act, and it can
be by such holder collected.
In such case the defendant must aver that the plaintiff hacw
notice of the original transaction, leaving the circumstances by
which such notice is to be proved, directly or indirectly, to be
established by evidence.
76
any further action was taken. After the issues were made up
77
Bissell et al v. Cushman.
78
Judgment
Reversed.
.~
79
In this
Hzt1/z
80
ii
WVILLQUGHBY v. GEORGE.
1. Statutes limiting the time within which a. review may be had, whether
by appeal or writ of error, are in the nature of statutes of repose.
2. In appeal cases, when special pleading is not allowed. it is proper for the
respondent to apply to dismiss the appeal if it is not brought within the time
limited by the statute, orif the right to appeal is barred in any other manner.
3. Where the right to appeal is barred by lapse of time, the right to plead
the bar is a, vested right, and beyond the peril of subsequent legislation.
4. The statute (Act of 1879, Sec. 33, page 229), in so far as it allows a
writ of error to a, judgment in respect to which an appeal was barred prior
to its passage, is retrospective in its operation, andnot only within the con
stitutional prohibition, but within the prohibition of fundamental principles
governing retrospective laws.
opinion.
81
\Villoughby v. George.
10/e/L /awe been rendered since the rst day of October, A. .D.,
1877, by any district or county court. Sess. Laws 1879, Sec.
38, p. 229.
The present writ is sued out under the provisions of this
section. The motion to dismiss is based on the constitutional
prohibition of laws retrospective in their operation.
The Code (Sec. 338) provided that an appeal might be taken
from a nal judgment " within six months after the rendition
of the judgment.
82
Chancellor Kent, in
In the present case, after the lapse of the six months within
which an appeal could be taken, an appeal was barred. As the
law then stood, the controversy respecting the subject-matter
ot' the suit was closed; the issues involved were res judicata;
Georges right of property in the udgment was indefeasible,
and his right to plead the lapse of time as a bar to an appeal,
was a vested right and beyond the peril of subsequent legisla
tion. Otherwise no such judgment can be rested upon as nal,
but stands qualied by a perpetual condition of defeasance
resting in possible future legislation.
There is no difference in principle between this case and the
ordinary case of a right of action barred by the Statute of Lim-'
itation.
83
Ganebin v. Phelan.
84
have been good upon the railroad company, was good upon its
receiverS.
85
2. A person having two funds out of which to satisfy his demands, shall
not in equity by his election disappoint a party who has only one fund. The
assertion of the principle is not affected by the nature of the property which
constitutes the double fund, but applies wherever a paramount creditor holds
collateral security, or can resort collaterally to other real or personal property
for the satisfaction of his debt.
The prior incumbrancer is entitled to notice of the junior claim, and of the
intention of the junior creditor to compel the former to make his election in
compliance with this principle.
The rights of the junior creditor to have this principle administered is or
dinarily enforced by a decree of subrogation.
To charge the senior creditor, after notice, he must be shown to have been
a willful party to the dissipation or loss of the fund.
Wherethe second fund consisted of chattels remaining in the hands of the
ilebtor,held that the senior would not be accountable as for a perfect secu
l'ltV.
3. This court cannot consider matters of evidence upon stipulation merely,
and not properly brought up by the record.
86
87
88
held
said
was
than
89
time Browne became the owner of said land, said Smith held
said chattel mortgage against said personal estate of Duggan;
that said mortgage covered and was a valid lien upon said
personal property of Duggan, and that the same was sufficient
in value to pay Duggan's debt to Smith. Allege that Smith, by
neglecting to collect his debt from Duggan out of said personal
property, thereby lost all lien which he then had upon said
lands, and that defendants now are, by virtue of said purchase,
the owners of said lands and premises, and ought not in equity
to be compelled to pay said debt from Duggan to Smith.
Denies that the debt of Duggan to Smith was transferred to
complainant with consent of Duggan. Admit that on 20th
April, 1870, Smith conveyed to complainant by absolute deed
said lands; deny that Smith had any right or authority of
law to make such conveyance, and that the same was not made
90
91
92
Said
that it was nothing but a sham, etc., and was done to keep
said personal property from Duggaus creditors; that Smith
and Duggan had succeeded admirably in hiding Duggans real
93
more than a mere legal title therein, really fraudulent and with
no interest therein. Alleges that Duggan, notwithstanding said
deed to Smith and the one from Smith to Ross, remained on
94
ing unpaid, John Dee led a bill in said court, April term,
1873, against said Duggan, to foreclose said mortgage for the
purpose of paying said note. That at said term a decretal order
was rendered therein and the premises were sold by a master
in accordance therewith; that said Dee bid in said land for
$3.000, and the same was not redeemed ; and on the 16th of
95
96
97
purpose whatsoever.
the_ property of Browne. Denies that she ever had nor now has
more than a mere naked legal title, without interest therein.
Neither admits nor denies that nothwithstanding conveyance
from Smith to her, Dnggan remained on said lands and con
98
and such debt was a lien on said land by virtue of said mort
gage; that at that time Duggan gave her his note for said
sum, payable to her in one year, with interest 23 per month,
which was secured by said lands. Admits that on 7th Feb
ruary, 1872, Browne made to one Mary A. Duggan a quit
claim deed for said land, but as to the consideration in the deed
Admits that on
which is justly due and owing her from said Duggan, and
that any and all rights which O'Neil or any one else may have
or claim in or to said land, are subject to her said lien. Avers
99
#
!.
the legal title thereto conveyed to him by Ross; that the said
Ross shall convey such title to O'Neil on the incoming of
court on the morning of the 17th of October, 1878, and in de
fault thereof the master is appointed a special commissioner of
the court to convey said title; that a certified copy of the de
100
101
10 Mich. 349.
cases cited.
The allegations of fraudulent intent of conspiring to de
If a cred
102
103
security.
the debtor.
junior to the rst and not the second fund before the prior en
cumbrancer had been put in default. 7
104
lence, the creditor who has thus disabled himself from making
it, is not to be impaired thereby, provided he acted without
knowledge of the others rights, and with good faith and just
intentions, which is all that equity in such case requires.
The other debtor and sureties, to adopt the observations of
105
ings were had upon said bill, and are therefore unable to de
termine whether the decree of dismissal upon the bill and an
106
two particulars:
Rirst: In not alleging against the appellant such affirmative
or conclusive and intentional acts of negligence, resulting in
the loss of the chattel fund, as would constitute ground for
subrogation of the junior creditor to the prior right of the
appellant to the other fund.
Second: If the Browne bill is relied on as the notice by
which the appellant is to be bound, then it should have been
shown by the answer or cross-bill of appellees that the Browne
bill contained the proper averments to constitute it a sufficient
notice, to wit: that at the time of the filing of the Browne
bill, the goods and chattels which were the subject of the chat
tel mortgage were then in existence, were intact and available
as a fund from which appellant could realize all or a part of
her debt for which such fund was a security. 2 Lead. Cas. in
Eq. 238.
Without this, there could have been but one fund at the
time the question relating to it was raised, and hence the doc
trine contended for would have no foundation in fact.
DECEMBER T1-Jim
i\
oo \1 E9
107
108
and a. like result followed, the jury returning a verdict for the
estate.
Formal pleading
jury fees, may demand to have the cause tried by a jury, etc.
It was evidently the intention of the legislature to adopt the
same practice in respect to trials of issues of fact, in the county
court, when sitting for the purpose of the adjudication of
claims against the estate ofdeccased persons. as in ordinary
trials before justices of the peace, and the fact that the court is
permitted to exercise an equitable urisdiction in the allowance
109
such the estate was not liable, but that the claim must be pre
sented againgt the survivors only.
Parsons on Partnership,
110
111
11:3
I
Charles v. Eshleman et al.
had in fact assumed to do so; and the jury should have been
so informed. The force of the instructions as given, is that if
he assumed to employ the counsel for the owners, the latter,
and not the estate of the deceased, is bound, thus wholly ignor
ing the essential element of a binding contract, the authority
113
such case the claim should have been allowed. The rule is
that whenever a party undertakes to do any act as the agent
of another, if he does not possess any authority from the prin
cipal therefor, or if he exceeds the authority delegated to him,
he will be personally responsible to the person with whom he
Sec. 264.
'
Such tes
Judgment reversed.
114
Dickson v. Moffat.
For the errors of law intervening upon the trial, and men
tioned in the opinion in the latter cause, the judgment of the
court below will be reversed, and this cause remanded for a
new trial.
Judgment reversed.
DICKSON V. MOFFAT.
1. Where one contemplates entering into possession of the lands of
another to occupy for use, and is informed by the lessor that he can do so
upon terms stated, or for a reasonable compensation, and the party there
after makes entry, and occupies and uses the land, it is a good acceptance of
the terms proposed, and he will become thereby bound under an implied
contract to pay the sum named, or if no sum is named then such price as the
use was reasonably worth.
2. When the trial is to t e court, the finding will not be dist.rb d unless
m nifestly against the weight of evidence.
115
Dickson v. Moffat.
116
Dickson V. Moffat.
Sixth.
117
Dickson v. Moffat.
binding under the statute, beyond the period of one year from
the time it was made, this, nevertheless, cannot avail the ap
pellants, since under this agreement they were to pay a reason
able compensation for the use and occupancy of the plaintiff's
claims, and in this respect the evidence supports the judgment.
The contract was a very loose one, and of such a character as
should never be entered into without a full understanding by the
Judgment affirmed.
Justice BECK, before whom, as District Judge, the case was
tried below, did not sit in this case.
118
HAWLEY v. BARKER.
Under the statute (Gen. Laws, page 513, section 29), interest is not recover
able upon a verdict.
119
Hawley v. Barker.
Sec. 6.
120
three grounds:
First. That the verdict is an instrument of writing within
the meaning of the section.
Second. That it is a settlement of account within the mean
ing of the section.
Third. That in this case it may be treated as money
withheld by an unreasonable and vexatious delay, within the
meaning of the section.
Without reference to the question whether this can be re
(Bouvien)
121
Hawley v. Barker.
dict. Why the motion was not disposed of sooner does not
appear. The defendant had the right to contest the verdict
in all the modes prescribed by the law.
Under the
122
123
~_
-1.
Pan Ounmsr.
124
(Sess.
This, however, does not affect the rule that a joint appeal by
all the defendants, allowed upon the condition of ling a joint
Dismissed.
~.
Conv v. FILLEY.
Interest on a verdict is not recoverable.
125
Appeal dismissed.
STONE, Justice, having been of counsel in the court below,
did not participate in the decision.
126
Laws, p. 21.
Upon the trial the Justice found the issues against the de
fendants, Partridge & Moore, and rendered judgment against
them for the amount of the plaintiffs demand. Upon trial
of the issue joined as to Campbell, it was adjudged against
him, the court finding that Partridge & Moore were the owners
of the goods and chattels claimed, and that they were subject
to the writ of attachment.
127
128
and the word county inserted, which are the only changes
made in this particular. As the chapter has been transcribed
and now appears in the general laws, appeals lie to the county
court, and all necessary regulations exist for rendering them
129
cise and compact form, so as to have all the law upon each
subject arranged together under the same title as far as practi
cable, etc. Section four of this act provided that the secre
tary should make and print wi_th said law! his certicate certi
fying that they were published by authority of the State, and
such certicate so printed should be p'ri1na facie evidence of
the existence of such laws in all the courts of the State. A
subsequent section provided that when the secretary was in
doubt whether any of the general laws found in the former
prints of the statutes, would remain in force after the year 1877,
such laws concerning which he was in doubt, should be printed,
and all laws that he might decide would not remain in force,
130
131
138.
The acts under consideration are both airmative statutes.
The former prescribes both the appellate forum and the appel
late procedure; the latter act prescribes a different forum,
without any procedure, and contains a negative provision that
appeals shall not be taken to the forum mentioned in the prior
act. That portion of the former act, therefore, providing for
One has no
templated.
It is the duty of courts to so construe statutes, if possible,
as to avoid absurd results not within the evil to be remedied,
132
133
134
absence of the judge from his district. The neglect is theirs, and
not the judges. Again, if the absence of the judge from his dis
trict would amount to a. neglect or refusal within the spirit of
the statute, the fact of his absence does not suiciently appear
Oounsel states in his aidavit that he was so informed, but
that such information was correct, we have no evidence; so
that in the sense contended for there is no foundation for say
ing that the judge neglected or refused to allow the bill so as
to warrant its authentication by aidavit.
DUNN v. Guosr.
1. The statute (section 7, page 111 R. S.) xes the liability of an assignor
by endorsement of negotiable instruments after diligence against the maker
by suit, unless such suit would have been unavailing.
2. A plea and offer of proof to make a general indorsement a restrictive
one. or to show that the contract was different from that expressed, cannot
be done without a violation of established principles.
3.
existing between the maker and the payee. which app:-ars on the face of the
note, or of which he had notice at the time of the assignment, and in such
case it is immaterial whether the note was assigned before or after it be
came due.
4. In an action by an indorsee against an indorser, an answer which al
leges that the consideration received by the indorser, was less than the face
value of the note, is bad on demurrer.
5. If an indorser does not choose to x his own liability, the law will x
it for him.
____
_M__
135
Dunn v. Ghost.
136
137
'
Lead. Gas. Bills and Prom. Notes, 156. The Supreme Court
of Illinois, in construing a like statute, say:
The manifest intention of our act is to give the last assignee
the full benet of all the assignments. The policy of such an
enactment is obvious. Such being the condition of the last
138
ment, not only with his immediate assignee, but with all sub
sequent assignees, and is made liable on such contract by the
express terms of the statute. Every assignor shall be liable to
the assignee. Such liability is several, and attaches in favor
of each
An assignee.
express liability being thus created by the act, it is un-i
necessary there should be a privity of contract between the
remote assignor and the last assignee. * * * The promise
or contract growing out of the endorsement is by our act,
made assignable, and therefore the assignee of such a promise
or contract can maintain an action upon it. The endorsement
is on the paper itself; it accompanies it everywhere, and by
successive assignments in the same way, each one becomes a
contract of the same character to pay the last assignee in case
the maker is unable to pay. He is to have the benet of each
and every assignment. lf this were not the case, the situation
supra, and in which they hold the same doctrine, say: That
from such an endorsement the la\v implies a well dened con
tract, and that such contract casts a conditional liability on the
endorser, is conceded. And that such implied contract is con
elusive as between remote parties to the note without notice or
any di'erent express contract, is clear. Doolittle v. Ferry,
139
Dunn v. Ghost.
law xes the liability of the assignor. The ground of the rule
is, that if an endorser does not choose to x his own liability,
the law will x itfor him. Otherwise no one can know how
or to what extent an endorser in blank is bound. In the case
before us, if the endorsement was in blank, the assignee had a
right to ll it up by writing over the name of the endorser
thus : Pay to A. M. Ghost. In that case, what amount to
be paid would the order of the assiguor import? Certainly
not $10 ; not any sum less than the amount due on the note.
The legal import would be simply that the note was to be paid
according to its tenor.
It would be useless to attempt to review or reconcile the
great contrariety of decisions touching the liability of parties
to negotiable instruments. Much of this conict of opinion
arises out of the difference between the law merchant and spe
cial statutes wliich, like ours, govern the subject within a
particular State. In some of the States the rule as to the
measure of recovery, in the suit between assignor and assignee,
140
Judgment affirmed.
4. The fact found that an executor has not acted fraudulently cannot
avail him where his mismanagement has all the effects of a fraud.
141
his two children, Luella Stotts and Mary Stotts, and directed
that it be sold by the executor, at public sale, on six months'
credit, on good secured notes, and when any money was col
lected thereon that it should be loaned at interest to responsi
ble persons, and that the interest as collected should be applied
in educating the children; the principal and balance of interest
to be divided between the two daughters when the oldest was
twenty-one, or when eighteen if then married; the youngest to
receive her share when she was twenty-one, or when eighteen,
if married. The petition alleges that the appellee as executor
142
and for his own benefit and profit; has converted some of said
moneys and property of said estate unlawfully to his own use;
has invested said moneys and property of said estate on insuf
ficient and inadequate rates of interest; that he has not kept
proper books of account of his said doings, and has rendered
false, fraudulent and untrue accounts and reports to the pro
bate court and county court; has invested some of said funds
in his individual name, and not in his capacity as executor,
and has otherwise improperly acted, contrary to his duty as
executor.
together, and that said Stotts has not kept strict and accurate
book accounts of his transactions with said estate.
every rule which the law has established, and almost every duty
which the law imposes for the preservation of trust funds. By
his own testimony it appears that he has mingled the trust
moneys with his own, and used it in his private business, deal
ing in sheep and cattle and horses; that he has deposited in
143
banks to his own credit, and not to his credit as executor; that
he has loaned it, and taken the notes and securities payable to
I have no means of
the estate, than that already given. Don't know how many
times I have done that in my dealings with the estate. Don't
144
which would have shown upon call, or in case of his death, the
exact status of the trust fund, with items, dates, amounts,
names of parties, etc., etc.
The failure of the executor in any one of these particulars
migl1t not justify his removal or charge him in every case.
We lay down a general rule of duty, which such an executor
should observe, and any infraction of which the county courts,
as peculiarly the guardian of minor children, should promptly
denounce and correct. In this way the fund will preserve its
separate existence, capable of being clearly and .distinctly des
ignated and distinguished; and onlyin this way can trust funds
be protected and gross abuses be prevented.
The nding of the referee. that this mismanagement has
I-l
-L\
Ch
An executor cannot
individual estate.
10
Reversed.
146
PIPE V. SMITH.
1. Under the statute (Gen. Laws, Section 1,682), bills for relief on the
ground of fraud must be led within three years after the discovery, by the
aggrieved party, of the facts constituting the fraud.
2. The rule is, that where the fraud is committed more than three years
before the commencement of the action, the complaint should show that the
discovery was made within the three years next precding the commence
ment of the action.
3. The complainant must allege not only his ignorance of the fraud, but
when and how he discovered it.
_
4. The bar appearing on the face of the bill, a demurrer to the bill will
be sustained.
5. Courts of equity will not interfere if a party slumbers on his rights or
the means of detecting fraud. The full possession of the means of detect
ing a. fraud is the same as knowledge.
147
Pipe v. Smith.
Loveland, who was still then a citizen and large property own
er of said town, and who also subscribed the said agreement as
a party thereto, would advance and furnish to the probate judge
of said county of Jeiferson the necessary sum of money to en
able such probate judge to enter and pay for such lands, he,
148
149
Pipe v. Smith.
of said lands received by the said probate judge from the land
oicers at the time of such entry.
"
6th. That after the said citizens and occupants of lots had
received deeds of conveyance from the probate judge of said
county of Jefferson to the respective lots and parcels of said
lands, held by them respectively, and of all lots and parcels of
said lands to which they were respectively entitled,'in pursu
ance of law and of said agreement, Jonas M. Johnson, who had
then become probate judge of said county of Jefferson, duly
qualied and acting as such, on, to-wit, the 23d day of Decem
ber, A. D. 1864, in pursuance of law, and the trust in him re
150
son, wherein the said Hine was plaintiff and the said Smith
defendant, at, to-wit, the date of making and delivery of the
said deed of conveyance to the said Lovel-and, by the said pro
bate judge.
8th.
151
Pipe v. Smith.
152
ity of law, and in violation of the trust in him, the said pro
bate judge, reposed.
14th. That the parcel of land described in said deed from
City, but that since the said entry the same has been platted
and laid off into blocks and lots having streets and alleys, and
is now known as Bush and Fisher's addition to the town of
Golden.
153
Pipe v. Smith.
and Cass were each possessed and entitled, so far as the said
several deeds could make them, to an undivided one-sixth of
oud, had title thereto; that, afterwards, to-wit, on the 29th day
154
title thereto, conveyed the said lot six to the plaintiff; that on
or about the said 22nd day of August, A. D.1872, the plaintiff
obtained a quiet and peaceable possession of the said lots one,
two, three, four, ve and six, in block nine, in Bush and Fisl1ers
addition to the town of Golden aforesaid, and hath ever since
=.
ail
15-'5
Pipe v. Smith.
and improved the said lots in good faith; that the said lots
constitute and form a part of the land described in the said
deed from Joseph Mann, Judge, to the defendant.
156
murrer,
'
1st. That the said complaint does not state facts sufficient
to constitute a cause of action. 2d. That said complaint
3d.
'
157
Pipe v. Smith.
the deed to the defendant Smith, when (1) he had not led his
statement, as required by the town site act, within the ninety
days, and (2) when he was not an occupant of the premises.
Bills for relief on the ground of fraud must be led within
three years after the discovery b_v the aggrieved party of the
facts constituting the fraud. Gen. Laws, Sec. 1682. The deed
from the probate judge to Smith, which is sought to be an
nulled as fraudulent and void, was executed October 11, 1869.
the action.
appeared on the face of the bill, and the demurrer was prop
erly sustained.
Tunney, supra.
Sublette v.
1o8
:
159
Pipe v. Smith.
ing the fraud. Ang. Lim. Sec. 190; Young v. Cook, 30 Miss.
330; Johnson v. Johnson, 5 Ala. 103; Veazie v. Williams,
3 Story, 530; McClure v. Ashley, 7 Richardson's Eq. R. 440.
The presumption is that if a party affected by any fraudu
lent transaction or management, might with ordinary care and
attention have seasonably detected it, he seasonably had actual
160
C. C. R. R. Co. v. Smith.
3. Smith v. Pipe, 3 Col. 188, and 4 Col. 444, cited and approved.
2.
defendant.
161
C. C. R. R. Co. v. Smith.
162
George v. Tufts.
These are all the assignments that are noticed in the argu
ments of counsel, or that it is necessary to consider.
The judgment of the court below is affirmed, with costs.
Affirmed.
GEORGE v. TUFTS.
1. Where a cause is heard upon an agreed state of facts, no exception to
the judgment is necessary.
2. Secret liens, which treat the vendor of personal property who has de
livered possession of it to the purchaser, as the owner until payment of the
purchase money, cannot be maintained; they are constructively fraudulent
as to creditors.
163
George v. Tufts.
and I, and which are a part of several of like tenor and date,
the plaintiff was a manufacturer of soda fountains, etc.
Second. Previously to the execution of such notes, the firm
of Berbower & Walther, druggists and vendors of soda water,
entered into negotiations with the plaintiff for the purchase
by them from him of the property described in the pleadings
herein.
the first National Bank of Denver, the only other creditor pro
vided for in such conveyance, amounted to about five thousand
dollars.
164
the plaintiff and the said Berbower & Walther, and knew that
some of said notes were unpaid.
Ninth. Upon the execution of such conveyance to the de
fendant, he took possession of the property of said Walther,
and that he employed one William Town and said Walther, as
clerks, to take charge of and to sell and dispose of the same
under said defendants orders.
JAMES W. TUFTs,
By HoRNER & HARMON, his Attorneys.
T. GEORGE, Defendant.
The court announced its finding to be in favor of the defend
ant, and assessed his damages for the detention at one cent. A
motion for a new trial was interposed and allowed. The de
fendant moved for judgment on the finding already had; the
motion was denied, and the cause set down for trial, without a
jury, and on June 12, 1876, the court entered the following
finding and judgment :
And the court being now sufficiently advised in the prem
3 ises, it seemeth to the court that the title to the property, goods
and chattels in the said plaintiffs writ mentioned, is in the
plaintiff. Wherefore, on his motion, it is considered by the
court that the said plaintiff do have and retain of and from the
DECEMBER TERM,
1879.
165
George v. Tufts.
166
Horner v. Stout.
HoRNER V. STOUT.
The object of the statute (Gen. Laws 122) is to prevent fraud and decep
tion by precluding the mortgagor of personal property from holding him
self out to the world as an unqualified owner.
transfer the possession to the mortgagee, or give notice to the world of the
lien by acknowledging and recording the mortgage as required by the
statute.
167
Horner v. Stout.
The pos
168
Reversed.
HEXTER v. CLIFFORD.
1. Since the adoption of the Code, remedies therein provided for subject
ing the property of a judgment debtor to execution, must be pursued when
ever adequate for the purpose, and a bill in the nature of a. creditor's bill can"
not be maintained in such cases.
2. The fact that the property sought is a trust fund. interposes no obstacle
in subjecting it to the satisfaction of the judgment under the Code, when the
fund was created by the debt/or himself, and the fund sought to be reached
has risen from the sale of his own property.
3. A bar by the Statute of Limitations is a. defense in the nature of a spec
ial privilege, and must be pleaded specially.
'
169
Hexter V. Clifford.
of $14,400. That Michael did not pay any part of such purchase
money; and that after discharging the debt due him, there
remained due from Michael to Thomas, as such trustee, $4,400,
or thereabouts, and that no part of it has been paid. That
Thomas did not execute said trust in good faith, but confeder
ated with Michael to invest him with the title without pay
ment of the purchase-money, in violation of the trust, and
with intent to deprive Langrishe and his creditors of the bene
fit of the surplus due. That the plaintiff cannot ascertain the
true amount due from said Michael, nor can he reach the
140
creditors bill.
'
____
171
Hexter v. Clifford.
172
the trust has been created by, and the fund so held in trust
has proceeded from some person other than the debtor him
self.
the surplus of such fund, above the amount necessary for the
support of cestui que trust, may be reached by bill in equity,
The point is not well taken, however, in this case, for the
trust here was created by the debtor himself, and the fund
sought to be reached has arisen from the sale of his own prop
erty. The bill shows that the trustee sold the property, and
executed to the purchasers a deed of the premises sold, and
that he has not paid any portion of the purchase-money, but
the same remains still due and unpaid. The purchaser was
entitled to retain from the purchase-money the amount due
him from Langrishe, the judgment debtor, and it was his duty
to pay the balance over to the trustee. This he has failed to
do, which constitutes the unexecuted portion of the trust; noth
ing now remains but the payment of the surplus.
The fact that this surplus is a trust fund, interposes no ob
stacle in subjecting it to the satisfaction of the judgment un
der the Code proceedings. The promise of Michael D. Clifford
to pay the same, made to the trustee at time of sale, consti
tutes a simple contract with the trustee for the benefit of the
cestui que trust. Langrishe being the beneficiary, might, un
der the authority of Lehow v. Simonton et al. 3 Col. 346,
maintain an action at law in his own name against Michael D.
Clifford for its recovery; and if this be so, it is equally within
173
Hexter v. Clifford.
correspond to sections 292 and 29} of the New York Code, and
it is there held that proceedings under these sections are en
tirely independent of each other, and one may be instituted
and maintained without the other. 4 Waits Prac. p. 131.
p. 128.
The point is raised that the action is barred by the Statute
of Limitations, and this question is discussed in the briefs of
Judgment airmed.
174"
his commissions!
3. A title bond executed by the owner of the property, that only gives to
the obligee an option to purchase, but not being a mutual obligation binding
upon both contracting parties, is enforceable only by acceptance and perform
ance of its conditions during the continuance of the option.
4. Where an agent to sell negotiates such conditional sale as between
himself and his principal, the execution and delivery of such title bond. to the
purchaser or obligee, may be regarded as a sale of the property during the
option; and the agent may negotiate a sale of the same property for the
obligee without forfeiting his commissions.. But if the agent. concealing
from the obligee his agency to sell, induce the latter to undertake, in connec
tion with himself the purchase of the property, such concealment being ob-'
noxious to the rules of public policy, will avoid his commissions, whether the
seller knew of the double relation or not.
|~
~l
DECEMBER
TERM, 1879.
175
served that it is a well settled rule that the same person gan
not be both agent of the owner to sell, and agent of the pur
chaser to buy, for the reason that the interests of buyer and
seller necessarily conflict, and the same agent cannot serve
both employers with efficiency and fidelity. The interest of
the agent conflicts with his duty in such case. His duty to
the vendor to sell for the highest price is wholly incompatible
with his duty to the purchaser to buy for the lowest price, and
these inconsistent relations, if assumed, would expose him to
the temptation to sacrifice the interests of one party or the
other, in order to secure his double commissions. Wherefore,
it is the established policy of the law to remove all such
temptations, and to this end, every contract whereby an agent
is placed under a direct inducement to violate the confidence
reposed in him by his principal, is declared to be opposed to
public policy, and not capable of being enforced as against any
person who has a right to object. The effect of the rule is,
176
177
the gross net proceeds, free from all cost and expense, that may
be received and realized, over and above the respective amounts
mentioned in certain bonds for the sale of the Little Chief
of the mine could not be effected within the first thirty days,
Davies and Fritz entered into an agreement with Oviatt and
Cooper to share with them the profits which might be realized
in a sale of the mine, upon condition that the latter parties
advance the $25,000 forfeit money. The money was raised
under this arrangement, and paid to the appellants on the 26th
178
the mine, before the bond was executed; and that this under
standing or agreement was reduced to writing afterwards;
also, that at the time of these transactions he was not aware
is denied by Finnerty.
We have no hesitation in declaring, as a proposition of law,
179
The sale in this instance was not complete upon the execu
tion of the bond, owing to the peculiar nature of the instru
ment; and the duties of the agent, therefore, continued for
180
certain purposes. But they did not continue for the purpose
of negotiating a sale for the appellants. That branch of his
duty was fully performed, and as to it he was discharged. It
remained for the agent to do what he could to consummate the
sale contracted,.and any act of his which would interfere with
its consummation would be a breach of his duty. The reason
that the commissions were not due upon the execution of the
contract of sale, was that this contract was not mutually oblig
atory upon both vendor and vendee, and because the purchaser
yroduced. was not willing to enter into a contract of this nature.
The bond in question was one of those ordinary title bonds So
extensively employed in the mining regions of this State, by
means of which those desiring to speculate in mines before
purchasing the same outright, procure from the owners an
option to buy on payment of a. stipulated price, within a xed
period of time. The obligor binds himself to execute a deed
181
-
'
charged.
As to these mat
lation; and if the agent may become the agent of the purchas
182
183
the mine, and the proof that he would have purchased at this
price was insufficient to authorize the jury in finding that he
was prevented from buying the mine at this sum by the refu
I think, how
Its
agent.
184
Under the Code (Section 338) an appeal to this court on a judgment in the
District Court, rendered on appeal from the County Court, is barred after
ninety days from the rendition of the judgment. When the bar attaches it
cannot be disturbed by subsequent legislation.
at the present term, we held that the act of February 24, 1879,
Sess. Laws 1879, Sec. 38, p. 229, in so far as it allowed a writ
of error to a judgment, in respect to which an appeal was
barred prior to the passage of the act, was retrospective in its
operation, and within the constitutional prohibition of such
laws, and that the writ would not lie.
The motion to dismiss in this case is based upon that ruling.
It is contended, however, by the plaintiff in error, that an
appeal was taken in apt time, and that at the date of the pas
appeal.
185
4 Col. 75, the plaintiff in error could have taken his appeal
under either the old or new system.
As it was, his only remedy at the date of the judgment was
by an appeal under the provisions of the Code; and as the
186
that the circumstances must clearly indicate such an intention on the part of
the drawee.
.3.
187
1878, the date of said assignment, and demand for the moneys
in said complaint mentioned; that said sum of money due and
188
189
that a right of action does not exist where there has been no
acceptance or promise to pay, we do not hestitate to accord to
The
If this be true, then all the authorities are agreed that the
check-holder may maintain his action in his own name against
the drawee. It is not pretended that there was an express
190
'
left for acceptance May 29, and retained until the 9th day of
July, a period of forty-one days, when the drawee destroyed
it. He had previously refused to accept it, but the case does
not disclose the time of refusal. Lord Ellenborough was of
opinion that having detained the bill an unreasonable length
of time before certifying his refusal to accept, he should be
held liable. The other judges were of different opinions, how
ever. They considered that the bill having been left with the
drawee for acceptance, and not sent by letter, it was the duty
of the party leaving it to call for it and inquire whether it
was accepted, and not the duty of the drawee to send it back;
191
ees that it was not accepted, because the carriers receipt for
the wool against which it was drawn had not been received,
and offered to return it. He likewise stated that the bill was
retained by request of the drawers, to hold it until their in.
recovery was insisted upon on the ground that the bill had
been detained an unreasonable length of time, and that the
detention had been at the request of the drawers and without
the consent of the payees. Held, that the plai.nti' could not
recover. The circumstances showed that there was no inten
192
to pay any of the checks. Until the day on which they were
returned, there was not, at any time, sufficient funds on deposit
to the credit of the drawers to pay the two checks on which
193
194
said donation; and also provided that the time above specied
shall be the essence of this agreement; and if said extension
and connection is not made and completed, and trains running
thereon as aforesaid, by said rst day of December, 1877, then
Boulder county will not donate its said stock as aforesaid.
Resolved, That the certicate for said stock now held by
Boulder county be placed in escrow with Charles G. Bucking
ham, Esq., of the county of Boulder, to be held by him until
said rst day of December, A. D. 1877, or until the comple
tion of said extension of said railroad and said connection and
195
196
give them increased and superior facilities for traic and com
merce with both the Atlantic and Pacic seaboards, do not
make it any the less a donation within the intent of the inhi
bition.
These and similar considerations of public benet and ad
vantage, had constituted for years, under; our territorial gov
ernment, the basis of appeals for and grants of county and
municipal aid to railroad companies, and it was undoubtedly
the intention of the framers of the Constitution, whether
197
Affirmed.
Mr. Justice BECK did not sit in the case.
fendant, by the exercise of care on his part, might have avoided the conse-quences of the negligent conduct of the plaintiff.
3. As a rule, the existence of negligence is a question of fact for the jury,
but it is otherwise when the facts are not in dispute, or when the negligence
or its absence is evident and unquestionable. In such case the court may
/
198
appellant.
Messrs. Pxrrassou and CAMPBELL, for appellee.
are
199
C. C. R. R. Co. v. Holmes.
gence, but did not, the case is one of mutual fault, in which
the law will neither cast all the consequences upon the defend
ant, nor will it attempt any apportionment thereof. This is
the English rule, and it has been accepted by the courts in this
country, with but few exceptions. Cooley on Torts, 674.
The
ing most of the States in the Union, and the Supreme Court
of the United States.
The later Illinois cases have departed from the rule, to the
~Xt6!1t of allowing a right of action to depend upon the relative
degrees of negligence to be imputed to plaintiff and defend
ant respectively; that is to say, that a plaintiff whose con
urrent negligence has contributed to the injury, may re \
cover where the negligence of the defendant is gross, and in
-omparison to which that of the plaintiff is slight. Ill. Cent.
13.13. v. II/zmmer, 85 Ill. 526; Kansas is perhaps the only
other_ State that seems to follow the Illinois doctrine. U. 1.
R. R. v. Rollins, 5 Kan. 167; Cooley on Torts, p. 678:
they were divided by the Roman civil law, into slight, ordinary
and gross, is suflicien tly obvious, and the attempt to x and
usefully apply these degrees in practice, has been criticised by
200
X },
|
latter not; as but for his own fault the misfortune would not
201
C. C. R. R. Co. v. Holmes.
and running parallel with and near the main track, into the
defendants depot and trainyard. She turned her back upon
the approaching train, and proceeded to walk along upon the
railroad track. She heard the whistle, turned and saw the
train coming; left the main track upon which she saw the
engine approaching, crossed diagonally to the next track, and
2()2
It follows that the only other state of facts under which the
plaintiff is not disentitled to recover, is where the defendant
might, by the exercise of care on its part, have avoided the
consequences of the negligence of plaintiff.
The consequences of plaintiff's negligence placed her in a
position of immediate danger in front of the moving cars by
which she was struck, and the accident itself was the ultimate
203
C. C. R. R. Co. v. Holmes.
to say, she was walking diagonally along and across the track,
as though intending to get off.
was then trying to get off all the tracks. From her move
ments the brakemen had strong reason for presuming that she
would get out of the way before they reached her. She had
reached the outer side of the rail upon one side of the track,
walking on the ends of the ties, so that when struck she was
thrown off the track, falling under the side of the car toward
town, in the direction she was going When within fifteen or
twenty feet of her, the brakeman on the forward car hallooed
at her, and the brakes were put down; she heard the shouts,
looked round, and was immediately struck.
The testimony of the railroad experts as to the distance
within which the train could be stopped is, that if moving at
the rate of five miles an hour, it could be stopped in the train's
length, a distance of from 450 to 600 feet; but if running from
ten to twenty miles an hour, it could not be stopped short of a
quarter of half a mile, there being in this case a slightly down
grade.
.
The train was in fact stopped in less than 400 feet from the
point where plaintiff was struck. It is quite evident that the
train could not have been stopped between the time plaintiff
got upon that track, and the time she was struck. In other
words if the brakemen had seen her the instant she left the
main track, and walked over to and upon the side track, and
they had immediately set the brakes within reach, the train
could not have been stopped before reaching her; the inter
vening distance being less than one hundred feet, or about one
third the length of the train. At the rate of speed which the
evidence fairly establishes, the train passed over about seven
feet every second of time. It could not have been stopped in
less than thirty seconds. The plaintiff had only three or four
seconds to get out of the way when she heard the shout of the
brakeman on the front car. One or two steps to one side
would have placed her beyond reach of the passing cars.
These steps could have been taken in as many seconds. As
204
Holmes.
she had only to spring to one side to avoid the danger, it was
barely possible for her to do so if she was in a condition to
act instantly, but the sense of impending danger often para
lyzes for a moment, when that moment is fatal.
The evidence shows no wanton or willful negligence or in
difference in respect to the plaintiff on the part of the defend
ant. She was not wantonly run down by the cars.
In the view we take of the case, under the rule laid down
205
C. C. R. R. Co. v. Holmes.
206
on demurrer.
'
terms of said lease the plaintiff was then entitled to the pos
207
tion, together with the signatures and seals of the defendants and
sheriff's approval, is in words and figures following, to-wit:
And whereas, the said Hopkins desires to retain possession
of the said goods and chattels until the final determination of
the said action of replevin. Now, if the said Hopkins shall
pay all costs which have accrued or may accrue in this said
action of replevin, and deliver said property to the said Colo
rado Springs Company, in case return thereof shall be awarded,
and pay all damages that may accrue to said plaintiff, The
Colorado Springs Company, by reason of the unlawful deten
tion of the said property, then this obligation is to be void,
otherwise to remain in full force and effect.
R. L. HoPKINs,
[SEAL.]
A. D. CRAIGUE,
D. J. MARTIN,
[SEAL.]
[SEAL.]
[SEAL.]
CHAs. WALKER,
[sEAL.]
CHARLEs R. BISSELL, [SFAL.]
JoHN H. BACON,
208
209
tered to the effect that plaintiff was at the time of the issuance
of said writ of replevin entitled to the possession of said chat
tels; that plaintiff upon said trial also recovered damages for the
detention of said chattels after demand therefor and before the
issuance of said writ to the amount of one dollar and for costs of
suit, amounting to the sum of fty dollars and eighty cents,
First cause of action: That said Hopkins has not paid said
judgment for costs so recovered against him, as aforesaid, nor
any part thereof.
Second cause of action: That said Hopkins has not deliv
ered to it the whole of said chattels, but failed to delivera por
p. 116.
14
210
and will proceed to review the rulings of the court below upon
the demurrer to the complaint.
The second cause of action was for failure to return a por
tion of the property. The demurrer was probably sustained
211
Ill. 205.
The third and fourth causes of action will be considered to
gether. Both are for the recovery of damages, and must. be
considered as based upon a breach of that condition of the
bond which provides for the payment of all damages that may
212
Wells
proceeding.
Judgment armed.
213
the power of the court to refer the cause, likewise the validity
of the judgment.
The order of reference does not disclose the ground on which
it was based, but an examination of the pleadings shows that
the reference must have been made under the rst subdivision
of Sec. 188 of our Code of Civil Procedure, which provides as.
follows: When the parties do not consent thereto, the court
may, upon application of either, or upon its own motion, direct
214
This suit was brought to recover for work done under the
contract mentioned, from the 9th day of September, 1878, to
Mexico.
215
that State were under the necessity of either declaring the act
unconstitutional, or of giving it a strict and narrow construe
tion. The latter course was pursued, and the statute held ap
plicable to equitable actions only. In G'rim v. lV0rris, 19 Cal.
140, the court say: An intentional violation of the con
stitution on the part of the legislature is not to be presumed,
and by construing the statute as solely applying to pro
ceedings in equity, we avoid a seeming conict between the
two instruments. We have no doubt but this construction is
in accordance with the intention of the legislature; but,
whether it is or not, it is certain that no other effect can be
0F
216
practice was adhered to after the adoption of the Code, and the
provision now under consideration was construed to permit
the compulsory reference of actions on contracts involving the
examination of long accounts. Townsend v. H'en/iricka, 40
How. Pr. 143; R3/an v. Atlantic Insurance Company, 50
How. Pr. 321; Welsh v. Darragh, 52 N. Y. 590.
217
'
State courts.
This as
1. Under the statute (Laws 1874, Sec. 1, p. 169), upon the ling of an ab
stract of judgment in the office of the recorder, the judgment became a lien
upon all the real estate of the judgment debtor. Accrued rights under the
not were saved by the act repealing it. (Code, pp. 162-3.)
218
S
Real estate subject to execution under the provisions of the Revised Stat
ute- (Sec. 1, p. 370, 186-), included all interest of the defendant or any per
son to his use, held or claimed by virtue of any deed, etc.
It is to be pre
sumed that the legislature used the term " real estate" in the act of 1874
with reference to this provision, and intended a lien upon whatever real estate
there might be a levy.
.
2. The assignment by the obligee or his assignee of a bond for the con
veyance of real estate, comes clearly within the provisions of Section 1, Rev.
Stats. p. 111 (1868), and unless recorded will not take effect as against sub
sequent brma de purchasers or encumbranoers without notice.
'
suit, claim said lot of land through and under a deed executed
to said James Knox, deceased, by D. M. Rose, said deed pur
219
220
void; and that plaintiff may have such other relief as he may
be entitled to.
To this complaint the defendants in the court below led
their demurrer, stating as grounds therefor that the complaint
did not state facts suicient to constitute a cause of action, and
that it did not show the plaintiff entitled to the relief prayed.
The demurrer was sustained and the cause dismissed. To re
Laws 1874, section 1, page 160), upon the ling of the abstract
. 221
Code, pages
record in such oice, and not before, such deeds, bonds and
agreements in writing shall take effect as to subsequent bona
zle purchasers and encnmbrancers, by mortgage, judgment or
otherwise, not having notice thereof.
The assignment by the obligee or his assignee of a bond for
the conveyance of real estate comes clearly within the provis
ions of this section, and unless recorded will not take effect as
222
223
224
plaintiff paid Gay S. Allen full value for said real estate with
out knowledge of any claim thereon, and deny that he paid
any value for same; deny that Gay S. Allen has never had any
claim to said real estate since May 17, 1876, but avers that he
was at all times since seized in fee thereof; deny that plaintiff
has been in possession of said property, and avers possession
in Gay S. Allen since pretended sale, and has received the
rents and profits; deny that Gay S. Allen has never had any
claim or title since May 17, 1876, and allege that said sale and
conveyance was fraudulently made to hinder and delay cred
itors, and that plaintiff had such notice, and that the sale was
void.
225
15
[O LO C5
Mr.
however numerous they may be, in order, not only that com
to [0 ~1
Mr. Bliss, in his work on Code Pleading (Secs. 96, 97), cites
these equity rules in connection with the provision of the
Code above quoted, and says that the phrase may be made
dependent should be treated as imperative or directory, ac
cording to the nature of the interest. Ile further says (Sec.
11): Keeping in view the object of the action, understand
228
further, that courts will discourage many suits where one will
suice; that they will not give remedies piecemeal, but will re
quire such persons to be brought into court as will enable
229
Without considering the effect of the fact that the issue here
made was in a collateral proceeding having for its object solely
the dissolution of the attachment, it is manifest that it did not
The point
Reversed.
mi
230
right to occupy and possess the same under the laws of the
United States and of the State of Colorado; that the plaintiffs
rst settled upon the premises in June, 1875, and made im
provements of the value of at least $150, and have continued
231
began to dig up and subvert the soil thereof for the purpose
of constructing upon and across the same a wagon road, to the
great damage to the plaintiffs; and that the defendants con
tinue, and threaten to continue, to so dig up and subvert the
soil of said premises, and without any authority whatever so
to do. That said premises lie within the canon of the Animas
river, and is a narrow strip of land of considerable length, so
that in the construction of a road through the same, a great
portion thereof will necessarily be taken, and in such shape
through the same as to put plaintiffs to great expense in fenc
ing their premises on either side of said road. That plaintiffs
are damaged to the amount of five hundred dollars. That de
fendants are at work on said premises with a large force of
men, and, unless restrained, will do plaintiffs all the damage
against which they seek relief.
That the defendant is a corporation created under the laws
of Colorado, etc., praying for an injunction, and also laying
damages in the sum of $500.
The defendant in its answer denied the settlement of plain
tiffs as alleged, or at any time prior to August 24, 1876; ad
mitted the entry and construction of the road, and claimed the
right so to do under its articles of incorporation, alleging that
the company had surveyed a route over the premises long prior
to the settlement of the plaintiffs, and denied all damages.
The cause was tried before the court and a jury, and a verdict
rendered in favor of the defendant.
appellee.
ELBERT, C. J. This was an action brought by the appellants
to recover damages against the defendant company for laying out
and constructing its road over the land of the appellants.
232
"
[O Q; C.-G
with the clerk and recorder of San Juan County, their declara
tion under the law (Gen. Laws, chapter 83), designating and
claiming by metes and bounds the lands, the subject of the
trespass complained of, they were entitled to recover, notwith
standing the articles of incorporation of the defendant company
were led prior to the ling of the declaratory statement of the
appellants.
The court in e'ect instructed the jury that if the articles of
incorporation of the defendant company were led prior to the
declaratory statement of the appellants, that the appellants
could not recover. In this there was error, and the udgment
of the court below is reversed and cause remanded.
Reversed.
2-'34
3. It is a rule that when there are express covenants in a deed, other cove
nants will not be implied.
4. There is no breach of a covenant of warranty until eviction, and in
pleading in an action for such breach eviction must be alleged.
in full).
-X
-X
2. That said notes were given in part payment for said lots
conveyed by said deeds, and were given for no other or further
235
July 2nd, 1877, and since said date, and now is in possession
from said William F. Smith prior to his making his said war
ranty deed to said Nathan S. Hurd; and that upon and ever
since the date last aforesaid, said Charles J. Yates has held
and now holds possession of that part of lot four lying east of
said Clear Creek, against the will and consent of said Nathan
S. Hurd.
4. That the rental value of that part of said lot so pos
sessed by said Yates as aforesaid, is, as defendant believes and
therefore charges the fact to be, at least ten dollars per
month.
For a third defense:
Nathan S. Hurd.
5. That said Charles J. Yates answered said complaint, and
disclaimed all interest in and to said lots, except that part of
236
lot four, lying east of the center of Clear Creek; which part
of said lot four claimed he owned by virtue of a contract
made with said William F. Smith, in April, 1874, wherein said
William F. Smith agreed to sell to him, the said Yates, that
part of lot four lying east of the center of Clear Creek afore
said; which lot is described in the warranty deeds in the II
cause of action herein set forth, on payment to him, the said
Smith, the sum of fifty dollars; which sum the said Yates
averred that he had paid to said Smith, in pursuance of said
contract.
1. That the rents, issues and profits of that part of lot four
possessed by Charles J. Yates, as is set forth in the III defense
herein, has been worth, as defendants believe, and have reason
to believe, and therefore charge the fact to be, the sum of ten
dollars per month from July 2d, 1877, to the present time.
2. Wherefore defendants pray that ten dollars per month
be allowed as counter-claim and recoupment against said notes
from July 2d, 1876, and that judgment be given therefor.
And for a fifth defense and counter-claim:
1.
23 7
cause of action herein and above set forth, and that said suit
was commenced at the time, in the manner and for the pur
poses therein set forth.
2. That the defendant, Nathan S. Hurd, gave notice in
writing to said William F. Smith, as well as to him as agent
prevent the same, was compelled to pay said taxes, the amount
of which he has demanded of plaintiff at said date, and pay
ment was refused.
238
for judgment upon the pleadings, the motion was allowed, and
judgment entered to the effect following:
It appearing to the court from the pleadings of the said
parties, that said defendants are indebted to the said plaintiff
in the sum of four hundred and forty-six dollars and ten
cents; and it further appearing from the answer of said de
fendants, that defendants hath a just and equitable counter
claim or set-off against said plaintiff to the amount of fifty
five dollars and forty-five cents, which is now here allowed
and deducted from the amount so found to be due to said
plaintiff.
Wherefore, by reason of the law and the premises aforesaid,
it is ordered, adjudged and decreed that the plaintiff, Marga
ret Smith, do have and recover from the said defendants,
Nathan S. Hurd and William J. Hurd, the sum of three hun
dred and ninety dollars and sixty-five cents, with legal interest
thereon, together with plaintiff's costs, etc.
Mr. L. C. RocKwKLL and Mr. W. T. HUGHES, for appellants.
2 39
There was but the one covenant in the deeds set forth in the
240
There is
Sedg
off. For this reason the judgment is reversed and the cause
remanded, with directions to enter judgment, corrected in this
particular.
I'eversed.
241
2. It is not error for either witnesses or jurors to make comparison for the
purpose of forming an opinion concerning handwriting, when the paper used
for the purpose constitute a part of the record in the cause and are undisputed.
242
The note not being wholly paid, this suit was instituted to
recover the balance due thereon.
243
Where the
244
245
judgment has been entered in the cause, and that the portion
of the record supposed to be a judgment, is simply the findings
of the court, the cause having been tried by the court without
a jury. These findings are as follows: After hearing the
evidence and arguments of the counsel, the court doth find that
the said defendants are indebted to the said plaintiff in the sum
of two hundred and two dollars, together with his costs in this
behalf paid, laid out and expended, taxed at dollars; and
then, upon motion of the said defendants, it is ordered that
the plaintiff be taxed with all costs accruing from the date of
the filing of the motion in the county court to set aside the ap
peal bond up to the time when the county court granted the
petition for change of venue, and all the remainder of the costs
the jury, find in favor of the plaintiff, and assess his damages
at $4,493.
246
the court enters judgment upon the verdict. This entry was
held not to constitute a judgment, nor to have any element of
a judgment other than a bare recognition of the finding of
the jury.
Section 185 of the Code of Civil Procedure, requires upon
trial of issue of fact by the court, that judgment shall be en
tered in accordance with the finding of the court. By force
of section 38 of the Code amendments, Laws 1879, p. 229, the
writ of error only lies to such judgments and decrees of the
district and county courts as are final. The same rule obtained
at common law. Powell on Appellate Proceedings, pp. 45, 46.
While a strict compliance with forms is not essential in the
entry of judgments, yet to constitute a final judgment the rec
ord must not only indicate that an adjudication took place,
but the entry must have been intended as an entry of a judg
ment. No such intention is manifest in these transcripts of
proceedings. The findings of the court are no more a judg
ment than would be the verdict of a jury in a cause tried before
a jury, and the statement in the bill of exceptions that a judg:
ment was rendered cannot supply the place of the judgment
-
. . itself.
247
Speelman v. Chaffee.
SPEELMAN v. CHAFFEE.
1. The return of an execution unsatisfied by order of the plaintiff, after a
delay of mine months after levy, must be taken as a release of the lien ac
quired not only by the execution, but in case of attachment, of the attach
ment lien also, so far at least as respects any junior liens.
2. The lien of attachment becomes merged in the judgment, and the only
effect of the attachment thereafter is to preserve the priority of the lien,
and this priority is maintained and enforced by issuance of execution. If
the plaintiff neglects to issue execution and loses his judgment lien thereby, the
attachment falls with it. The same degree of diligence is required to p * serve the priority of lien as is required in cases of execution issued upon
ordinary judgments without attachment. The proper office and use of an
execution is to enforce the collection of a debt and not to create a security.
3. A direction by the execution creditor not to levy, or not to sell, is prima
facie evidence that the writ is being used as a mere security.
248
The said writ was levied upon all the real estate owned by
said company, and situate in the then territory of Colorado.
That upon the 18th day of January, A. D. 1876, the company
appeared in said suit and filed a plea, and upon the 18th day of
January, A. D. 1876, judgment was rendered in said suit by
said court for the plaintiff, and against said company for
thirty-two thousand four hundred and ninety dollars.
Second. That upon the fifth day of January, A. D. 1876,
Jerome B. Chaffee commenced a suit by attachment against
said Mining Company Nederland, which writ was also re
turnable to the January term of the district court, in and for
said Boulder county, Colorado, and was levied upon the iden
tical real estate which the writ in the Corning case was levied
upon, and in addition thereto the writ levied upon a large
quantity of personal property of said mining company.
That said suit was continued from the January to the July
term of said district court, 1876, when judgment was rendered
thereon in favor of Chaffee for forty-seven thousand nine hun
dred ninety-three and , dollars, against said company.
Third. That upon the 5th day of January, A. D. 1876,
Marc. A. Shaffenburg and Moses Anker, partners, as Anker &
for Boulder county, Colorado, and was levied upon the identi
cal real estate and personal property of said Mining Company
Nederland, which the writ of attachment in the Chaffee case
249
Speelman v. Chaffee.
That upon the 19th day of July, A. D. 1876, the said dis
trict court rendered judgment in said case in favor of Anker
250
the personal property was seized and held by the sheriff there
of; that personal service was had upon said company in each
and all of the foregoing cases, and that the estate of the said
company was liable to attachment when so served.
Eighth. That all the foregoing judgments, viz: that of
George C. Corning, Anker & Shaffenburg, Moses Anker, Hi
ram R. Johnson and Brown Bros., have all been properly
assigned to said Chaffee, who is now the owner thereof; that
the assignment of each judgment was made prior to Septem
ber, 1877.
Tenth. That upon the 6th day of April, 1876, Sible Speel
man sued the said Mining Company Nederland, in an action
of assumpsit in the district court in and for Gilpin county,
Colorado, and brought said suit to the May term thereof, 1876,
and upon the 4th day of May, 1876, it being the third day of
said term, the said company appeared in said cause, and filed
its plea of general issue, and afterwards and upon the 4th day
of May, 1876, judgment was rendered in said cause in favor of
251
Speelman v. Chaffee.
252
253
Speelman v. Chaffee.
per order.
Signed,
C. N. Hockaday, Sheriff.
Sixteenth. That upon the 25th day of March, 1876, an exe
cution was issued by the clerk of said district court in and for
the county of Boulder, upon the judgment of Hiram R. Jolm
son against said Mining Company Nederland, and delivered to
the sheri' the same day, who levied the same upon certain
personal property not attached under the writ of attachment
in the case wherein the execution was issued, and such per
sonal property was sold, and brought some five hundred dollars,
which was indorsed upon the execution.
And afterwards, and upon the 1st day of September, 1876,
said sheriff returned said execution, unsatised as to the sum
of twenty-two hundred seventy-nine dollars, having made the
sum of four hundred twenty-one dollars only upon the same.
Signed, C. N. Hockaday, Sherifl'.
Seventeenth. That on or about the rst day of November,
1875, one James Pippin led his petition against said com
pany for a mechanics and miner-s lien in the district court
in and for Boulder county, and summons was issued thereon
returnable to the January term thereof, 1876, for himself and
others, which petition covered all the real estate of the said
Mining Company Ncderland in said State of Colorado, which
included all of the identical real estate attached under these sev
eral writs of attachment issued in the names of said Corning,
Chaffee, Anker and Shaffenburg, Anker alone, Brown Broth
ers, and Johnson, against said company; that such proceedings
were had under the said petition for lien; that upon the 21st day
of January, 1876, in the district court in and for Boulder
county, a decree was rendered on said petition in favor of said
Pippin and against said Mining Company Nederland, in the
sum of twenty-three thousand dollars ($23,000).
That the said attachment suits mentioned, and each and
254
Eighteenth.
Nineteenth.
above is all the evidence in the case, and these facts may be
('ousi(lered by the court, and this stipulation as to those facts
255
Speelman v. Chaffee.
LEwis C. RocKwKLL,
THOMAS GEORGE,
and the writs were levied upon the personal property in ques
tion in September, 1876.
In June, 1877, these writs were all returned on the same day
256
Such a return,
after the property had been levied upon nearly nine months
before, must be taken as a release of the liens acquired by the
previous attachments, as well as the executions and levy there
257
Speelman v. Cliaffee.
v. Piper, Sup. Ct. Iowa, Oct. 7, 1879, 9 Cent. Law Jour. 347.
If the creditor seeks to convert it into a mere security, or to
prevent other creditors from subjecting the property to the
satisfaction of their claims, such conduct is to be regarded as
tion issued upon the Anker judgment on the one hand, and
the execution issued upon the judgment of appellant on the
other hand.
It is contended against the validity of the Anker lien that
it became impaired by reason of the great delay on the An
ker judgment, interpreted by the pla.inti"s conduct in with
drawing the execution on his own judgment, and neglecting to
issue one on this, for an unreasonable length of time after
judgment.
The stipulated facts show that the attachment writ in the
Anker suit was returnable to the January term, 1876, and that
said case was continued from term to term until the Febru
ary term, 1877, of said court.
We are not to presume that the case was continued without
17
'
._ .
258
- - - -
259
Speelman v. Chaffee.
officer holds more than one writ, differing in priority, he may sell
under a junior writ; and if he does this, the property cannot,
merely under the senior writ, be taken from the purchaser. In
such case, however, the proceeds of the sale must be applied
to the writ having the prior lien. Freeman on Executions,
260
_ 261
-'3
Speelman v. Chaifee.
property.
262
court below are without error, and the judgment will there
fore be affirmed.
Judgment affirmed.
2. If it appears upon the face of the complaint that the action is barred
by the Statute of Limitations, and no facts are alleged taking the demand out
of the statute, a demurrer will lie; but if the fact does not appear upon the
face of the complaint, the defense must be made in the answer.
3. Section 1,692, General Laws of 1877, establishes a rule of evidence, and
not a rule of pleading.
4. Under the Code, where an answer contains no new matter, but merely
denies the allegations of the complaint, no reply is required.
2623
complaint alleges that payments were made upon all the notes.
specifying the dates when they were made, and that a cer
tain amount of money remains due and unpaid on each note,
The dates of the last two payments alleged to have been made
on each note were April 2, 1873, and August 15, 1873.
A demurrerto the complaint was led, setting up the six
years Statute of Limitations. The demurrer was overruled, and
the same defense was set up by way of an answer.
The trial resulted in a verdict and judgment for the plain
ti.
The bill of exceptions having been stricken from, the record,
but two of the assignments of error are relied upon for a re
versal of the judgment, viz.:
wet. The court erred in overruling the demurrer.
Second. The pleadings admit that no payments have been
made on said notes by either of the defendants within six years,
and will not therefore sanction the judgment.
After defendants demurrer was overruled, they answered to
'
upon was that the action was barred by the Statute of Limita
tions.
The cases of Smith v. Ric/zmond, 19 Cal. 477, and
Stu-rges v. Burton, 8 Ohio St. 215, cited by appellants coun
sel, lay down the familiar rule, that if it appears upon the face
of the complaint that the action is barred, and no facts are al
leged taking the demand out of the operation of the statute, a
demurrer will lie; but if the fact does not appear upon the
face of the complaint, the defense must be made in the answer.
There is nothing in these cases to support the proposition that
a complaint upon a promissory note, alleging payments there
on within six years, is demurrable if it fail to state that the
Z64
plaint alleged that the sum of $454.50 had been paid thereon,
without stating when or by whom the payment was made.
The court said that for aught that appeared, the paymentmay
have been made at a date late enough to save the statute, and
That
1:2
we
U1
-~
266
W.
ll
267
share and part in the mine; that the parties holding the legal
title to the property be ordered to convey to him; also that
the parties in control of the mine be required to account for
the ore mined and sold; likewise a prayer for further relief.
All the defendants, except Austin, interposed as a bar to the
action, pleas of the Statute of Limitation.
The statute relied upon (section 1682, General Laws 1877)
provides that bills for relief on the ground of fraud shall be
the mine, and that Reed informed him in the spring of 1875,
of his purchase of an interest therein; also that Ellsworth told
268
relies for equitable relief, with Hie single exception of the sale
to Austin, more than three years prior to the ling of his com
plaint.
'
the testimony.
plaintiif sequities. V
We are of opinion that these instructions misconstrue the
269
"
\I
K.) Q
quirements of the act to provide for the exercise of the right of eminent do
main, the court or judge may set aside the report, or re-submit and direct a
further nding.
2.
Where a report failed to show that the question of benets was con
sidered by the commission, the report should have been set aside or re-submit
ted.
3. The statute must be strictly construed.
[O \l b-l
This would
272
And the provision no doubt was introduced into the act for the
benet not only of the company, but of the owners of the land,
furnishing data to the courts in whom isinvested asupervisory
power over the appraisement, by which they may more read
ily and certainly determine whether injustice is done by the
award.
273
Stebbins v. Anthony.
that the court might know and the record affirmatively show
that the matter of benefits was considered.
Reversed.
STEBBINS v. ANTHONY.
1. The office of a writ of error being fully explained by the common law,
and Congress having authorized this court to issue it, the jurisdiction to hear
and determine causes brought into this court by means of this writ, was com
plete without further action on the part of the legislature.
2. The constitution of the State took the place of the organic law of the
-
territory in continuing the writ of error from this court to the county courts.
274
of the State.
The act of Congress of March 2, 1863, ainendatory of the
organic act, declares that writs of error, bills of exceptions
and appeals, shall be allowed from the nal decisions of said
district and probate courts to the Supreme Court, under
such rules and regulations as shall be prescribed by law. It
is true, as counsel contends, that the Territorial Legislature, con
275
Stebbins v. Anthony.
276
when the writ of error did not lie from the Supreme to the
4. Under the statute (Secs. 812 and 1,479, Gen. Laws), after the regular
panel has been exhausted, the court may order a tales, but the prisoner has
the right to object to the depletion of the panel on insufficient grounds.
277
principle they thought the law which provided for the inflic
tion of the death penalty in any case was wrong, but they each
announced that if they were empaneled as jurors in a jurisdic
tion where the law provided the punishment of death for
crime, and the evidence in the case required them to return a
verdict which would result in a death-sentence, they could,
notwithstanding their conscientious scruples, return such ver
dict, and would make their scruples subservient to their duty
as jurors.
The exclusion of these three jurors upon the grounds stated
is assigned for error.
Upon the jury as finally constituted there were two talesmen.
Conscientious scruples against the infliction of the death-pen
alty do not necessarily disqualify a juror entertaining them.
They must be such as would preclude him finding a verdict of
guilty in a capital case, or from trying it fairly. Bishop's
Crim. Practice, Sec. 918, and cases cited.
upon this point his answers leave no uncertainty, this is all the
278
279
disqualified.
In the case of The People v. Wilson, 3 Parker's C. R. 202,
the juror first stated that he was opposed to the punishment
of death, but said if sworn as a juror on a trial for murder,
and the evidence of guilt was clear, he would find the accused
charge for murder. The decision that the juror was competent
was vacated, the challenge opened, and the juror was set aside.
In the case of People v. Stewart, 7 Cal. 140, the juror an
swered that he was opposed to capital punishment on princi
ple. He was held not disqualified, as it did not appear that
his conscientious scruples would, in the language of the stat
ute, preclude him from finding the prisoner guilty.
These citations sufficiently illustrate the distinctions taken
by the authorities. Conscientious scruples, to disqualify, must
be such as to preclude a finding of guilty in accordance with
the law and the evidence.
280
conceded discretion.
regular panel has been exhausted, the court may order a tales
(General Laws, sections 812, 1479), but the prisoner has the
remanded.
I'eversed.
281
282
Plaintiff's own
283
5. The statute does not require that incorporators or officers shall be rei
dents of the State, nor that the certificate of incorporation be executed within
the limits of the State; nor does the statute in terms require a meeting of
the incorporators prior to the execution of the certificate.
existence.
7.
Under the statute (section 18, Incorporation Act) meetings of the direc
tors may be held beyond the limits of the State if provision therefor be made
in the certificate of incorporation.
of their franchise, yet it does not follow that as to third persons it is not a cor
poration.
The plain
appellee.
284
In the former case it has been held that one dealing with a .
corporation is not estopped to deny its legal existence on the
ground that there was no valid law or authority for the organ
ization, or that the assumed organization was in the face of a
-s:
285
of Railways (5 Ed.), 73; Ang. & Am. Corp. (10 Ed.) Sec. 635.
In the case before us, the appellee, Mooney, brought an ac
tion against Humphrey, together with other persons, members
of an assumed corporation, to recover a sum of money due up
286
tary of State shall record and preserve the same in his office,
\I
l0G1
and that a certied copy thereof under the seal of the State
In respect
288
the conclusion that the company was, at the date of the trans
actionwith Mooney, a corporation de facto, vested with the
power and right to the exercise of all the acts contemplated
under its franchise, so far as regards the relation between it
and the plaintiff, whose contract with it as such, estops him
to now deny its existence as such de_/'a.ct0 corporation. Eaton
.289
19
290
__
1:-1
291
'
292
There is nothing in
held, that conceding that the president and managers ot' the
Pennsylvania Coal Co. at the time of entering into the con
tract were resident citizens of New York, and not residents or
citizens of Pennsylvania, and that they were therefore ineligi
ble, it does not follow that the agreement is not binding on the
293
204
___
295
Judgment reversed.
-~
296
297
had since repeatedly cut and broken it, and threatened to con
293
\Vall. 515.
It is urged that the court below sitting as a court of equity,
"
-sq
299
relief, or, under the actual circumstances of the ease, can give
300
within the jurisdiction of the court. Upon the face of the bill
the court might properly have entered a decree, perpetually
enjoining the defendant from committing the acts complained
of, and until the filing of the answer, no purely legal issue
arose. By submitting that issue to the court the appellant
has waived the question of jurisdiction, and cannot now raise
it. And since there was no palpable defect of jurisdiction,
the error, if any, is cured.
tion.
301
no effect whatever.
no interest to convey.
Decree affirmed.
I102
303
30-1
,____
ii
_77
-_
305
306
whom he had let into joint possession with him, and that
Lawrence having deposited the purchase-money, as stipulated
Gordon, another plaintiff, was asked, Did you ever part with
your possession, or authorize any one to take possession of the
307
and without any objection from them, and that they stood by
and allowed this to be done, and allowed Darnell to make a
plaintiffs, and of his own motion, went upon the premises and
built an ore-house for his own convenience, and sunk shafts
308
Judgment reversed.
-:
309
PoLLARD v.
SHIVELY
ET AL.
7. Where a variation exists between the monuments and the courses and
distances of the location certificate, it is necessary, prior to the patent, for
the locator, as against subsequent locators, to keep up his monuments to an
extent that gives fair and reasonable notice.
8. The requirements of the statute that the side posts be placed in the
center of the side lines is satisfied if they be placed substantially in the center.
under the statute as to require that the boundaries may be readily traced by
them. The notice which the statute contemplates and seeks by and
through them, may not be substantially impaired by any omission.
310
1878, was surveyed and staked the 20th February, 1879, and a
certificate of location filed the 21st February, 1879.
On the 26th of August, 1879, Pollard, who had become the
owner by purchase of the Hardin Lode, filed a certificate of re
location thereof, for the purpose, in the words of the certificate,
of more definitely defining the boundaries as originally staked
out and filed, without waiver of any right acquired by virtue of
said original location.
The discovery shaft of the Hardin was situated six hundred
feet from the east end, and nine hundred feet from the west
end of the survey. Both the original location and the reloca
tion varied from a regular parallelogram, from the discovery
shaft west, each diverging at a slight angle to the north. By
the courses and distances of the original location certificate, the
were erroneous; that they did not describe the ground actually
311
312
The verdict was for the plaintiff, and the defendant appeals.
The controversy here concerns chiey two instructions
given by the court, as follows :
No. 1. The court instructs the jury that the defendant
under his location certicate and the other evidence in this
case, cannot claim any ground except that which is described
in the original Hardin location certicate, and that none of
the ground covered by the original location certicate is sued
for in this case.
313
Ibid.
The difficulty in the case at bar is not about the rule, but
its application.
It will be borne in mind that the conflict between the two
lodes is at the west end of the Hardin, and that the monu
314
All
1.-- .74
~
~i
315
3l6
A stump does
~v- =
317
3 Wash. R.
double purpose.
318
ant who has not kept up his boundary posts, will not be per
mitted to show the courses and distances of his recorded loca
319
ner posts properly placed and the lode exposed and worked the
entire length of the lode.
It would be an unnecessarily harsh and unreasonable con
struction of a beneficent statute.
320
SUPREME
CouRT
oF CoLoRADo.
ET AL.
321
seized and possessed of certain lands near the old town of Fort
Collins.
OIJ LO
Q
provements thereon; and laid out streets and alleys in the new
town, so as not to harmonize with those in the old town before
323
the decree.
All the witnesses agree that the consideration of the con
veyance by Cowan to the Improvement Company, was in
A large emi
ter of the new town at the common corner of the four forties,
or what seems to be regarded as substantially the same thing,
to leave the business center of the old town undisturbed,
324
ing the location of the business center, and that the controll
ing and only consideration was the location of the colony at
the transaction has taken place. Kerr on Fraud and Mis. 73.
In the later and nal negotiations which resulted in the con
veyance by Uowan, the location of the business center does not
appear to have been mentioned.
Great and permanent benets have owed to the complain
ant by reason of the location of the appellants colony at Fort
<~-4
325
of facts, and submit the same to the court for the determina
326
327
(Colony Seal.)
SETH TERRY,
Trustees.
one of the Colony ditches mentioned in said deed, and the only
Colony ditch capable of irrigating about seventy acres of plain
tiff's said homestead, and it was the intention of the said Chi
328
convey and quit-claim unto the said party of the second part,
its successors and assigns forever, all the right, title, interest,
claim and demand which the said party of the first part has
in and to the following described property, situate, lying and
329
ning easterly as near the divide between the St. Vrain and
Little Thompson Creeks as practicable, together with the right
of way for said ditch over all lands owned by the said party of
the first part, and the cabin and such tools as were purchased
for the construction of said ditch, and are now on hand; to have
and to hold the same, together with all and singular the
appurtenances and privileges thereunto belonging, or in
anywise thereunto appertaining, and all the estate, right,
title, interest and claim whatsoever of the said party of the
first part, either in law or equity, to the only proper use, bene
fit and behoof of the said party of the second part, its succes.
sors and assigns forever.
In witness whereof, the said party of the first part has here
unto set its signature and affixed the corporate seal, by the
hands of its President, the day and year first above
written.
(Signed)
CHICAGo-CoLoRADo Colony,
By RIENzi STREETER,
President.
Corporate seal of
Chicago Colorado
Countersigned,
CHARLEs E. DAY,
Colony.
Secretary C. C. C.
That said deed was duly acknowledged before a notary pub
lic, by said Streeter, as the free and voluntary act of said Col
ony, in the usual manner of the acknowledgment of deeds.
That the same was filed for record in the office of the county
O; C/.7 O
m_
331
under his deed, to irrigate his said homestead, year after year,
332
tiff's said land, lying under said ditch, is seventy (70) inches,
year after year, according to the system of measurement now
in nse by the defendant.
The points in controversy, and upon which the decision of
the court is asked, are as follows, to wit:
First. The plaintiff claims the right to take and use water
333
thirty dollars for the value of water delivered during the year
1879, and that the plaintiff be perpetually enjoined from inter
fering in any manner with the defendant's ditch, or asserting
any right, title or interest in and to the same.
B. L. CARR,
Defendant's Attorneys.
not in conflict with said law, and which apply equally to all
members of said defendants corporation.
This right of the plaintiff is a perpetual right under his deed
from the Chicago-Colorado Colony, his grantor, and the de
fendant must be held to have purchased with notice of, and
334
335
right to take from the defendant's ditch, year after year perpet
ually, a quantity of water sufficient to irrigate seventy acres
of land; that said quantity is seventy inches annually, and that
said water be taken subject to the law now in force or hereafter
to be in force, relative to measurement and distribution of
330
534.
There is no reason for saying that the want of diligence in
this case, upon the part of the Colony Company, was such as
to prevent the appropriation of the water dating back to the
commencement of the work, there being no intervening claim
ants.
Decree armed.
Mr. Justice Baox having, as judge of the court below, ren
dered the decree therein, did not participate in this decision.
~ww-
337
22
338
Writ dismissed.
Pan. Cunmu.
should be granted in this cause is, that this court in the opinion
led said: The property being in the possession of the defend
ant, Hopkius, at the time of the trial of the replevin suit, if the
right of possession was then in the plainti:' in error, the judg
ment should have provided for its return, and this counsel
A nte, page 206.
__-._1|
339
said opinion will show that this language was used in discuss
ing the correctness of the ruling of the district court in sus
We say in
cause, is: Now if the said R. L. Hopkins shall pay all costs
which have accrued or may accrue in this said action of replev
340
341
Q3 >-F LO
Bscx, J.
'
1'
343
ply to that court for its correction, and that justice requires
that he should have such opportunity, we will continue the
cause so as to give him an opportunity to apply to the court
below to have its record amended.
The amendment made was a material one, and if application
had been made, even after the submission of the cause, for time
to apply in the court below for an amendment of its record, the
344
The amendment having been made, and the cause being still
order, no delay in the submission of the cause having occurred, the motion to
dismiss was denied.
Such assignment, however, was not actually filed until the last
day before the present term. Previous to this, another motion to
345
Motion denied.
346
and costs of suit; the judgment reciting that this was the
amount due the defendant after allowing plaintiffs the full
amount of their claim.
The plaintiffs below led a motion at the January term,
1880, to vacate the jiiclgme it, which motion was allowed, and
Appeal dismissed.
Pen Ctmmm.
347
'
decree.
The transcript just led, therefore, is not the transcript of
proceedings in the cause pending here on writ of error, nor
supplemental thereto; but that of a new and independent pro
348
was given concurrent jurisdiction with the district court in all actions at
law or in equity where the debt or sum claimed did not exceed two thousand
dollars, and therefore held, that in proceedings for divorce not complicated
with money or property claims exceeding two thousand dollars, such probate
court had jurisdiction.
3. Under the chancery act, before the adoption of the Code, in the com
putation of time of publication of summons, the rule was to exclude the day
of publication and include the first day of the term.
4. In adopting the statute of a sister State, the general rule is that the
Legislature adopt also the settled construction given such law by the courts
of that State.
exclude one day of the designated period and to include the other.
6. Under sections one and five of the act of February 11, 1870, the hus
band in a suit for divorce was a competent witness, and desertion held,
under the act, to be such a personal wrong as would bring the husband with
in the exception provided by the terms of the statute.
349
350
relating to the several courts named, and the other aecting the
probate courts only.
_ 351
vided that the said probate court shall not have jurisdiction
in any matter in controversy where the debt or sum claimed
shall exceed the sum of two thousand dollars.
Theincreased jurisdiction conferred by this amendment was
extended to the Probate Court of Arapahoe County by the leg
islative act of February 9, 1870, and afterwards the same pro
visions were extended and made applicable to the Probate
Court of Je'erson County, by the act of January 31, 1872.
The act provides that: The Probate Court of the county
of Arapahoe, in this Territory, shall hereafter have concurrent
CC
C21 [Q
conclude that the aim of the legislature was to give full scope
and effect to the common law and chancery powers conferred
on this court by the act of Congress imposing no other or
tuted in the court under this statute, the county judge refused
to entertain it, basing his refusal upon a want of jurisdiction
to try and determine proceedings of that character. Upon
mandmnus to compel the judge to proceed to the trial of the
cause, the statute was held to vest the court with jurisdiction;
but as the complaint contained no averment of the amount
353
Our own County Court act, passed since the adoption of the
State constitution, contains a clause that in all actions for
divorce, the petition, or bill of complaint, shall aver that the
354
ing the last day, and in other cases excluding both days.
Our entire chancery act, which includes the section now
being considered, is almost a literal copy of Oh. 21 of the Re
vised Statutes of 1845, of the State of Illinois. And while
355
clude either the day on which the summons was served or the
return day, and if there remained ten days, the service is held
356
until the next term of court; or, as in the Practice Act (ib: Ch
83, Secs. 3 and 5), which requires all process to be served ten
-A
357
days before the return day thereof, and provides that if not so
served the defendant shall be entitled to a continuance.
The same general rule obtains in the courts of the States
of Maryland, New York, New Jersey, Mississippi, Ala
358
In case of the
The conclusion
Early v. Doe, 16 How. 615, was the case of a tax sale. The
language of the statute in respect to notice was: That public
notice of the time and place of the sale * * * shall be given
hereafter by advertisement inserted in some newspaper pub
lished in said city once in each week, for at least twelve suc
359
cessive weeks.
360
But as
361
362
363
lic policy also, that husband and wife were incompetent to tes
tify for or against each other where they were not the oppos
evidence prevailed.
udicial interpretation.
The legislature has placed its own construction upon this sec
tion, by the enactment of section ve, of the same act. The
wrong or injury within the meaning of the act, and that only
corporal injuries, as assaults, were contemplated, will not bear
discussion.
cause.
384
365
creditor of such corporation, but who has paid in full for the
stock subscribed by him, maintain such action?
366
ively, for all debts and contracts made by such company, until
the whole amount of capital stock xed and limited shall be
paid in, and a certicate thereof shall have been made and
recorded as prescribed in the following sections, and the capital
stock so xed and limited shall all be paid in, one-half thereof
within one year, and the other half thereof within ve years
from the incorporation, or said corporation shall be dissolved.
Upon the rst question, cases are cited for defendant in
error, which hold that the action must be an equitable pro
ceeding on behalf of_ all creditors, and that the corporation
must be made a party thereto, and if so required by a defend
ant stockholder, all the individual stockholders must likewise
be joined as co-defendants.
The pro
quired.
Under this act a stockholder is made liable to the extent of
the stock held by him; whereas, our act restricts his individ
nal liability to the amount of unpaekl stock held by him.
The Illinois statute was carefully considered and construed
3137
consequences:
368
It was held
that he could not, and that this remedy was intended wholly
for outside creditors.
This conclusion was arrived at from a consideration of
other portions of the statute. Provision was made therein for
a stockholder who had been compelled to pay adebt of the
company. Two remedies were afforded: One, by an action
on the case against the company, to recover back the amount
paid; the other, a bill in equity for contribution against one or
more stockholders, originally liable with him for the payment
of the debt. This statute was interpreted as intending to put
all stockholders upon an equal footing, and having provided
the aforesaid remedies for those whose property had been
seized to pay debts of the corporation, it was considered that
___
____
__
369
the act under which the Cottage Grove Association was organ
ized, the measure of a stockholders liability was his personal
indebtedness to the corporation upon his stock subscription.
370
the conclusion that they throw no light upon the question under
consideration. There being no similarity or analogy between
our statute and the statutes under which the above cited cases
371
Judgment reversed.
Chief Justice ELBERT, being absent, did not participate in
this decision.
372
BECK, J.
damus in this ease, sets out that the petitioners are corpora
tions, doing business in Weld county, and that they are owners
of and interested in ditches, appropriating water from the
Cache-la-Poudre river, in water district N0. 3. It states that
a referee was appointed to take testimony in said water dis
trict, under the provisions of the irrigation act of February 19,
1879; that due notice was given, and the testimony ot' all
persons attending was taken, as required by the act, and duly
returned by the referee. That thereafter two several applica
tions were made to the Hon. Victor A. Elliott, judge of the
Second Judicial District of the State, wi thin which said county
rules for carrying out the intent of the act and for a hearing
and decree under its provisions. The petition also sets out the
rules made by the judge in the premises, and avers that the
intent of the act cannot be carried out under the rules so made,
to have appropriated.
~~
373
High on Ex.
Leg. Rem. Secs. 5-24, and authorities there cited. It has been
and that his action in the premises is wholly outside his judi
j_"
~i
<2:
on the ground that legal notice of the contest had not been
given within the time prescribed by statute.
had not given the notice required by the statute, that was a
preliminary objection upon a point of law which this court can
375
If this
notice had not been given, it would be futile for the contestant
to prove that he had received a majority of the votes cast at
the election.
In support of his
376
37 7
her suit has been denied until she shall cause copies of her
bill in the French language to be served upon the defendants,
or some of them, and until she shall le documents which are
not made exhibits in the cause; and then that all further pro
ceedings in the case shall be in conformity with the existing
practice of the court, which existing practice is understood to
mean the practice prevailing in the court in civil cases gen
erally, in disregard of the rules established by the Supreme
Court, to be observed in chancery cases.
Judge Story in denying the application, held that it was the
duty of the circuit court to proceed in the suit according to the
rules prescribed by the Supreme Court for proceedings in equity
cases; and while-the proceedings of the circuit court, and the
orders made in the cause were not in conformity with those rules,
and with the chancery practice, yet the question was not as to
the regularity and propriety of those proceedings, but whether
in that case a mandamus ought to issue. He concludes as
follows: And we are of opinion that it is not such a case.
The district judge is proceeding in the cause, however irregu
lar that proceeding may be deemed, and the appropriate re
dress, if any, is to be obtained by an appeal after the nal de
cree shall be had in the cause. A writ of mandamus is not
the appropriate remedy for any orders which may be made in
a cause by the judge in the exercise of his authority, although
they may seem to bear harshly and oppressively upon a party.
The remedy in such case must be sought in some other form.
From a consideration of the foregoing, and many other
authorities, including the legislative act in question, we de
duce as applicable to the present case, the following conclu
sions of law: The district judge being clothed by the statute
with authority to make any and all orders and rules which
may be necessary and expedient for carrying out the intent of
the act, as well touching the proceeding in court as in respect
to other matters specied, he is vested with a very broad dis
OJ ~i
G2
i_
- _
379
380
cially enjoined that this act in all courts shall be liberally con
strued in favor of securing to all persons interested in any pro
claimants.
381
thirsty soil of our valleys and plains be tickled with plow or hoe
it will refuse to bring forth its fruits without the application
and vitalizing inuences of water. Suppose that proceedings of
the character contended for were under similar legislation em
ployed to settle all questions of title to the lands to be irrigated,
would they not be considered of doubtful validity? And \vhere
titles should be divested by such proceedings, might not some
doubt be entertained whether the same was done by due process
though the statute itself had failed to make such specic pro
vision?
* * * In
382
struction of the act, and that the rules that he has promulgated
for carrying out the purposes of the act, are in violation of its
383
Gomer v. Chatfe.
iii
GOMER v. CHAFFE.
1. The proceedings of the county court must be presumedto have been
regular in every respect, unless the contrary appears in the record.
2. The section of the Code (201) which requires a motion for a new trial,
and the decision thereon to be made and had at the same term the ndings
are made or verdict rendered, is directory merely so far as the action of the
court is required to be performed within a specied time.
3.
Where a trial was to the court, and its ndings were announced, and
counsel gave notice of a, motion for a new trial, and subsequently at the same
term led his motion, but the motion was not disposed of until the subsequent
term, held that the proceedings at the rst term, subseque it to the ndings,
operated to reserve the case and tocontinue the jurisdiction beyond that term.
for the purpose of disposing of the motion and the settling the bill of excep
tions.
4. The ndings of a court do not constitute a judgment.
error.
Mr. J. W. Hoazvnn, for plaintiff in error.
Messrs. STALLCUP & Lorna, for defendant in error.
PER OURIAM. The motion to strike out the bill of excep
tions, and to dismiss the Writ of error, is based mainly upon
~_
I381
This was done within the time granted, and the bill of excep
tions signed by the judge.
Second,
that upon the making and ling of the ndings of the court
upon the issues, at the April term, in the absence of an order
of court reserving the case for further proceedings, the juris
diction of the court over the case and the parties ceased, the
clerical duty of entering up the judgment only remaining;
and the term having closed without a decision of the motion
for a new trial, in contemplation of law, the judgment was
entered at the April term; consequently the motion could not
be entertained at the subsequent June term, nor could a bill
this was inserted after the transcript was brought into this
court. It must therefore be disregarded.
There is an admission in this motion to dismiss, however,
that the motion for a new trial was led at the April term.
Counsel for both parties appeared before the court at the
June term and discussed the motion, and it not appearing
385
Gomer v. Chaffe.
386
387
Martin v. McLaughlin.
new trial, and settling the bill of exceptions at the June term
must be sustained.
Motion denied.
MARTIN v. McLAUGHLIN.
1. The truth of an averment of ownership in the consignor, in an action
against a carrier, is to be determined by the evidence upon issue made.
2. Whether the consignor or consignee is entitled to an action against the
carrier upon a liability incurred in the shipment of goods depends as well up
on the terms of the contract as to purchase or order and shipment between
the consignor and consignee, and the contract with the carrier, as upon the
general rule of law.
ant was a common carrier of goods for hire between the places
hereinafter named.
388
out having rst notied the owner and consignor, the plaintiff
herein (although he well knew the said consignor and where he
lived); that the freight on said goods was unpaid, and without
having given twenty days notice of the time and place of sale
of said goods to the owner and consignor, or to the consignee
thereof, and without having published said notice in a daily or
weekly newspaper, published where said sale was to have taken
place.
Fourth. That the defendant so sold and disposed of said
goods and appropriated the proceeds as aforesaid, without rst
having given the owner and consignor, or the consignee
thereof, his or their agent, notice of his intent so to do twenty
389
Martin v. McLaughlin.
four hours before said sale was to have taken place, and that
said consignee did live at the place or town where said goods
were sold, and that the defendant did not sell said goods, or
bidder, and did not sell the same or any part thereof, for the
best price that could reasonably have been obtained in the mar
ket where they were sold, and at the time they were sold, and
that said defendant did not dispose of the proceeds of said sale,
as provided for in section 1865 of the General Laws of the
First.
and the sole right to sue for any injury thereto, or conversion
thereof, was vested in the purchaser and consignee of said
goods.
Second. After purchase by the consignee and delivery to
the carrier, the plaintiff had no control over the goods, other
than a right of stoppage in transitu, which he did not exer
cise.
~
Third. The complaint states a cause of action by the
carrier, and had the sole right to authorize, permit or sue for
their conversion by defendant.
390
Judgment reversed.
391
Brzcx, J.
392
where they got out to the top of the range was somewhere
from half of a mile to a mile, although the passengers think it
was much further. The snow was drifted in the road in many
places to a depth of more than three feet, and was then drift
ing so badly that passengers in a four-horse sleigh of appel
lants, which immediately preceded the open wagon, say they
could scarcely see the rear horses; and passengers in the open
wagon say the hand could be scarcely seen before the face.
They also say that the weather was so intensely cold that
icicles formed on their eyelashes, as they gropcd their way
through the storm, which had to be broken away every few
minutes in order to sec anything. In a few minutes after the
wagon and sleigh passed over the road, all traces of the tracks
made were obliterated by the drifting snow, and the plaintiff
and his comrade had frequently to search for the road, as well
as to make their way up the steep ascent through the storm.
On reaching the summit they found to their dismay, that
the driver had gone on with the two passengers who clung to
the rear part of the wagon, and had left them to their fate.
It appears, from the testimony, that the driver waited fteen
minutes for them at the summit before driving o'.
They then wandered some distance down the mountain on
the opposite side, but being unable to nd their way with any
certainty, and not knowing how far they were from any habi
tation, they retraced their steps and reached the Half-way House
the evening of the same day. The appellee appears to have
suffered severely, and to have become so bewildered in the
storm, that but for McNamara, who was accustomed to travel
ing in the mountains, would very probably have lost his way
and perished.
The appel
lee claims to have been badly frozen and injured by the cold
393
jury was misleading, and that the true rule touching negli
gence of the defendants, and contributory negligence of the
The true rule contended for is, that the carrier, to be liable
394
ants.
The defendants second instruction tells the jury that it has
no right to award exemplary damages for errors of udgment,
or for negligence merely, not accompanied by an apparent
reckless disregard of consequences.
The third instructs the ury, that the defendants are not in
'
'
'
posed upon them the utmost human care and foresight, and
made them responsible for the slightest neglect; that they
were bound to furnish good coaches, gentle and well-broken
395
Behymer v. Cook.
horses, and a prudent and skillful driver, and that any defect
in such preparation will make the defendants liable for injury.
But, considering each instruction in connection with all the
instructions given, we do not think the apprehensions of coun
sel, that the jury may have been misled as to the law, are well
founded.
Union Gold
And when we look into the evidence, and note the reckless and
inhuman conduct of the driver of the wagon in deserting the
plainti' to his fate in that wild storm, and upon that bleak
mountain, after requiring him to make his way on foot through
the snow to its summit, there is little reason to apprehend
that the jury may have based its verdict upon acts of negli
BEHYMER v. Coox.
1. A defendant in attachment, claiming (under the statute, subdivision
6 of Sec. 26, Ch. LIII. Gen. Laws) as exemp from levy implements or
stock in trade
'
'
used or kept for the purpose of carrying on his
396
articles as are suitable to his trade or business; and a failure on his part to
inikc such selection, is a waiver of his right thereto.
2. A sheriff is not liable for damages for levying an attachment upon
property, not specically exempt by statute, in case the defendant declines to
designate the articles he desires to claim.
3. Under the statute, no property is exempt from levy to satisfy a claim
for the purchase money thereof; and a defendant cannot, by selecting such
property, under the sixth subdivision of the exemption law, supra, exempt
it from such liability.
397
Behymer v. Cook.
purchased in the East, and came here ready for re-sale, much
like other merchandise. Plaintiff had tools and implements
for carrying on the cabinet making business, and embalming
tools or implements, to be used in the undertaking business; he
also had some chemicals for the latter business, and materials
plaintiff admitted upon the stand that the written demand was
for the three metallic cases, which were unpaid for.
398
399
Behymer v. Cook.
400
Armed.
Chief Justice ELBERT being absent, did not sit in this case.
401
wood from the south to the north side of the track, at a point
about one thousand feet east of the cornpanys depot. An en
gine was then, and had been for some time previous thereto,
engaged in switching cars in the yard, and was passing up and
down the track quite frequently. Plaintiff, without taking the
precaution to look along the track to see if the engine was ap.
preaching, and without listening for its approach, picked up a
block of wood, lying from six to eight feet from the track,
placed it upon his left shoulder, and, in attempting to cross the
track, was struck by the engine. The block was six or seven
feet long, twelve inches wide, and about six inches thick.
Owing to the size and shape of this block, and the position in
which it was placed upon the shoulder, it obstructed the plain
tiff s view along the track toward the depot as he faced the
track. The engine came from the direction of the depot with
a train of ears attached, and was running at the rate of about
ten miles per hour. The usual rate of speed allowed in the
yard was about six miles per hour. It was customary to ring
the bell when passing a squad of men on the track, but on
this occasion no signal was given. The track was straight
and almost level from where the men were at work to the
depot, a distance of about one thousand feet, and the engine
could have been seen the whole distance if plaintiff had looked
for it. The engine and train, running at the speed of ten
26
I.-1-...
_ _
40).
miles per hour, could have been heard that" morning a distance
of half a mile. The plaintiff neither saw nor heard the train
until he was struck, although his eyesight and hearing were
both good.
~w1
403
Behrens v. K. P. Ry Co.
--
404
generally a question for the jury, and not for the court, be
cause negligence is want of ordinary care.
This proposition
pass upon.
. In Barton v. St. Louis c Iron Mt. R. R. 0'0. 52 Mo.
'_i. 258, this subject is considered, and the rule laid down by
hat court to determine when the question is one of law for
tie court, or of fact for the jury, is thus stated: Whether it
s a question'for the court or the jury must be determined by
the facts of the particular case. Negligence is in all cases, in
a certain sense, a question of fact for the jury; that is, it is
for the jury to determine whether the facts bearing upon the
405
Behrens v. K. P. Ry Co.
injury which would not have happened but for his own want
of due care. When, therefore, the plaintiff offers no evidence
that he was in the exercise of care, but on the contrary, the
whole evidence on which his case rests shows that he was want
ing in due prudence, the court, it is held, may rightfully in
struct the jury, as a matter of law, that the action cannot be
maintained.
In Lrl /Iaqf, ArImr, v. The Mil. t Pr. rlu Uh. Ry C0. 19
Wis.
is held, that when the conclusion from the evidence
406
The rst an
thority cited lays down the rule that If the defendant has, by
his own act, thrown the plaintiff off his guard, and given him
good reason to believe that vigilance was not needed, the lack
of vigilance on the part of the plaintiff is no bar to his claim,
especially if the defendant has done so by means of positive
inisrepresentations. It would require avery liberal construc
tion of this rule to extend it to the facts of the case before us,
____ __
__
__
407
case would dispense with the rule requiring the exercise of rea
sonable care and prudence in almost every conceivable case in
volving the element of contributory negligence. The other
authorities cited are equally wide of the mark. The doctrine
of the case in 17 Kansas is, that all reasonably prudent men,
in the transaction of their own affairs, make some preparation
for the negligence of others, as well as for accidents, and holds
that since all men know that even the most prudent are some
times negligent, they should be required to anticipate that av
erage amount of negligence which must, in the very nature of
things, be expected to transpire. In that case, the court held
that the question whether the plaintiff had exercised due care,
at the point named upon the hillside, but there was some testi
mony that he might have seen the train approaching after
408
Behrens v. K. P. Ry Co.
for years had been to post a man with a flag upon the track
when a moving train came near enough on either side the sta
tion to make the crossing dangerous. If the train was to stop
at the station, he exhibited a white flag; if it was to pass
without stopping, he exhibited a red flag. Deceased was ac
customed to travel the highway, and was familiar with this
custom.
409
not in view; that he listened for the whistle and the bell, but
He
It does not
therefore aid the case of' plaintiff in error. And in respect to the
facts, it is diflicult to perceive in what respect they are analo
gous to the ease under review. Certainly not in the obstruc
tions to the view; the statute of the State; the speed of the train ;
the curve in the road; nor in the efforts of the injured party to
410
their legal effect. I think this doctrine has never been ques
tioned anywhere. In Pa. Mining Co. v. Brady, 16 Mich.
322, this doctrine was fully applied, and I do not understand
the principle to admit of a doubt.
Again, after reviewing the facts, he says: It seems to me
that if, under such circumstances, a person is not required to
look upon a railroad track before attempting to cross it, there
is no available precaution which the law can exact of a man
of sound mind for his own preservation. Judge Cooley, in
Mich. Cent. R. R. Co. v. Campau, 35 Mich. 468, comment
ing upon the conduct of a man who was walking upon the
railroad track in the city of Detroit, at a point where there are
411
five parallel tracks side by side, and near to where two streets
cross the tracks, who, failing to look behind him, was struck
by an engine and injured, used the following language:
When, under such circumstances, a person places himself
upon a railroad track, with an approaching engine in plain
sight, and without even taking the precaution of looking be
hind him, it is impossible, in speaking of his conduct, to char
acterize it by anything short of recklessness. If the plaintiff
can recover in a case like this, it is plain that the negligence
of the injured party must be held immaterial in any conceiva
ble case.
412
sumed under section 2743, General Laws, when, without question, a. board
of municipal oicers exercising their oicial duties has been maintained for
'
2. The creation of the oice of police judge fora city or incorporated town
is within the legislative authority; and the election Of such officer may, by
law, be conferred upon the municipal authorities of cities of certain classes;
but the creation of a judicial oicer by name merely, without dening his
duties and providing the manner of their exercise, does not constitute a court.
In the absence of statutory authority the city council cannot establi-h jurisdic
tion and provide for the exercise of judicial functions.
3. A police magistrate," under the laws of this State, must be ajustice of
the peace, duly elected and qualied, primarily, and by appointment or designa
tion by the propcr authorities of amunicipality, may become a police magis
irate" ea: oicio.
4. The otee of police judge, as denominat -d in sections 2714 and 2720 of
the General Laws, can only be established and fully equipped for service by
the legislature of the State; such otcer is not the creature of the munlcip-.1-l
authority of a city or townsuch municipal authority cannot invest the otiice
with any powers or functions of its own creation; and a person assuming as
police judge to exercise judicial functions under no other license than that
conferred by municipal authority, is guilty of usurpation.
Quo warranto.
__
__7
__
413
such power; that he claims power for such exercise from the
city council of Leadville; that said city of Leadville has
never been organized according to law; that such city council
has no legal existence and no power to appoint a police udge;
that there is no law of the State or ordinance of that city pro
viding for a police court, or any system of procedure or prac
tice for such court.
The answer denies all usurpation, and avers a right in the
defendant to hold and exercise the ofce; that he was duly
elected police judge by the city council; that he qualied ac
cording to law, and still lawfully holds and exercises the oftice;
that if the city of Leadville was not duly organized pursuant
to law, it is now too late to raise that question.
I.
414
neer.
__
,-- ---- -
---_-1
415
competent jurisdiction.
416
February 13, 1874, provides that the city council may designate
in such manner as they may determine, one person resident
within said city, upon whom, by the laws of the Territory,
417
418
rest, set out in the ordinance, it appears that the police judge
is to subscribe himself in such writs, not as police judge, eo
nomine, but as justice of the peace.
Thus we find that the jurisdiction and mode of procedure
provided for the defendant was prescribed in part by the city
council directly, and for the rest he was by the same authority
directed to select and appropriate so much of the general law
relating to another class of officers, as in his judgment and dis
cretion he should deem applicable and proper.
We have already seen that not being a justice of the peace,
he could assume the authority of such an office only by usurp
ation, and certainly it cannot be contended that the municipal
authorities of Leadville can confer statutory powers upon an
officer of their own election, for whom no statutory powers
have been prescribed by the legislature, even although they
may have been fully empowered by the statute to elect such
officer merely.
The city council possesses no lawful power to legislate for
True, Section 2714 (G. L.), relating to cities of the first class,
provides that the city council may elect a city attorney or so
licitor, a marshal, a police judge and a city engineer; each of
said officers shall have such powers and perform such duties as
are prescribed in this act or by the General Law, or by ordi
nances of the city not inconsistent herewith; and as we have
419
420
Our constitution
constitution.
421
422
423
question.
Since this is an original proceeding, brought to this court in
the rst instance, it is therefore considered and adjudged that
the defendant, John R. Curley, is guilty of usurping and un
lawfully holding and exercising the oice called police judge of
the city of Leadville, in the county of Lake, and the State of
Colorado, and that by the judgment of this court he, the said
John R. Curley, be ousted and excluded from said oice and
franchises, and any and all exercise thereof, and that he pay
the costs of this proceeding.
424
Wooron v. SEIGEL.
Exceptions taken to instructions en masse will not be noticed in this court
on appeal. nor will it avail to complain in this court of an instruction not ex
cepted to in the court below.
To the giv
This court has more than once held that an exception taken
generally to instructions en masse will not be noticed by the
425
~_
MORRIS v. FRAKER.
The general law of this State permits the owners of cattle to allow them to
range at will, and in the absence of local acts, the owners of crops can only
recover damages done thereto by the trespasses of cattle, when the same are,
at the time of the trespass, inclosed by good and suicient fences.
426
dinary stock running at large upon the range, and that it was
not such a fence as is required by law.
Plainti"s counsel objected to the testimony, but it was re
ceived under a stipulation of opposing counsel, that the court
might subsequently exclude it, and not consider it in the decis
ion of the case.
At the conclusion of the testimony produced upon the trial,
plainti"s counsel renewed the objection to the testimony con
cerning the condition of the fence, and it was excluded by the
court, to which ruling defendants counsel excepted, and now
assigns the same for error.
The appellants counsel took the position that the law of this
State permits the owners of cattle to let them run at large,
and that unless the fence surrounding the plaintitfs inclosure
comes up to the requirements of the rst section of the act of
March 22, 1877, entitled, An act concerning fences and in
closures in the State of Colorado (General Laws, page 461),
there can be no lawful recovery.
As the case is presented ea: parte, we are not informed of the
the plainti"s fence, for the reason that it does not appear
from the bill of exceptions that this statute has been adopted
in El Paso county by a vote of the people at a general election,
as required by the act. This is a fact of which we cannot
The
>5 l0 ~|
Morris v. Fraker.
by the breaking of his close. Every one was bound to keep his
beasts within his own close, and if they went upon the grounds
of others, the owners were liable in damages, unless they could
show that the lands trespassed upon should have been fenced,
either by prescription, agreement or assignment. 3 Bl. Com.
pp. 209, 211; 1 Addison Torts, Secs. 375, 379.
An act was passed by the rst Legislative Assembly of the
late Territory of Colorado, which declared that the common
law of England, so far as the same is of a general nature, to
gether with all acts and statutes of the British Parliament made
in aid of or to supply the defects of the common law, prior to
the fourth year of James I (excepting the second section of
the sixth chapter of 43 Elizabeth, the eighth chapter of 13
Elizabeth, and ninth chapter of 37 Henry VIII), which are of
a general nature, and not local to that kingdom, shall be the
rule of decision, and shall be considered as of full force until
repealed by legislative authority.
428
tained at the trial, on the theory that the common law rule
upon this subject was in force in this State by virtue of that
statute.
This is
lands for which patents have been issued up to the date of the
last assessments, and it may be inferred that the number of
The
agricultural and meadow lands are for the most part situated
in the valleys, and adjacent to the streams which ow out from
the mountains, while the immense tracts of unwatered lands
429
Morris v. Fraker.
Nor is there
any necessity for such a rule. The commons are now owned
principally by the State and by the general government, and it
the grasses which grow thereon are not depastured, they will
waste and decay. And while it is impracticable to purchase and
fence sufficient pasture lands for the stock, the tillage and
meadow lands can be fenced, and, in point of fact, are now
430
Severalacts were
431
Morris v. Fraker.
not let them run at large without providing and letting run at
large with them not less than one bull of good American
graded stock.
ed the people relief from the effect of the general law by the
passage of herd laws and other special acts, which were conned
in their operation to specied localities, and usually to certain
432
of cattle and other animals to keep them on his own land, was
never in force in that State.
The same reasoning was employed, and the same ruling
adopted by the courts 0fConnecticut, Ohio and California, and
in our opinion, equally apply to Colorado. Certainly, the con
dition of this State is as illy adapted to the common law doc
trine as either of the States named. Stadwell v. Ritch. 14
Con. 293; Kerwacl'er v. The Ulevelainrl, Columbus cf} Cin
433
We must therefore hold that the general law of the State per
mits the owners of cattle to allow them to range at will, and that
434
It was the duty of the solicitor, and not the duty of the
clerk, to draft the decree, and to submit it to the chancellor
435
It
436
2. Under the statute (section 2871, Gen. Laws), upon oath of any one
interested, ample power is given county courts to issue citations to compel
parties to appear and answer under oath touching their possession of property
belonging to an estate. But the statute is directory merely as to the manner
shall be stated sufficient to inform the judge of the nature of the causes for
the change, and their alleged foundation.
4. Upon application for change of venue based upon the prejudice of the
judge, while facts are to be stated, they are not to be set out beyond what
are necessary where they involve the judicial acts or character of the judge.
5. A contempt may consist as well in the matter presented as in the man
ner of the person committing it.
6. No formal trial is had in cases for contempt; nor is the contempt
purged by an avowal that no contempt was intended.
437
certified to the said county court, to the end that the same be
enforced as the law directs. A citation was accordingly issued
out of the county court, requiring Hughes and the other de
fendants to appear in said court and show cause why they
should not comply with the order certified from the district
court. To this citation Hughes appeared by attorney, and
filed a sworn answer, and also an affidavit for a change of
venue, both of which papers contained charges assailing the
judicial conduct and integrity of the judge of the said coun
ty court in which the papers were filed. Thereupon a writ of
attachment against Hughes was issued to bring him before
said court, to answer for a contempt, for the use of the lan
court in and for said county, at the regular June term thereof,
A. D. 1879, in a case then and therein pending, wherein Dan
iel Ernst, administrator of the estate of Jenny Akin, against
438
to the court without a jury, and after hearing all the testi
mony, and the court being sufficiently advised in the matter,
it is ordered by the court that the defendants, W. T. Hughes,
Wm. J. Hurd and Frank X. Aicher, deliver to the said admin
one rocking chair, one heating stove, one dining table, one
meat safe, one wash bowl, one bed spring, one mattress, one
bolster, two pillows, two bed spreads, three comforts, and all
other articles of personal property that they and each of them
have in their possession, or under their control; and it appear
ing that Charles H. Martin has in his possession certain prop
erty belonging to said estate: one trunk and contents, one
wash bowl and other articles, it is ordered that he deliver the
same to said administrator, and that the said defendants and
-- - -
---
- -- - -
- -
439
That upon last said date the said Wm. T. Hughes failed to
appear in said county court in person, but did appear by
John A. Coulter, Esq., his attorney; and upon information
received by this court from the said John A. Coulter, as such
attorney, the court, of its own motion, continued the time for
the appearance of the said Wm. T. Hughes to answer concern
ing said citation until Thursday, the 7th day of August, A. D.
1879, at 2 o'clock P.M. of said day. And on the said 7th day of
August, A. D. 1879, at 2 oclock P.M., and for more than one hour
thereafter, the said Wm. T. Hughes still failed to personally ap
pear before said court in obedience to said citation, and the order
extending the time of appearance of said Hughes in re
spect thereto; but the said John A. Coulter, attorney, did
judge of the county court, within and for the county of Clear
Creek, Colorado, on the 5th day of August, A. D. 1879:
440
I.
That on the 26th day of June, 1879, an order was made
and entered of record in the district court, within and for the
N o. 2,138.
W. T. Hnonns at al.
Plaintiff and defendants hereby compromise all matters in
dispute in this cause, and defendants agree to turn over to
plaintiff all goods of the estate of Jenny Akin, now in the pos
session of William J. Hard, and law the same no farther, for
441
the above agreement, and did then and there deliver the goods
mentioned in the said release and discharge to the said Daniel
Ernst, administrator aforesaid, and that said release and dis
charge was madea part and parcel of the records of the dis
trict court of Clear Creek County, Colorado.
the same.
And these defendants further state, that the judge of the
county court within and for the county of Clear Creek, Colo
rado, had notice of the release and discharge as aforesaid, at or
about the time that the same was executed by the said Daniel
Ernst, administrator as aforesaid, and further charge, upon in
formation and belief, that G. G. White, attorney of the estate
of Jenny Akin, had notice of the release and discharge of these
defendants, on or about the time that said Daniel Ernst, ad
ministrator as aforesaid, cxecuted and performed the condi
tions of said agreement; and further charge, upon informa
tion and belief, that the said county judge and G. G. Wliite,
attorney for said estate, and Daniel Ernst, administrator afore
said, purposely and intentionally acquiesced in the release and
discharge given by Daniel Ernst, administrator aforesaid, un
til the time for perfecting a record of the case in the district
court had expired, and thus gain an unjust and undue advan
tage by these further proceedings in said cause.
Jonu A. Counrmz,
442
STATE Creek
of Color
ADo,
Clear
County.
SS.
Notary Public.
That during the same session of said court, the said Hughes
still being absent therefrom, the said John A. Coulter, his at
torney, presented to the court the affidavit of said W. T.
Hughes, stating causes for a change of venue of said case,
which affidavit of said William T. Hughes is in words and
figures following, to wit:
STATE
ColorADo,
ClearofCreek
County.
ss.
In
County Court.
443
ily
J. P. PosT,
Justice of the Peace.
444
And have you then and there this writ, with an endorse
ment showing how you have executed the same.
Witness J. C. McCoy, Judge of said court, and the seal
thereof, at Georgetown, this 12th day of August, A. D. 1879.
J. C. McCoy,
County Judge.
To this writ the defendant, Hughes, filed his answer as fol
lows:
445
judicial proceedings.
Third. Disobedience or resistance to any lawful writ,
order, rule or process issued by the court or judge at chambers.
judge at chambers.
Aside from inapt language and a faulty manner of expres
sion, these enumerated causes of legal contempt in the Code
are much narrower than the common law. The case of Stuart
446
510.
This doctrine, which we regard with decided approval, is
also declared in the case of The People v. Wilson, 64 Ill.
195, where it is held that the power to punish for contempt
is an incident to all courts of justice, independent of statutory
provisions, citing numerous authorities, and drawing the
same inference from the opinion of Mr. Jnstice Breese in
Stuart v. the People, supra, in declaring that the statute
afiirins a principle inherent in a court of justice to defend
itself when attacked, as the individual man has a right to do
for his own preservation.
It is, perhaps, unnecessary here to lay down in extenso the
ll
M
g
-~--_
J an-I-1
447
448
in law or fact.
449
the process of the court. In this case the court did not need
information by the oath of any person, when the possession
of money belonging to the estate was shown to be in posses
sion of the plaintiff in error, by a judicial finding of the dis
trict court, and which had been certified to, and made a mat
hearing one day after the return of the citation, for cause
shown, yet plaintiff still refused to appear in person.
Courts possess a wide latitude for the exercise of discretion
in all such cases. Where a spirit of respect for the court exer
cising judicial authority, good faith and honest intent are
shown by a party subject to such authority, these circumstances
are one guide in directing the exercise of judicial discretion, while
a contrary state of facts is another guide pointing out a different
course of action. In this case the judge of the county court
is himself best qualified to judge whether the refusal to
comply with the order of the court was intended as a con
tempt, or was in fact, a contempt of the judicial authority.
As to the matter contained in the papers filed, which were
adjudged by the court below to be matter of contempt, they
need no lengthy discussion, since they consist of language ad
dressed to, and used of and concerning, the judge of the court,
and in respect of his judicial acts.
First. As to the answer filed to the citation, the plaintiff in
error directly charges the judge of the court wherein the cause
was pending with colluding with the administrator and the at
torney for the estate, for the purpose of gaining an unjust
and undue advantage against the plaintiff in error, who was
then a party defendant to the proceedings, as well as attorney
for his co-defendants therein. The language employed can
have but one meaning. It implies judicial corruption and un
29
450
he will not receive a fair trial in the court wherein the cause
451
C. L. p. 750.
As stated, however, we conceive that in all cases necessary
material or pertinent facts should be set out; in case of the
prejudice of the judge, his attention would thus be called to
some circumstance which he may have forgotten, or of which
he was entirely ignorant, but which the petitioner might con
ceive to be a cause of prejudice, and a sense of justice requires
452
453
269.
454
455
stitution, and the constitution must be enforced as the paramount law. But
the entire act does not therefore necessarily fail. Where part of an aot only
is unconstitutional, and when this is stricken out, if that which remains is
complete in itself, and capable of being enforced, wholly independent of that
456
which is rejected, it will be sustained. The General Assembly had full power
to establish a criminal court, provide for the appointment of a judge, and x
his term of office ; and that portion of the act decreed unconstitutional being
supplied by the constitution, the act can be enforwd.
Quo warranto.
Messrs. Otmron Rsso, A. S. Wnsrou & J. B. BISSELL, for
,relator.
The
Warrant for the act is found in Sec. 2}, Art. VI of the Con
stitution : The General Assembly shall have power to create
and establish a criminal court in each county liaving a popula
tion exceeding fteen thousand, which court may have'concur
rent jurisdiction with the district court in all criminal cases
not capital; the terms of such courts to be as provided by law.
The rst section of the act establishes in the county of Lake
a criminal court, to be called the criminal court of Lake
county.
of the Assembly.
Henry A. Day judge of the court, who qualied upon the 5th
of March. Thereafter, and on the 7th of March, the county
ll
_,}i**' '
457
.
correct conclusions.
(1) Touching the powers of the General Assembly, it must
be remembered that, when the people by their constitution
created that body, and declared that the legislative power should
be vested therein, they conferred the full and complete power
as it existed and rested in themselves, subject only to the re
straints and limitations of their own constitution and the Con
stitution of the United States. Cooley Con. Lim. 87.
Chief Justice Demo says: The people, in framing the
Constitution, committed to the legislature the whole law
making power of the State, which they did not expressly or
impliedly withhold. Plenary powers in the legislature for all
A prohibition to
4-58
hidden.
inhibited.
__
iii
459
sider both. Less than this might result in the necessity for
another action.
Whether judicial positions should be lled by election or ap
It
and upon each side of which the ablest pens have been em
ployed.
It would be difficult to believe that any convention of dele
gates convened for the purpose of framing a constitution for a
new State would adopt either the elective or appointive system
without a contest. Any adoption of one or the other system
could scarcely be casual or accidental, but the result of deliber
ation and debate.
460
4___;=$_-._.._-.;.. .
461
462
463
ingly hold that the oice of criminal judge comes within the
provisions of the section.
In the
4434
An ex
say :
46-3
that body would mark the extreme limit of time within which
the appointment was to be made. II-ad the act been signed
prior to the adjournment, and no appointment made, immedi
ately upon adjournment there would have been a vacancy, by
reason of the failure of the appointing power to exercise it.
In this case, the bill not having been signed until after the
adjournment, the governor was unable to act under the pro
vision for lling the ofce, with the advice and consent of the
Senate. Upon approval the act took elfect immediately; the
time within which the executive was required to appoint had
expired, and inability to_act was followed by a vacancy, the
same as in case of a failure to act.
There being a vacancy, and the oice being judicial, all the
conditions concurred that were necessary to make the 29th sec
tion of Article VI of the constitution, applicable, and it pro
vided that the vacancy should be lled by the county commis
sioners of the county where the vacancy occurred. In so far
as the act of assembly provides that vacancies in the oice of
judge of the criminal court of the county of Lake are to be
lled by the governor, it is in conict with the provisions of
the constitution, and the constitution must be enforced as the
paramount law.
While this is true, the entire act does not necessarily fail.
Where a part of a statute is unconstitutional, that fact does
not authorize the courts to declare the remainder void also,
466
467
A mortgagee is at liberty
to deal with the mortgaged property, and purchase any portion of it, but,
if he do so, there is no reason for exempting him from the equities which
attach in the case of any other purchaser.
468
mortgage
to
469
the sheriff make said sale upon public notice first given, etc.
From this decree Fassett and Mrs. Phelps appeal.
It is a familiar principle that a mortgage is but an incident
of the debt it secures, and an assignment of the debt carries
the mortgage with it. 1 Hilliard on Mort, 238 et seq.
The indorsement on the note by Fassett to Reynolds is in
terms an assignment, and there is nothing in the evidence
that would warrant us in saying, as claimed by the appel
lants, that the parties intended a payment instead. It car
ried with it the mortgage by which it was secured, as did also
Reynolds transfer to Mulock, notwithstanding the note was
not indorsed by Reynolds.
Respecting the transfer by Reynolds to Mulock, there is
little, if anything, to justify the strictures of counsel in any
fair treatment of the evidence. It appears to have been the
ordinary case of a person with money to loan investing in a first
mortgage security.
After assigning the note, Fassett's power over the mortgage
ceased, and his release of record was a nullity. 1 Hilliard on
Mort. 241, 250, 251; Ec. of Swartz v. Lerst, 13 O. St. 420;
Cutter v. Havan, 8 Pick. 490; Phelan v. Olney, 6 Cal. 478.
It was in effect a fraud, and the fact that he held two prior
-
qualified, as prayed for in the bill, and not limited to lot thir
teen.
470
Dickey v. Thomp.
471
/
*
472
473
lock and James McClure, lots fifteen and sixteen stood charged
with the mortgage debt, notwithstanding McClure was a bona
fide incumbrancer, McClure would have an undoubted equity,
in view of the fraud, to have lot thirteen, held by Fassett, de
creed primarily liable for the mortgage debt.
As between Fassett and his daughter, Mrs. Phelps, there
was no valuable consideration; the conveyance to her was a
consideration of natural love and affection.
She therefore
25, 1873, and April 24, 1874. The date of Mulock's mortgage
on lot fourteen was December 22, 1875.
474
uh ~1 O1
- Nor does the fact that Mrs. Phelps sustains the character of
donee, preclude her from asserting this equity. Fassett paid
a valuable consideration to the mortgagor, and the case stands
the same asif McClure had conveyed to Fassett, and he in
turn to Mrs. Phelps. Not having paid any valuable consider
ation, she must respond, as we have seen, to the equities against
her donor; but her donor being a purchaser for a valuable
consideration, she is entitled to assert his equities as her own.
The objection that the appellants could avail themselves of
The fact
To satisfy
476
477
vent and responsible for said amount, and that she was in fact
solvent and responsible for such amount; that the note was
executed in accordance with the terms of the agreement, and
offered to be delivered to plaintiffs, and the defendant brings
said note into court, and offers to deliver the same to the plain
tiffs, as the court shall direct. ,
It is
478
11s.
be obligatory upon both parties, and that the debtor has exe
cuted it upon his part, nothing remaining but an acceptance
on part of the creditor of the matter or thing which he agreed
to receive in satisfaction; that the creditor may refuse to ac
cept the thing agreed upon, and proceed upon the original in
debtedness, leaving the debtor to his remedy by action for
damages against the other party for the violation of his agree
ment.
Barb. 598.
479
480
481
that there was evidence from which the jury might infer a de
livery and acceptance of the coal which was to constitute the
482
thing to be done.
the action until the day arrives? Mr. Story says: \Vhether
an accord with an unaccepted tender of satisfaction be a sutii
cient defense does not seem to be settled. If the accord be to
acceptalcsser sum than the debt in satisfaction of it, there
must be an actual acceptance in order to constituteadefense to
complete satisfaction.
It has been held that an agreement upon the one part to pay
on a future day certain, and upon the other part to accept in
full satisfaction, if payment be made on such day, a sum of
483
484
DECEMBER
TERM,
1880.
485
the case at bar are said to have done, viz.: he agreed to accept
the composition to discharge the original claim, and then re
fused to comply with his agreement. The defendant, on the
contrary, did just what the defendant Whitsett claims to have
486
opinion that when the debtor has fully performed the agree
ment for composition upon his part by preparing and executing
the new securities, and causing the same to be executed by the
person or persons agreed upon, a suicient tender of the same
that the facts set forth in the plea were only pleadable by way
of supplemental answer, by leave of the court, it is my opinion
were tendered.
\
r.
487
4. Both the Constitution and the statute now authorize the county com
missioners to fill a vacancy in the office of county judge, without regard to
the duration of the unexpired term.
5. B was on the 2d day of October, 1877, elected county judge for the
term of three years.
488.
of this nature.
The position taken by counsel for the relator is, that the
489
1877, provides that the regular term of all State, district and
county officers shall commence on the second Tuesday of Jan
490
provisions referred to, bring this case fairly within the rule
laid down by the Supreme Court of Missouri, in State ex rel.
Attorney-general v. Seay, 64 Mo. 89.
In that case, as in this, the newly elected judge died before
491
duly elected.
Third.
Is the rela
492
Sears v. Collins.
SEARS v. CoILINs.
After a return of the findings of a jury upon certain facts submitted, the de
fendant asked leave to amend his answer upon a point submitted and already
covered by the answer.
would have been a very questionable exercise of discretion, and that the court
did not err in refusing to tolerate such an abuse of the rules of practice.
493
Sears v. Collins.
That under
this agreement they went to the place the next day, July 14th,
commenced work, and that on the next succeeding day, July
15th, while the agreement was in force, Sears discovered the
lode in controversy near where Collins had found the oat ore,
and pointed out as the place to prospect for mines. That Sears
sunk a discovery shaft on the lode, and thereupon afterwards
located and had recorded all of said lode in his own name,
with intent to defraud Collins out of the share to which he was
entitled under the agreement. That the mine had proved to
be valuable, and that Sears had taken out and appropriated to
his sole use a large amount of ore of the value of $1000.
494
which he stated came from the spot referred to; that on the
said 14th of July the parties went to the place together, but
found no more float ore in the vicinity; that appellant discov
495
Sears v. Collins.
court made and entered its decree that Sears convey to Collins
answer.
all the testimony had been heard upon the questions submitted,
to amend his answer where it already covered this point. Such
496
to the testimony already given, but to lay out new ground for
testimony he would afterwards seek to give, after the ndings
Decree ajirmed.
Mr. Justice Bncx, having presided as judge of the district
court in the trial below, did not participate in this decision.
497
498
Disseizin
499
The point made is, that the complaint is entitled The State
of Colorado, Plaintiff, etc., instead of The People of the
State of Colorado, in which name all process is required to
ple united in one body politic, and Tho State and The
People of the State, are equivalent expressions. Pen/tollow
v. Doana, 3 Dal. 93; 1 Storys Con. Sec. 361.
It is assigned, (3) The court erred in overruling defendants
demurrer to plaintis complaint.
The principal points raised by the demurrer were the two
which we have just considered, and if the views we have
At the
same term the venue of the cause was changed to the county
of Jetferson, in the rst district. Afterward, at the April term
of the district court for the county of Jefferson, a trial was had
500
501
that the site, situated and conveyed, was sixty feet south of the
city limits, as prescribed by the act of 1866. This certainly
is not a very wide departure from the directions of the act, if
we were to accept the construction that the site was to be
Second.
502
years in common with the State, and having received the pre
sumable benets arising from such location on his land, he is
Third.
for a long period of time, justice requires that courts, for the
maintenance of property rights acquired under it, should up
hold the construction given by the parties.
It is objected to the deed (2) that there was no acceptance
buildings thereon.
The conveyance of Brown recited, the said land being so
conveyed to said Territory in pursuance of an act entitled, an
0
503
'
If so, it is a breach of an im
504
by inference or recital.
198.
cate any intention to limit or fix the time within which the
State is to commence the erection of its capitol buildings. The
language of a deed is to be construed most strongly against
the grantor and beneficially for the grantee. It is the lan
guage of the grantor, and the principle of self-preservation
and self-interest are supposed to make him sufficiently careful
not to prejudice his own interest. Broom's Leg. Max. 594.
The deed being entirely silent upon the subject, the clear
and rational construction is, that the grantor was willing to
leave the time for commencing its public buildings to the de
termination of the State. If such was not the intention, it is
the grantor's own fault that such a condition was not inserted
in the deed.
505
Tested by this rule, we are not able to say that the State has
unreasonably delayed the erection of capitol buildings.
The fourth objection to the deed is based on the supposed
e ect of the constitutional provision submitting the location
o the seat of government to a vote of the people, and has al
ready been considered. The same considerations are applica
ble to the further claim, that the Territory could not accept
the grant, because, under Sec. 12 of the organic act, any sub
506
ing the deed or varying its effect. Mr. Washburn states the
rule as follows:
R. P. 614.
Again, he says, The true doctrine is stated in G-rant v.
507
find no sufficient ground for saying that the grant has been de
feated or forfeited by reason of a breach of its supposed con
ditions, either express or implied.
508
was sentenced to the penitentiary for and during his natural life.
The single error assigned is, that the court by consent of
509
Ex parts Stout.
The position assumed is, that the fact of separation was err or
par ae, for which the judgment should be reversed.
The decided weight of authority is so clearly the other way
Judgment armed.
510
511
Ex parte Stout.
The former
ing the requisite population shall have such a court, but that
courts of this character may be established from time to time,
512
court.
513
Ex pirte Stout.
The law
ized, and from which the power and practice claimed for it
are derived; it is clearly a special or local act, as those terms
33
514
515
Ex parte Stout.
constitution.
practice.
olb
-v
1
SUPREME Connr on Cononsno.
C. C. R. R. Co. v. Holmes.
the provisions of the kabeas corpus act, but will direct that
the prisoner be discharged.
mi
517
C. C. R. R. Co. v. Holmes.
Coun
sel for petitioner takes issue with the court upon the conclusions
deduced from the testimony, and also questions the correctness
a few of the most patent errors into which counsel has fallen,
through what may be charitably attributed to his zeal for his
client.
says:
As to the rst of plainti"s propositions, this court has in
effect said, that making a ying switch under the attendant
circumstances, in a populous part of the city of Denver, is so
entirely proper that a jury should not say whether it was reck
lessness or not.
tate to say the company could not be held toa criminal respon
sibility.
,
This court announced no such conclusion as counsel inti
mates. The locus in. guo was not in a populous part of the city
of Denver. On the contrary, as the testimony shows, it was
within the switching yard of the railway com pa.ny,- at the
north side of the town, where there was no street or other
public crossing, and where only a few small houses were scat
tered about in the Platte river bottom, and where, as witness,
Kirchoff, who lived there, stated, the weeds grew in places
018
The opin
"' It' we leave out of question the facts (as the court has ex
pressly done), that this was a ying switch, being made in a
populous part of the city of Denver, upon a part of the track
crossed at short intervals by public streets, etc., etc.
The witness, Rollins, the civil engineer, who laid out and
platted the tracks and yard of the railway company, testies that
18th street ends short of the railway tracks: that it does not
cross any track; the accident occurred on no street and not on
ground where a street has been laid out.
Witness Kircho' testifies: There is no one living between
18th and 19th streets on the side next the river; there is no
house there; people that pass there come from beyond 19th
street; nineteenth street is not graded; is two or three feet
and in places three or four feet below the grade; is very un
even, and water standing over it on the block next the rail
way track. He stated in another place that there were twen
ty-ve or thirty houses up 19th street toward the river.
This testimony as to streets and population in that vicinity,
is not contradicted, or sought to be, anywhere in the whole
record.
Counsel says: The reason we are in earnest, is because
the opinion, if it stands, practically deprives us of another
519
C. C. R. R. Co. v. Holmes.
The
plaintiff testies that she was trying to get o all the tracks.
believe the plaintiff would get out of the way of the cars. If
the second statement be true, that she was Walking on the ends
of the ties, her danger was not so great, nor as much notice
necessary to enable her to avoid injury, as if she had been
walking between the rails. A single step would take her out
of the way of the cars.
The suggestion of counsel, that Mahoneys testimony was
to the effect that plainti walked on the third track a distance
of one hundred feet, is not correct. A fair interpretation of
his testimony is, that she walked in this manner one hundred
feet after he discovered her on the main track, when she was
o20
:
tain whether cars were moving thereon. ' She assumed that
there were no moving cars upon the switches at her peril.
521
Ex parte White.
A find
ing or conclusion from the evidence that either there was want
Ex PARTE WHITE.
All laws regulating the proceedings, practice and jurisdiction of courts
must be general; and the provisions regulating these matters, as regards the
Criminal Court of Lake County, being local, the act is, in so far, unconsti
tutional.
C
I NJ
[O
Ex parte White.
The former provides that The General Assembly shall not
pass local or special laws in any of the following enumerated
cases: that is to say, * * * regulating the practice in
courts of justice, * * * providing for changes of venue
in civil or criminal cases, * * * summoning or impaneling
grand or petit juries; * * * in all other cases where a
general law can be made applicable, no special law shall be en
acted.
'
523
Ex parbe White.
Z54
For the same reasons we must say that the act in question is
constitutional in so far as it creates a criminal court for the
county of Lake, but no further.
It is hypercritical to say that the term court in this connec
the same.
The constitutional provision requiring that all laws relat
ing to courts shall be of general and uniform operation is
of the rst importance; and while we are fully sensible of the
temporary hardship which its enforcement in these two cases
entails, we feel certain that it is insignicantin comparison with
525
In re Roberts.
the confusion, conflict and uncertainty which the two acts, if sus
tained, would inaugurate.
The prayer of the petitioner must be granted.
IN RE T. H. RoBERTs.
1. The printed statutes published by authority, and the enrolled bills duly
authenticated and on file with the proper custodian, are prima facie evi
dence of what the law is, but not conclusive.
ity to act in the premises, in that the act of the General Assem
bly increasing the number of judicial districts in the State,
and establishing the court aforesaid, entitled An act to estab
lish judicial districts in the State of Colorado, and to provide
526
and providing for the transfer of causes therein, and for con
tinuing causes in case of adjournment, and to repeal all other
presence of the house over which he presides, sign all bills and
/.
._.'| l\'.1 \]
In re Roberts.
case.
A question of fact is: Was the act in question passed in
compliance with the constitutional provisions above quoted?
The questions of law are: First. May the court go back of the enrolled act, duly
authenticated by the signatures of the presiding oicers of the
two houses and the governor, and led with the Secretary of
State, and examine the legislative journals, as sources of in
'
Fourth.
528
721)
The States whose courts hold to the contrary, and to what
may be called the American doctrine, are th_e thirteen follow
ing: New Hampshire, Vermont, Maryland, West Virginia,
South Carolina, Alabama, Arkansas, Pennsylvania, Ohio, Illi
529
ln re Roberts.
house upon all matters before it. The Vermont and Pennsyl
vania cases cited above, go no further than this upon the
questions considered, and even the New York case of the Peo
In
deed it may be observed that the English rule allows the jour
nals of parliament to be admissible evidence for all purposes
for which they are there considered to be kept, though not for
And it is to be
til the time of Edward VI, while in most of the States of the
Union the constitutions require journals of the proceedings,
and point out what they shall contain, will account for much
of the diversity of opinion by the courts of this country.
contrary doctrine.
34
530
531
In re Roberts.
532
Charles
533
In re Roberts.
be recorded.
534
535
In re Roberts.
sufficient appears to satisfy the judicial mind that the ayes and
noes were taken and recorded as required.
ing.
536
served upon the owner, of intention to claim a lien, that a payment was due
or to become due from the owner to the contractor.
said lots.
1n<r.
?1hat said material was furnished as aforesaid by the author
ity and with the knowledge and consent of the said Jacob
Scherer, he, the said Jacob Scherer, then and there being the
owner of the lots hereinbefore described.
That the plaintiffs, on the fth day of March, A. D. 1880,
and within twenty days from the fumishing the last of said
material above mentioned, according to the form of the statute
in such case made and provided, prepared and led in the of
537
.
the form of the statute in such case made and provided, and that
a writ of summons may issue out of and under the seal of this
honorable Court, directed to the sheriff of Arapahoe county,
matter of defense.
538
539
The rst of these cases lays down the rule as stated by Mr,
Phillips, but the other case holds directly the contrary. It
will be found upon investigation that the case of Doughty v.
Devlin is the rst reported case of a large number of cases
decided under the New York lien law of 1851, and the court
a contract, and also that a payment has become due upon it.
Following this case, the court adhered to the same rule in
numerous cases to be found in 2d, 3d and 4th E. D. Smith,
appear:
5-10
Sec.
rightly sustained.
Judgment A_1-med.
541
Fisher v. Greene.
FISHER v. GREENE.
1. Equity will interfere to restrain an adverse party from availing him
self of a judgment where there are any facts which prove it to be against
conscience to execute such judgment, and of which the injured party could
not have availed himself in a court of law, or of which he might have availed
himself at law but was prevented by fraud or accident unmixed with any
fault or negligence in himself or agents.
2. Where the facts upon which relief is claimed existed before the trial at
law, and were known to the party asking the relief, or might have been dis
covered by the exercise of ordinary diligence, and was as much a defense at
law as in equity, no redress can ordinarily be obtained in equity.
3.
existing for said action, or upon what demand the same could
be founded.
Greene, who was then present with the officer who served said
542
the same. either from the said Heyer or Bayaud, and was in
fact totally ignorant of the existence of said notes, never hav
543
Fisher v. Greene.
the prosecution of his own business, and the same were pro
tected and paid by the said Bayaud when they became due and
payable, this defendant having no interest whatever in the
same and not having executed the same for any valuable con
sideration, but solely for the use and accommodation of said
Bayaud; and this defendant avers that if said four notes had
been issued by the said Heyer, then the agent of this defend
544
in said county and State, and the said plaintiff, Greene, resided
in the city ot' Providence and State of Rhode Island, and the
said Bayaud and all the witnesses to this transaction in the
State of New York; that this defendant had been in the United
States several times since the execution and maturity of said
notes, and that, too, with the knowledge of the said Bayaud,
payee of said notes, and had many times during the year
A. D. 1868, seen and conversed with said Bayaud in rela
tion to his interest as such special partner, and said Bayaud
had assured this defendant that there would be further pa)"
meuts coming to him by reason of said partnership; that al
though the said Bayaud now claims that during all that time
the said four notes were in his possession, and were then un
paid, and that he had paid the money upon them at their ma
turity, and although this defendant was then able to pay said
notes if valid, which fact was so known to the said Bayaud,
nevertheless this defendant avers and charges the fact to be
true, that said Bayand never, in or at any of their interviews
in the years A. D. 1868 and 1869, or at any other time, ever
informed this defendant of the existence of said notes or that
545
Fisher v. Greene.
time aforesaid was in London, England. and that such fact was
at all times well known to the said Bayaud at the time he so pos
sessed said notes, and was also well known to the said Greene.
who now claims that he purchased said four notes from the
said assignee in bankruptcy of said Bayaud at the sale of said
neither the said Bayaud or the said Greene ever informed this
defendant of the existence of said notes, nor ever wrote to
and maturity for the space of about eleven years, and then
brought suit in said Superior Court of Cook county, in the
State of Illinois, a long way distant from the said residence of
this defendant and from the residence of the said. Bayaud and
Greene, and from all the witnesses, and evidence in the cause
was readily and easily procured with less expense ; and while
this defendant was temporarily in said city of Chicago, county
of Cook and State of Illinois, on his way to the State of Cali
fornia, with the fraudulent intent aud purpose, as this defend
ant believes and so charges the fact to be, to injure, harrass
and annoy this defendant, and in order to take advantage
of this
defendants
5-16
New York, well knowing that the said Heyer, who had exe
cuted said notes as the agent of this defendant, and who hail
acted theretofore as the agent of this defendant, as before
stated, and who knew all the facts and circumstances connected
with the execution and delivery of said notes, had long since,
to wit, sometime in the year A. D. 1868, died, and well know
ing that this defendant was at the time without the knowl
edge of evidence wherewith to successfully defend against
said action, and that all evidence regarding said notes, their
nature, use and existence, and the facts connected therewith,
was peculiarly within the knowledge of the said Bayaud, the
fend said suit in said Superior Court of Cook county, but not
knowing at the time the evidence that could or would be pro
duced by said plainti' in said suit to substantiate his said
claim, and being ignorant of the facts and circumstances con
nected with the execution and possession of said notes by the
plaintiff and said Bayaud, he was unable to give his said attor
ney but scant information with reference to the same; that in
fact and in truth he was not at the time apprised of the facts
surrounding said transaction to enable him to give his said
attorney the facts, so as to make such defense to said suit as
in justice and right he could have done had not said facts
been purposely and fraudulently concealed from him by the
said Bayaud and the said Greene, and that all his said attor
ney could do at the time, from the information then in the
547
Fisher v. Greene.
made before said suit was commenced, and which required his
immediate and personal attention, expecting and intending as
soon thereafter as possible to return to England by way of
New York for the purpose of collecting such evidence as he
could nd with reference to said four notes, and to examine his
and unable to return to England before late in the fall of the year
A. D. 1878; that it was absolutely necessary for this defendant
to examine his said books, letters and reports with reference to
said business trans-tctions with the said Biyaud, all of which
were in London, England, in order to give his testimony in
telligently in defense of said suit; that this defendant, upon
leaving for England in the fall of A. D. 1878, as before stated,
telegraphed to his said attorney in said suit to take such steps
548
of New York, but that said court refused to allow said pleas to
be led, to which ruling exception was taken, copies of which
said pleas are hereto attached, marked exhibit E, and made
549
Fisher v. Greene.
that said suit was liable to be reached for trial on or about the
25th day of January, A. D. 1879, and before the said deposi
tion of this defendant could be returned into said court; that
thereupon the attorney of this defendant applied to the attor
ney of said Greene to continue said cause until said deposi
tion should be returned into said court, but he refused so todo
unless it was agreed that said suit should be tried before the
court withouta jury; that the attorney of this defendant was
compelled to so agree in order to have the benet of said depo
sition; that said cause was thereupon continued for a certain
space of time, and until the 19th day of February, A. D. 1879,
the ruling of the court thereon; that said suit was thereppon,
on said 19th day of February, A. D. 1879, tried by said court,
without the said deposition of this defendant being so returned
in said suit, contrary to the objection of this defendant; that
by reason of the absence of this testimony of this defendant,
550
knowing that said Reynolds was_ acquainted with both the said
Bayaud and the said Greene, he informed the said Reynolds
of the said suit then pending against him in said Superior
Court of said Cook county, as aforesaid, and of the claim there
in set forth upon said four notes, and the facts in so far as he
knew them; and thereupon, to the surprise of this defendant,
the said Reynolds informed him that during the year A. I).
1866, by reason of certain business transactions by which this
defendant was indebted to said Reynolds, he, the said Reynolds
knowing of the special partnership existing between this de
fendant and the said Bayand, and that said Bayaud was in
debted to this defendant, he, the said Reynolds had, during
the absence of this defendant in England, attached his inter
est .as such special partner of said B-ayaud, and that thereupon
the said Bayaud had made a full statement of all the affairs of
this defendant with said Bayaud, and after fully debiting this
defendant_ with everything chargeable to him, had paid to
551
due this defendant after allowing the said Bayaud all the
claims or effects which he had against this defendant, and
which were due and unpaid from him to said Bayaud; and said
sum was so paid by said Bayaud only after full satisfaction and
discharge of all debts and sums of money then owing him from
this defendant; and this defendant avers and states the fact to
552
lief, and so charges the truth to be, that the said Greene, at the
time he so purchased said four notes from said assignee, and
before the bringing of said suit upon them, knew that said
notes were long past due, and was fully informed of said set
tiement, payment and discharge of said notes, and that by rea
son of such payment and discharge the said Greene ought not
to have recovered judgment thereon in said suit against this
# defendant.
quainted with the facts above set forth in regard to said settle
inent until informed thereof by said Reynolds on or about the
18th day of February, A. D. 1879, as aforesaid.
And this defendant further alleges and shows to the court,
that during the pendency of said suit he made every effort in
his power to discover the truth regarding said four notes, and
to obtain evidence therefor on the trial, by making inquiries
wherever he had any reason to believe that he could obtain
even the slightest information on the subject; that he caused
diligent search to be made in New York for the books and
papers of the said Heyer, deceased, in the year A. D. 1868,
which related to his agency and the time said notes bore date,
but was unable to discover any books and papers, or to gain
553
Fisher v. Greene.
-1,:-)4
court and the strict rules of common law, which do not allow
the granting of new trials after the term of court at which said
could have been secured and used upon the trial of said cause,
and could have been fully heard and determined, and would
have caused the said court to nd the issues in that cause for
555
Fisher v. Greene.
oo6
~1
clared that they were unpaid when they became due, and thus
misled the attorney of this defendant on the cross-examination
of said Bayaud, and to whom said payment to said Reynolds
was then unknown, while he, the said Bayaud, Well knew at
the time he was so testifying that said notes were fully satis
ed in the said settlement with said Reynolds, as hereinbefore
stated.
And this defendant further alleges, and charges the fact to
be true, that the claim of the said Greene founded upon said
the said suit in said court, according to the truth of the case;
that said judgment was thereby fraudulently obtained, without
any fault or negligence of this defendant, and is wholly unjust
and contrary to equity and good conscience, and should be
vacated, annulled and held for naught, and a new trial ordered
by this court, in order that this defendant may have the
benet of such newly discovered evidence, and be relieved from
the said frauds of the said Greene and Bayaud.
And this defendant further alleges and shows to the court,
that on or about the 22d day of March, A. D. 1879, he led
his bill in equity against the said plaintiff, Greene, in the said
C;
I \1
C1
Fisher v. Greene.
that said process of subpoena did so issue, and that said bill is
now pending in said Superior Court of Cook county undeter
mined, on the equity side of said Court.
And this defendant further alleges and shows to the court,
that said Greene was, at the time of ling said bill of complaint
as aforesaid, and is now, a resident of Providence, in the State
of Rhode Island, and was fully apprised of the ling ofsaid bill in
equity in said Superior Court of said Cook county, as aforesaid,
and that said bill was pending in said court undetermined;
nevertheless, he, the said Greene, well knowing the facts, and
knowing that he resided beyond the jurisdiction of said Su
perior Court of said Cook county, and where he could not be
his said conspiracy with said Bayaud to cheat and defraud this
defendant and cause him to pay said four notes unjustly, and
to further annoy, oppress, cheat and defraud this defendant in
the premises, after the rendition of said judgment and the l
ing of said bill in equity, procured a transcript of said udgment
on said four notes, so as aforesaid rendered against this defendant,
and on or. about the 15th day of April, A. D. 1879, com
menced this action against this defendant, which said action is
558
suit in this Court that the said judgment, and the record of
proceedings in which the same was rendered in said Superior
Court of Cook county aforesaid, had been removed,4by writ of
error, to the Appellate Court of said State of Illinois, and was
then pending and undetermined in said Appellate Court; that
said Greene also well knew at the time of the commencement
of ths suit that this defendant had also led said bill in equity
in said Superior Court, praying the relief as hereinbefore stated,
and that said bill was then, and is now pending in said court
undetermined; that said Greene also knew, and is informed of
the fact, that after said judgment was airmed by said Appel
late Court as before stated, that the said judgment and record
of proceedings in said cause were thereupon removed from said
Appellate Court to the Supreme Court of said State of Illinois
for review, and that the same is now pending and undeter
mined in said Supreme Court.
as grounds therefor:
559
Fisher v. Greene.
First.
Second. Upon the ground that said answer and the matters
and things therein contained do not constitute any defense to
the cause of action alleged in the complaint herein.
Third. Upon the ground that the facts alleged in said an
swer are not sufficient to constitute a cause of action, nor to
Fifth. Upon the ground that the facts set forth in the
cross-complaint in said answer are not sufficient to entitle the
560
not the notes of the defendant; that they were falsely and
fraudulently obtained from an agent having no authority to
execute them; that they were without any consideration, and
came to the hands of the plainti' after maturity, were all
matters of defense of which the defendant should have availed
himself in the action at law. and without more, is not sui.
561
Fisher v. Greene.
don, until some time in the fall of 1878; and the dedimus to
take his deposition, was not issued until the 16th of November,
1878.
was taken sick and was detained for a long time. Such al
legations are too indenite for acceptance. We are unable to
tbrm any judgment, either of the importance of the business
which took him to California, or of the length of the time he
532
563
Fisher v. Greene.
564
nor does Reynolds say that they were in any manner dealt with
or even mentioned.
That Reynolds would testify to what he told the defendant,
we are not advised, further than the defendant believes he
would, and were he to testify to all he is alleged to know, it
would, at best, raise but an inference.
That the partner, Bayaud, for the purpose of relieving the
rm of an attachment, should pay $5,000 on the personal in
impossible.
their sufficiency, falls far short of the cases cited in its sup
port, and in our judgment does not authorize us to disturb the
judgment at law.
The judgment of the court below is afrmed, with costs.
Aia-med.
iii
Ln Fnvnn V. CASTAGNIO.
1.
as a partner.
565
Le Fevre v. Castagnio.
566
day of October, 1877, leased for the term of one year, from the
owners thereof, the mining claim or lode known as the Yan
all ores that shall be taken out of said mine on the dump
thereof, on the terms hereafter named, until all sums that may
now be due, or that may hereafter become due to said Le Fevre
for advances made thereon, shall have been fully repaid; and
the said Moffett agrees and binds himself not to sell, remove,
or in anyway dispose of any ores from said mine, until all
such advances as are herein provided for, shall have been fully
repaid. And the said Leon Le Fevre hereby agrees to fur
said Moffett therefor two cents higher per oz. than the term
of the schedule of prices received this day from the Ocean
567
Le Fevre v. Castagnio.
all reasonable times access thereto, and that the same shall be
568
work and labor; and whereas, the said parties instituted suit
against the said Moett for the recovery of said amounts, and
having had certain ore attached'in aid of said suits, and all
First.
to all of said parties, save and except the said Le Fevre, twenty
ve per cent. of their respective claims, as above designated.
Second. Whenever a sufcient quantity of ore is delivered
to said Siddons that will justify him in making another pay
ment of fty per cent.. he shall pay the same out in the man
ner following: To all of said parties twenty-ve per cent. on
the amount on their original claims, and to the said Le Fevre
a like amount of money.
Third. Whenever said ore is all disposed of, or as fast as a
sufficient quantity is disposed of to justify demand of twenty
569
Le Fevre v. Castagnio.
Joseph L. WENSEN,
DANIEL D. SHEA,
CHARLEs M. SMITH.
J. H. ANDERSON.
JoHN CASTAGNIo,
WILLIAM MoHER,
B. A. TolRR,
H. H. CLosLY,
GATEs AvKRY,
G. L. BUTLER,
~i
U1 Q
Q.
Q.
alleged agency had not been established. But the court over
ruled this objection, and permitted said conversation to be
given,
to which
ruling of the courtl the said defendant then
and there
excepted.
A. W113, one time he was upone afternoon he came
down herethere was a break in one of the trucks and he had
A week
57.1
Le Levre v. Castagnio.
In consideration of
agreed to deliver to him all ores taken out of the mine on the
dump, until Le Fevre should be repaid all his advances.
This is the substance of the agreement, and is the common
case of a merchant or other person making advances of money
or goods, or both, to enable a miner to work his mine.
Le Fevre had no interest in the lease, nor any control over
the working of the mine. Limitedly he controlled the ores
mined, but only for the purposes of securing his advances.
It is insisted, however, that sharing in the profits made
him, as matter of law, a partner as to third persons.
572
In such
Par
573
574
lant, the appellee and the other workmen, in regard to the dis
position of the ores for their common benefit, affords a strong
support the verdict of the jury, and the court below should
have granted the motion for a new trial.
The judgment is reversed, and the cause remanded.
Judgment reversed.
property in controversy, or the amount involved does not exceed the sum of
two thousand dollars. Gen. Laws, p. 253.
-*
\J
Q1 U1
persons.
The general laws provide that : The county courts of the
several"counties of this State shall hereafter have concurrent
jurisdiction with the district courts in all civil actions,
suits and proceedings whatsoever, where the debt, damage or
claim, or the value of the property involved, shall not exceed
$2,000, except as otherwise provided in this act.
Section 2 provides : In order to give said courts jurisdic
tion in any action, suit or proceeding, the complaint, or com
plaints, shall state that the value of the property in contro
versy, or the amount involved, for which relief is sought in
such action, etc., does not exceed the said sum of $2,000.
Judgment reversed.
576
EDDY v. HALL.
A frame building erected upon and attached to the realty and used as a
tannery, held in this case to be real estate and not repleviable.
On and prior to September 1st, 1878, was the owner of, and
entitled to possession of, the following described personal
property, goods and chattels, of $550 value, to wit: One
frame building, formerly used for the purpose of a tannery
by the defendant (Eli Hall) and one James H. Johnson, as
577
Eddy v. Hall.
The cause was tried by the court, and in support of her case
the plaintiff offered in evidence the following agreement:
Articles of agreement, made the 23d day of October, 1875,
between Eli Hall and J. H. Johnson, both of Greeley, Weld
county, Colorado, witnesseth:
Said parties have agreed to become co-partners in business,
and by these presents do agree to be co-partners, under and by
the name or firm of Hall & Johnson, in the tannery busi
ness, but more particularly the manufacture of buffalo robes
and other skins, * * and occupy all that is needed for said
business of Lot No. 8, of the N. W. # S. E. # of Sec. 6, T. 5,
N. R. 65 W., in said town of Greeley, for which said Eli Hall
is to be paid therefor a rental of $2 per year.
578
assigns forever. Dated and sealed March 25, 1878; signed and
sealed by Eli II all and J. H. Johnson. .
The bill of sale contained the following indorsement:
For and in consideration of $1,000, Emerson & West sell
and assign all the within described property, and all their
579
Eddy v. Hall.
Hall had been using the tannery building, being near his
residence, for certain purposes, and wished to continue that
use. Gave him permission to do so, but told him I should hold
him responsible for the property in building. Gave him the
key, that he might have access to it. Told him he might so
use it until we made some disposition of the property. Prior
to the payment of $1,000 to Hoover by the sale to us, Hall &
Johnson owed him and wished him to take all the property
mentioned in bill of sale for $1,000 to be applied on indebted
550
& Johnson.
George B. Wyman sworn:
I helped to build the addition to the old part by Hall & John
son. They were getting ready for business. Put on an L to
the old building. It is a frame. My recollection is that the
581
Eddy v. Hall.
582
CnCD O;
I do
hereby contract, and hold myself responsible for the safe and
JAMES F. Tn~:RNEY.
June 1st, 1877.
J. F. TIERNEY, EsQ.:
Superintendent.
One ground of defense set up in the appellauts answer was,
that no coal was sold and delivered in the city of Denver by
ued to perform the agreement on his part until the 23rd day
r
584
585
and prior to June 1st, 187 7, the appellant was the owner of a
coal mine situated in the country several miles distant from
the city of Denver, and had been, and was then engaged in
the working of its mine, and of transporting coal therefrom
by railroad to its coal yard in the city, from which it retailed
and delivered the same to its customers in and about the city
A covenant cannot be
-580'
accepted for the period stated, the one to furnish coal for deliv
ery, the other to deliver it.
587
588
p. 8-10.
The state of facts proposed to be proved by appellant on
the trial, showed a voluntary discontinuance of the business
on the part of-the company, by a sale at the mouth of the pit
of all the coal mined. The facts constituted no defense to the
action, and were properly rejected.
lee that it is too late to say that the company had no knowl
edge of the contract. Tierney continued to execute it in
accordance with its provisions for a period of more than seven
months, during which time the ofcers of the company also.
performed it by permitting Tierney to deliver all the com-\\
panys coal, and by paying him regularly the stipulated com
pensation. If authority on the part of the superintendent to
make such a contract for the company was Wanting, the long
time during which it was executed by both parties, and the
l
I
\
.
\\
'
589
Crisman v. Heiderer.
Cmsmau v. Hsrnuaua.
-1. That the subject matter of a cross-bill is germane to the matters set up
in the original bill, is all the law requires.
2.
defendant to affirmative relief, will be fully stated in the original bill; the
limit of the requirement is that the allegations of the cross-bill shall grow
out of and be connected with the subject matter of the original bill.
3. When airmative relief is sought by a. cross-bill, it is not to this extent
a pure cross-bill, but partakes of the nature of an original bill, seeking further
aid of the court beyond the purposes of defense. The relief sought must be
59O
the adjoining lands. yet the right thus acquired, must be held to the narrow
est limits compatible with the enjoyment of the principal easement. which is
the right to the use of the water. The most reasonable mode of effecting the
object must be adopted. The controlling principle is, that the water shall be
div rted in such a. manner as not to damage or seriously endanger the lands
of owners upon the margin or banks of the stream.
7. Where a demurrer to a. cross-bill in overruled, and the plaintitf elects
to abide by his demurrer, aflirmative relief may be awarded on the cross-bill.
..}91
Crisman v. Heiderer.
south of the bridge, or that the right of way had ever been ac
592
damage.
The answer sets out at some length the facts concerning the
liability of the river to annual oods or freshets, when it over
flows its banks at and above det'endants premises, and threat
ens to cut new channels beyond the western bank; describes
the effect of the ood of May, 1876, at this point, the cutting
away of the west bank of the river ust above his premises in
consequence of these obstructions, and avers that if a similar
freshet occurs, the river Wlll break through the western bank
and form a new channel through his property, thus producing
great and lasting injury. The answer claims that the obstruc
tions placed in the river by the defendant were merely to coun
teract, as far ashe could, the effect of the dams, embankments,
the ditch at the point where the complainant was and is enti
tled to receive it, viz.: at the Larimer street bridge.
The cross-bill sets out the same facts, averring the same
danger from freshets in consequence of the obstructions placed
59.3
Crisman v. Heiderer
38
594
The next objection to the cross-bill is, that the relief sought
is not equitable relief.
The authorities on this question hold, that where airmative
relief is sought by a. cross-bill, it is not to this extent a pure
cross-bill, but partakes of the nature of an original bill seek
ing further aid of the court beyond the purposes of defense.
The rule laid down is, that the airmative relief sought must
he equitable relief, or the bill will be held bad on demurrer.
Storys Eq. Pl. Secs. 398, 629; 2 Daniels, Oh. Pr. p. 15~t9, note
3; Tobey v. Foreman, 79 Ills. 489.
It is observable that the case made by the cross-bill for af
rmative relief is very similar in character to the case made
by the original bill, the injuries complained of in both bills
are trespasses, and similar relief is sought by both.
But it is objected that the cross-bill does not make out a
'
The cross-bill comes within this rule, all of the facts upon
which the appellee bases his fears of injury and damage, being
set out in the bill. We have duly considered these facts and
are of opinion that the fears of the appellee were well founded
and that the damage apprehended was of such a character as to
warrant equitable interposition.
_
It is also objected that there is no averment in the cross-hill
7%
"_
Ll
595
Crisman v. Heiderer.
sion in the appellee at and before the ling of the original bill
of complaint; it also alleges, as we have seen, that the exten
sion of the ditch over this land was wholly without authority,
and that no license or right-of-way has since been acquired
therefor.
596
The appellant had the right to enter the bed of the stream
above the ditch and to remove sediment or obstructions which
may have changed or obstructed the course of the current so
as to prevent it from entering his ditch. The appropriation
of the water at the point named, carried with it an implied au
sity of obtaining water to run the mill did not justify the ap
pellant in arbitrarily adopting a method which was calcu
lated to greatly damage the property of others; it has been
well said that the necessity of one n1ans business is not to he
made the standard of another man's rights; the great maxim
429.
597
Crisman v. Heiderer.
It enjoins
wing-dam, for instance, which may have the effect to raise the
waters above their natural height on or adjoining the premises
of Heiderer. Such a rule is inequitable and would work hard
ship.
A portion of Heiderers land is in the bed of the stream. It
would be unreasonable to say that the water should not be
raised upon this portion of his premises at low water, or that
the volume along the bank should not be increased if neces
sary to get the water into the ditch, and it could be done with
out damage to the appellee.
The controlling principle is, that the water shall be diverted
in such a manner as not to damage or seriously endanger the
lands of owners upon the margin or banks of the stream.
598
the
estate
Upon leave to amend, the plaintiff may not state in his complaint an en
tirely new cause of action.
his deed to plaintiff that he had good right and full power to
sell the same and was well seized thereof as of good, sure and
599
600
The judg
INDEX.
ABANDONMENT.
1. Abandonment is a matter of intention. and operates instanter.
\Vherea miner gives u his claim and goes away without any intention
of re-possessing it, an ahandonment takes place, and it is opento location
by the rst comer.
Derry v. Ross
ACCEPTANCE.
ACKNOWLEDGMENT.
1. Without an acknowledgment or memorandum. a chattel mortgage
mayube valid as between the parties, but it has no effect upon the rights
AGENT.
1. Under the Code (Sec. 37), service upon the agent of the receivers
of a foreign corporation, held sufficient. Gaiiebin v. Ih1.-Ian, 83.
2. The rule is that whenever a party undertakes to do an act as the
agent of another, if he does not possess any authority from the princi
pal therefor, or if he exceeds the authority delegated to him, he will be
Fiimerty et al. v.
7 .
5. The general rule is, that the duties of an agent continue, and
(601)
o02
AGENTCont1'nued.
.
commissions are not due until he has effected a bargain and sale, by a
contract which is mutually binding on vendor and va-ndee. But whui
the agent produces a purchaser acceptable to the owner and able and
willing to purchase on terms satisfactory to the owner, the agent has per
forms 1 his duty and, if through the fault of the owner. the sale is not
consummated, the agent may recover his commissions. Ib.
6. Where
to sell, negotiates
such and
conditional
be
tween
himself an
andaieisnt principal,
the execution
deliverysale
of as
a title
bond to the purchaser or obligee, may be regarded as a sale of the prop
erty, during the option; and the agent may negotiate a. sale of the
same property for the obligee, without forfeiting his commissions. But
if the agent, concealing from the obligee his agency to sell, induce the
latter to undertake, in connection with himself, the lpurchase of the prop
erty, such concealment being obnoxious to the ru es of ublic policy,
will 8.V0l(}ll,1iB commissions, whether the seller knew of the dbuble relation
or not.
See EXCEPTIONS.
A\lEI\'DlV[EN'RS.
1. Deciencies in a record cannot be supplied in the Supreme Court by
ex: parts attidavits. When an amendment is desired to a sheriffs return
appli5it.ion must be made in the court below. Bar-ndollar et al v. Pat
ton,
APPEAL.
1. In taking an appeal from an order denying a motion for a new
trial, under section
of the Code, notice of the appeal must be given
within sixty days after the making of the order. Brown v. W1'llO|.lghI)_l/1 1.
2. An intermediate order" within the meaning of section 346 of the
Code, isan order from which no appeal can be taken, and which, but for
the provision of the Code, could not be reviewed. Ib.
3. Where no appeal is taken from an order denying a motion for a.
new trial, the court will not examine the evidence with a view to de
INDEX.
603
APPEALContinued.
lead th;#" is a vested right, and beyond the peril of subsequent legis
ation.
prior to its passage, is retrospective in its operation, and not only within
the onstitutional prohibition, but within the prohibition of fundamental
#. an
ment in the district court, rendered on appeal from the county court, is
barred after ninety days from the rendition of the judgment. W' the
bar attaches, it cannot be disturbed by subsequent legislation. Hewitt v.
Colorado Springs Co. 184.
13. Objections to pleading not made in the court below will not be
noticed on appeal.
1. The assignment by the obligee or his assignee of a bond for the con
veyance of real estate. comes clearly within the provisions of section 1,
Rev. Stats. p. 111 (1868), and unless recorded will not take effect as
1. The rules of the Supreme Court require plaintiffs in error and appel
lants to assign errors at the time of filing the transcr.pt of the record.
Haas et al. v. Board County Commissioners, 125.
ASSIGNOR :
604
ATT_ACHMENTCont|'n ued.
the lien, acquired not only by the execution, but in case of attachment, of
the attachment lien also, so far at least as respects any junior liens.
Spcclnmn v. Chxrec, 247.
2. The lien of attachment becomes merged in the judgment, and the
only effect of the attachment thereafter, is to preserve the priority of the
lien, and this priority is maintained and enforced by issuance of execu
tion. It the pla.intit'I' neglects to issue execution and loses his judg
ment lien thereby, the attachment falls with it. The same degree of dil
igence is required to preserve the priority of lien as is required in cases
0 execution issued upon ordinary judgments without attachment. The
proper oioe and use of an execution, is to enforce the collection of a
debt and not to create a security. Ib.
3. A direction by the execution creditor not to levy or not to sell. is
111.
See EXEMPTION.
A'ITORNEY-GENERAL:
1. Section 1103 of the General Laws. limits the duties of the At..0mcy
neral to State cases instituted or pending in the Supreme Court of the
gtnte. His duty to appear in State cases in inferior courts, would be
obligatory only when required to do so by the Governor or General As
semb(l%. Atchison T. di" S. F. R. R. C0. v. The People -ex rel. Att'_:/
g G.
2. It . is the duty of the district attorneys to apgear in the district
courts of their respective districts on behalf of the tate.
Sec. 895; Code, Sec. 260.) Ib.
(Gen. Laws,
BANKER:
By the law merchant the banker has a general lieu on all securities
deposited with him by a customer, for his general balance, unless there
is a, contract, ex ress or implied, inconsistent with such lien, and of this
BENEFITS:
See EMINENT DOMAIN, 2.
BILL OF EXCEPTIONS:
1. Attesting and proving a. bill of exce tions b aidavits is a method
of authentication that can not be rr-sorted)to in the absence of neglect
or ret'usa.l" of the judge to allow, sign and seal the bill. Meyer at al.
v. Bin!-leman, 133.
INDEX.
605
hll L OF EXCEPTIONSConti'nued.
3. The ndings of the court are no more a judgment than the verdict
of a. jury in a. cause tried by a jury; and a statement in a bill of excep
tions that ajudgment was rendered, cannot supply the place of the judg
ment itself. Alvord et al. v. McGaiighe_i/, 244.
BO\'D:
1. In debt on a bond, previous demand for payment is unnecessary.
Board of Co. Com. etc. v. Sloan et al. 38.
2. The same matters litigated in a replevin suit may not be re-exam
i)nO%d in a suit upon a. replevin bond. Colorado Springs Co. v. Hopkins,
3. The assignment by the obligee or his assignee of a bond for the
conveyance of real estate. comes clearly within the provisions of Section
1, Rev. Stats. p. 111 (1868), and unless recorded will not take effect
as against subsequent bona rle purchasers or encumbranceis without
notice. McFarran v. Knox et al. 217.
4. The execution and delivery of a bond conditioned to convey a min
ing claim upon payment or deposit of a. certain sum within a sriven time.
the bond not bemg signed by the obligee, containing no clause granting
him possession during the option, and having no consideration expressed
for the option given: Held, that until acceptance by the obliges or the
performance of some act equivalent to an election to purchase under the
terms prescribed, such a bond is a. nudum pactum, and subject to revo
cation; also. that the taking possession under such abond, and making
improvements without objection from the obligor. would not render the
bond irrevocable; nor could such entry be considered equivalent to an
election to purchase, nor be construed into a performance. Gordan et
al. v. Darnell, 302.
BREACH OF COVENANT:
See COVENANT, 2.
CARRIER:
1. The truth of an averment of ownersliip in the consignor, in an
action against a carrier is to be determined y the evidence upon issue
made.
between the consignor and consignee, an the contract with the carrier,
as upon the general rule of law. Ib.
3. A carrier to be liable for injury to a passenger, must have been
guilty of negligence which was the proximate cause of the injury com
plained of. McClelland_et al. v. Burns, 390.
CATTLE :
The general law of this State permits the owners of cattle to allow
them to ranqe at will, and in the absence of local acts, the owners of
Ll RTIFICATE OF INCORPORATION:
See CORPORATIONS.
(.CR'l'IFICATE OF LOCATION:
1. Arecorded certicate of location is a statutory writing infecting
606
CFRTIFICATE OF LOCATION--Continued.
realty, being in part the basis of the miner's right of exclusive posses
sion and enjoyment " of his mining location, granted by the act of Con
gress of May 10, 1872. The purpose of description is to identify the claim
with reasonable certainty. Pollard v. Sliively et al.
'
2. The courses and distances of a. survey must yield to its monuments.
whether natural or articial. Ib.
3. Whileastump, hewed and marked, might he adopted as a location
post, the descripitive survey should give both its real and assigned chair
acter. When t e callin a location certicate is for a post," parol testi
mony is inadmissible to show that while a post " is ca. led for, a
Ib.
Ib.
See CORPORATIONS. 3, 4.
CHATTEL MORTGAGE:
'
1. The chattel mortgage act, upon compliance with which the mort
gagor may retain possession of the property mortgaged, is in derogation
of the common law. and must be strictly construed. To be valid as
against third persons no provision of the act can be neglected. Crane
et al. v. Qhandler, 21.
2. Section 10,
124, Gen. Laws, does not dispense with the re uisites
to the validity o a chattel mortgage, except the recording thereof when
the adversary party has actual notice. Ib.
INDEX.
607
CHECK:
1. A wager as towhether an execution can be collected, cannot be
considered as a wager upon any game within the meaning of the statute.
But as between the original parties to such a transaction, a. check giver;
in payment is void, as being in contravention of sound policy. Bough
ner v. Meyer, 71.
2. Such a check, however, in the hands of a bzma de holder, for
value received in due course of trade, must be (protected. Ib.
3. The holder of a check drawn against fun s cannot maintain an ac
tion in his own name against the drawee who refuses payment, regard
less of the question of acceptance. Colorado Nat. B'k v. Boettcher,
185.
4. To warrant the inference of acceptance from conduct it would seem
that the circumstances must clearly indicate such an intention on the
part of the drawee. Ib.
5. Mere detention does not constitute an implied ameptance, and a
conditional acceptance is not enforceable until complete fulllment of the
condition. Ib.
COMMISSIONS:
1. If an agent act for both parties in the same transaction, he can
not recover commissions from either, unless the parties knew and as
sented to his acting for both. Nor can an agent become the purchaser
without the knowledge and assent of the sel er. nor if he be employed
to urchase can he be himself the seller. Firmerty et al. v. Fritz, 174.
5). The general rule is, that the duties of an agent continue, and com
missions are not due, until he has effected a bargain and sale b a con
tract which is mutually binding on vendor and vendee. But when the
agent produces a purchaser acceptable to the owner and able and willing
to purchase on terms satisfactory to the owner, the agent has performed
his duty, and, if through the fault of the owner, the sale is not consum
mated, thc agent may recover his commissions. Ib.
COMMISSIONERS:
1. Where there is a failure to comply by the commissioners. with the
requirements of the not to provide for the exercise of the right of emi
nent domain, the court or judge may set aside the report, or re-submit and
considered by the commission, the report should have been set aside or
re-submitted. Ib.
COYDITION SUBSEQUENT:
Condition subsequent does not work a. forfeiture of property con
veyed by a. deed, until there is an actual breach. Conditions of orfeit
ure in grunts are not favored, and will not readily be implied. Thev
must be created by express terms or clear implication, and construed
strictly, because they tend to destroy estates. Brown v. The State, 496.
COVSTRUCTION OF STATUTES:
1. ln adopting substantially the statute of another State the legisla
ture is presumed to have intended that such statute shall receive the
same construction given it by the courts of the State from which it was
adopt/ed. BrmIbm-_:/ et al. v. Davis, 265.
2. In adopting the statute of a. sister State, the general rule is that
the legislature adopt also the settled construction given such law by the
courts of that State. Stebbins v. Amhanfq er al. 348.
3. The act of the legislature provided or the selection of grounds for a
008
COYSTRUCTION OF STATUTES--Continued.
capitol within the city of Denver," and located the capitol at the
city of Denver." The ground conveyed by the appellant was sixty feet
south of the corporate hmits of the city: Held, _when the construction of
a. statute is not an unreasonable one, and parties having acted upon it
and acquiesced in it for a. long time, _]llSl.lCE requires that the courts, for
the maintenance of property rights under it, should uphold the con
struction given by the parties.
COYSTITUTION:
1. Under the Constitution (Sec. 2, Art. ll) neither the State, nor any
county, city, town, township or school district, can make any donation or
grant to, or in aid of, or become a. subscriber or shareholder in any corpo:eiion or COII|;)Z1.Il_Y. C.
R. R. Co. v. Lea et al, 192.
(OWSTITUTIONAL LAW:
Where part of an act only is unconstitutional, and when this is
stricken out. if that which remains is complete in itself, and capable of
being enforced wholly independent of that which is rejected, it will be
sustained. The People ex rel. v. Rucker, 455.
the
upon
a liability
incurred in
shipmentoroforder
goods
deslieipment
nds as
wellcarrier
upon the
terms
of the contract,
as the
to surchase
and
between the consignor and consignee, an
COYTINUANCE:
See DILIGENCE, 4.
INDEx.
(30%)
CONTRACT:
1. A third party for whose benefit a simple contract has been enterel
into for a valuable consideration moving from the promisee may maintain
an action in his own name, or may plead it by way of set-off. Green et
al. v. Morrison, 18.
after makes entry, and occupies and uses the land, it is a good acceptance
of the terms proposed, and he will become thereby bound under an im
plied contract to pay the sum named, or if no sum is named, then such
price as the use was reasonably worth. Dickson v. Moffatt. 114.
3. Where an agreement is entered into between a creditor and his
debtor, the terms of which are, that the debtor is to execute a new prom
ise with a surety, in a smaller sum, payable at a future day, the creditor
agreeing to accept the new promise in satisfaction of the old one, the
surety to be sufficient, and the new promise being executed and tendered
and the tender kept good: Held, that such performance and tender con
to the action on the original demand. Whitsett v. Clayton
et al. 476.
the parties, and to this end the court will adopt that construction which
will bring it as near the actual meaning of the '' as the words they
saw fit to employ, when
construed, will permit. The St. L. d:
*''
ject matter of the contract, the situation of the parties at the time of its
execution, and all the surrounding facts and circumstances to be taken
into consideration.
Ib.
9. When a party enters into an agreement which can only take effect
by the continuance of a certain existing state of circumstances, there is
an implied engagement on his part that he will not, of his own mere
motion, do anything to put an end to that state of circumstances under
: '".
mitted.
CONTRIBUTORY NEGLIGENCE:
See NEGLIGENCE.
CONTEMPT:
610
CONTEMPT-C0ntinued.
property belonging to an estate. But the statute is directory nieiely as
to the manner prescribed of bringing to the knowledge of the court in
formation touching such possession. Ib.
3. The law contemplates that upon application for change of venue.
facts shall be stated suicient to inform the judge of the nature of the
causes for the change, and their alleged foundation. Ib.
4. Upon aplplication for change of venue based upon the prejudice of
theaiudge, w ile the facts are to be stated. they are not to be set out be
yon what are necessary, where they involve the judicial acts or charac
ter of the judge.
5. A contempt may consist as well in the matter presented, as in the
manner of the person committing it, lb.
6. No forms. trial is had in cases for contempt, nor is the contempt
purged by an avowal that no contempt was intended. Ib.
CORPORATIONS:
1. In the absence of specic statutory directions, where the pi-opei-t_v
and busines of a corporation is under control of a receiver, the receiver
is the proper person uplon whom service should be had to bring the cor
poration in as a gamis ee. Phelan Impld v. Grmebin, 14.
2. The fact 0 a receiver of a railway corporation being non-resident,
is immaterial, where the receiver is operatin a portion of the railway
within the jurisdiction of the court issuing the garnishee process, and
where the sum due the judgment debtor is payable. 1b.
3. When the interpretation of a charter is doubtful, that construc
tion is to be given to it which is most favorable to the public, provided
it be equally reasonable.
The C. 03- G. R. Co. v, The People, ea: rel.
Taylor, 39.
county, city, town, township) or school ditrict, can make any donation
or grant to, or in aid of, or ecame a subscriber or shareholder ii! any
corporation or company. C. C. R. R. Co. v. Lea et /ll. 192.
7. The etfect oi sections 28 and 48 (R. S. p. 125) of the act concerning
corporations, is to give a road company the right to locate its road on
the general course designated in the articles o incorporation, and when
so located, to construct, maintain and operate the road on the line of
location, subjcctto the conditions of condemnation, compensation and
other requirements of the act. Riddcll er al. v. A. C. T. R. Co. 230.
8. Until the way is located, no rightof-way can be said to attach to
any part~icular land. Ib.
9. There is nothing in the lan'guage oftlie act to indicate an intention
on the Fitfli of the legislature, that upon the location of the road, the
right o the company in respect to its rightrof-way relates back to the
ling of the art-ic es of incorporation, and that sctt ers subsequent to that
date, although prior to the ocation of the road, take their lands siil-ji ct
Ib.
11. As s. gene:-al rule, it is quite well settled that the validity of the
existence of ii corporation cannot be questioned collateraly. Humph
rey-9 v. Mooney/, 282.
12. The omission from the certi cute of incorporation of the latter
_.._..__.
INDEX.
61 1
CORPORATIONSC0nti1med.
clause in section ninety-three of the incorporation act as to the assessa
bility of tlie stock of a. mining corporation, can not, in the absence ot
22. That the creditor who sues is also a stockholder in the company
does not, under the statute, make any dierence, provided he has paid in
full for the stock held by him, and consequently is not individually liable
for the debts of the company. Ib.
COUNTT COMMISSIONERS:
1. Both the Constitution and the statute now authorize the county
commissioners to ll a vacancy in the ottice of county judge, without re
gard to the duration of the unexpired term.
Boughton, 487.
2.B was on the 2nd day of October, 1877, elected county judge for
the term of three years. At the general election held November 2, 1880,
I) was chosen as successor, the term of D to commence on the 2nd Tucs
612
COUNTY COMMISSIONERS--Conlhiued.
day in January next thereafter.
having received his certicate of election. led his oath of oce and of
cial bond, which bond was on the 8th December approved by the board
of county commissioners.
not having had possession of the ofiice : Held, that B id not hold over.
and that, upon the expiration of his term, his successor having been
dfily elegtber and qualied before his death, a. vacancy occurred in said
0 oe.
.
3. The eligibility of the appointee of_the county commissioners. and
the regularity of the manner of_ his qualication, m the absence of facts
tending to show the contrary, Wlll be presumed. Ib.
COUNTY COURTS:
1. The extent of the jurisdiction of the county courts as to their pe
cuniary limit in suits, to enforce lien claims, is to be measured by the
amount involved in each claim severally, and not the aggregate of all
the claims presented against the same property. Keystone Mining Co.
et al. v. Gallagher etal. 23.
2. Where no one claim exceeds $2,000.00 in amount, any number of
claims may be adjudicated in the same proceeding. Ib.
3. Under the provisions of section nine of the schedule of the Consti
tution, tlie county courts, created by the Constitution, were. immediately
upon the adoption of the Constitution, clothed with all the powers there
tofore possessed by the probate courts. Ib.
4. In an action in a county court where it appeals from the complaint.
that the sum sought to be recovered does not exceed two thousand dol
lars, a. special jurisdictional averment is not essential under the statute
(Sec. 572, Gen. Laws, 1877). Barndollar at al. v. Pntfon, 46.
5. Under the statute (Gen. Laws, Sec. 2918), claims against an es
tate may be tried in the county courts before a jur, and without formal
pleading, as in ordinary trials before a justice of t e peace. Charles v.
Eshlmnan et al. 107.
6. The fact that a county judge is permitted to exercise an equitable
jurisdiction in the allowance of claims does not deprive litigants of the
riglht ogbsubmitting facts to juries, at least in actions not purely equit
a e.
.
7. If there be partnership plroperty, and also separate property of a
deceased partner, the partners ip debts are to be paid out oi the pro
ceeds of the joint estate, and the individual debts out of the proceeds of
the separate estate. In the exercise of equitable jurisdiction in the al
lowance of claims, county courts are strictly rest-mined from infringing
on this rule. Ib.
7. The proceedings of the county court must be presumed to have
been regular in every respect, unless the contrary appears in the record.
Gamer v. Chaee, 383.
8. In order to give the county courts jurisdiction in any action, suit
oglproceeding, it must afrinatively appear in the complaint, that the
v ue of the property in controvers or the amount involved, does not
exceed the sum of two thousand dollars. Gen. Laws, p. 253. Home at
al. v. Duet al. 574.
COUNTY JUDGE:
See COUNTY COMMISSIONERS, 1, 2, 3.
COVENANTS:
1. It is a rule that when_ there are express covenants in a deed, oth 1'
covenants will not be implied. Hurd et al. v. Smith,
Immx.
613
COVENA NTSC0nti1med.
2. There is no breach of a covenant of warranty until eviction, and in
pleading man action for such breach eviction must be alleged. I b.
CREDITOR:
See INCUMBRANCERS.
CREDITORFS BILL:
1. Since the adoption of the Code. remedies therein provided for sub
jecting theupropeity of a judgment debtor to execution. must be pursued
whenever equate for the purpose, and a bill in the nature of a creditor's
bill cannot be maintained in such cases. Herfor v. Cliord, 168.
2. The fact that the property sought is a trust fund, interposes no ob~
stacle in subjecting it to the satisfaction of the judgment under the Code,
when the fund was created by the debtor himselt, and the fund sought to
be reached has risen from the sale of his own property. Ib.
CRIMINAL COURTS:
1. The term "county courts " in the Constitution of Colorado (Secs.
22 and 23, Art. Vii. has a distinct meaning, and designates a distinct
court, and can not-, y any rules of interpretation, be made to include the
criminal
The Peo
le ea: rel. v.
Ruclcer,
2. The court.
Constitution
otPColomdo,
neither
by 455.
ex ress words nor neces
sary implication, requires that all judicial oicers shall be elected, and in
the absence of constitutional restraint the power of the General Assem
bly to declare the oice of criminal judge either elective, or appointive in
their discretion, was plenary. Ib.
3. The otce of criminal judge is provided for in article VI of the
Constitution, and is therefore included in section 29 of said artcle. An
existin ofce without an incumbent may be vacant, whether it be a new
or an old one. The legislative authority to create the oice of criminal
judge, and vest the original appointment in the ovemor, by and with
the advice and consent of the senate, is undoubted. The senate not be
ingin session when the act became a law, the govemor had no right to
appoint, and the oice existing without an incumbent. was vacant. This
"vacancy" can be lled only by a pointment by the county commis
sioners, as provided in Sec. 29, Art. iii of the Constitution. Ib.
4. In so far as the act provides that vacancies in the oiiice of judge of
the criminal court are to be lled by the governor, it is in conflict with
the Constitution, and the Constitution must be enforced as the pam
mount law. But the entire act does not therefore necessarily fail.
Where Eart of an act only is unconstitutional, and when this is stricken
out, ift t which remains is complete in itself. and capable of being en
forced,
whollyAssemlbly
inde endent
which
is rejected,
will be court,
sustained.
The General
had of
fullthat
power
to establish
a it
criminal
pro
vide for the appointment of a judge, and x his term of oice; and that
portion of the act decreed unconstitutional being supplied by the consti
tution, the act can be enforced. Ib.
5. Under the Constitution, criminal courts may be created by local
or special" acts, but their organization. jurisdiction and practice must be
grovided for by general laws, of uni orm operation throughout the
'tate.
CROSS-BILL:
1. ' That the subject matter of a cross-bill is germane to the matters
set up in the original bill, is all the law requires.
589.
2.
Crisman v. H'i(Ier'n',
(>14
CROSS-BILLCont|'nued.
titlin a defendant to atlirmative relief, will be fully stated in the origin
al bill; the limit of the requirement is that the allegations of the cross
bill shall grow out of and be connected with the subject matter of the
original bill. Ib.
3. When affirmative relief is sought by a cross-bill, it is not to this
extent a.pure cross-bill, but partakes of the nature of an original bill,
seeking urther aid of the court beyond the purposes of defense. The ne
lief sought must be equitable relief, or the bill will be held bad on de
murrer. Ib.
4. Where a demurrer to a cross-bill is overruled, and the flainti
elects btfl abidbe by his demurrer, airniative relief may be awarde on the
cross- ' . I .
CROSS COMPLAlNT:
See PLEADINGS, 15, 16, 17, 18.
DAMAGES:
1. The genera] rule is, that to authorize a. recovery for damages occa
sioned by the negligence of another, the plaiiitilt must have exercised that
reasonable de ree of care to avoid the in_]ury which an ordinarily prudent
%l;(?)l1 vouliloave exercised under like circumstances. Bah:-ens v. K.
2. The geneml law of this State permits the owners of cattle to allow
them to range at will, and in the absence of local acts, the owners ot
crops can only recover damages done thereto by the trespasses of cattle
when the same are, at the time of the trespass, inclosed by good and suf
cient fences. Morris v. Fraker, 425.
'
See EXEMPTIONS.
DFED:
1. A quit-claim deed is as effectual to mus the title to real estate as
any other, and the Bl.llCl13.Sl accepting sue deed without notice of prior
riglits, will be as fu y protected as if his deed contained full covenants of
warranty. Bradbury et al. v. Dru-is,265.
2. The possession of a deed and its record are prima facie evidence of
its deliverly and acceptance. Brown v. The Slate. 496.
3. Con 'tion subsequent does not work u. forfeiture of PPOPB? con
veyed by a. deed until there is an actual breach. Conditions of fo eiturv
in grants are not favored, and will not readily be im lied. They must
be created by ex ress terms or clear implication, ancl)construed strictly,
because they tend to destroy estates. I b.
_4. For some plurposes the consideration of a deed may be shown to lJ|'
d.1'erent from t at which is expressed. But the rule is. that this cannot
be allowed for the purpose of avoiding the deed or varying its effect. I b.
\\~_
See CONTRACT, 3.
I)ECEDENT'S ESTATE:
See PARTNERSHIP, 1.
DEGREE:
The essential provisions of a. decree in chancery, under the old practice.
could not be settled in vacation. McGan at al. v. 0Neil, 433.
INDEX.
615
DEMAND:
In debt on a bond, previous demand for payment is uniiecessary.
Board of County Connnissioners, etc. v. Sloan el al. 38.
DESERTION :
1. Desertionconsists in the actual ceasing of cohabitation and the in
tent insthe mind of the otfending party to desert the other. Stein v.
Stein 5 .
2. itiatrimonial cohabitation must comprehend a, living together as
lb.
DILIGENCE:
1. To constitute due diligence does not require unusual effort or ox
penditures, but only such constancy in the pursuit of the undertaking as
is usual with those in like enterprises. Such assiduity as shows a Dona
jide intention to complete the undertaking within a reasonable time.
The Highland Ditch L70. v. Mumford, 325.
2. Equity will interfere to restrain an adverse party from availing
himself of a. judgment where there are any facts which prove it to bi
against conscience to execute such judgment, and of whic the injured
party could not have availed himse f in a court of law, or of which he
might have availed himself at law but was prevented by fraud or acci
dent unmixed with any faultor negligence in iinself or agents. Fisher
v. Green, 541.
' 3. Where the facts upon which relief is claimed existed before the
trial at law, and were known to the party asking the relief, or might
have been discovered by the exercise of ordinary diligence, and was as
Sm DUE DILIGECE.
DISSEISIN:
\
'
DIVORCE:
1. Desertion consists in the actual ceasing of cohabitation and the in
tent insghe mind of the offending party to desert the other.
Stein v.
Stain, r .
2. Matrimonial cohabitation-must comprehend a living together as
has generally been asseited and maintained in this country in suits for
divorce in the absence of statutes, as well as under thein. Stebbins v.
Anthony et al. 3&8.
Ib.
616
DRAFT:
See N EGOTIABLE INSTRUMENTS.
DUE DILIGENCE:
To constitute due diligence does not require unusual effort or ex
penditures. but only such constancy in the pursuit of the undertaking as
18 usual with those in like enterprises. Such assiduity as shows 21 bmm
de intention to complete the undertaking within a reasonable time.
The Highland Ditch C0. v. Muuford, 325.
EJECTMENT:
1. ln ejcctment, where the defendant claimed title to the whole prom
ises, disclaiming as to no part thereof, held, immaterial that the defend
ant was in actual possession of only a. part. The C. C. B. R. Co. v.
Smith, 160.
EMINENT DOMAIN:
1. Vllhere there is a. failure to comply, by the commissioners, with the
requirements of the act to provide for the exercise of the right of eminent
domain, the court or judge may set aside the report, or re-submit and direct
a. further nding.
The Pueblo rt A. V. R. R. Co. v. Rudd. et al. 270.
2. Where a. lL'POl't failed to show that the question of benets was con
sidered by the commission, the report shoul have been set aside or re
submitte . Ib.
3. The statute must be trictly construed. Ib.
NROLLED BILLS:
See STATUTES, 5.
EQUITY :
1. Courts of equity will not interfere if a. party slumbers on his rights
or the means of detecting fraud. The full possession of the means of
detecting a. fraud is the same as knowledge. Pipe v. Smith. 146.
Courts of acts
equity
will assume
jurisdiction
0 and
causes
forrights,
the puwrhgre
se
of2.restraining
of trespass
to mining
property
water
the character and extent of the wrongi acts committed renders the in
jury irremediable. or where an action at law, by reason of the insolvency
of tlie2gfenda.nt, would not afford an adequate remedy. Derry v. R0a8
et a .
2 .
INDEx.
617
EQUITY-Continued.
Cris
may see how and why it would result, and that the apprehension of irrep
arable mischief is well founded.
Ib.
ERRORS:
1. The rules of the Supreme Court require plaintiffs in error and appel
lants to assign errors at the time of filing the transcript of the record.
Haas et al. v. Board Co. Com'rs, 125.
2. The rules of the Supreme Court require that each error shall be
separately alleged and particularly specified. The C. C. R. R. Co. v.
Smith, 160.
3. A writ of error only lies to such judgments and decrees of the dis
trict and county courts as are final.
v. McGaughey, 244.
Alvord et al.
4. The findings of the court are no more a judgment than the verdict
of a jury in a cause tried by a jury; and a statement in a bill of excep
tions, that a judgment was rendered, can not supply the place of the
judgment itself.
Ib.
1 The official stenographer of the court was permitted to read from his
notes the testimony of a witness taken at the trial of the indictment, and
who was beyond the jurisdiction of the court at the trial of this cause, for
the purpose of showing want of probable cause: Held, that the stenog
Brown v. Willoughby, 1.
2. It is not error for either witnesses or jurors to make comparison for
the purpose of forming an opinion concerning handwriting, when the
'' used for the purpose constitute a part of the record in the cause
and are undisputed.
ilber et al. v. Eicholtz, 240.
3. The general rule that parol evidence cannot be admitted to contra
dict or contol the language of a deed, but that latent ambiguities may be
explained by such evidence, held, applicable to a location certificate.
Pollard v. Shively et al. 309.
618
EVIDENCE-Conti'nued.
4. Whilea stump, hewed and marked. might be adopted as a locatioii
post, the dcscri tive survey should give both its real and assigned char
acter.
'
See COVENANTS, 2.
EXCEPTIONS:
1. \Vhere a. cause is heard upon an agreed state of facts, no exception
to the judgment is necessary. George v. Tufts, 162.
2. While the Supreme Court will not review ii judgment upon the tes
timony when an exception to the judgment has not been reserved at a.
trial to the court. it will consider errors assigned, based upon exceptions
duly reserved during the progress of the trial. Colorado Springs Co. v.
Hopkins, 206.
Ib.
ity, he may sell under the junior, and the property cannot betziken under
the senior writ from the purchaser: the proceeds. however, must be ap
plied to the senior writ. But to pass title to the purchaser in such a case
the_ sale must be fully consummated, the money paid, and the property
delivered. Ib.
INDEX.
6] 9
require to ay the money to the oicer. further than the costs of others:
but if there be a. dispute about the application of the proceeds of sale, in
case of more than one writ, the otcer may refuse to deliver without pay
ment or may sell again. Ib.
avail him where his mismanagement has all the effects of a. fraud.
Ib
EXEMPTION:
1. A defendant in attachment, claiming (under the statute, subdivis
ion 6 of Sec. 26. Ch. LIII, Gen. Laws) as exempt from levy " implement!
or stock in trade
*
Be
crops can only recover damages done thereto by the ti'espussrs of cattle.
when the same are. at the time of the trespass, incosed by good and
suicient fences. Mon-is v. Fraker, 425.
FlNDlNG:
620
FORFEITURE:
Condition subsequent does not work aforfeiture of property conveyed
by a deed until there is an actual bleach. Conditions of forfeiture in
grants are not favored, and will not readily be implied.
They must be
2.
The rule is, that where the fraud is committed more than three
years before the commencement of the action, the complaint should show
that the discovery was made within the three years next preceding the
commencement of the action. 1 b.
3. The coin lainant must allege not only his ignorance of the fraud.
but when and gow he discovered it. Ib.
4. The bar appearing on the face of the bill, a demurrer to the bill
will be sustained. Ib.
5. Courts of equity will not interfere if a. party slunibers on his rights.
or the means of detecting fraud. The full possession of the means of de~
tecting a fraud is the same as knowledge.
Ib.
GARNISHMENT:
A receiver is amenable to gm-nishee process in the absence of stat
utory provision, and when the rocess does not t-end to disturb his rights
under the general orders oft e appointing court. Phelan, im_pl'd v.
Ganebin.
'
GENERAL ASSEMBLY: .
1. Where the people, by their constitution created the General As
sembly. and declared that the legislative power should be vested therein,
they conferred the full and complete power as it existed and rested in
themselves, sub'ect only to the restraints and limitations of their own
constitution and] the Constitution of the United States. The People e.r
rel. v. Rucker, 4-35.
2. Plenary powers in the legislature for all purposes of civil govern
ment is the rule. A prohibition to exercise a particular power is an ex
ception. In inquiring whether a particular statute is constitutional, it is
for those who question its validity to show that it is forbidden, either by
positive provision or necessary implication. In cases of doubt every pos
sible lpresumgtion and intendment will be made in favor of the constitu
tionn. ity of t e act. and the courts will only interfere in cases of clear and
unauestioned violation of the fundamental law. Courts are not at liberty
to eclare an act void. because in their opinion it is opposed to the spirit
supposed to prevade the constitution, but not expressed in words. lb
GRANT:
See CORPORATION, 6.
INDEX.
62 L
H /\NDWRlTING:
See EVIDENCE, 2.
HEIRS-AT-LAW:
1. A writ of error must be prosecuted within ve years from the date
nlif thge-en<htion of the decree in the court below. Clayton et al. v. Chee
ey. . .
2. Heirs-at-law, prosecuting in that character. have no eater rights
than the ancestor whom they represent, and where he, ifgl-iving, would
not be entitled to a. writ of error, it follows that his personal representa
tives, as such, are equally without the remedy. lb.
HUSBAND:
See WITNESS, 2.
INCUMBRANCERS:
A person having two funds out of which to satisfy his demands,
shall not in equity by his selection disappoint a party who has only one
fund. The assertion of the principle is not affected by the nature of the
property which constitutes the double fund. but applies wherever a. par
amount creditor holds collateral seem-ity,or can resort collaterally to other
real or personal property for the satisfaction of his debt.
The prior incumbrancer is entitled to notice of the junior claim. and
of the intention of the junior creditor to compel the former to make his
selection in compliance with this principle.
The rights of the junior creditor to have this principle administered is
ordinarily enforced by a. decree of subrogation.
To charfize the senior creditor, after notice, he must be shown to have
fect security.
INDORSER:
Ifan indorser does not choose to x his own liability, the law will
x it for him. Dunn v. Ghost, 13 L.
draft. The draft was paid; after payment. but before proceeds came to
defe -dant's hands, defendant was notied that plaintiff had delivered
the draft to C for collection, and that plaintitf claimed the (groceedsz
Held, that defendant was not liable in assumpsit for the procee . Wy
man v. Colorado National Bank, 30.
2. The possession by an indoisee of negotiable papler imports prima
facie that it was acquired bonade for full value in t e usual course of
business before maturity, and without notice of any circumstance iin
peaching its validity, and that such holder is the owner, and entitled to
recover the full amount against all prior parties. Ib.
622
INTE REST:
Under the statute (Gen. Laws, p. 513), interest is not recoverable
upon a verdict. Hawley v. Barker, 118; Cody v. Filley, 124.
INSTRUCTIONS:
1. In construing a charge to a jury, each instruction should be consid
ered in connection with the entire charge, and if, considering the charge
and instructions us a. whole. this court IS satised the jlury were not im
properly advised as to any material point in the case, t e judgment will
not be reversed on the ground of an erroneous charge. McClellan1I rf
al. v. Bm-rm, 390.
JUDGMENT:
1. Underthe Code (Sec. 150) the clerks of the district courts are author
ized to enter up judgments in vacation. The theory upon which judg
ments are so entered, is that the judgment is the sentence which the law
itself ronounces as a sequence of stetumry condition. Phelan Impl. v.
Ganelgin, 14.
2. Under the Code (Secs. 144, 150) judgment may be rendered in
vacation. Barndollar et al. v. Patton, 46.
3. An n pcal under section 338 of the Code lies only from nal judg
ments, and) no authority is found there for taking an appeal from either
an order denying a. continuance, or from an order setting aside a. verdict.
I/utterell ct al. v. Su-isher, 54.
4. Where there are several defendants all served, nal judgment
aaitinst
one oret more
be entered
without disposing the case as to
Bissell
al. v.cannot
Cushman,
76.
5. A judgment against an executor should be for a sum named. paya
ble out of the estate of the deceased in due course of administration.
Maltison v. Childs ct al. 78.
6. While this court will not review a. judgrnent upon the testimony
when an exception to the judgment has not been reserved at a trial to
the court, it will consider errors assigned based upon exceptions duly re
:Ze_rved2(<)16uri.ng the progress of the trial. Colorado Springs Co. v. Hop
'ms,
7. A writ of error only lies to such judgments and decrees of the dis
trict and county courts as are nal. Laws 1879, p. 229. Alvorrl at al.
v. McG'rm he;/, 244.
8. The tqindings of the court are no more a. judgment than the verdict
of a. jury in a cause tried by a jury; and a statement in a bill of excep
tions, that a judgment was rendered, can not supply the place of the
judgment itself. Ib.
INDEX.
623
J UDGMEN'IContinued.
_ 9. Where a motion was made and sustained to vacate a j1|(lf_,'lI1ni
rendered at the preceding term of the district court, held, that however
erroneous the order vacating the judgment, it was not an order upon
which an appeal would lie, being in no sense a nal judgment. Iliggins
V. Brown et al. 345.
10. Ininconstruing
a char
to aentire
jury, each
instruction
should be con
sidered
connection
witgethe
charge,
and if, considering
the
charge and instructions as a. whole, this ciurt is satised the jury were
not improperly advised as to any material point in the cos, the judg
ment will not be reversed on the ground of an erroneous charge. Mc
Clelland et al. v. Burns, 390.
JUDGMENT DEBTOR:
See LIEN, 3.
See C_REDITOR'S BILL, 1, 2.
JUDGMENT CREDITOR:
A judgment creditor may_ maintain an action to cancel a, fraudu
lent conveyance before execution.Allen v. T:-itch et al. 222.
JURISDICTION:.
1. The extent of the jurisdiction of the county courts as to their po
cuniary limit in suits to enfoice lien claims, is to be measured by the
amount involved in each claim severally, and not the aggregate of all
the claims presented against the same property. Keystone Mining (.'u.
et al. v. Gallagher et al. 23.
2. In an action in a county couit where it appears from the complaint.
that the sum sought to be recovered does not exceed two thousand dol
lnrs, a. special jurisdictional averment is not essential under the statiiet
(Sec. 572, Gen. Laws, 1877).
3.
tate may be tried in the county courts before a jury, and without fonnul
Derry v. Ross
the jurisdiction may be ta en _at any time; but in all other cases, if the
party submit to the jurisdiction without objection until the decree is
entered, he thereby waives the objection and can not raise it in the appel
late court. Ib.
7. Under the Constitution, criminal courts may be created by local
or special" acts, but their organization, jurisdiction and practice must be
624
ll. Rl$DICTIONCont1'nuerl.
of the property in controversy or the amount involved, does not exceed
the sum ot' two thousand doliars (Gen. Laws, p. 2-3:3). Home et al. v.
Dufei al. 574.
JURORS :
1. Inability upon the part of persons called to serve as jurors to speak the
English Ian
, and to understand it when spoken, does not necessa
rilyli dis%ii:.h giem from serving as jurors. under the statutes of Colo
rw2.0. Conscientious
e own 0gcruples
Trinidad
v. Sim
6-3. of the death penalty do
against
thleISOH,
iniction
not, in a capital case, necessarily disqualify a juror entertaining tliem.
Stralm v. The Peo le, 276.
JURY:
1. Under the Code (Sec. 188), the c_ourt may _upon application of either
pa.rty_diroct a reference, when the trial of an isue 0
Ib.
Q3. The weight of authority clearly establishes the rule that to permit
a jurytp separate under charge pending the trial of a murder case, is not
error per se; and it not appearing that the rights of the prisoner were
LFGISLATURE:
See GENERAL ASSEMBLY.
__
INDEX.
625
LIEN:
1. By the law merchant a banker has a. general lien on all securities
deposited with him by a customer, for his general balance, unless there is
a contract, express or implied, inconsistent with such lieu, and of this
the court will takejudicial notice. Wymem v. Colorado National Bank,
30.
2. Secret liens, which treat the vendor of personal property who has
delivered possession of it to the urchaser as the owner, until payment
of the purchase money, can not he maintained; they are constructively
fraudulent as to creditors.
3. Under the statute (Laws 1874, Sec. 1, p. 169), upon the lin of an
abstract of judgment in the ofce of the recorder, the judgment Eecame
a lien uplon all the real estate of the judgment debtor. Accrued rights
under t e act were saved bv the act repealing it. (Code, pp. 162-3.)
McFarren v. Knox et al. 217.
4. Real estate subject to execution under the provisions of the Revised
Statutes (Sec. 1, p. 370, 1868), included all interest of the defendant or
any) person to his use. held or claimed by virtue of any deed, etc. It is
to e presumed that the legislature used the term real estate " in the
act of 1874 with reference to this provision, and intended a lien upon
Ib.
See ATTACHMENT.
LIMITATIONS:
See PLEADINGS, 23.
1. Statutes limiting the time within which a. review maybe had,
whether by appeal or writ of error, are in the nature of statutes of repose.
Willoughby v. George, 80.
2. In appeal cases, when special pleading is not allowed, it is proper
for the the
respondent
to apply
theorappeal
it is not
l)l0ll ht
within
time limited
byto
thedismiss
statute,
if theif right
to appealgis
barred in any other manner. Ib.
3. When the right to apgeal is barred by lapse of time, the right to
plsad thelgbar is a vested rig t, and beyond the peril of subsequent legis
a. ion .
.
4. The statute (Act of 1879, Sec. 38, page 229), in so far as it allows a
writ of errortoa judgment in respect to which an appeal was ban-ed
prior to its passage, is retrospective in its operation, and not only
within the constitutional prohi ition, but within the prohibition of fun
damental principles governing retrospective laws. Ib.
5. The bar arising from the lapse of time within which an appeal can
be taken, is a veste
tion.
6. Under the statute (Gen. Laws, Sec. 1682), bills for relief on the
ground of fraud must be led within three years after the discovery. by
the aggrieved party, of the facts constituting the fraud. Pipe v. Smith,
146.
7. A bar by the Statute of Limitations is a defense in the nature of a
special privilege, and must be pleaded specially. Ilertor v. Clrford,
168.
8. Actions upon the ground of fraud must be instituted within three
years after the discovery of the fraudulent acts relied upon as the ground
of relief. or be forever barred. Brarlbury el al. v. Drmis, 265.
9. A writ of error must be prosecuted within ve years from the date of
tlhe i_3eg1__(lition of the decree in the coirtbelow.
011,-
40
626
LlMITATIONSContinued.
than the ancestor whom they represent, and where be, if living, would
not be entitled to a writ of error, it follows that his personal representa
tives, as such, are equally without the remedy.
Ib.
LOCATION:
1. A recorded certicate of location is a statutory writing affecting
realty, being in part the basis of the miner's right of exclusive posses
sion and enjoyment " of his mining location, granted by the act of Con
gress of May 10, 1872. The purpose of description is to identify the claim
with reasonable certainty. Pollard v. Shively et al. 309.
2. The courses and distances of a survey must yield to its monuments,
whether natural or articial. Ib.
3. While a stump, hewed and marked, might be adopted as a location
post, the descriptive survey should give both its real and assigned char
acter. Wheii the call in a location certicate is for a post," arol tes
timony is inadmissible to show that while a post" is ca1l)ed for, a
stump " was in fact established as a corner. Ib.
4. The general rule that parol evidence can not be admitted to contra
dict or control the language of a deed, but that latent ambiguities may
be explained by such evidence, held, applicable to a. location certicate.
Ib.
5. The rule is that where monuments are relied upon to control courses
and distances, they must be found as called for. I b.
6. Marking the boundaries of a surface claim as required by the stat
MAKER:
See NEGOTIABLE INSTRUMENTS.
MALICIOUS PROSECUTION:
1. In an action for malicious prosecution, actual knowledge that a
crime was committed is not necessary, nor is it essential that the prose
cutor should know the facts and circumstances upon which he predicates
his belief. He may act upon credible information or deceptive appear
ances of guilt, if he acts in good faith. Brown v. Willoughb_1/, 1.
2. If in such case the defendant can show that he had robable cause
for his conduct in instituting the prosecution, he is not liable. Probable
cause is such a state of facts in the mind of the prosecutor as would lead
a man of ordinary prudence and caution to believe, or entertain an l"A0hL>t
and strong suspicion, that the person arrested is guilty. Ib.
3. In such action, if want o probable cause be shown, the proof of
actual malice is also requisite to sustain the action. Actual malice may
be proved by the acts and declarations of the party, or it may be inferred
by the jury from the want of probable cause. Ib.
INDEX.
627
MALICIOUS PROSECUTlONC0ntv'nued.
4. Whatever tends to show evil intent on the part of the prosecutor in
instigating the indictment is properly admissible in evidence. The in
tent of the prosecutor is the controlling inquiry when there is a want of
probable cause. Ib.
MANDAMUS:
The prolper function of the writ of mandamus is merely to set in
motion. t will therefore, in a proper case. be allowed to command ac
tioln, but never to control discretion.
37 .
MECHANICS LIEN:
1. The extent of the jurisdiction of the county courts as to their pecun
iary limit in suits toenforce Lien claims, is to be measured by the amount
involved in each claim severally, and not the a.ggregate of all the claims
presented against the same property. Keystone Mining C0. et al. v.
Galla her et al. 23.
2. %'here no one claim exceeds $2,000.00 in amount, any number of
claims may be adjudicated in the same proceeding. Ib.
3. The legal etlect of the latter clause of sect on seven of the act of
1872, is to give the mechanic, laborer or material man. a. lien from the
date of the commencement of the labor or the furnishing of the materials.
Ib.
4. A house built for the use of the mine and being part of the mining
pro ert , may be sold with the mme for the purpose of enforcing a lien
under the statute.
mine, held to be clearly within the meaning of the statute, and for which
alien may be enforce . Ib.
5. Want of personal service and the non-appearance of a. defendant,
in an action to enforce ii lien claim, will not vitiate a decree against such
MINING PARTNER:
The employment of counsel to litigate the title to the mine does not
come within the limited powers vested in a. mining partner. But this
rule does not apply to incorporated mining associations, nor to partner
ships formed under the statutes. Charles v. Eshleman et al. 107.
MINING PARTNERSHIPS:
.
1. The reason assigned for the distinction between th_e ordinary com
mercial partnerahip and a. mining partnership, and for limiting the_pow
ers of the partners of the latter class, is that H. mining partnership is not
62%
MINING PARTNERSHIPSConIinued.
founded on the delrctus personw, whereas the other class is. Charles v.
Eshlemcm t al. 107.
2. The powers of members and managers of mining partnerships are
limited to the performance of such acts, in the name of the partnership,
MISREPRESENTATION:
In order that a misrepresentation may support an action or be of
any avail whatever as a ground of relief in equity, it is essential that it
should be material in its nature. and should be a determining ground of
the transaction. It is not enough that it may have remotely or indi
rectly contributed to the transaction. Larimer County L. I. C0. v.
Cowan et al. 320.
8. After having assigned the debt secured by the mortgage, the power
of the mortgagee ceases, and a release made y him is a nullitybcing
in fraud of the rights of his assignee-and such attempted release will be
canceled, and the mortgage lien enforced by the chancellor. Ib.
4. Where an estate is subject to a mortgage, and is sold by the mort
gagor in parcels at different times,_ the mortgage shall be satisedrst,
out of that portion of the estate still in the hands of the mortgagor, and
then out of the parcels aliened, in the inverse order of their alienation;
and this rule applies equally where the mortgagor has given mortgages
of different dates on the estate. Ib.
5. The purchaser of mortgaged premises has constructive notice of the
incumbrance, and takes it subject thereto; and that onest-ands in the
relation of mortgagee and owner of the rst mortgage, as well as pur
chaser, can make no difference in the application of the rule. A mort
gagee is at liberty to deal with the mortgaged property. and purchase
any portion of it, but, if he do so, there is no reason for exempting him
from the equities which attach in the case of any other purchaser. Ib.
6. As between grantee and mortgagor, the residue remaining iii,the
hands of the mortgagor shall be applied to the Eayinent of the mortgage
debt; as between the grantee and mortgagee, t e latter being a creditor
with two funds, is reciiliired to proceed, primarily, against the fund
Ib.
i MUNICIPAL CORPORATION:
The legal existence of a municipal corporation will be conclusively
Immx.
629
NEGLIGENCE :
1. The eneral rule as to contributory ne ligence, which seems to be
establishes: is that it" the party injured by tie exercise of ordinary care
under the circumstances, might have avoided the consequences of the
defendants negli ence, but did not, the case is one of mutual fault, in
which the law wilgneither cast all the consequences upon the defendant,
nor will it attempt any apportionment thereof. C. 0. R. R. Co.v. Holmes,
197.
2. And when the plaintiff himself so far contributes to the injury by
his own negligence or want of care as but for such fault on his part the
injury wou d not have happened. he is not entitled to recover, un ess the
defendant by the exercise of care on his part might have avoided the
consequences of the negligent conduct of the plaintiff. Ib.
3. As a rule, the existence of negligence is a question of fact for the
jury, but it is otherwise when the facts are not in dispute, or when the
negligence or its absence is evident and unquestionable. In such case
the court may declare the fact established as a matter of law. Ib.
4. A carrier to be liable for injuryto a passenger. must have been
guilty of negligence which was the proximate cause of the injury com
plained of. McClelIunl et al. v. Burns, 390.
5. The general rule is, that to authorize a recovery for damages occa
sioned by the ne ligence of another, the laiuti' must have exercised
that reasonable gegree of care to avoid the injury which an ordinary
prudent person would have exercised under like circumstances. Behrens
v. K. P. Ry. Co. 400.
6. In actions of this character, it is incumbent on the plaintiff to make
outhim
a pr-ima
fncie
casethe
in negligence
his favor, showin
that the damages
claimed
by
resulted
from
of the dzefcndant.
Ib.
7. Where it affirmatively appears from the plainti"s evidence. that
the want of due rudence upon his art was the proximate cause of the
injury complained of. it becomes the duty of the court, upon motion
made for nonsuit, to decide as a question of law that the action can not
be maintained. Ib.
See DILIGENCE.
NEGOTIABLE INSTRUMENTS:
1. Plaintiff drew his sight draft on D in London, payable to the order
of C, a banker; delivered it to C to collect and place to account of plain
titf; C transmitted the draft to defendant, endorsed: " Pay to the order
of the Colorado National Bank for account of C;" C was indebted to the
Colorado National Bank (defendant), at the time for balance, overdraft.
The draft was paid; after payment, but before proceeds came to defend
ant's hunds, defendant was notied that plaintiff had delivered the draft
to C for collection, and that plaint-itfclaimed the proceeds: Held, that de
Wyman v. Colo
-
peaching its validity, and that such holder is the owner, and entitled to
recover the full amount against all prior parties. Ib.
3. The statute (Sec. 7, page 111. R. S.) xes the liability of an as
signor by indorsement of negotiable instruments after diligence against
the maker by suit, unless such suit would have been unavailing. Dwm
v. Ghost, 134.
63O
NLGOTIABLE INSTRUMENTS-Continued.
5. Under the statute an assignee of a note takes it subject to any de
fense existing between the maker and the pa. 'ee, which appears on tha
face of the note, or of which he had notice at the time of the assignment,
and in such case it is immaterial whether the note was signed before or
after it became due. Ib.
6. In an action by an indolsee against an indorser an answer which
alleges that the consideration received by the indorser was less than the
face value of the note, is bad on demurrer. Ib.]
7. If an indorser does not choose to x his own liability, the law will
x it for him. Ib.
OFFICER:
Where, by statute, authority is given to a particular officer, its exer
cise by any other oicers is forbidden by implication. Atchison, T. d;- S.
F. R. R. C0. v. The People ex rel. Aft;/-gem, 60.
this rule.
2. The reason assigned for the distinction between the ordinary com
mercial partnership and a. mining partnership, and for limiting the pow
INDEX.
631
PARTNERSHIP-Continued.
ers of the partners of the latter class, is that a mining partnership is not
founded
the delectus
mrsonw,
theofother
class
is. Ib.
3. Theon
powers
of memlbers
and whereas
managers
mining
partnerships
are
limited to the performance of such acts, III the name of the partnership,
as may be necessary to the transaction of the business, or which is usual
in like concems. Ib.
4. The
employment
of counsel
to liti ate athe
title topartner.
the mine But
does this
not
come
within
the limited
powers vestedgin
mining
rule does not apply to incorporated mining associations, nor to pa.rtner
ships formed under the statutes. Ib.
5. Interest in prots does not necessarily make a person a partner, or
liable as a partner. La Ferre v. Castagnio, 564.
'
6. Where a. person is only interested in the prots of a business as n.
means of compensation he is not a. partner. In such case his interest is
not a property in the prots as such, but a claim against them as a. fund
out of which, when ascertained, he is to be compensated. Ib.
PAYEE:
11. The rule is, that where the fraud is committed more than three
years before the commencement of the action. the complaint should
show that the discovery was made within the three years next preceding
the commencement of the action. _Pipe v. Smith, 146.
62
PLEADlNG-Continued.
12. The complainant must allege not only his ignorance of the fraud,
but when and how he discovered it. Ib.
13. The bar a pearing on the face of the bill, a demurrer to the bill
will be sustained. Ib.
.
14. A bar by the Statute of Limitations is a defense in the nature of a
iigegcial privilege, and must be pleaded specially. Hexter v. Clibrcl,
1-5. In an action on a rerlevin bond for the delivery of the property
in case the return thereo shall be awarded," the breach assigned must
be as broad as the condition of the bond; to allege a. failure to deliver,
Ibe
I b.
26. If it appears on the face of the complaint that the action is barred
by the Statute of Limitations, and no facts are alleged taking the de~
mand out of the statute, a demurrer will lie; but if t e fact does not ap
pear upon the face of the complaint, the defense must be made in the
answer. Il2.
27. Section 1692, General Laws of 1877, establishes a rule of evidence,
and not a rule of pleading. 1 b.
28. Under the Code, where an answer contains no new matter, but
merely denies the allegations of the complaint, no reply is required. Ib.
29. Objection to pleading not made in the court be ow will not be no
ticed on appeal. I"assett et al. v. Mulock. 466.
30. Where a defendant puts in no general denial or other defense
based upon the facts as they existed at the commencement of the suit,
but sets u asa. defense matters subsequently occurring, he is not re
quired to plead by leave of the court by supplemental answer. Under the
code, Sec. 74, and amendments of 1879, p. 216, Sec. 3, are inapplicable
tosuch case. Whittset v. Clayton et al. 476.
31. After a return of the finding ofajury upon certain facts submitted,
the defendant asked leave to amend his answer upon a point submitted
and already covered by the answer: Held, that to have allowed such an
INDEX.
633
PLEADlNGConh'nued.
amendment would have been a very questionable exercise of discretion.
and that the court did not err in refusing to tolerate such an abuse of the
rules of practice. Sears v. Collins, 492.
29. The State, means the whole eogle united in one body politic, and
the State, " and the People of 518 tate, " are equivalent expressions.
A complaint brought in the name of the State of Colorado, is in ef
fect a suit in the name of the People of the State, " and is good on
demurrer. Brown v. The State, 496.
30. A material man to maintain a mechanic's lien under the statute
(Gen. Laws, p. 595, Sec. 1669), must aver and prove that at the time of
the notice served u on the owner, of intention to claim alien, a pay
ment was due or to become due from the owner tothe contractor. Epley
v. Scherer, 536.
31. Upon leave to amend, the plaintn'' may not state in his complaint
an entielz new cause of action. Givens v. Wheeler, 598. See amend
ment, , .
'
PLEADING IN EQUITY:
1. That the subject matter of a cross-bill is germane to the matters set
up in the Original bill is all the law requires. Crismanv. Heirlerer, 589.
2. It is not to be expected that matters of defense. or matters entitling
a. defendant to affirmative relief, will be fully stated in the original bill;
the limit of the requirement is that the allegations of the cross-bill shall
irw (pit of and be connected with the subject matter of the original
3. When airmative relief is sought by a cross-bill, it is not to this ex
tent a pure cross-bill, but partakes of the nature of an original bill. seek
ing further aid of the court beyond the purposes of the defense. The re
lief sought must be equitable relief, or the bill will be held bad on (le
murrer. Ib.
4. The mere allegation that irreparable injury will result unless pro
tection is extended is not sufficient, but facts must be stated, that the
court may see how and why it would result, and that the apprehension
of irrex_a}.lrable mischief is well founded. Ib.
5.
ere a demurrer to across-bill is overruled, and the glaintilf elects
ttlolabidg by his demurrer, airmative relief may be awarde on the cross
POLICE MAGISTRATE:
1. The creation of the oioe of police judge for a. city or incorporateil
town is within the legislative authority; an the election of such olcer
may, by law, be conferred upon the municipal authorities of cities of cer
tain classes; but the creation of a judicial oliicer by name merely, with
out dening his duties and providing the manner of their exercise, does
not constitute a court. In the absence of statutory authority the city
council can not establish jurisdiction and provide for the exercise of judi
cial functions. The People ear rel. V. Carley, 412.
2. A police magistrate," under the laws of this State, must be a
justice of thedpeaee. duly elected and qualied, primarily, and by ap
pointment or esignation by the proper authorities of a. municipality.
may become a police magistrate ezzoicio. Ib.
3. The otce of police judge, as denominated in sections 2714 and 2720
of the General Laws, can only be established and fully equipped for ser
vice by the legislature of the State; such oicer is not the creature of the
municipal authority of a city or town-such municipal authority can not
invest the office with any powers or functions of its own creation; and It
person assuming as police judge to exercise judicial functions under no
($34
lULlCE MAGISTRATEC0ntinued.
other license than that conferred by municipal authority, is guilty of
usurpation. Ib.
POSTS:
See LOCATION, 8, 9.
PRACTICE UNDER THE CODE:
titfs complaint led in this court in this action, duly certied, together
with interest and the cost of this suit:
with the section requiring the general cause and nature of the action "
to be stated in the summons. Ib.
8. Under the Code (Secs. 144, 150), judgment may be rendered in
vacation. Ib.
9. An appeal under section 338 of the Code lies only from a nal judg
ment. and no authority is found for taking an appeal from either an
order denying a continuance or from an order setting aside a verdict.
Lulterel er al. v. Swisher, 54.
10. It is a general rule that when the statute provides a remedy to test
the right to exercise a franchise or oice. it is exclusive of all other rem
igies. Atchison T. & S. F. R. R. Co. v. The People ea: rel. Att_i/-gen.
11. An action for the usurpation of an oice or franchise is a civil ac
tion under the Code of this State. and must be governed by the rules
applicable thereto; must be instituted by ling a complaint and issuing
a. summons. and proceeded with the same as an other action. I b.
12. Where there are several defendants all served, nal judgment
against one or more can not be entered without disposing of the case as to
a l. Bissell at al. v. Cushman. 76.
13. Under the Code (Sec. 14), an action upon a joint note may be
INDEX.
635
14. The survivor and executor of a deceased joint maker can not. how
ever, be joined in the same action, and in such case it is irregular to pro
ceed 8,g3J2St the executor without dismissing the complaint as to the sur
vivor. I .
'
15. Under the Code (Sec. 37), service upon the agent of the receivers
of a foreign corporation, held sutlicient. Ganebin v. Phelun, 83.
16. It is well settled that papers led in the progress or trial of acause
at nisiprius, and not intrinsically arts of the record, can not become such
by being incorporated therein. "Pike et al v. Campbell. 126.
17. Attesting and proving abill of exceptions by aidavits is a method
of authentication that can not be resorted to in the absence. of neglect
or refusal " of the judge to allow, sign and seal the bill. Meyer at al v.
Inlcleman, 133.
18. If the appellants negligently postpone all action until the last dag:
of the time limited for signing a bill of exceptions, they can not ask to
Eelitevetd frpgn the hardship of a. temporary absence of the judge from his
is ['10 .
.
19. Under the Code (Sec. 338) an appeal to this court on a judg
ment in the district court, rendered on appeal from the county court.
is barred after ninety days from the rendition of the judgment. When
the bar attaches it can not be disturbed by subsequent legislation.
Ilewitt v. Col. Springs C0. 184.
_
20. Under the Code (Sec. 188) the court may, upon application of
either party, direct a reference when the trial of an issue of fact requires
the examination of a. long account on either side. The referee may be
directed to hear and decide the whole issue, or report upon any specic
question of fact involved.
636
dict for the defendant. This practice is common to both the Code and
the Common Law. Murlphy v. Cobb et al. 281.
32. When a. fiarty dec ines to avail himself of the opggrtunity offered
in the court be ow to amend his pleadings upon their
ing argudged
insufficient, he brinigs his cause into this court upon his own iigisgment
and at his own peri . The Colorado Springs C0. v. Hopkins, .
35. Where a trial was to the court, and its ndings were announced.
and counsel gave notice of a motion for ii. new trial, and subsequently at
the same term led his motion, but the motion was not disposed of until
the subsequent term: Held, that the proceedings at the mt term, sub
sequent to the ndinis, operated to reserve the case and to continue the
jurisdiction beyond t at term, for the purpose of disposing of the nio
tion and the settling the bill of exceptions. Ib.
36. The ndings of a court do not constitute a judgment. Ib.
37. After a return of the ndings of a jury upon certain facts submit
ted, the defendant asked leave to amend his answer upon a point sub~
mitted and already covered by the answer: Held, that to have allowed
such an amendment would
discretion, and that the court did not err in refusing to tolerate such an
abuse of the rules of practice.
5. The rules of the Supreme Court require that each error shall be
separately alleged and particularly specied. The C. C. R.R. Co. v.
Smith, 160.
6. VVhilc this court will not review a judgment upon the testimony,
when an exception to the judgment has not been reserved at a trial to
the court. it will consider errors assigned based upon exceptions duly re
i9l'V8\'1z((_lll'l.Xlg the progress of the trial. Colorado Springs Co. v. Hop
ms, , .
1.
_-77
INDEX.
637
of the petition in that behalf had been furnished, and the amendment hav
ing been made, and the cause being still pending in this court, leave will
be granted in furtherance of 'ustice, to le the supplemental record, al
though the cause had been submitted at the previous term. Stebbins v.
Anthgnvget al. 342.
9.
ere the plaintiff failed to assign error during vacation under
an order of court, and defendant led a motion to dismiss for non
compliance with the order, no delay in the submission of the cause having
occurred, the motion to dismiss was denied. Home et alv. Due! al, 344.
The
PRACTICE IN CHANCERY:
1. Under the old system of practice a nal decree could not be entered
in vacation. McGan et al. v. O'Neil, 58.
2. The verdict of a jury as to issues of fact framed by the co".rt in a
suit in equity, has not the dignity f a like verdict in an action at law.
It is advisory only. It is the duty of the court in such case to sift the
entire evidence, and to found such decree thereon, as may be warranted by
all the facts elicited. Ib.
3. Filing an amended answer is a waiver of error that might have
been committed by the court in sustaining exception: to the original
answer, the same matter being set up and relied upon in defense at the
hearin . Derry v. Ross et al. 295.
4. The essential provisions of a decree in chancery, under the old prac
tice. could not be settled in vacation. McGan et al. v. O'Neil,
See EQUITY.
See PRACTICE UNDER THE CODE, 6.
PRINCIPAL AND AGENT:
A title bond executed by the owner of the property, that only gives
to the obligee an option to purchase. but not being a mutual obligation
binding upon both contracting parties, is enforcible only bv acceptance
and performance of its conditions, during the continuance of the option.
And where an agent to sell negotiates such conditional sale as between
himself
and his princi
al, themay
execution
and delivery
bond
to
the purchaser
or oblligee,
be regarded
as a saleofofsuch
the title
property,
durin the option; and the agent may negotiate a sale of the same prop
erty gr the obligee, without forfeiting his commissions. But i the
agent, concealing from the obligee his agency to sell, induce the latte:
638
PRIOR INCUMBRANCER:
See INCUMBRANCERS.
PROBABLE CAUSE:
1. lf in an action for malicious prosecution the defendant can show
that he had probable cause for his conduct in instituting the | r secution.
he is not liable. Probable cause is such a state of facts in the mind of
the prosecutor as would lead a man of ordinary prudence and caution to
believe or entertain an honest and strong suspicion, that the person ar
rested is guilty. Brown v. Willoughbg/, 1.
2. In such action, if want of probable cause be shown, the proof of
actual malice is also requisite to sustain the action. Actual ma ice lI1il_\'
b = proved by the acts and declarations of the party, or it may be infe rcd
by the 'ury from the want of probable cause. Ib.
PROBATE COURTS:
See DIVORCE, 4.
PROCESS:
Under the Code (Sec. 37). service upon the agent of the receivers of
a foreign corporation, held sutlicient.
PROFITS :
1. Interest in prots does not necessarily make a person n partner or
liable as a partner. LeFevre v. Castaqnio, 564.
2. Where a. person is only interested in the rots of a business as a.
means of compensation he is not a partner. iii such case his interest is
not a property in the prots as such, but a claim against them as a fund
Ib.
PROMISSORY NOTE:
1. Under the _Code (Sec. 14), an action upona joint note mav be
maintained against both jointly, or either, separately.
Childs ct al. 78.
llIam'so'n v.
2. The survivor and the executor of a deceased joint maker can not.
however, be joined in the same action. and in such case it is irregular to
INDEX.
639
PURCHASE MONEY:
See EXEMPTIONS, 3.
PURCHASER:
A purchaser
at execution
saleoliicer,
underfurther
his ownthan
execution,
not be
required
to ay the
money to the
the costsma.
otxothers;
but if thereie a dispute about the application of the proceeds of sale, in
case of more than one writ, the oiiicer may refuse to deliver withoift pay
ment or may sell again. Speelman v. Chafee, 247.
QUIT-CLAIM:
See DEED, 1.
QUO WARRANTO:
1. Under chapter twenty-ve of the Code, a. proceeding instituted for
the purpose of remedying the usurpation or misuse of a. corporate fran
chise or a public oice is by civil complaint and summons. The crim
inal form of the old action is superseded by civil action. In terms,
chapter seventy-three of the Revised Statutes authorizing proceedings by
quo amrranfo, is repealed by section 477 of the Code. The C. rt G. R.
C0. v. The People ea: rel. Taylor, 39. .
2. The Constitution confers original jurisdiction on this court to issue
The Peo
3. The repeal of the statute git. S. Ch. LXXIII), and the enactment of
the Code remedy did not take rom this court its original jurisdiction in
qua warranto proceedings conferred by the Constitution. _ lb.
RATIFICATION:
Ratication can only be eB'ectual between the parties when the act
is done by the agent avowedly for gr on account of the principal, and not
when it is done or or on account gt the agent. Charles v. Eshlcmmi
et al. 107.
REAL ESTATE:
Real estate subject to execution under the provisions of the Re
vised Statutes (Sec. 1, p. 370, 1863), included all interest of the defend
ant or any person to his use, held or claimed by virtue of ugly deed, etc.
lt is to be presumed that the legislature used t e term re estate in
the act of 1874 with reference to this provision, Ind intended alienupon
ahlatever real estate there might be a levy. McFar1-an v. Knox: at al.
RECEIVER:
1. In the absence of specic statutory directions, where the property
and business of a. corporation is under control of a receiver, the receiver
is the proper person upion whom service should be had to bring the cor~
poration in as o. garnis ee. Phelrm Impl. v. Grmebin, 14.
2. The fact of s. receiver of a. railway corporation being non-resident
640
RECEIVER--Continued.
5. Under the Code (Sec. 37) service upon the agent of the receivers
of a foreign corporation, held suicient. Ganebin v. Phelan, 83.
RECORD:
It is well settled that papers led in the progress or trial of a cause
atqnisi prius, and not intrinsically parts of the record, can not become
such by being incorporated therein. Wike et al. v. Campbell, 126.
RELATION:
See RIGHT-OF-WAY, 3.
RELIEF IN EQUITY:
See EQUITY.
REPLEVIN:
A frame building erected upon and attached to the realty anl
used as a tannery, helrl in this case to be real estate, and not replevin
ble. Eddy v. Hall, 576.
REPLEVIN BOND:
1. In an action on a replevin bond for the delivery of the property in
case the return thereof shall be awarded, the breach assigne must he
as broad as the condition of the bond; to allege a. failure to deliver,
RES ADJUDICATAE:
The doctrine of res a_djudica_lae requires that the same identical
SIDE POSTS:
See LOCATION.
SALE:
See EXECUTION, 6.
INDEX.
641
SECRET LIEN:
See LIEN.
SET-OFF:
A third party for whose benet a simple contract has been entered
into for a va uable consideration moving from the proinisee may main
tain an action in his own name, or may plead it by way of set-off. Green
et al. v. Morrison, 18.
SHERIFF'S RETURN:
r
STATE :
1. It is accepted law, that a State, as a political corporation, may
maintain, in its corplorate name and in its own courts, actions for the en
forcement of its rig ts or the redress of its wrongs indeiendently of any
statutory grovisions therefor.
2. The state, means the whole people united in one body politic, and
the State, and, " the People of the State," are equivalent expressions.
A complaint brought in the name of the State o Colorado, is in ef
fect a suit
the name of the People of the State, and is good on de
murrer.
.
STATUTE:
1. It seems that under the Constitution so much of any act as
directly germane to the subject expressed in the title, is without
That the provision of the Constitution is a mandatory declaration
essential condition to the validity of legislative enactments. The
is not
force.
of an
C. di
2. In adopting the statute of a sister State, the general ru'e is that the
Leg-isla ure adopts also the settled construction given such law by the
courts of that State. Strbbins v. Anthony et al. 348.
3. In adopting substantially the statute of another State, the legisla
lature is presumed to have intended that such statute shall receive the
same construction given it by the courts of the State from which it was
adopted.
4. The act of the legislature provided for the selection of grounds for
ca
itol wit-hin
city of conveyed
Denver,"by
and
the was
capitol
at
the
city
oflilenver."
Thethe
ground
thelocated
appellant
sixty
feet
south
of the corporate limits of the city: Held, when the construction of a stat
ute is not an unreasonable one,-and parties havin acted upon it and ac
quiesced in it for along time, justice reitiires that the courts. for the
maintenance of property rights imder it, s ould uphold the construction
given by the parties. Brown v. The State, 496.
5. The printed statutes published by authority, and the enrolled bills
dul authenticated and on le with the proper custodian, are pr1'1na_faciv
evidence of what the law is, but not conclusive.
In re Roberts, 525.
41
642
STENOGRAPHER:
See WITNESS, 1.
STI PULATION :
unpaid stock held by them (Rev. Stat. Col. Chap. 18, Sec. 12). a creditor
may maintain an action at law against an individual stockholder. and re
cover i()i;lSJ amount of unpaid stock held by him. Smith at al. v. Lon
doner. .
- .
full for the stock held by him, and consequently is not individually liable
for the debts of the company. I b.
SUBSCRIBER:
See CORPORATION, 6.
SUPPLEMENTAL RECORD:
See PRACTICE IN THE SUPREME COURT, 8, 10.
SURVEY:
The courses and distances of a survey must yield to its monuments,
whether natural or articial. Pollard v. Shioely et al. 309.
See LOCATION.
TIME :
1. Under the chanoery act, before the adoption of the Corle, in the
com utation of time of publication of summons. the rule was to EX('ll1(l
the day of publication and include the rst day of the tenn. Stvbbius v.
Anthony et al. 348.
2. The general current of modern authority is that where a statute re
quires an act to be performed a certain number of days prior to a. day
named, or within a definite period after a day or event specied, or where
time is to be computed either prior or subsequent to a day named. the
$1l3.l!:'ll.1l8 isItbo exclude one day of the designated period and to include
e 0 er.
.
TITLE BOND:
1. A title bond executed by the owner of the property, that only gives
to the obligee an option to purchase, not being amutual obligation bind
ing upon both contracting parties, is enforcib e only by acceptance and
performance of its conditions during the continuance of the option. Fin
ncrly et al v. Fritz, 274.
Iivriizx.
643
'1lTLE BOND-Conti'~nued.
bond irrevocable; nor could such entry be considered equivalent to an
election to purchase, nor be construed mto a. performance. Gordon et al.
v. Darnell, 302.
TITLE OF STATUTE :
It seems that under the Constitution so much of any act as is not direct
I germane to the subject expressed in the title, is without force. That
the provision of the Constitution is a mandatory declaration of an essen
tial conditionto the validity of legislative enactments. The C. * G. R.
C0. v. The People en: rel. Taylor, 39.
TOLL ROADS:
1. The effect of sections 28 and 48 (R. S. p. 125), of the act concern
ing corporations, is to give a. road company the right to locate its road
on the general course designated in the articles of incorporation, and
when so located, to construct, maintain and operate the road on the line
the right of the company in respect to its ll%l1ii of way relates back to the
ling of the articles of incorporation, and t at settlers subsequent to that
date, although prior to the location of the road, take their lands subject
to the company s right of way. Ib.
4. The doctrine of relation is sometimes resorted to, to prevent an in
justice, but never to work one. Ib.
TOLL ROADS:
A toll road company organized under the incorporation act of 1874
(Laws 1864,
66, 28), may not establish and collect tolls at two gates
dist-ant less t an ten miles from each other. The C. xi G. R. Co. v. The
People ex rel. Taylor, 39.
TRIAL BY JURY :
1. Under the Code (Sec. 188), the court may upon apgilication of either
party direct of
a reference
when on
theeither
trial side.
of an The
issuereferee
0 fact
re uires
the
examination
a long accoimt
maytlie
direct
ed to hear and decide the whole issue, or ieport upon any specic ques
tion of fact involved. Huston et al. v. lVadsuro1'th. 213.
2. In this State there is no constitutional impediment in the way of a.
liberal construction of the Code remedy. The provision of the Constitu
tion of t-he United States (Art. VII, amendments) securing the right of
TRUST FUND :
See CREDITOR'S BILL, I, 2.
USE AND OCCUPATION :
Where one contemplates entering into possession of the lands of
another to occupy for use. and is informed by the lessor that he can do so
upon terms stated, or for a reasonable compensation, and the party there
644
VACANCIES:
See CRIMINAL COURTS, 5, 6.
See COUNTY COMMISSIONERS, 1, 2, 3.
VENUE :
1. The law contemplates that upon application for change of venue,
facts shall be stated sufficient to inform the judge of the nature of the
causes for the change, and their alleged foundation. Hughes v. The
People, 436.
2. Upon application for change of venue based upon the prejudice of
the judge, w ile facts are to be stated. they are not to be set out beyond
what are necessary, where they involve the judicial acts or character of
the judge. Ib.
VERDICT :
1. The verdict of a jury as to issues of fact framed by the court in a
suit in equity, has not the dignity of a like verdict in an action at law.
lt is advisory only. It is the dutiy of the court in such case to sift the
entire evidence, and to found such ecree thereon, as may be warranted by
all the facts elicited. McGann et al. v. O'Neil, 58.
2. Where the plaintitf shows upon the trial no cause of action. or
makes out no case whatever. and no motion for nonsuit. is interposed, it
is not only the right, but may be the duty of the court to direct a ver
dict for the defendant. This practice is common to both the Code and
the common law. Murphy v. Cobb et al. 281.
VESTED RIGHTS:
See LIMITATIONS, 3, 5.
WAGER :
1. A wager as to whether an ex cution can be collected, can notbe con
sidered as a wager upon any game within the meaning of the statute.
But as between the original parties to such a transaction, a. check given
in payment is void, as being in contravention of sound policy. Bough
ner V. Meyer, 71.
2. Such a check, however, in the hands of a bonade holder, for value
received in due course of trade, must be glrotect-ed. Ib.
3. It is not sutcient to aver, in plea 'ng, that the assignw is not a
bona {dc holder, in an action by the ass gnee against the drawer; the
defen ant must aver that the plamtiE' had notice of the original trans
action, and the burden of proof of bad faith rests with him who assails
the title on that grolmd. Ib.
WARRANTY :
See COVENANTS, 2.
WATER:
While one may have the right to enter the bed of astream above
his ditch, and to remove obstructions which may have changed or ob
structed the course of the current so as to prevent the water from enter
ing his ditch, and have implied authority to do all that should become
INDEX.
645
WATER-Continued.
necessary to secure the benet of the appropriation of the water, and may
acquire an easement in the adjoining ands, yet the right thus acquired
must be held to the narrowest limits compatible with the enjoyment of
the principal easement, which is the right to the use of the water. The
most reasonable mode of effecting the object must beadopted. The con
trolling principle is, that the water shall be diverted in such a manner as
not to damage or seriously endanger the lands of owners upon the mar
gin or banks of the stream. Crisman v. Heiderer, 589.
WITNESS:
1. The otcial stenographer of the court was permitted to read from
his notes the testimony of a witness taken at the trial of the indictment,
and who was beyond the jurisdiction of the court at the trial of this cause
for the purpose of showingwant of probable cause: Held, that the stenog
ra.pher's testimony was competent. Brown v. Willoughby, 1.
2. Under sections one and ve of the act of February 11, 1870, the
husband in a. suit for divorce was s, competent witness, and desertion
held, under the act. to be such a. personal wrong as would bring the
husband within the exception provided by the terms of the statute.
Stebbins v. Anthony et al. 348.
WRIT OF ERROR :
1. A writ of error only lies to such judgments and decrees of the dis
trict and county courts as are nal. Laws 1879, p. 229. Alvord et al.
v. McGau_r]he_r/, 24-1.
---.
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UNIV. OF MICH.
BINDERY
DEC 3.1.1957
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